This is Bloomberg Law with June Brusso from Bloomberg Radio. Lawyers have long served on the boards of privately held companies and nonprofits, and public companies are increasingly looking for lawyers to become corporate directors, bringing their legal expertise to the boardroom and prestige to the attorneys who can navigate
potential conflicts. My guest is, when Den Eolis of Eolis International Group, a legal recruiting company, are you seeing more lawyers being considered for board seats or getting on boards.
Absolutely, there's been a sea change in the interest in including lawyers in the mix of skills and abilities and background with very major corporations and in the companies that we deal with. They are not the focal point in many cases, but they are part of the mix. And that was not the case during the past twenty years to nearly the same level before that. For lawyers used to be on boards frequently because the CEOs who worked with them knew them, were comfortable with them, and wanted
to bring them in. But there have been a whole host of changes in the way in which companies work with lawyers and law firms, and there's been a big change that's been created by chief legal officers having significant responsibility internally and the outside lawyers not necessarily having as close a relationship with their clients the CEO as they used to because they have a much greater responsibility to the chief legal officer.
Where there is from are the lawyers on boards, generally lawyers with business backgrounds or general counsel at businesses.
There are really a great variety of backgrounds for the lawyers who end up on boards these days, because there's an openness now to a variety of pieces in terms of criteria. At the end of the day, what distinguishes who does and who doesn't get on the board are those who have the necessary credentials and fill the general criteria and most of all look sound and feel as if they will play well in the sandbox, and companies
call that chemistry. So the possibilities for lawyers are more about their intellectual assets or they're not as concerned about the specifics of the transactions they've worked on. They're more concerned about how they approach the business. They're more concerned about their ability to make the pivot from being a counselor with great business judgment to become a a debater, deliberator, and voter who understands and participates in policy making decisions.
So it doesn't matter what their particular discipline is for some boards, for others the industry where the discipline is critical, so it's a broad mix.
Is there a general figure for how much time it takes to be on a board?
Yeah.
When we are talking with most of our client companies because we are doing a search, generally speaking, I find they have quarterly meetings. Many of them that have quarterly meetings hold those meetings in different places, and so it means you've got to travel to get there to the meeting. On every board, you have obligations to attend one or more committee meetings. Most people are on more than one committee when they're a director, and you have to tend
those committee meetings. But then there are additional responsibilities and obligations within those committees that requires projects to be addressed. I think it's fair to say that a lawyer who is active on boards but does not have a senior leadership role on that board in terms of chairmanships of committees, probably has to allocate somewhere around thirty days a year. Now that might seem like it's not so much time. Why couldn't you take three or six?
Right?
But the truth of the matter is that there are conflicts in terms of when those board meetings will take place. There are conflicts in terms of being on one board and what other boards can you be on. And there's a big logistics issue in terms of the kind of work you're doing, the environment in which you're doing it, the industry in which you are at active, and how that plays against the interests of other boards being able to consider you and you being able to consider them
as you're a lawyer. The thirty days that I suggest is truly the minimum. As a practical matter, boards invariably get the biggest challenges and the biggest opportunities, and that means being available at the time of those challenges and opportunities develop, and they don't develop on any individual's timetable.
Is it easier to get on a board if you've been on boards before.
There is no question in my mind that there is absolutely no situation in which you will get on a board more easily than if you've already had a board seat. You know, they say about actors that you have to have an equity card to get a park, but you have to have a park to get an equity card. It's really like the same problem in order to get a board seat. Nothing is better than having had one at the same time, Until you've had one, it's hard
to get the board seat. So the chicken and egg problem which exists in the rest of the world is applicable when it comes to lawyers on boards as well.
And how important are connections and getting a board seat.
Now those connections ten, fifteen, twenty years ago and more
were frequently a function of personal relationships. Now boards understand that they can get a lot of information about lawyers, and they will use companies like ours, for example, for the purposes of betting, helping them to put lawyers into the pipeline and for giving them ideas of where successful lawyers are and what seems to be making them successful within the boardroom as a whole, But there is no substitute for an end, whether it's a lawyer or anyone else.
Having connections to a non gov chairman, to a CEO, to an executive chairman, that is still going to be very important in the process, which is why with our clients, individual lawyers we work with them in preparing for board service on what's called network mapping, which simply means understanding their connections and the value of them, and learning how to exponentially expand them so that in addition to the opportunities that we may have for them, that they will
also be much more empowered to develop opportunities because of the people who could be helpful to them.
Have you seen that including lawyers adds to the diversity on boards?
We know that boards are talking about diversity, and that includes underrepresented minorities and women, and in every area there are a great number of boards that are doing an extraordinarily good job on focusing on this issue, and it's
a big issue. I always tell people, if you expand your notion of who want to fit into your potential talent pool, you can double your potential talent pool and get people you might not otherwise ever consider, who have incredible breadth and depth in areas you may not typically
even think about. The diversity issue right now is one on which I think it's fair to say boards are very very concerned in general, and they are demonstrating that concern by increasing, particularly the percentage of women on their boards. The number one requirement for a board member for most of our clients is wisdom and.
That comes in many different flavors, many different cultural backgrounds, industries, expertise, credentials, and it's a wide open slate.
We know that the issue of protecting shareholder profit is a key piece in the puzzle for every board member, but we also know that environmental issues, social responsibility issues, governance are critical. We know that dealing with compensation, both within the board and internally in the company are issues
that have become far more complex. So there is no shortage of board directorship needs and certainly an increasing and expanding opportunity for lawyers because of the nature of risk assessment and governance that moves at the speed of light in terms of issues of.
Import Thanks for being on the show, Wendin. That's Wehn
Deini Jolis of the Eolis International Group. Over the last four months, the investigation into whether the nation's oldest federal judge is able to perform her duties has become public in a way that's unusual for the federal judiciary, and now a three judge panel of the Federal Circuit, the same appellate court that judge Pauline Newman, has sat on for nearly forty years, has voted unanimously to sanction the ninety six year old judge over her refusal to cooperate
with an investigation into her mental fitness. Newman has fought back against the investigation by suing her colleagues, accusing them of violating the Constitution. She's known for her descents and believes that her colleagues are trying to get rid of her to avoid that scrutiny.
I think the nation needs my voice. I think that if the judges on this court are willing and more than willing to push me out in order to get me out of the way so that no one says that they've made a mistake, that I need to be here to countermand.
That joining me is ethics. Law expert Arthur Hellman, a professor at the University of Pittsburgh Law School. Arthur the panel released its one hundred eleven page report along with more than two hundred pages of exhibits. How unusual is it for the judicial panel to release its report for the public to read.
That's never happened before. As far as I'm aware that the Judicial Counsel because I suppose the Judicial Council must have been the entity that authorized it would publicly issue a special Committee report in advance of the Judicial Council decision. That has never happened. In fact, in most instances, the special Committee report itself is never published at all. The Judicial Council summarizes the conclusions and perhaps quotes from it,
but ordinarily this would not be a public document. So it's unprecedented that it would not be only made public, but made public in advance of the Judicial Council decision. Judicial Council is the body that has the authority to impose sanctions.
Do you think it was released because of how public this has become and how Judge Newman herself has responded to this.
Well, it could be a product of the fact that Judge Newman has repeatedly called for release of materials and public availability of proceedings that ordinarily are confidential, not only
while they're happening, but even afterwards. So it could be that I find myself wondering though, if committee did not make a decision, that they would issue the evidence first, and then in a week or two, the Judicial Council would issue a decision, and I have no doubt that the Council will act in accordance with the recommendations, in other words, laying the groundwork for the decision. But it's still something that I think was unnecessary and probably undesirable.
So let's just step back a moment for those who don't know what's been happening. It started with other judges and court staff raising concerns about Judge Newman's health. She was said to have suffered a fainting spell where she was unable to walk without assistance after oral arguments in May of twenty twenty two. Just tell us what happened after that so we can get an idea of the sequence.
Well, reports came to the Chief Judge, Chief Judge Kimberly Moore, primarily interactions with court's staff, but it did include some interactions with judges. Those reports were enough to persuade the Chief Judge that there was a possible problem with Judge Newman's mental capacity, and so she took steps to investigate us was quite proper and indeed what she should have
done under the statute that Congress passed. Judge Moore engaged in that preliminary investigation decided that there was enough to move forward, and I think she asked Judge Newman to voluntarily take senior status, but she told Judge Newman that she would be identifying a complaint that initiates a formal proceeding, and so that started the proceeding that led to this report.
Seems to have escalated this dispute is that Judge Newman refused to cooperate with the committee in any way and refused to submit to medical testing.
Yeah, that's exactly right, June. And that is one of the things that makes this unique, I think, and also very troubling because at each stage Judge Moore and the Special Committee asked what they ordered Judge Newman to do these various things, submit to testing and submit to interviews and so forth, and each time Judge Newman said yes, but only under certain conditions, the Chief Judge added to the charges charges of misconduct based on failure to cooperate.
So it was indeed an escalate proceeding where we had this back and forth and each time new charges were added, until finally the Special Committee ended up limiting its initial consideration only to the misconduct charges of failing to cooperate, and nominally that is what this order is about. It's not about the disability. Well, that's obviously what underlies it, but the sanction is imposed for the misconduct of failing
to cooperate. And I think that's a serious problem here because there's really a mismatch between the underlying concern, which is disability, and the formal charge, which is misconduct by reason of failure to cooperate.
It seems like that failure to cooperate, it's hard for Judge Newman to disagree with that because she hasn't cooperated.
That is certainly true, she hasn't cooperated. But her argument, which the committee rejects, is that her failure to cooperate was justified because of what she views as procedural failings in this proceeding. In other words, it's sort of analogous to contempt proceeding as a means of testing an injunctive order that, in order to challenge the validity of the proceedings, Judge Newman refused to comply with the order.
The details in this one hundred and eleven page report and two hundred plus pages of exhibits were some say troubling, others say distressing to read. Can you tell us a little bit about what's disclosed.
Yes, well, there's a lot of stuff there. Most of it is about interactions with court employees. But there's one email chain, as you say, it's not two hundred pages of appendices. There's one email chain towards the end of those appendencies that I found very significant because it's all they are except for the every action of names and
other details. But it's over a course of two days in July, as I recall and Judge Newman repeatedly requests in these emails, she repeatedly requests the return of what she calls her chambers computer with my stored information. And you have Chief Judge Moore and the director of it and the Clerk of Court. They all repeatedly tell her that there is no chamber's computer with her stored information because everything, all the information is on the network drive.
And you have Judge Newman just seems unable to comprehend what they're telling her, because she makes the same requests again and again. And I have to say, I don't think anyone can read that chain and not have some doubts about Judge Newman's mental capacity. It is sad and troubling, but it provides some powerful support for the committee's conclusions about Judge Newman's situation.
One thing that sort of has always puzzled me is that she's even refused to acknowledge that she had a heart attack, and that seems like something that could easily be acknowledged and could easily be either proven or disproven.
Well, I suppose one can read that as the word that comes to mind is denial, and I think that is part of what the committee is saying, that Judge Newman does not acknowledge in any way that she has any kind of problem if you look at what's there, of course, but you also look at what is not there. And one spiking thing about the way the committee went about its proceeding is that it decides, I did it affirmatively not to conduct any interviews with the other judges.
In other words, all of this is based very explicitly on reports from court staff, and that just seems very odd to me. There may be some reasons for it, but you would think that it would be at least as important to hear from other judges who have sat in conference with her deciding cases. So that's after roll
of the function we're talking about. Deciding cases, and the best information about Newman's capacity to decide cases would be the judges who, over the last two or three years have sat in private conferences after the arguments and thrashed out the issue. Did she understand the issues in these conversations except the occasional I bank, there are three judges sitting in the room together. Did she understand than what was being said? Were her comments coagent? Were they responsive
to the issues in the case? To my mind, that would be for the most important evidence about Judge Newman's mental capacity, and the committee deliberately and self consciously decided not to pursue that evidence.
It seems as another thing that can be very easily demonstrated that even though her workload was significantly reduced, she took four times as long to write half the opinions while sitting on half the number of cases as her colleagues. So that seems pretty easily demonstrable.
Yes, the low productivity and the delays, we didn't have to wait for this report for that. In fact, I think George Moore's initial order identifying it had several examples of very very long delays, including some very routine cases, and that actually conceivably could be misconduct. Delay in a single case is not recognizable under the Act, but a repeated pattern of delay could be misconduct, but that would
not necessarily reflect a disability. There are just some judges who are or become low, but that is certainly something that could fall within the Act given a pattern that is described in both this and the documents.
Well, one lawyer pointed out that in defense of Judge Newman's capabilities, that she issued a dissent in a case recently that was well written and shows she does have something to contribute.
Yes, and you know that's evidence that should be considered. I suppose what response would be is that, given the way a judge works today with considerable assistance from law marks, the publication of an opinion, whether it's a court opinion or a descent, does not necessarily tell us what we'd
want to know about the judge. That's why I think it is so important and desirable to have the evidence of the judges who sat on the panels with Judge Newman, because they could tell us whether she knew what she was doing and was making arguments of the quality that the lawyer you quote found in the descent that would tell us whether Judge Newman herself is able to make cogent and coherent legal arguments.
The report included Judge Newman's conduct thwarting the Committee's investigation cannot go unpunished and cannot be met with a minor sanction that a life tenured judge might ignore. So what are they suggesting?
Well, that goes back to the basic point, which is which you mentioned earlier, which is that the Committee and Chief Judge Moore, who is of course a member of the Committee, have turned a disability investigation into a misconduct proceeding. And it is troubling there that very language you quote it severe sanctions. The nineteen eighty Acts was designed as
a forward looking statute and not primarily punitive. And in fact, there was a proceeding some years ago involving a judge who was abusive toward lawyers and others in his courtroom, and the fifth thir Judicial Council ordered a one year suspension just as here, and when the Judicial Conference Committee reviewed that order, it upheld it, but said only in so far as it is remedial rather than punitive, meaning that the judge would undergo counseling or treatment or simply
self reflection and come out of it able to be a productive judge again. But this sanction is not being imposed in that way. Nobody thinks that a year or cases will help cure the problems that the Committee perceives. And indeed, as the language you just quoted makes clear, the Committee does seem to view this as punitive rather than remedial. So that is troubling under the statute.
Thanks so much for being on the show, Arthur. That's Professor Arthur Hellman of the University of Pittsburgh School of Law. And that's it for this edition of The Bloomberg Law Show. Remember you can always get the latest legal news on our Bloomberg Law podcast. You can find them on Apple Podcasts, Spotify, and at www dot com, Bloomberg dot com, slash podcast, Slash Law, and remember to tune into The Bloomberg Law
Show every weeknight at ten pm Wall Street Time. I'm June Grosso and you're listening to Bloomberg