Ethic Credits: Ending the Procrastination

 An experienced attorney focused on matters of corporate law, Dorianne Van Dyke is a graduate of NYU and New York Law School. Outside of work, she enjoys running, reading historical fiction, and watching documentaries.

It is both a well-known fact and timeless tradition that regardless of my good intentions, I never complete my CLE credits until the 11^th hour of the given registration period.  As my registration deadline is close to Christmas, I often spend the holiday season listening to CLE programs while working from home, manically searching for whatever topic yields the most credits rather than focusing on topics of interest. I’m no family law attorney but you better believe I will be learning all about divorce and mediation if I can get 6 credits! Seeking to avoid the last-minute scramble and capitalizing on the fact that I can go nowhere in this pandemic, I have started early. A year early, to be exact. Rather than drive myself to the brink of insanity in December 2021, I turned my attention now to my arch nemesis: ethic credits. 

 

I’m not sure why I am so resistant to ethics and skills programming. As a member of the Practising Law Institute (“PLI”, if your nasty), I have enjoyed almost every program I have ever listened to or attended. Nothing has been so painful that I simply could not get through it and I always come away from the sixty minutes or so having learned more than I thought possible. This recent ethics excursion would be no exception. Yesterday, I committed an hour and some change to “Conducting an Internal Investigation” and I do not regret it. 

 

To be honest, I didn’t really know what to expect from this particular CLE segment. My only concern was that I would make it through the entire hour to get my coveted 1.5 credits. My expectations were exceeded. The whole program revolved around a hypothetical that allowed the panelists to dissect the situation and provide best practices and tips to attorneys who might find themselves in these types of situations. A few interesting points below:

 

1.     One thing that was demystified for me was the difference between attorney work product and attorney client privilege. Attorney client privilege governs communications between the attorney and client while the work product exception protects the work product of an attorney related to a specific manner in anticipation of litigation. You laugh as this seems obvious but some of us needed it spelled out! Having never been a litigator, these concepts tend to fuse in my mind. Attorney client privilege carries more weight and in the context of an internal investigation, a claim of the work product exception will likely be probed more extensively. 

 

2.     Another topic that was touched upon was when one should engage counsel or tech experts in fact finding during an internal investigation. The answer was surprising to me. Ideally, you do not want to bring outside counsel into investigations in the early fact-finding stage as it may be viewed as contentious. As an attorney, I always want approximately 56 other attorneys involved in every situation from preplanning to post-implementation. Apparently, this isn’t always so smart. 

 

3.     Document hold notices and preservation requests. I had never even heard of this let alone considered that there were best practices. Well, apparently any hold notice should be in writing, as detailed in possible and widely disseminated. Prior to circulating, you should also take steps to safeguard the hold notice from being shared broadly aka let peeps know not to share. You have to provide enough notice to ensure that you will actually be preserving what you are seeking to preserve and you can of course ask employees to keep things confidential. Any notice should include information related to how employees should conduct themselves particularly if contacted by a third party. That being said, you cannot forbid anyone from speaking to a third party even if you would prefer them come to you first. Preservation requests must be broadly distributed and should not include information that a person who not be expected to have access to. 

 

Now I’m not saying I am going to listen to another four CLE programs on internal investigations but I am saying that I enjoyed the one I listened to. I learned something.  Having spent over 10 years as an attorney, I tend to learn something new every day but that new thing usually lies within the sphere or technology or intellectual property. While not something I will likely encounter in my professional life, I appreciated the content none the less. Now if you will excuse me…I have some more ethics credits to fulfill.  

New Exhibits Showing at the Met

Dorianne Van Dyke serves as counsel for Two Sigma Investments in New York City, and holds a BA from NYU and a JD from New York Law School. In her free time, Dorianne Van Dyke enjoys exploring many of the city’s cultural offerings, including the New York Public Library and the Metropolitan Museum of Art (Apollo Circle).

As the Metropolitan Museum of Art is set to reopen on August 29, many patrons and art lovers are looking forward to the museum’s new exhibits. Jacob Lawrence: An American Struggle features a series of 60 12x16-inch paintings that depict the struggles involved in building and maintaining a democratic nation. This series was painted during the Cold War and the Red Scare, and was also informed by Civil Rights events.

Also opening is a series called Making the Met, 1870-2020, which will celebrate the museum’s 150th anniversary through more than 250 works of art. Additionally, visitors to the rooftop will be able to enjoy The Roof Garden Commission, designed and installed by Hector Zamora, a Mexican artist known for works that engage public spaces. 

Privacy Issues and Remote Learning: What Educational Institutions Need to Consider

You have to give COVID-19 credit where credit is due: it has forced us all to be adaptable. Case in point: educational institutions. No matter what age their students are, educational institutions have had to pivot and learn how to teach students remotely. Amongst the many new ways education has evolved, day to day life for a teacher now involves planning online lessons through video and posting notes on online platforms. Gone are the days when your homework assignments appeared on a chalkboard limited to just the curious eyes of the students in the physical classroom.

Whenever we talk about activities taking place online, we have to consider the privacy implications. I’m sorry, I know you hate me for bringing it up. However, it is imperative. We may be in the middle of a pandemic but that is no reason to think that state and federal laws have been suspended. Are there privacy laws that specifically relate to remote learning? What do we need to be concerned about?

The California Consumer Privacy Act (CCPA) is the first to spring to mind if only because it is the most expansive state law dealing with the regulation and enforcement of use of personal information. You better be careful if you are collecting information from kids under a certain age without consent in California or are a business located in the state doing the collecting (whether from the child or the parent depending on the exact age) particularly if you think you are going to sell that information. Most schools might avoid the grips of the CCPA as it doesn’t apply to non-profits. However, there might be some private organizations that are large enough to fall within the gray area regarding the other requirements (i.e. revenue and data amount). 

You aren’t located in California, you say? I get it but whether or not a specific state law applies should hardly be the point! In a perfect world, all educational institutions would be focused on protecting their students’ personal information and making sure all of their activities are following best practices. What are some of these best practices? I AM SO GLAD YOU ASKED!

1.     Consider the vendors you are using to assist in remote learning and really take a look at those agreements. I know it seems laborious, but you need to actually read those Terms and Conditions that the vendor requires you to click acceptance to. There could be something shady there and trust me, you don’t want to be the last to know.

2.     You should think about the vendor’s privacy policies. The Zoom hacks make it clear that even the largest vendor can fall short in protecting your information/preventing a cybersecurity event. Privacy policies aren’t the most interesting read so if you are unsure, reach out to an attorney. They can alert you to any red flags.

3.     Think about what data these vendors are collecting and for what purpose. Do they really need information relating to children under a certain age and if so, shouldn’t a parent need to consent?

When all else fails, use common sense! If a vendor seems disinterested in providing you information or seems to have flimsy safeguards in place regarding security and data collection/processing, kick them to the curb. While we will of course return to normal eventually, remote learning likely isn’t going to completely disappear. Knowing what should make your spider sense tingle will enable your educational institution to make smart decisions regarding who to give business to and knowing is half the battle!

Namaste or How I Learned to Stop Worrying and Love Yoga During Quarantine

I have always been interested in yoga as a concept. The spirituality. The letting go and giving in to your breathe. The health benefits. The mat with a lotus on it. The Lululemon. In my mind, contorting one’s self into a pretzel seemed to denote some sort of status. “My name is Dorianne Van Dyke and I do yoga” would serve as code for “I am someone with a slightly curated Instagram that enjoys Diptyque candles and oat milk”. In essence, yoga would make me a millenial with “their life together”. 

 

Yoga, in practice, was another thing entirely. First and foremost, I AM NOT FLEXIBLE. Touching my toes is an act of pure torture and if ever there were a reminder of my body/flesh prison slowly aging, it is my pitiful attempt at shifting into extended triangle pose. I have all the elegance of Sandra Bullock when she first attempts to walk in heels in “Miss Congeniality”. She is beauty and she is grace. She is Miss United States.  Secondly, I loathe mental discomfort almost more than physical. Bobbling around in tree pose, in my head I keep asking “it is over?” As if hearing my inner my thoughts, the instructor always replies with “hold it”. Every second feels like an hour. Some people are better at relaxing and being in the moment. I am not one of those people. Last but certainly not least, I tend to lose interest in things that I am naturally not good at. If it doesn’t come easy, it likely isn’t going to come at all. I count failed attempts at learning how to ice skate and how to play the piano amongst the many things that immediately discouraged me. I have plenty of things I can’t do: I don’t need to be reminded of it in my spare time. 

 

So why then did I decide to start practicing yoga during the quarantine?

 

To be present. 

 

Coronavirus has created a state of constant uncertainty. If you are anything like me, you operate best with facts. Since the beginning of shelter in place orders, I have stated again and again that I would feel more relaxed if I just knew when everything would be over. When we would have a treatment. When we would have a vaccine. Several months later, we are no closer to answering these questions and I wasn’t getting any more zen. In fact, my anxiousness was increasing and my patience was almost non-existent.

 

Throwing a yoga mat down has brought me a sense of peace that I never imagined. In those moments where I am holding poses that I once found awful, I am present with my mind and body. I have no option but to breathe and let go of the lingering thoughts that have been traveling through my mind a million miles a minute. There might be some who are better mental multitaskers but I find it impossible to balance on one foot while also worrying about my taxes, when my office is reopening and who is going to win RuPaul’s Drag Race All-Stars. Nope. All of my attention must be focused on not doing my best little teapot imitation. It is a reassuring and calming feeling. I have also taken to repeating mantras. Saying a short phrase over and over assists in grounding me in the now. 

 

Yoga always had the ability to bring me the calmness and ability to cease my need to control that it had delivered to so many before me.  It just took a global pandemic for me to allow it.