Sequor Counsel to Appear at IWIRC Brazil

Sequor Law Shareholder Leyza Blanco participated as a speaker in the 3rd International Insolvency Congress at IWIRC Brazil on September 14, 2021.

Sequor Council Nyana Miller will be speaking at the 3rd International Insolvency Congress at IWIRC Brazil on the UNCITRAL Model Law Panel September 23, 2021!

Virtual September CLE Luncheon

September 14, 2021

Emerging Issues in Chapter 15 and Comparative Enactments of the Model Law on Cross-Border Insolvency

Daniel Coyle and Juan Mendoza of Sequor Law, along with colleagues Edward Comey-Law Clerk to Hon. Michael Williamson, Lucianna Lima-Duarte Foressell Advogados and Sarah Murray-Stevens & Bolton will provide a unique perspective on the enactment of the Model Law in the UK and Brazil and discuss some ways in which those enactments differ from the Model Law and how these laws tie into Chapter 15 under section 1508.

Sequor Law Recognized in the 2022 Edition of the Best Lawyers in America

Sequor Law is pleased to announce that four of the firms Shareholders were recognized in multiple categories in the 2022 28th Edition of The Best Lawyers of America®. Founding Shareholder Edward Davis was recognized in Bet-the-Company Litigation, Commercial Litigation, International Arbitration – Commercial and Litigation – Banking and Finance, Founding Shareholder Gregory Grossman was recognized in Bankruptcy and Creditor Debtor Rights / Insolvency and Reorganization Law and Litigation – Bankruptcy, Shareholder Leyza Blanco was recognized in Commercial Litigation and Litigation – Bankruptcy and Shareholder Fernando Menendez was recognized in Bankruptcy and Creditor Debtor Rights / Insolvency and Reorganization Law. Visit www.bestlawyers.com to see the latest edition.

Sequor Law’s Summer Series Podcasts

In this series, our distinguished Sequor Law attorneys sit down with other subject-matter experts to discuss cutting-edge legal issues, from the recovery of cryptocurrency to the psychology behind financial fraud to uncovering nominees and other aiders and abettors.

See below our upcoming podcasts for the month of August. 

 

Hot Topics in Cross Border Insolvency

with Sequor Counsel Nyana Abreu Miller

August 19, 2021 

12PM EST 

 

Expert Guest Speakers:

Sarah Murray, Head of Dispute Resolution, Stevens & Bolton (UK)

Felipe Vieira, Attorney, Duarte Forssell Advogados (Brazil) 

In this podcast episode, three lawyers specializing in cross-border insolvency and litigation discuss recent developments in the United States, Great Britain, and Brazil. A Brazilian lawyer will discuss Brazil’s recent implementation of the UNCITRAL Model Law on Cross-Border Insolvency. An English solicitor will look at remedies available in the English courts to support efforts to recover assets, in accordance with the principles in the Model Law and more generally through Mareva/freezing injunctions and Norwich Pharmacal Orders. A U.S. lawyer will address the treatment of corporate groups in cross-border cases and recent decisions of interest arising under the Model Law.

Click here to register

 

The Effect of the General Data Protection Regulation on Discovery

with Sequor Attorney Amanda Finley 

August 25, 2021

4PM EST

 

This podcast episode will discuss the case law regarding the GDPR as interpreted under U.S. law. It will address the various approaches that U.S. courts have taken in response to objections to discovery based on the GDPR. Finally, it will address practical actions that both plaintiff and defense counsel may take in order to resolve these disputes effectively.

Click here to register

 

The Tangled Web They Weave: Detangling the Web of Nominees, Aiders and Abettors

with Sequor Attorney Carolina Goncalves and 

Director of Investigations Barbara Miranda

August 31, 2021

2PM EST 

 

Expert Guest Speaker:

Julieta LaMalfa, Director of Disputes, Compliance & Investigations, Stout (US)

The use of nominees, aiders and abettors to transfer and hide assets is common throughout all jurisdictions. Moreover, each jurisdiction has different levels of public records and information available to identify the ultimate beneficial owners of assets as well as laws related to piercing through these facades to ultimately access the assets of the debtor. With this in mind, this podcast is meant to give an introduction into the types of nominees, aiders and abettors, how to identify them, the availability of records reflecting ultimate beneficial ownership in various jurisdictions, and potential legal tools to use once you have sufficient evidence to show a judge that these individuals and/or entities are in fact nominees, aiders and/or abettors of the debtor.

Click here to register

Global: An Introduction to Asset Tracing & Recovery (Law Firms)

By Arnoldo B. Lacayo, Daniel M. Coyle, Alejandro Anselmi

Facing the Cryptocurrency Challenge With Existing Asset Recovery Instruments: Give Us the Tools and We Will Finish the Job

The coronavirus pandemic has caused extreme damage between 2020 and 2021. The human toll itself is staggering: the United States recently surpassed six hundred thousand COVID-19 deaths. In other parts of the world, 1.2 million lives lost across Europe, over 500,000 in South-East Asia, and more than 100,000 in Africa have contributed to an approximate worldwide total of over 4 million deaths since the beginning of the pandemic. Moreover, the genesis of new variants on different continents threatens the amazing progress made on the development of vaccines and the mass distribution of these scientific wonders throughout the world’s populations.

Even though healthcare workers, medical practitioners, and the scientific community must be praised for facing the viral threat in several hundred million infections and engineering at least six different vaccines to combat a novel virus, the community of legal practitioners has addressed the secondary effects of the world’s shut-down: battered economies and economic sectors and increased opportunities for fraudulent practices. This article will endeavour to provide a bird’s eye view of two of the most significant challenges that have emerged from the changed landscape of the post-COVID world economy: the growing ubiquity of cryptocurrencies and corresponding opportunities for their misuse. However, considering that the impacts of the catastrophes the world experienced in 2020 and 2021 are still playing out today, the consequences of economic contraction and recovery and the role of cryptocurrencies for U.S.-based legal practitioners are anything but clear and will depend largely on the motivations of a wide array of actors, ranging from federal and state governments, the ordinary consumer, and potential fraudsters seeking opportunities from the uncertainties of a changed world.

Insolvencies and Stock Market Disappointments in Early 2020 Benefitted Cryptocurrencies

The economic crisis spurred by the shutdowns in 2020 abruptly ended the longest economic expansion in U.S. history, which had been ongoing since the passing of the Emergency Economic Stabilization Act of 2008 and the American Recovery and Reinvestment Act of 2009. As a result, public company bankruptcy filings reached their highest level in the past decade, with corporations in the service and oil and gas industries leading the drive in these numbers. Moreover, given the dive in stock prices during March 2020, investors of all kinds flocked to the cryptocurrency market, while banks, money managers, and other financial entities more readily embraced digital assets like cryptocurrencies. Despite the astounding rebound in the stock market by December 2020, to say nothing about the elemental disconnect between success stories on Wall Street and the pain felt by most on Main Street, digital currencies like Bitcoin and Ether saw their value exponentially increased, 300% and 470% respectively. These sharp increases in value, albeit unstable, further incentivized the use of these virtual currencies for everything from purchasing a sandwich at Subway and for more nefarious purposes, like facilitating ransomware payments, scamming and defrauding amateur investors, money laundering, financing terrorism, or drug trafficking on the dark web.

International asset recovery and insolvency practitioners must study these trends and develop effective strategies to better serve their clients and help combat fraudulent practices worldwide. However, considering that traditional cash assets were already highly mobile, the decentralized nature of many cryptocurrencies facilitating the unregulated movement of these at even larger scales will make the illegitimately achieved gains from criminal enterprises or fraudulent transfers exponentially more difficult to find and recover. Typically, the victims of fraudulent transfers or other criminal enterprises that succeed in recovering their lost assets depend on both the ability of asset recovery practitioners to analyse, identify, and attach stolen assets within existing legal frameworks in disparate jurisdictions where scammers and fraudsters decide to hold or hide their ill-gotten gains. As has become well known, the biggest challenge for insolvency and asset recovery lawyers in cases involving digital assets like cryptocurrencies involves the dual challenge of discovering where these assets may be hidden, plus the second challenge of deploying either untested or poorly adapted legal mechanisms available throughout the world to freeze these assets.

The Cryptocurrency Angle: Still Relatively New, But Already Wreaking Havoc

Currently, many regulations acting on the exchange and use of cryptocurrencies are found at the state level. Some states, like Wyoming, have moved to facilitate the use and transaction of digital assets. For instance, the Wyoming legislature created a new type of “bank” that will serve businesses by allowing investors to deposit their digital assets. Other states have exempted cryptocurrencies from state securities laws and accepted the payment of taxes in cryptocurrency. Other jurisdictions remain apprehensive about the use of digital currencies and have either altogether prohibited the use of cryptocurrencies when paying for government services or simply warned their citizens about the risks of investing in cryptocurrency.

The federal government in the United States has yet to comprehensively address the regulation of cryptocurrency, despite apparent recognition that embracing cryptocurrencies will prove important for the nation’s future infrastructure and its role in the vanguard of the market’s development worldwide. On one hand, apprehension or unwillingness to act on cryptocurrencies is best illustrated by the Securities Exchange Commission’s (“SEC”) recent announcement that it will not address virtual currency regulation in the short term despite their meteoric rise in value and transactions. On the other hand, the Anti-Money Laundering Act of 2020 (“AML Act”) made several changes to the Bank Secrecy Act (“BSA”), through which it modified the BSA’s definitions to encompass regulation of cryptocurrency and other digital assets. The AML Act achieved these modifications by referring to cryptocurrency and digital assets as “value that substitute for currency or funds,” perhaps to cast as wide a net as possible in recognition of the highly fungible nature of the market for digital assets and cryptocurrency. Similarly, administrative action through federal agencies, like the Treasury Department’s Financial Crimes Enforcement Network (“FinCEN”), has resulted in proposed rulemaking in 2020 and 2021. For instance, FinCEN’s proposed regulation, pursuant to the aims of the BSA, seeks to establish requirements for banks and money services businesses transacting virtual currencies and other digital assets with legal tender status. New requirements under the proposed regulation would demand banks and money service businesses to submit reports, maintain records, and verify the identities of customers involved in transactions of virtual currencies and digital assets. However, FinCEN’s proposed regulation has not yet cleared the requisite administrative procedures to come into force. Meanwhile, the U.S. House of Representatives approved a bipartisan effort to legislate digital assets. If approved by the Senate and signed by the President, the Eliminate Barriers to Innovation Act of 2021 would establish a working group, composed of members of the SEC and the Commodity Futures Trading Commission (“CFTC”), tasked with facilitating collaboration between the government and the private sector and clarifying when the SEC has jurisdiction over digital assets as securities or when the CFTC would have authority when digital assets are categorized as commodities.

Nonetheless, some policymakers worry that suddenly promoting too much regulation will eliminate incentives for investors and consumers to develop the market. In the meantime, what was once a trickle of queries and consultations for asset recovery specialists relating to losses associated with digital assets (or where ill-gotten gains may have been converted into digital assets) has grown to a steady stream and portends to grow even further. To be sure, for some victims the losses are material and are causing real financial pain and damage.

What Can Courts and Practitioners Do?

Mechanisms to recover digital currencies are limited because of the very nature of cryptocurrencies. Digital currencies were created with the singular purpose of avoiding the influence of any central or official authority. For instance, cryptocurrencies are designed as a peer-to-peer electronic cash system. Cryptocurrency traders on decentralized exchanges benefit from the lack of an official entity that regulates all digital currency transactions because there is no need to confirm the credentials of other traders with a payment processor when conducting a transaction. On decentralized platforms, only a particular owner may access and dispose of their digital asset because no central authority exists that can exercise control over a particular cryptocurrency wallet to preserve or help recover ill-gotten proceeds. Meanwhile, cryptocurrency wallets hosted on centralized exchanges may be subject to government regulatory oversight, requiring wallet owners to provide identifying information. Public addresses, the equivalent of bank accounts in the digital currency world, can only be accessed and controlled by private keys linked to that address. As long as the owner of the cryptocurrency maintains their private key secret, no one and no governmental authority is able to access their funds, even in official proceedings. Consequently, the only way to access funds that have been converted into crypto assets is to gain access to the owner’s digital asset wallet with a private key.

The U.S. Federal Trade Commission (“FTC”) reports that the allure of increased anonymity in cryptocurrency transactions (as opposed to traditional cash deals) has led to a rise in scams since October 2020. According to the FTC, approximately 7,000 people have reported losses totalling more than $80 million, nearly twelve times the number of reported cases in 2019. Another increasingly popular tool in the repertoire of fraudsters and online criminals that have adopted cryptocurrency is the utilization of ransomware attacks against companies and institutions with weak IT systems. Cybersecurity has become more difficult to maintain during the coronavirus pandemic because many workers are working from home, using personal internet connections to access delicate institutional mainframes. Coupled with the benefits of decentralized digital currencies, cybercriminals are more easily able to attack weak security systems and evade law enforcement and other financial regulations when they demand payment in cryptocurrency, providing a blueprint for white-collar criminals seeking to hide assets including during and after judicial proceedings.

The Colonial Pipeline ransomware attack during May 2021 was a wakeup call for both cybercriminals and asset recovery practitioners. After Colonial paid $4.4 million in Bitcoin, the Department of Justice was able to trace the ransom money through blockchain analysis. The FBI was able to recover approximately $2.3 million of the original payment, demonstrating to the legal community that it is possible to recover assets criminally taken, even if in cryptocurrency form. Nonetheless, while clearly a victory for law enforcement, it still presents a challenge for asset recovery specialists practising primarily through civil process. It is still unclear precisely how the FBI was able to retrieve the funds from the cryptocurrency wallet containing them because the government has not revealed how it was able to obtain the private key. In private civil proceedings, insolvency and asset recovery lawyers dealing with fraudulent transfers likely will not have the international cooperation, technical resources or subpoena power available to the FBI to quickly uncover information or to freeze the cryptocurrency, much less to access cryptocurrency wallets to obtain an injunction or once a court order or judgment against fraudulent transferors has been issued.

At the pre-trial stage, asset recovery efforts face two significant challenges. First, cryptocurrency wallets on decentralized exchanges are identified only by the public address and there is no way to discover the identity of the owner of the wallet unless the exchange is required to—and does—maintain “Know Your Customer” information. Therefore, those seeking to recover stolen assets converted into digital currency and “hidden” must first conduct blockchain analysis, like the DOJ’s Ransomware and Digital Extortion Task Force efforts during the Colonial Pipeline investigation. A blockchain analysis involves reviewing the public ledger, where all cryptocurrency exchanges are recorded, to trace the transactions of the ransom payment and subsequent transactions the fraudsters use to attempt to secrete the digital assets that are the proceeds of the fraud or theft. The analysis identifies suspicious transactions that are linked with the fraudster’s attempts to disguise the flow of the cryptocurrencies. This step might prove costly for some practitioners who might not have in-house access to the necessary quality of cyber and forensics teams available to the government, forcing some practitioners dealing with a cryptocurrency hunt to outsource blockchain investigations to third-party commercial entities. Further complicating issues for international asset recovery practitioners there is a stark absence of internationally recognized rules governing the collection and handling of digital evidence. This greatly benefits cyber-criminals and fraudsters because the speed with which private asset recovery specialists and law enforcement are able to trace and gather required evidence to litigate or prosecute (as opposed to simply recovering ransom pay, like in the Colonial Pipeline situation) is likely to be slower than criminals and debtors can move and hide their assets. This is especially true given that cryptocurrency is truly global in nature, and cross-border asset recovery is dependent upon principles of comity where domestication/recognition of non-final orders may be non-existent and domestication/recognition of final orders is time-consuming and expensive. However, as with other asset recovery efforts, not all hope is lost when confronted with a sophisticated fraudster or criminal. The key thing is to identify the institutions and entities that can be compelled to produce evidence, which will allow for the trace or forensic review. This is where knowledgeable professionals and courts can assist victims seeking to uncover and recover digital assets.

Second, ensuring that a court preserves its jurisdiction over a defendant (i.e., preventing flight or further transfer and secreting of assets) and avoiding judgment-proofing tactics through unmonitored transactions presents a wholly different set of challenges for practitioners. Luckily, insolvency and asset recovery specialists can seek preliminary injunctive relief to prevent debtors from judgment-proofing tactics by inhibiting the movement of assets or can seek equitable remedies such as the naming of a trustee, receiver, or other disinterested third-party office holder to take control of a vehicle used to hold an asset or perpetuate a fraud. Additionally, courts can issue different kinds of orders, like various injunctions, worldwide freezing orders, and Spartacus orders, which can help prevent wrongdoers from further transacting ill-gotten gains.

Furthermore, the availability of these judicial tools largely depends on applicable law, which is an issue further complicated by the nature of digital assets, which makes it so that victims of cyber-criminals have a more limited ability to prevent an absconding defendant from secreting the digital assets beyond the jurisdiction with the most effective legal tools. Perhaps this area most strongly requires an international effort to recognize cross-border asset recovery operations involving cryptocurrencies. A legislative approach like the Model Law on Cross-Border Insolvency (UNCITRAL), which has promoted a coordinated legal regime that facilitates cooperation between nations in international insolvency cases, may be what is required to afford victims and asset recovery practitioners an effective way to tackle the novel practicalities of dealing with digital currency recoveries.

At the post-judgment stage, some of the instruments to recover stolen cryptocurrency assets (or those converted into digital currencies) are writs of execution, replevin, and levy as well as in personam orders compelling individuals to act with certain assets under pain of contempt However, while these tools may be powerful to recover properties and enforce money judgments, these mechanisms are difficult to use where judgment creditors are not in possession of private keys necessary to access cryptocurrency wallets or where the debtor has absconded the court’s jurisdiction with digital assets and the private keys to access them. Even where judgment debtors are threatened with contempt of court for failure to comply with judicial orders, judgment debtors fleeing U.S. jurisdictions with large amounts of digital assets may not be sufficiently motivated to comply given the ease with which they can easily move, transfer, and otherwise hide their digital wealth abroad. Amendment of statutory provisions and tools for post-judgment recovery to better address crypto-assets must be considered in the immediate future.

The Uncertainties of the Mission Require Even More Preparation

While it appears that cryptocurrencies are here to stay, providing bona fide investment opportunities to professional and amateur traders alike, as well as a regulation and law enforcement evasion tool for cybercriminals, their stability and value in the long run remains uncertain. In late May 2021, a widespread cryptocurrency crash eliminated approximately $1 trillion in market value, with Bitcoin losing close to 30% of its value. The causes of the crash, statements from Tesla’s CEO Elon Musk and crackdowns in China over use of digital currencies, strongly suggest that the market remains exceedingly sensitive to pop-culture and regulatory influences. While cryptocurrencies have increasingly become more mainstream, they are still relegated to the edges of financial systems because they are still not widely accepted as legal tender and are limited to private transactions between individuals online. However, more and more nation-states and municipalities are voicing openness to potentially accepting these digital currencies for official business. Whether cryptocurrencies will become the main form of payment for all transactions in the future is an altogether different question that remains to be comprehensively answered and may also depend on the environmental impact of the mining of cryptocurrency, which is notoriously energy-intensive. However, that does not mean that insolvency and asset recovery practitioners can afford to wait for the question to be settled. Given the current trends seen regarding the prevalence of cybercrime and its preferred method of payment, lawyers at the vanguard of fraud and cross-border asset recovery must contribute to the development of judicial tools and legislative frameworks that promote international cooperation and facilitate digital asset recovery. Developing these tools will allow the law and the courts to modernize with the times, placing cyber-crime victims, creditors, and practitioners on equal footing with online criminals, debtors, and the Internet.

To see the original article, click here.

Attorney Spotlight: Juan Mendoza

Our Sequor Law attorneys are some of the best in the industry. That’s why we’ve created the Attorney Spotlight, a monthly series that gives you a glimpse into the lives of our attorneys and their unique insights. To kick off our series, we interviewed Juan Mendoza.

What inspired you to study law?

It was really a collection of moments that inspired me to pursue law. When I was younger, I was very indecisive about what I wanted to do. I studied economics and finance during college because I enjoyed business and I liked to understand how things worked. I was even interested in pursuing engineering at one point, but it wasn’t until I took a law class that I started to develop an interest. At the time, I was part of the Honors College at Arizona State University, and they allowed me to take graduate coursework such as health law and the philosophy of law. I fell in love with the problem-solving aspect, the fact that it was intellectually fulfilling, and that I was able to help people in the process. For me, trying different things was the key to helping me discover what was the best fit for my personality.

What practice areas do you focus on?

I focus on domestic and cross-border bankruptcy and commercial litigation. Typically, these are cases involving fraud allegations.

What is most exciting to you about being a lawyer in this day and age?

In this day and age, everything is so expeditious. With phone and email, everyone expects you to answer quickly, and during the COVID-era, the legal industry has learned to adapt. Many judges are now holding remote hearings and actually prefer it to in-person hearings. Clients also understand that zoom is king, so most of them want to have meetings over video. This has opened up opportunities to network and interact with professionals and potential clients, no matter where we live.

In the case of cross-border insolvencies, I’ve also seen exciting developments in the interconnectivity of businesses and the legal framework. Due to the model law, we now have a mechanism that recognizes cross-border insolvency cases. I’ve also noticed that many other countries have implemented similar frameworks that allow them to recognize and assist U.S. bankruptcy cases in foreign jurisdictions. This will lead to more coordination, cooperation, and helps us know what to expect.

What advice would you give to young attorneys?

  1. Always be a sponge. Whenever you have an assignment, learn as much as you can about the subject. Early on in your career, you have the luxury to be very thorough. Once you become more senior, people will expect you to know the answers off the top of your head and you won’t have the opportunity to research, so it is important to take advantage of this time.
  2. Find some mentors, both at your firm and outside your firm. Look for someone you can bounce ideas off of, ask questions, and get career guidance. But remember this goes both ways, so it is important to cultivate and nurture those relationships.
  3. Get involved. Find an organization or two that you want to be involved in and be active. Don’t just go to the meetings – partake in projects, get into leadership, and meet other members. This is especially helpful as a young attorney because you have the opportunity to build your network and learn from other attorneys.

How US Companies Have Responded to Calls for Equality, Inclusion and How Law Firms Can Follow Suit

Many of our country’s largest industries have made significant changes as a result of this increased awareness and outspokenness in regard to the systemic issues that underlie the failures in diversity at the leadership levels.

By Harsh Arora | July 21, 2021

With the recent anniversary of the death of George Floyd and the conclusion of the trial and sentencing of Derek Chauvin that has dominated the national conversation, it is clear that the calls for racial equity and equality that have defined the past year will continue into the foreseeable future. Many of our country’s largest industries have made significant changes as a result of this increased awareness and outspokenness in regard to the systemic issues that underlie the failures in diversity at the leadership levels. Such organizations have responded by committing to both long term and immediate initiatives in order to rectify their own institutional biases.

While the lack of representation at the leadership and executive levels of our country’s largest and most recognizable companies is far from a novel issue, many companies have recently committed to diversity and inclusion efforts that have the potential to create real and lasting change due in large part to the increased pressure from shareholders and customers. Notably, these efforts go beyond previously broad responses; and instead, range from creating funds and investing in initiatives designed to expand opportunities and promote equality to disclosing previously private race, gender and ethnicity workforce data. It consequently has had a dual effect of helping identify underrepresented groups as well holding the reporting companies accountable.

Although these investments and increased transparency are significant steps, it is also important to point out that diversity at the executive level at our nation’s largest companies still presents a significant challenge. For example, only about 10% of directors at the 200 biggest S&P 500 companies are Black and the percentage of Black executives joining boards has recently stagnated.

There are many reasons for this lack of representation as there are systemic issues in relation to hiring practices and pools of candidates. While the investment initiatives in which many companies are engaging will increase the number of diverse applicants and help create more opportunities, many companies and their outside institutions are also taking more immediate steps in order to increase diversity. For example, since September 2020, at least 75 organizations have taken part in or have supported the Board Challenge to add a Black director within the next year and foster continued diversity efforts. Moreover, the NASDAQ recently filed a proposal with the SEC requiring any company with fewer than two diverse directors, including persons who self-identify as either an underrepresented minority or LGBTQ+, to provide a reasonable explanation as to why or risk being delisted. Even governments are getting involved as the State of California recently passed a law requiring publicly traded corporations headquartered in California to appoint directors from underrepresented communities to their boards.

Despite the pendency of the NASDAQ proposal and likelihood of challenge to the California diversity law, these initiatives represent how organizations are responding to the consumer push for immediate and recognizable results. Accordingly, based on a report by BoardProspects, Black board members accounted for 18.5% of all new board appointments to Russell 3000 companies following George Floyd’s death. Moreover, 62% of all Black director appointments between 2019 and 2020 occurred after he died.

As corporations and their related institutions pledge to do their part to promote diversity and racial equity, many companies and organizations have pressured the law firms that represent them to respond in kind. In general, the legal profession is often perceived as lagging behind other professions and industries in the area of diversity, particularly in leadership positions. This perception is backed by the most recent report from the National Association for Law Placement (NALP) which shows that while persons of color make up 25% of law firm associates, they make up less than 10% of partners. NALP described the progress toward diversity at law firms as steady and incremental but “so slow as to almost seem imperceptible.” Accordingly, more and more business owners and corporate executives are starting to notice that the lawyers and law firms hired to represent their interests do not resemble them demographically. This discrepancy, combined with the renewed commitment to addressing diversity issues, has led to increased and more comprehensive diversity requests from clients inquiring about how specifically law firms are supporting diverse attorneys.

In response to these demands and client pressure, law firms have similarly spent the past year creating and investing in initiatives in order to confront their diversity issues. These initiatives include considering diversity and inclusion-related work as billable hours that will count toward bonus thresholds, creating mentorship programs for new associates in order to help increase retention and internal promotion, and more generally, expanding and improving recruiting efforts to reach more diverse candidates.

In addition to the foregoing initiatives(much like the corporations they represent) law firms are being pushed by their clients for immediate actions and results. Accordingly, over 100 law firms have signed on to seek certification under the Mansfield Rule, which is overseen by the legal diversity organization, Diversity Lab and requires the consideration of at least 30% women, lawyers of color, LGBTQ+ lawyers, and lawyers with disabilities for leadership and governance roles, equity partner promotions, formal client pitch opportunities, and senior lateral positions.

While this general push by the legal community is encouraging, many corporate lawyers and outside counsel are held to even a higher standard due to the polices of the companies they represent. This higher standard includes requiring law firms to implement policies and hire associates at rates that are tied to national census data. The most publicized proponent of this effort has been Coca-Cola, which earlier this year announced a policy requiring at least 30% of billed associate and partner time be from diverse attorneys; and stated that if firms fail to meet diversity requirements for two consecutive quarters, that it will cut 30% from the firm’s fees for new matters and possibly lead to losing Coca-Cola as a client. Since the announcement of this policy; however, its status has come into question as GC, Bradley Gayton who spearheaded the initiative, has recently stepped down and his replacement, Monica Howard Douglas, has reportedly told the legal team the policy had been paused. While this change disrupts the momentum that was created when Coca-Cola’s diversity policy was first announced, it has not stopped the overall corporate pressures on law firms to meet diversity criteria as just recently Nokia launched an equality, inclusion and diversity scorecard program to assess whether their key law firms are implementing an effective equality, inclusion and diversity strategy. While Nokia’s policy and others like it are not as forceful as the in-flux CocaCola policy, they represent how companies are holding their law firms accountable and mandating actual improvement in the areas of diversity and equality.

Despite the foregoing, it is completely justifiable to be skeptical over the effectiveness of scorecards and surveys without the inclusion of concrete milestones and penalties; especially considering that this is not the first time corporations and general counsels have put pressure on law firms to increase diversity and inclusion efforts. In 2019, general counsels from more than 170 organizations similarly called on law firms to increase diversity and signed a letter that threatened to move on from outside counsel that do not try to hire and retain female and nonwhite attorneys. With diversity numbers at law firms in 2020 increasing slightly, but ultimately failing to signify significant improvement, the extent to which the GCs that signed the 2019 letter followed-up on their diversity demands is largely unknown.

The difference between 2019 and the current movement and why the apparent demise of Coca-Cola’s forceful diversity policy is not a troublesome indicator; however; is that companies are still being pressured by consumers to have diversity metrics and executive suites that match the make-up of our country. As such, it is no longer acceptable for law firms to hold themselves accountable, as after a year of racial reckoning, clients and customers have now assumed that responsibility.

This shift in accountability is already being felt in the legal community as the institutions that surround the legal industry are putting mechanisms in place to foster positive change. This is especially evident in Florida, with the diverse leadership within the Florida Bar business law section (BLS) and the recent initiatives of BLS. For the first time in its history, the BLS will have consecutive female chairs as Kacy Donlon was recently named chair-elect, following the current chair, Leyza Blanco (the first Hispanic chair of BLS).

As one of its initiatives, BLS set forth a new policy requiring a minimum number of diverse faculty at section sponsored continuing legal education programs. While the Florida Supreme Court ruled against this policy in April, it is yet another example of how the legal landscape, especially in connection with business law and corporate lawyers, is ready to be changed.

Harsh Arora a partner with Kelley Kronenberg, P.A., in Fort Lauderdale, Florida, and is the co-chair of firm’s diversity & inclusion committee. He focuses his practice on business litigation and serves as outside general counsel for public and privately held businesses. Contact him at harora@kklaw.com 

To see the original article, click here.