Complex and Significant Matters in the Legal Profession

Episode Notes

Transcript

Law Technology Now

Complex and Significant Matters in the Legal Profession

07/22/2020

[Music]

Dan Rodriguez: Hello and welcome to another edition of Law Technology Now. My name is Dan Rodriguez and I’ll be the host for today’s show, delighted to have a conversation here with Jeff Kelly from North Carolina. Before I introduce Jeff and before we get into the show today, I want to take a minute to thank our sponsors.

Thanks to our sponsor Acumass patent and trademark renewal payments made easy. Find out how Acumass.com and take the stress out of the annuities and save you money on European patent validations today.

And Logikcull, thanks to our sponsor Logikcull, instant discovery software for modern legal teams. Logikcull offers perfectly predictable pricing at just $250 per matter per month. Create your free account anytime at Logikcull.com. That’s Logikcull.com/ltn.

Without further ado, I’m delighted to welcome our guest for today, Jeff Kelly. He is a complex litigation attorney and legal data analyst with broad experience from complicated business disputes, risk assessment and legal project management. Jeff advocates for companies and individuals faced with significant business disputes, most often involving corporate and securities litigation, internal investigations, financial services, fraud, trade secret and intellectual property protection, and unfair trade practices. He has experience serving clients in state, federal and international courts.

I get to know Jeff given his important role as chair of the North Carolina Bar Association’s Future of Law Committee, which is charge with tracking and analyzing the impact of emerging technology on the practice of law and delivery of legal services. He serves a council member for the North Carolina Bar Association’s Appellate Practice Section and Antitrust and Complex Business Disputes Section. He’s also an advisory member to the North Carolina State Bar’s Regulatory Reform Committee.

Welcome Jeff. It appears from that long bio I just read that you have more than 24 hours in the day when the rest of us mere mortals only have 24 hours. It is quite a heavy plate that you have. So let me get into it by actually start at the beginning which is your practice area. Tell us how you got into it. I’ve used the word “complex and significant” a number of times in introducing you. So you’re working on complex and significant matters. How did you get into the legal practice that you’re in today?

Jeff Kelly: Thanks for having me Dan and I think the complex is just a good way of talking about ideal things no one else really wants to deal with that it doesn’t fit very well. So it started off pretty easily with — you’re talking about your standard business disputes, corporates and really messy matters. But over time, you know, if gives you an opportunity to see some of the common threads between a lot of different subject matters, but you’re talking about clients and businesses that while they’re not uniform, there are similarities between them. That’s where the sort of legal analyst if you want to call it that comes into it where I’d say that was on early end of adopting some analytics. I do that for a specialized business court that I practice in. And it really helps to — especially as a younger attorney, to figure out where things are going and communicate that to your clients. So let’s say that that would be the main roadmap for what I do and it’s branched out into a lot of different practice areas and it’s going beyond just litigation at this point because you can translate the core process to in-house clients or government bodies. And so it’s kind of how I found myself in a number of different advisory positions too.

Dan Rodriguez: Let me ask you about that, what you just said about going beyond litigation. So you know, the classic way that we communicate to our students and young lawyers is, (a) choose between being a transactional lawyer and (b) being a lawyer in litigation, right? But your practice seems to blur that distinction in important ways. Seems like you’re actively involved in litigation obviously, in behalf of your clients and all the advice and representation that goes along with that. But you’re also engaging in transactional work. Am I accurate in describing you as blurring those lines?

Jeff Kelly: Yeah. I think that there is definitely a blurring of practice areas and the pillars of transactional and litigation or in-house are not really what they are anymore. I mean that’s something that we work with young associates, with also law students on kind of try and break some of that dichotomy and a lot of our — Dan, you’re a mutual friend as far as Cat Moon and others are working with like the Delta Model for example where we’re trying to find a way of talking about those paradigms and realizing that the fact that I do a lot of litigation gives me a certain perspective that’s beneficial for the deal side of things. And the fact that I actually understand how business operates for example, makes me a more effective litigator. This is maybe a luxury of being a boutique litigation firm where I actually have an opportunity from frankly Day 1 of my license to work directly with my clients. I’d say that through this pandemic, especially the closeness of being able to work with clients — actually operating for a lot of small companies, but still big in operation, where I’m effectively their general counsel stepping in, helping them avoid litigation is invaluable and that’s — I mean frankly why I think the practice is about, right? Is being able to really help folks navigate the system as opposed to kind of shepherding them once they’re in it.

(00:05:20)

Dan Rodriguez: You referenced the pandemic, so let’s come to that directly. Are you finding in the last few months as we continue to endure this crisis, that you’re being asked for different kinds of services and to do different things by your clients in light of the COVID crisis?

Jeff Kelly: Absolutely. I think that — I don’t know who said it, but decades in weeks. That’s how it’s been feeling is that every single week since about mid-February or so has been a completely different set of practice. I mean it all touches on business and international transactions and to the extent the course we’re operating fully with litigation, but helping people deal with government procurement, understanding what is PPP system would be and how do you actually get the loan, what qualifies? Who qualifies? How do you get it? Is there money? Just every single week is a barrage of “this is the new thing that businesses are really struggling with” because we’re trying to keep with up — I mean administration that wants to help in some way but isn’t clear how to help and isn’t communicating. It’s not diffusing to businesses effectively.

So in a lot of ways, that’s where it — I mean it’s still probably the practice of law, but it really, you’re a shepherd here, right? You’re the person that has the time and role that gives you access to the folks that will actually diffuse that information as it is coming live. We’re telling you, this is coming down the pipeline. It will probably be enacted, but ultimately you’re in position that once it is effectively law, you can have your clients or whomever it is you’re working with position to take advantage of it. And so that’s an important piece of the puzzle.

Dan Rodriguez: You use the phrase — I just wrote it down “probably the practice of law.” I want to come back to that phrase. But I want to push this point about what’s different with the pandemic. When I became a law dean from working as a law professor, one of my senior mentors said, “You’re going to be exercising and deploying different muscles than you were when you were a professor.” Sort of using that metaphor, are you using different muscles now in light of this pandemic? I guess what I’m asking is, what kind of new skills or existing skills are you and your colleagues bringing to the table to deal with these new kinds of issues that arise because of the pandemic?

Jeff Kelly: Yes. I like the analogy of the muscle. I feel like I’m running down the beach, right? You learn about muscles that you didn’t know you had when you’re exercising them.

Dan Rodriguez: No pain, no gain, right?

Jeff Kelly: Exactly. So yeah, I think that I came to law school with a little bit of a technical background. But that has become far more important in this day and age and part of that is again, nothing novel in saying this, but there’s a push towards efficiency. There’s a push towards automation because people — I mean one, as the law firm is providing the service, you have an open question about receivables. You have a question about the business side of your practice, but you also have clients that whether or not that be paid, they have the capability to pay and so that’s one bucket, right? There’s a need, a very high focus on efficiency and also looking at — I think that, right now a lot of judges for example are having to learn about using Zoom or Webex or any other form of remote technology and that has been an interesting thing for me to work to not only as someone’s that’s practicing before them, but also because one of my titles has “future” in it. I’m getting a lot of calls that I’m happy to take for judges and now the chief justices in North Carolina.

The COVID-19 Task Force has a special working group on tech and innovation and so I’ve called into a few times, help them on recommendations where it’s not just me, but everyone in this and I know it’s beyond legal too, but is dealing with how do we do business when we can’t be physically together. And the practice of law is particularly susceptible to that because we’re not only in-person, but paper-driven. So we don’t even have the option for a lot of times to translate that effectively to kind of a remote practice.

Dan Rodriguez: I hope we’ll have time to come back to the online courts. We have so much to talk about. You have such an interesting practice, but let me come back. You’ve been an evangelist for the use of data, big data and maybe not so big data, and analytics which you mentioned and all that. Could you talk a little bit how you came to that evangelism? What you saw is the imperative of using data analytics and more analytic approaches in the practice of law, which of course you’ve modeled in your own practice. But I know you’ve promoted back among lawyers in North Carolina and throughout the United States.

Jeff Kelly: I’m always a little bit careful when people say evangelize because I think that that gives the perception that I’m on the corner of a street and shouting out there. I think that the value of data and using data in your practice is really under the hood. It’s informing your judgment and the way that I talk about it when I’m describing it to how I work with my partners, many of whom have virtually no idea except for general trust and experience of working with me that I’m using data to inform my decisions.

(00:10:09)

I refer that scene in Star Wars this, the Han Solo effect where you have them going through an asteroid field and C-3PO tries to tell Han Solo the odds of survival and he says, “Never tell me the odds.” So that’s been my rule is I don’t tell people the odds. I look at what actual empirical information I can have. It helps me frame my experience which I’ve been practicing for about six years in a pretty concentrated area. So it’s enough that I feel like I have some credibility. But my founding partner has 30 years my senior in this. So obviously the depth of his personal experience is far deeper than mine. But at the same time, early on my career for example, I mined our business court. So I have a sense of a lot broader, not just what my firm does, but also what everyone else in the space does. And so there’s a lot of different ways to look at that data and not just in sort of the spreadsheet sense, but also use that as a roadmap to — when I encounter a novel situation, I can look and see. I know or at least have a tool that lets me look at how other firms have handled that — we’re a profession that is built on looking at what other people have done before us and doing it the same or better, hopefully. And so that is some way for me to — without the actual experience to more or less simulate. It’s a good substitute or supplement to my — like you said, I only have 24 hours in a day, and so how do I leverage what I can use to catch up to people that again are many years my senior.

Dan Rodriguez: It’s about expanding your bandwidth, right? In some important ways. So you mentioned law as a fundamentally backward looking profession, right? And that doesn’t have to be pejorative. We look at the past and the decisions of the best. But the paradox, right? Is we’re also looking forward-looking in really important ways. We’re making predictions about outcomes. We’re urging courts to make certain decisions on our behalf and clients to make certain decisions. Are you finding the use of technology like machine learning and other mechanisms valuable? And if so, how are you utilizing that in your practice?

Jeff Kelly: I mean as far as direct implementation and practice; I think that a lot of machine learning algorithms are mostly — we’re limited more by practical application. So a lot of that is in e-discovery obviously through litigation. I mean some applications for looking at case assessment, but I’m always careful overselling that because I know that there’s a lot of AI hype especially.

Dan Rodriguez: All the bells and whistles. All the bells and whistles, right?

Jeff Kelly: Yeah. Yeah, robot lawyers, right?

Dan Rodriguez: Yeah. Yeah.

Jeff Kelly: But, as much as I’m enthusiastic about a lot of opportunities and dig into a little bit more, I’m also very careful in kind of prefacing too quickly adopting some tech and just — especially right now, I always push for considering algorithmic bias for example, right? Where right now, I think the technology is not mature enough. Sorry, I should be specific, machine learning and especially AI applications are probably not mature enough that we couldn’t claw back any ill-conceived application yet, but we are approaching that I think. Maybe not going as far as singularity, but the point is that the complexity and opacity of the decisions that were basically — courts that are being overwhelmed and frankly more overwhelmed now, are looking at the tools — especially like Compass or other risk assessment tools to help them make decisions rapidly based on empirical, whether or not you trust the empirical systems and not really asking the right questions. I think about, “Is the dataset bias? And therefore is the algorithm biased?” And so that’s very cautionary tale that before I get into being overly enthusiastic about what’s coming down the pipeline I see, I want to make sure people understand what the risks are too. And I realized that that is me being kind of a lawyer first and looking at technology as opposed to being the technician or designer of that product.

Dan Rodriguez: Well, if you’ll permit to reflect back on what you’ve said, what you described in terms of — and it makes me want to take back the term the evangelist to describe it. What you have as an analyst, right? Is bring in the skillset that you have as someone very agile and familiar with technology in these kinds of questions. But at the same time as a lawyer, understanding its limits and what cautions and guardrails we should have about its use. Let’s take a break now and then when we come back, I want to talk to you about your reform efforts.

[Music]

Advertiser: Trying to cut costs? You’re not alone. In today’s climate, a five-figure e-discovery bill per month per month is steep, don’t pay that. Use Logikcull to reduce expense and control your discovery process. Get started today for only $250 per matter and they’ll waive migration cost from competing platforms. For more information, visit Logikcull.com/ltn. That’s Logikcull.com/ltn.

(00:15:06)

[Music]

Advertiser: Increase productivity and profitability through Acumass.com. Acumass provides cost-effective and reliable annuities management while keeping customer satisfaction at the helm of the action. With 40 years of excellence in the field of IP renewals, Acumass understands how quickly annuities can become burdensome for clients who prefer their focus elsewhere. Contact [email protected] or visit Acumass.com to discover how you can benefit from a management solution tailored to your needs.

Dan Rodriguez: So welcome back to our show. I’m Dan Rodriguez and I have the pleasure of chatting with Jeff Kelly, lawyer from North Carolina, prominent advocate of regulatory reform among other subjects.

So Jeff, in all your spare time and listeners should know that I’m smiling when I’m saying that of course, you’re working as chair of this Law Reform Commission in North Carolina. We had the title wrong, but that’s basically what it sunk. You talk about what that’s about, what you’re working on in connection with these efforts in North Carolina?

Jeff Kelly: Yeah. So there’s really two main tracks. Permit me maybe a second to explain this to listeners.

Dan Rodriguez: Please.

Jeff Kelly: Because I know that there’s a lot of confusion with Bar Associations, Bars, et cetera. I have two separate roles. One of them is through the North Carolina Bar Association which is the voluntary trade association and I’m the chair of the Future of Law Committee for that which as you said the top of this that we’re charged with tracking and analyzing technology and helping the practicing Bar understand not only how it impacts the practice of law, but also how to implement it successfully. And so as you might imagine, that tends to be on the implementation level, is a lot more basic than on the sort of looking down the road and helping people understand what is coming.

The other piece of it that has recently happened much on the good work of other folks, especially at West, Utah, Arizona and California in particular is our State Bar — so the regulator, they formed a Regulatory Change Committee which is initially charged with studying what is happening nationally and hopefully making recommendation. Although I will say we met about a month ago and there’s definitely a sense that the original charge — because it was conceived of before the pandemic hit, may not be responsive enough and I was very encouraged by a lot of the conversations that include — what I wouldn’t consider a standard question is, “Who is not in the room right now but needs to be here?” And I think that that is one of maybe the sentiments or regrets that I’ve heard from a number of our mutual friends who have served on these other state’s commissions is that most of the people in the room are lawyers and lawyers of a particular persuasion. And so if we want to look at this as a truly consumer-oriented initiative which I would hope it would be and was stated to be, then we should probably have something more than someone that represents the consumers to make sure that what we’re working on and assessing and hopefully designing is actually responsive to the needs instead of being a solution in search of a problem.

Dan Rodriguez: I agree with all that, but let me offer a devil’s advocate position as we say in the law biz, and I’ve heard this in connection with some of the task forces and efforts that you’ve mentioned in Utah, Arizona and elsewhere. So one of the things you hear is, “Look, the reason we have lawyers at the center of this — and really, almost permeating that lawyers and judges is because it takes lawyers and judges to really understand the particulars of the regulatory processes, what the rules and regulations are.” And so yes, we’re looking after the interest of consumers, but it’s lawyers who are looking after the interest of consumers and they should be at the fulcrum of these efforts. What do you say to that?

Jeff Kelly: Let’s start by saying that if lawyers are truly looking after the best interest of the consumers, then why is it that 70 plus, depending on what report you’re looking at, don’t actually get access to legal services they need? I mean at least in the civil context. And that is something that is more and more difficult in previous conversations you and I discussed. You don’t really look at me with a business and corporate background saying, “Okay, well why is this person leading reform? Why is this person fired up above consumer rights?”

Dan Rodriguez: Well usually I find folks and legal aid or in other places leading these reform efforts rather than a seasoned business lawyer like yourself.

Jeff Kelly: Thank you for saying “seasoned.” Really, even if we have duties to our clients, we still are profession — I like to think that we live up to professional values. And so there is right now a tendency to look at in terms of interest, but yes, they focus on your specific clients. Sometimes that is unfortunately tied to more of a loyalty to firms. So where does that leave the public? And so I’d say that there are a lot of well-intentioned people, but the structure of a lot of the practice of law and how many people interact with their law firms, it doesn’t really allow them to have a deeper empathy I think for a lot of the consumers just because — I mean again, for me too, I’m very far removed from a lot of the eviction proceedings except for pro bono work and from working with not just legal aid, but the actual tenants who are being evicted for example.

(00:20:22)

Dan Rodriguez: All right. I don’t know whether it’s devil’s advocate or not, I will try to characterize my own question. But do you worry that the more representation, let’s call it that of consumers and consumer voices seats at the table or just the reasons you described will create a risk of pushback. We’re seeing that frankly play out in California to some extent, right? There’s a task force there that actually intentionally did have a number of so-called non-lawyer representation, consumer representation recommended a series of fairly far-reaching steps and had their hat handed to them if I can describe it that way by lawyers. So where’s the balance with consumer — getting consumer interest, but also not risking that this becomes whatever the reforms that your committee proposes becomes dead on arrival?

Jeff Kelly: Yeah. Talking about (a) California specifically, I think that some of that had to do with — lawyers are best positioned to know that these changes are coming, know that these comment periods are open, and are inclined to — especially from an economic interest, voice those opinions whereas most consumers, most self-firms and litigants have a hard time even getting through the court system that is coming after them, right? So how they are going to know about this sort of backroom committee conversation that only reason it gets spread out to the public is through lawyer networks which of course are going to have a certain perspective. I mean both good and bad, it’s going to have a certain perspective.

So the responsibility is on us, not just Regulatory Reform Committees, but as a Bar to engage the public and I will say that I’m encouraged by some of the response anyway to the pandemic and a lot of the racial tension that was caused by — at least sparked by the murder of George Floyd. But our chief justice has formed a few task force which again we’ll see where they lead, but at least in principle and spirit of them, you’re looking at committees like — it’s based on a tenancy model I believe, but Faith and Justice Committee where the goal is to work with centers of faith — so churches and other groups to help those groups deliver legal services or — I mean legal information — some way of using existing networks that most consumers would think to come to when they have a problem. That type of thinking, I don’t know where it leads us in practice, but I’m encouraged that those conversations are having and that we’re looking at groups besides JDs to be a solution to what are explicitly legal problems.

Dan Rodriguez: So this may be an unfair question because I know you and your colleagues are still fairly early on, not at the very beginning by any means, but early on in this. But if you look down the road and making prediction about what the end of the story will be — at least in North Carolina, do you see that destabilization of the unauthorized practice of law regime, you really see the opening to legal practice of non-lawyers. What do you expect to see on the other end, not just with the pandemic, but on the other end of this iterative process that you and your colleagues are working through?

Jeff Kelly: I mean I think like more jurisdictions, we steadily are towards change and reform. I struggle with how to characterize that because it seems like every week, we have a pendulum swinging back and forth. North Carolina is a state that is best known for the LegalZoom law suit against the North Carolina State Bar.

Dan Rodriguez: I was going to mention that, but I’m glad you mentioned that.

Jeff Kelly: So one of my closest friends is a UPL prosecutor who is a named defendant. So that is one piece of it and then you swing back where yes, we’ve been ahead of the curve I think on some of the marketing deregulation for lack of a better terms. But then we swing back again where our State Bar or our Bar exam is at least not progressive, I think that’s a safe way of putting it. So it’s hard for me to peg exactly, except to say that I think that there is a not insubstantial group of like-minded folks who are approaching the problem in good faith. I think that when you have that as at least the initial discussion point, there is a good probability that practical things will take place to increase access to legal services. And some of that by the way is creative conversations about how — not just, if you put the rules in one bucket, right? That’s one way that we can affect change. But also, how can we encourage the implementation of technology or other — or not technology at all, just using existing rules, but different ways of delivering them to avoid some of the problems or circumvent the rules or allow the spirit of the rules to live on through additional practices. Just so I don’t sound like I’m kind of spouting off random thoughts — a good example of that would be using analytics to — much in the way that your high-dollar firms can look at forms and target and look at judges or outcomes.

(00:25:11)

You can also use that same dataset to look at where are the pro se litigants? Where do they run into the most problems? Can we actually use data analytics to assist legal aid organizations in delivering legal information to people — that while they might not be able to represent them for the entirety of a dispute, they can give them critical information at important points in time. And that is entirely permissible, a direct solicitation rule under most states, including North Carolina’s rules of professional conduct where we’re not doing it for commercial purpose. We are using this to diffuse information and it is, I think in everyone’s best interest that you have parties that understand what they’re doing and are able to submit their best case to the court in a form that the court is used to receiving it in. I’m not wedded to any one particular reform or even that reform needs to be the explicit answer, so much as we need a culture change overall. I think that’s really the bigger problem here.

Dan Rodriguez: As I listen to you Jeff and I’ve talked to you in the past, there’s a theme that runs throughout your zeal and your advocacy for regulatory reform in a variety of ways and that’s data and evidenced-based decision making. And we know from some of the experiments underway in states that you’ve referenced, Utah, Arizona and the like, there’s an emphasis in the so-called regulatory sandboxes as they call them for trying — experimenting and analyzing how they’re done. And by no means being critical, let me just say that we’re still at a fairly preliminary stage of figuring out how to do those experiments and how to analyze that. So I really appreciate that you’re focusing in on the implementation piece and not just the — well we’re going to implement these reforms and deregulate in some sense, and then just see what happens.

Jeff Kelly: It’s funny because yes, I’m in favor of the sandbox. But I think it was Jim Sam who recently referred to as, “Maybe don’t use the word sandbox, but call it consumer tested tool” or something along those lines. Because for me with some technical background, some R&D background, yes the idea of a sandbox or in agriculture, it’s a fallow field. These ideas that there’s a zone where we go into it with good faith and understand that we’re doing the experiment here. It’s an educated experiment, but it could still cause harm if it’s not correctly isolated. That idea is not foreign and we do it in a literal sense, out in the open for other industries. So why not do that in legal where again, within reason and being careful about it — I don’t see why we presume harm exist, maybe another point I make on that.

Dan Rodriguez: Right. I was hoping we would get back to online courts and I’ll just come back to it to say, we’re going through a natural experiment now, right? And it’s playing out throughout the country to a greater lesser degree which is — as courts have had to go remote. Now that’s expected to be temporary, although we’ll see. But we will see that, we will certainly be able to analyze of course what has been the quality in the measure of justice in this uncertain period of time in which courts have gone online. We’re winding down on time, but you mentioned the Bar exam and we don’t know exactly when this recording will come out, but it will be fairly soon. But from where we are now recording, there is quite a lot of affirmative activity in all of the State Bars driven largely by student concerns that there needs to be some adjustments. I’m talking folks in here, on the graduates of the Class of 2020 in our law schools with the Bar exam. Some states have decided, “We’ll go full speed ahead with the Bar exam scheduled and enforce some protocols of social distancing, mask wearing and the like.” Others have postponed their Bars. Some have looked to online modalities and even some states — it seems like a steadily growing number of states have implemented a so-called diploma privilege, right? Kind of a — I wouldn’t call it a “get out of jail free card.” That’s not exactly the right metaphor, but let’s you say an exception from having to take the Bar exam. Where do things stand in North Carolina where some of the issues — now that’s a leading question because in fact there’s a lot of firm in North Carolina as you know. Talk a little bit about that.

Jeff Kelly: Yeah, so where things stand officially in North Carolina as we sit here at noon Eastern on July 1 is that we are proceeding ahead full force for the end of the month. So July 20 and 29 in-person.

Dan Rodriguez: With the Bar exam as scheduled?

Jeff Kelly: With Bar exam, yes and with an alternate date in September if for some reason they determine and I think they can cancel up to two days in advance, but don’t quote me on that exactly. And according to the most recent FAQ that was released by the Board of Law Examiners, masks won’t be required, but I do think they are permitted which I would hope they would be.

Dan Rodriguez: Yeah, that doesn’t seem like a big concession.

Jeff Kelly: From what I understand that might change because our chief justice gave an interview and was asked that question by an audience member about the mask and she seemed to believe that this idea that masks are not required may not be accurate.

(00:30:05)

So I don’t know if that’s going to change as we’re talking right, but point is, still in person, masks are not on paper guaranteed requirement and there are a number of — especially students who have stepped forward to make sure that their voice are being heard and many of whom are asking for accommodations from the board not just because of concern for sort of the general idea that we’re being asked to take an exam in a pandemic. But they actually have very legitimate concerns, autoimmune compromise or they’re concerned about their families, right? So it runs the gamut from truly medical to situational.

I understand that some of them have been getting feedback in recent weeks. I can’t say that those came before there was some public pressure or some public scrutiny and I’m worried frankly that we are just staying the course because we already said on there. I applaud states like Texas for example where the deans of every single law school, or at least I think every law school there presented a unified front saying or in fact our students — you have states that have diploma privilege for example or some recognition that we shouldn’t require our students to assume all of the risk in this situation, right? Just like I had the good fortune of graduating in 2013 into a good economy. That’s not by my design. I mean, sure, I plan to go to law school in a time that seem like it was heading in a good direction. But I couldn’t tell you what I was going to be graduating into and neither could these graduates.

And so they have certain expectations not just in terms of professional values, but economic values that we are saying, “Well, we understand that you had those expectations. But while most of you are saddled with debt, most of you are having to pay someone else — you can study for this exam and therefore can’t work.” We’re going to make you sit for this or assume you’re going to sit for this and then we have to change it, then we will. North Carolina is one of the states that required waivers of their students and I imagine that there are a number of others that we’ve gotten some justifiably negative press for, and so I don’t know. I’m kind of scratching my head on that because this seems like an easy thing to address. Maybe not, I don’t want to downplay the complexities of planning something like this, but the one thing that I did hear our chief justice weigh in on that disappoint me a little bit — although I don’t think she was given time to unpack it, is we are prioritizing the “integrity” of this test over our students. And so I understand wanting to have security. I want to understand. I’m completely on board with, “If we are doing this in person, then we need to make sure that its legitimate, that there are — we know that there is no cheating, et cetera.” But that’s a priority system where you’re saying, “This test and way of doing things is going to take priority over the very clear emergency.”

I’ve seen us as a state, North Carolina has allowed — for example when hurricanes hit us, I think I was Florence, hit us, our chief justice amended the rules to basically waive UPL restrictions on other attorneys for example coming in and helping with pro bono.

Dan Rodriguez: So it’s a big deal. At Florida some of that happen and in New York — yeah there were some really interesting developments in that regard.

Jeff Kelly: Yeah. I’m not saying that there — there even needs to be one solution, right? I know that there a number of graduates who absolutely expect to sit at the end of the month and take the Bar and that their financial well-being depends on them taking and passing that Bar. I don’t want this to sound like I’m someone that is just saying, “Cancel the Bar and that’s it.” This is something that needs to be — right now, we’re giving it a one-size fits all approach and I think that there are ways to — that have been suggested by the way I think that the ABA for example — I think back in April, provided a number of, I think very credible and well-supported and researched proposals that should be playing into this calculus and may be they are.

Dan Rodriguez: That a number of states have looked at. I mean certainly our, in the limited time to be able to get to the bottom of it, but just if I can reflect back. Number one, as these are complex issues, there’s a range of opinions, differences of opinions about what exactly should happen. But if I may, your advocacy and also advocacy by a number of your colleagues in North Carolina on behalf of the students — in which just to say on behalf of looking at this from a student-centered approach given the enormity of the pandemic and other issues students are dealing with — is enormously appreciated, I know. At the very least, one hopes get new data and new information to the attention of the courts and the Bar examiners to enable to hopefully do the right thing. So we’ll say maybe by the time this recording comes out shortly, there’ll be some forward movement in that regard.

(00:35:02)

Jeff Kelly: Certainly hope so.

Dan Rodriguez: So thanks Jeff. Many topics we covered, many topics we could have covered which is evidence to me of a really interesting guest — and so I’m delighted to be able to chat with you about this and I just want to say, “Keep up the great wok that you’re doing in North Carolina.”

Jeff Kelly: Thanks so much Dan. I appreciate you having me.

Dan Rodriguez: Well, we’ve reached the end of our time for his episode. I want to thank Jeff Kelly for joining us today. And lastly I want to thank our listeners for tuning in. If you like what you’ve heard, please rate and review us in Apple Podcast, Google Podcast, Spotify or your favorite podcasting app. I’m Dan Rodriguez signing off for Law Technology Now. Until next time, thank you for listening.

[Music]

Outro: If you’d like more information about what you’ve heard today, please visit legaltalknetwork.com. Subscribe via iTunes and RSS. Find us on Twitter and Facebook or download our free Legal Talk Network app in Google Play and iTunes.

[Music]

The views expressed by the participants of this program are their own and do not represent the views of nor are they endorsed by Legal Talk Network, its officers, directors, employees, agents, representatives, shareholders and subsidiaries. None of the content should be considered legal advice. As always consult a lawyer.

[Music]