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The New Hot Practice: Elder Financial Abuse

Donna Skibbe
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This is where financial services meets social services. It is also where legal practitioners can hop on board an emerging practice area that is creating jobs throughout the nation and the economy while exciting interest in elder law beyond its typical universe of sole practitioners and small law firms specializing in elder law. The broader audience now consists of law firms of all sizes as well as financial services companies and governments at all levels.

I recently attended a conference in New York City on the topic of elder financial abuse chaired by Roberta Romano, Yale Law School’s Sterling Professor of Law, and was stunned by the list of attendees. I expected to mingle with the customary attorneys who go to such CLE events (i.e., the aforementioned boutique firm and sole practitioner cohort). Instead, the vast majority of attendees hailed from major, “white-shoe” Wall Street law firms and the biggest players in the financial services industry, including Wells Fargo, Morgan Stanley, and other Wall Street banks.

The implications of the attendee list were obvious: there must be big bucks and/or big risks in elder financial abuse. The conference participants with whom I spoke confirmed this. Delving further into the subject when I returned home, I discovered that this assessment was spot on.

Federal Action

The U.S. government has put more resources into targeting and monitoring elder financial abuse, primarily via the Justice Department and the Securities and Exchange Commission’s Office of the Investor Advocate and the agency’s Enforcement Division.

In February 2017, the SEC approved the Financial Industry Regulatory Authority (FINRA) rules designed to protect senior investors. The essence is that broker-dealers will now be required to make reasonable efforts to obtain from customers the name and contact information of a “Trusted Contact Person,” who may be contacted by the broker-dealer to discuss a customer’s account under circumstances that suggest there may be health issues or if there are suspicions the customer has been the victim of financial exploitation. In addition, if the broker-dealer has a reasonable belief that a senior investor may be the subject of financial abuse, the broker-dealer may place a temporary hold on the disbursement of funds or securities from the senior’s account. The effective date is February 2018.

All of this activity is designed to protect both senior investors and their financial services fiduciaries. Until now, if a broker-dealer, for example, were to alert family members that it suspects that an aging customer’s cognition is failing, it at a minimum would violate privacy laws and policies, if not worse. In addition, without such new rules, a financial advisor cannot ignore a customer order to liquidate a position and deliver the proceeds due to mental health concerns at a minimum risks triggering a complaint for not following a clear order. The new rules provide a safe harbor.

Sen. Susan Collins (R-ME), chair of the Senate Special Committee on Aging, reintroduced her Senior $afe Act in January 2017, which is designed to protect vulnerable adults from financial exploitation. The bill would protect banks, credit unions, investment advisors, broker-dealers, insurance companies and certain supervisory, compliance and legal employees from civil or administrative liability — as long as they receive training in how to identify and report predatory activity and disclose any possible exploitation of senior citizens to state or federal regulatory and law enforcement entities. A similar bill passed the House last July.

The bill is modeled on a Maine program that also serves as the template for a model rule developed for adoption at the state level by the North American Securities Administrators Association.

In the States

Elder Financial Abuse Task Forces are now or have recently been active in many states and cities. Major and mid-size law firms that traditionally have not focused attention on elder law due to its modest revenue potential are now rethinking this practice area. A crazy quilt of laws addresses this issue, one that is escalating rapidly as the population ages. There are currently 78 million Baby Boomers “aging up” (65+) at a rate of 10,000 per day, a growth surge that began in 2011 and will not finish until 2029.

Private Sector Activity

Those organizations and individuals who manage other people’s money are increasingly concerned with elder financial abuse, especially with respect to how it might involve their fiduciary relationships and liability exposure. As a result, financial services industry firms and their outside counsel and advisors are ramping up their staffs. Morgan Stanley, for example, has six Risk Officers whose primary responsibilities include monitoring accounts for elder financial abuse. If they believe that there might be such abuse, they sometimes put a hold on distribution of assets and/or report suspected misconduct to local Adult Protective Services agencies.

Morgan Stanley is not an outlier. Other financial services organizations are following its lead and hiring attorneys to undertake similar duties.

As indicated above, law firms of all sizes are also staffing up, launching new elder financial abuse practices.

Organizations like the Securities Industry and Financial Markets Association (SIFMA) and the Securities Investor Protection Corporation (SIPC) are focusing special attention and resources on elder financial abuse.

Additional Information

What’s Ahead for International Trade Lawyers?

Donna Skibbe
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A More Activist Trade Regime

One of President Trump’s core campaign issues concerned trade agreements. Both he and his opponent, Secretary Clinton, as well as her primary challenger Bernie Sanders, opposed the Trans-Pacific Partnership (TPP), now “dead on arrival” as of January 20, 2017. Trump also criticized multilateral trade agreements such as the North American Free Trade Agreement (NAFTA), among others.

Trump’s governing philosophy regarding trade is that the U.S. should turn away from multilateral deals in favor of bilateral agreements. Robert Lighthizer, his nominee for the position of U.S. Trade Representative, who at this writing is on the cusp of being confirmed by the U.S. Senate, said at his confirmation hearing that he intends to escalate vigorous enforcement of our trade laws to stop unfair imports (e.g., dumping, countervailing duty, and Section 337 intellectual property cases). He also intends to renegotiate NAFTA.

Trump’s budget proposal does not mention the Office of the U.S. Trade Representative (USTR). However, these three initiatives—bilateral negotiations, more enforcement, and renegotiating NAFTA—are likely to warrant a budget increase for USTR, as well as for the U.S. International Trade Commission (USITC), the adjudicative body before which trade cases are argued and decided. Such cases are also heard by the World Trade Organization (WTO), bodies established under bilateral trade agreements, and courts and administrative agencies pursuant to U.S. trade remedy laws.

The U.S. currently has bilateral trade agreements with only 20 nations. A number of these will be up for renegotiation. This also means that we do not have such agreements with more than 180 countries.

USTR and USITC employ large numbers of attorneys in both legal and JD Advantage jobs. In addition to its general counsel office, USTR attorneys work in 19 policy, operations, and support offices. USITC also has a general counsel office as well as 11 other offices where attorneys work.

USTR just released its 2017 Trade Policy Agenda, which elaborates on its initiatives for this year.

What Else Is Happening in the Trade Universe?

Manufacturing and agricultural CEOs are lobbying a willing Congress to bolster antidumping laws. These two industry sectors are highly sensitive to foreign product dumping. The Committee to Support U.S. Trade Laws briefed congressional staff and the media in February.

The Legal Job Impact

Look for both the USTR and USITC to increase their legal staffs in order to cope with the likely increases in their workloads. In some cases, new hiring will have to wait for several senior USTR officials to be put in place.

Moreover, an increase in international trade litigation also means more business for private international trade attorneys representing both U.S. and foreign parties.

Occupational Licensing Representation

Donna Skibbe
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In 1950, fewer than five percent of jobs required a license. Today, that percentage is somewhere between 25 and 30 percent. BRB Publications database of occupational licensing boards lists more than 8,750 individual job titles or businesses that require licensing, registration or certification. Illinois, for example, regulates 98 occupations, including Naprapaths, Pedorthists, Perfusionists, and Pull Tab Operators.

State Involvement

Occupational regulation is largely a state matter. In some cases, states delegate the function to professional organizations such as medical boards or bar associations. This is typically the case with respect to what are called the “learned professions.” In many states, a single occupational board regulates multiple occupations.

The Feds

There is also a federal component. Depending on the occupation, federal involvement is a matter for independent regulatory agencies such as the Securities and Exchange Commission (which regulates securities brokers and dealers through the Financial Industry Regulatory Authority), Commodity Futures Trading Commission (commodities brokers), and the Federal Trade Commission (e.g., Contact Lens Rule, Funeral Industry Practices Rule, Credit Practices Rule).

Who Hires?

Regulation customarily includes licensing, investigations, and discipline. Given this elaborate regulatory scheme, it goes without saying that occupational regulation generates a lot of legal business. The two sides of the legal job opportunity coin are: (1) attorneys who work for the occupational regulatory agencies, and (2) attorneys who represent licensees before these agencies and the courts. A growing number of attorneys specialize in such representation.

The Newly Activist FTC

The impressive growth of this regulatory niche is coming in for more scrutiny now that the Trump administration is in power. While the FTC has examined state occupational regulation periodically in the past and advocated relaxing regulations in order to promote competition, states have largely ignored its recommendations. Now the FTC is at it again, and this time with the backing of people determined to “deconstruct the administrative state.”

Acting FTC Chair Maureen Ohlhausen recently addressed this issue, stating: “I challenge anyone to explain why the state has a legitimate interest in protecting the public from rogue interior designers carpet-bombing living rooms with ugly throw pillows.” The gist of her remarks were that occupational licensing inhibits economic liberty. She announced that the FTC is creating an Economic Liberty Task Force to focus on occupational licensing regulations. The Task Force will seek to “eliminate and narrow overbroad occupational licensing restrictions that are not narrowly tailored to satisfy legitimate health and safety goals.”

An activist FTC can make some serious noise with respect to state occupational regulation. In 2014, the FTC successfully sued the North Carolina State Board of Dental Examiners to restrain them from attempting to keep non-dentists from performing teeth-whitening services (North Carolina State Board of Dental Examiners v. Federal Trade Commission, 574 U.S. ___ (2015). The issue before the Supreme Court was whether a licensing board composed primarily of self-interested persons active in the market it regulates has immunity from antitrust law. The Supreme Court held that antitrust immunity applies only when such a body is actively supervised by the state (the dentists were not).

Look for a more activist FTC with respect to occupational licensing that it believes restrict competition. It is possible that we could see a regulatory rollback which could adversely affect some practitioners.

The Future

Nevertheless, occupational regulation is so vast a field that this practice is likely to continue to survive and thrive despite what the FTC might do.

 

 

An Out-of-the-Box Legal Job Search Strategy

Donna Skibbe
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Unconventional job-search strategies provide an edge over what your competition is likely doing. Here’s one such strategy that incorporates data and trends that can help you determine where and what you might want to practice.

Analyzing Consumer Complaints

Every year about this time (March), the Federal Trade Commission (FTC) releases its annual summary of consumer complaints, the Consumer Sentinel Network Data Book, which contains a gold mine of information concerning what Americans are griping about. The Data Book provides category breakdowns and state specific data collected by the Consumer Sentinel Network (CSN)—a secure online database of millions of consumer complaints available only to law enforcement, including the FTC. The 2016 edition is based on more than 3 million consumer complaints, which the FTC sorted into 30 top complaint categories.

Who Complains the Most?

If you want to represent consumers that have beefs, you can’t go wrong if you practice in Florida, Georgia, Michigan, or Delaware. Florida, Georgia, and Michigan are the “Big Three” of overall consumer complaints, while Michigan, Florida, and Delaware top the list for identity theft complaints.

The Data Book even drills down into specific metropolitan areas. In 2016 the top ten areas reporting the most per capita complaints were:

  • Homosassa Springs, FL
  • Santa Fe, NM
  • Prescott, AZ
  • Weirton-Steubenville, WV-OH
  • Charleston, WV
  • Spokane, WA
  • Myrtle Beach, SC
  • Washington, DC
  • Gainesville, FL
  • Jacksonville, FL

What Do Consumers Complain About?

Debt collection complaints were the top category last year, comprising 28 percent of all complaints. Identity theft is hot, with stolen identities used to commit tax fraud comprising 29 percent of this category. Rounding out the “Top Ten” were: telephone and mobile services, banks and lenders, prizes/sweepstakes/lotteries, shop-at-home/catalog sales, auto-related complaints, credit bureaus/information furnishers/report users, and television and electronic media complaints.

CSN logged more than 1.2 million fraud-related complaints in 2016. Consumers reported paying over $744 million to these fraudsters. Fifty-one percent of these consumers said they paid something. It almost goes without saying that Florida leads the nation when it comes to the highest per capita rate of reported fraud (the Feds Medicare fraud task force devotes 80 percent of its resources to Miami-Dade County!).

Up-and-Coming Complaints

Just this week, I received four calls from people claiming to be from the IRS, warning me that I owed huge amounts in unpaid taxes, and threatening me with draconian consequences if I did not pay up immediately. The IRS never calls. It writes via “snail-mail.” The FTC is increasingly concerned with the surge in this kind of activity, which it labels “imposter scams” and intends to devote considerably more resources to go after them. Credit card fraud also saw a big jump in 2016, with complaints doubling in just a year.

Using This Info

The decision you make about location—where to practice—is a crucial one that often gets lost in the job-search shuffle. The Data Book can provide some pretty good direction in this respect. Moreover, if you decide that a consumer fraud practice fits your aspirations, know that fraud is the gift that keeps on giving.

 

Where Climate Change Creates Legal Jobs

Donna Skibbe
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Don’t let President Trump and his environmental deconstruction team’s climate change denial and very real threat to decimate the Environmental Protection Agency deter you from the growing number of private sector opportunities to practice law in this area. While the new administration’s mantra is counter to the overwhelming scientific climate change consensus, the private sector is decidedly more realistic about both the potential environmental damage of a warming world and ensuing socio-economic disruption. The Obama administration’s Clean Power initiative and the recent Paris Agreement may be shelved, but those actions are being discounted by the private sector. The president and EPA Administrator’s alternate reality will not make the problem go away.

Companies throughout the economy cannot afford to politicize a peril that could potentially threaten their livelihoods and bottom lines. For example, the financial industry has no choice but to take climate change very seriously and incorporate assessments of its risks to their survival and continued thriving, as well as sending out probes to evaluate opportunities for them that climate change might present.

The Risk Side

Banks are beginning to incorporate climate change into their loan and investment due diligence. The silliness spewing from Washington, DC is irrelevant to business decisions that can turn on the implications of a warming planet and volatile weather events.

Financial institutions are also in the process of devising standardized approaches to their climate change risk assessments.

Banks have been engaged in environmental due diligence since the 1970s and long ago standardized this analysis. Climate change, however, is altering their focus from regulatory compliance and the potential costs of remediation to the socio-economic implications of a warming planet. This is expanding the scope of their due diligence efforts.

Some of the largest banks (e.g., Bank of America, Citi, JP Morgan Chase, Morgan Stanley, and Wells Fargo) have adopted specific “carbon principles,” committing them to consider greenhouse gases and the potential impact of government climate policies when determining whether to finance fossil fuel projects. JP Morgan Chase did this with respect to more than 1,500 projects in 2015.

In order to intelligently evaluate risks and factor them into lending and other business decisions, financial services companies need the services of experts. That includes environmental attorneys and lawyers who can contribute to this kind of specialized due diligence.

The Opportunity Side

Here is where the “creative” component of political economist Joseph Schumpeter’s “creative destruction” refrain comes into play.

The financial industry is incredibly “agile” with respect to new product development. The array of complex financial instruments that marked the run-up to the Great Recession is proof positive of that. Consequently, they know that every risk is accompanied by opportunity. Climate change fits neatly into this equation. To date, this is translating into the allocation of increasing amounts of capital toward renewable and alternative energy projects, energy efficiency initiatives, and projects such as carbon capture that promise a reduction in greenhouse gas emissions.

Needless to say, there is a lot of law mixed up in the evaluation of such projects and potential investments, and attorneys are needed who can apply their legal expertise to these opportunities.

More Information

Wells Fargo Climate Change Statement

JP Morgan Chase Environmental and Social Policy Statement

Droning On…The Insurance Way

Donna Skibbe
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It is inevitable that drones (unmanned aircraft) are on the cusp of transforming many businesses. According to PwC Global, a Big Four CPA and consulting firm, the global market potential for business services using drones is more than $127 billion. A recent report by law firm Frost Brown Todd, LLC, predicts that the insurance industry’s share of this market is expected to be $6.8 billion, by no means chump change.

How the Insurance Industry Views Drone Potential

Claims and Underwriting. Several insurers are already using drones for claims and underwriting, employing a combination of in-house drone programs and outside contractors. The goal is to reduce claims processing time and speed up settlements.

Safety. Using drones to inspect property damage can potentially reduce workers’ compensation claims and premiums because company adjusters would no longer have to climb up ladders and onto roofs.

Fraud. Drones can rapidly inspect pre- and post-loss conditions, thus eliminating fraudulent claims.

Acts of God. Drones can assess damage over a large area in the immediate aftermath of a major disaster, such as a wildfire or tornado, etc., at a time when first responders and insurance adjusters may be unable to access the area for days or weeks. This could enable faster claims processing.

Overall Efficiency. An adjuster who does not have to travel to and from a property that is the subject of a claim can stay in the office, view the images sent back by the drone, write up the claim, process it, and quickly approve payment.

Impact on Legal Employment: Upsides

Incorporating drones into the insurance realm has both potential pluses and minuses for attorneys. The positive impact is likely to be centered in company general counsel offices, where issues such as the following will be identified, monitored, analyzed, and managed:

  • Licensing and certification of drone operators.
  • Federal, state and local regulation of drone usage. This becomes complex because so many property and casualty insurers do business nationwide and have to be cognizant of hundreds of laws and regulations.
  • Training the claims department in the legal implications of drone usage.
  • Due diligence vetting of outside contractors providing drone services.
  • Risk management and mitigation, which could also impact positively on a company’s Risk Management office (approximately 20-25 percent of corporate risk managers have a law degree).
  • Developing drone manuals for use in-house and in vetting outside contractors.

Underwriting departments, which contain an increasing number of attorneys who up to now have focused primarily on environmental and professional liability underwriting, are likely to need expertise in all of the complexities associated with drone usage, much of which derives from law and regulation.

Impact on Legal Employment: Downsides

Claims departments may see some attrition if the use of drones makes them more efficient. This could be a concern to attorneys who work in “JD-Advantage” (positions for which a law degree is preferred, but not necessarily required) jobs, many of which are found in claims departments.

I have run across a number of lawyers who work as claims investigators and whose jobs might now be in some jeopardy depending on their specific duties. Drones can do some investigative work more cheaply and efficiently, and via video feeds and still photography, document their findings. Here’s a story from real life: My former company, which advised disability insurers on attorney claims for benefits, was once referred a case where the deputy general counsel of a large company claimed that he could not work due to a back injury. The company sent an investigator who happened to have a law degree out to shadow the claimant and observed him playing 36 holes of golf in one day. This is work that a drone might do.

If Moving to Drones Gets Traction, How Will This Roll Out?

The key question here is whether companies will do this in-house or outsource it? Industry observers believe both avenues will be utilized. The bigger companies are likely to go the in-house route while smaller ones outsource the function, at least initially. Consequently, attorneys interested in carving out a career in this emerging discipline should look not only at insurers, but also at prospective vendor firms as well as law firms that serve both. Among vendors, don’t overlook the possibility of working for a consulting firm that trains claims and other insurance personnel in the legalities surrounding the use of drones.

The “X” Factor

The insurance industry is notoriously risk-averse, which often translates into being very slow to adopt new technologies.

Federal Political Appointments under the Radar

Donna Skibbe
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The Trump administration, with all its distractions and dysfunction, has been slow to fill the 3,000+ political appointments available to it. These appointments are not subject to the temporary federal hiring freeze that President Trump imposed in his first week. Unbeknownst to almost all legal job seekers, the vast majority of these slots are not reserved for agency heads and their deputies, assistant secretaries, etc. Instead, they are filled by much lower-ranking individuals, many of whom are recent graduates from college and law school. In fact, a disproportionate number of these jobs are filled by attorneys.

“Schedule C:”Where Most Political Appointments Lurk

Employees in the U.S. government’s “Excepted Service” (i.e., positions that fall outside of the regular, competitive civil service, including all attorney positions) who are subject to change at the discretion of a new Administration are commonly referred to as “Schedule C” employees. Schedule C positions are excepted from the competitive service because they have policy-determining responsibilities or require the incumbent to serve in a confidential relationship to a key official. Most Schedule C positions are at the GS-15 level and below, where the vast majority of mid- and lower-level political appointments are found.

Appointments to Schedule C positions require advance approval from the White House Office of Presidential Personnel and the U.S. Office of Personnel Management (OPM), and may be made without competition. Neither the White House nor OPM reviews the qualifications of a Schedule C appointee — final authority on this matter rests with the appointing official, usually the agency head or deputy.

Establishing Schedule C Positions

OPM authorizes the establishment of each Schedule C position and revokes the authority when the position is vacated. A list of Schedule C positions is published annually in the Federal Register, under Part 213 of OPM’s regulations. The President can also authorize individual exemptions under Schedule C.

Schedule C appointments may be heavily influenced by external political considerations and personalities, e.g., the President, other administration political officials, Members of Congress, state legislators and administrators who are close to their Washington counterparts, friends of “political” people, campaign contributors, etc.

A new appointment to a Schedule C position may be made only for one year after the agency head is appointed. This means, in effect, that no new Schedule C positions may be established after an agency head has been in office for more than one year. That means that interested candidates should get their campaigns for Schedule C appointments moving right away. If you have any direct or indirect connection with any of the people listed in the preceding paragraph, now is the time to let them know of your interest.

Schedule C Compensation

For pay purposes, Schedule C is part of the federal government’s “General Schedule,” which is the pay and grade system under which the vast majority of white collar professionals are classified. Most Schedule C positions are in grades GS-11 through GS-15. A handful are at a higher level, roughly equivalent to the Senior Executive Service pay scale.

General Schedule (including Schedule C) employees receive a “locality pay” adjustment in addition to their basic general schedule pay. Locality pay adjustments vary from year-to-year and customarily amount to between 14 and 30 percent of base pay. For detailed compensation information, refer to the OPM salary charts.

Representative Schedule C Legal and JD Advantage Job Titles

  • Confidential Policy Advisor to the Federal Co-Chairman (Appalachian Regional Commission)
  • Special Assistant to the Commissioner (Commission on Civil Rights)
  • Special Assistant (Legal) to the Commissioner (Consumer Product Safety Commission)
  • Confidential Assistant to the Under Secretary for Export Administration (Department of Commerce)
  • Special Assistant to the Chief of Staff (Department of Education)
  • Special Assistant to the Assistant Secretary for Congressional and Intergovernmental Affairs (Department of Energy)
  • Policy Advisor to the Assistant Secretary for Fossil Energy (Department of Energy)
  • Executive Assistant to the Deputy Secretary (Department of Homeland Security)
  • Special Assistant to the Assistant Secretary for Fair Housing and Equal Opportunity (Department of Housing and Urban Development)
  • Counsel to the Assistant Attorney General, Civil Rights Division (Department of Justice)
  • Staff Assistant to the Wage and Hour Administrator (Department of Labor)

Job Security?

Schedule C appointees serve at the pleasure of the appointing authority and may be removed at any time. Schedule C positions are automatically canceled when the incumbent leaves.

Agencies may terminate Schedule C appointees at any time if the confidential or policy-determining relationship between the incumbent and his/her superior ends. Schedule C appointees are not covered by statutory removal procedures and generally have no rights to appeal removal actions to the Merit Systems Protection Board. This is true regardless of veterans’ preference or length of service in the position.

Education Law Update: DeVos 1.0

Donna Skibbe
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Now that Betsy DeVos has been (barely) confirmed as Secretary of Education, here are some of the policy shifts we can expect and that could have an impact on Education Law practice:

Washington will likely ease regulatory burdens on academic institutions…to the extent it can. However, this does not mean that the large number of campus compliance positions generated by the landmark Higher Education Act of 2008, which imposed more than 300 new regulatory compliance mandates on higher education, will go away. That law remains in place and has made colleges and universities more transparent, a development applauded by consumers regardless of political leaning. DeVos will not be able to change that trajectory, assuming she is even aware of the law.

Moreover, compliance mandates come from many different sources, the U.S. government being only one of them. State governments and private accreditation and sanctioning organizations are also important actors in the compliance mix.

Colleges will not be laying off their compliance staffs. Expect that compliance hiring will continue to be robust.

For-Profit Colleges Can Breathe a Sigh of Relief. The Education Department, which has been on a tear against for-profit institutions for most of the Obama years, will ease up on the pressure. Don’t expect any more “gainful employment” directives from Washington. However, the federal pull-back will energize state attorneys general (especially Democratic AGs) to rev up their scrutiny of these sometimes questionable outfits. New York AG Eric Schneiderman, for example, recently settled with DeVry Education Group over its allegedly misleading advertisements regarding post-graduation outcomes. DeVry settled with the Federal Trade Commission in late 2016 regarding similar allegedly misleading advertisements about employment and job prospects.

Expect the legal hiring impact here to be static.

Charter Schools Will Get a Boost. If DeVos is known for anything, it is that she was all in for charter schools in Michigan despite their often dismal performance and that her family poured a lot of its multi-level marketing (some critics call Amway a “pyramid scheme”) millions into them. Expect her to try to cascade a push for charter schools, parental vouchers, etc. nationally.

This portends well for attorneys seeking charter school company employment or representation, as well as public education advocates seeking to slow the cascade.

Public Schools under Siege. The other side of the DeVos pro-private education coin is her hostility to public schools. This might give some impetus to public education attorney hiring, accelerating the recent trend among America’s 14,000 school districts to bring more lawyers in-house. Only 9 percent of public school funding comes from the federal government and is primarily directed at disadvantaged and disabled students. Nevertheless, you can expect a more adversarial relationship to develop, one that has not existed in the 21st century.

Don’t overlook opportunities to go to work for special interest education organizations, such as the National Education Association, United Federation of Teachers, and many, many others.

Civil Rights Enforcement Will Take a Back Seat. One of the largest education law employers that may be adversely affected by the new regime at the Education Department is its Office for Civil Rights, by light years the largest such office in the U.S. government. Devos and her horseholders are not exactly big fans of aggressive civil rights enforcement.

Energy Jobs Outlook Update

Donna Skibbe
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Look for energy lawyers to experience good times under a Trump administration. But the boom may not occur where you think and may in some instances be short-term.

Coal—a Really Bad Bet

All of those West Virginians, Kentuckians, or Wyoming folks who voted almost 3:1 for Donald Trump over Hillary Clinton because of his promise to bring back the coal industry will soon have to face reality. And a harsh reality it will be. Despite Trump’s delusional pledge, his overall energy policy is going to accelerate coal’s demise. So if you were thinking of relocating to Wheeling or Charleston, Casper or Laramie, or Loretta Lynn’s Butcher Hollow because Trump is now in the Oval Office, you might want to rethink that strategy.

Coal will still be with us for at least a few more decades, but it will die a slow death and its legal job-creation possibilities are non-existent.

Coal is abundant and cheap. But its downside is that it is a dirty fuel (don’t believe the clean coal fairytale) and even if Trump and his acolytes believe that climate change is a hoax, utilities don’t and are proceeding accordingly. Coal to natural gas power plant conversions have been booming for almost a decade. There is nothing to indicate that this trend is slowing down despite the recent rise in natural gas prices. In that same time frame, no U.S. power plant converted from gas to coal.

The export market for coal is no antidote to its domestic woes. China and India, numbers one and three on the coal user list (the U.S. is number two), are cutting back on coal. In February 2017, China announced that it is deep-sixing plans to build 85 new coal power plants.

The Energy Information Administration (EIA) (http://eia.gov) predicts that coal production will be flat until 2022 and then drop. In contrast, natural gas production is predicted to rise significantly from its current high level.

While some of this was prompted by EPA regulations that are under siege from Trump, their rescission won’t make much difference. The movement to gas and eventually to cost-competitive renewable energy sources will continue.

Oil and Gas—Booming for Now

Trump vows to “unleash” oil and gas via deregulation, which will implant the final stake in coal’s heart while spurring increased hiring in these two industries that, until the Saudi 2014 strategy keeping production high despite lower demand in order to hurt U.S. shale drillers, were hiring attorneys at a frenetic pace. Trump’s policy will regenerate legal and JD Advantage (e.g., landmen) hiring. In just one pre-Saudi year, 20,000 new landman jobs were created in Pennsylvania alone.

Renewables—Looking Good Long Term

The cost of solar and wind energy and energy storage is dropping, bringing it pretty close to being price-competitive with fossil fuels. Combine that with electric vehicle technology and you get a prediction from EIA that fossil fuels could lose 10 percent of global energy market share in the next decade. This even if Trump cuts industry subsidies because he, Secretary of State Rex Tillerson, and EPA Administrator-designate are in the pockets of the oil and gas industry. Price and clean power are more important to industry and investors than deregulation in other sectors and federal subsidies.

Nuclear—Steady As She Goes

Even before Trump, uranium was the hottest mining sector in the U.S. Much of this is attributable to the Obama administration’s revival of the industry after a 30-year limbo caused by the Three Mile Island debacle. Under Obama, the Nuclear Regulatory Commission (http://nrc.gov) approved eight new reactors and went on a legal hiring binge. Now, industry and investors are betting that Trump will deregulate nuclear and spur additional projects.

Bottom Line

The legal employment outlook for energy is bright. Moreover, energy hiring has gone national, no longer confined to the “oil patch” states (Texas, Oklahoma, Arkansas, Louisiana, and California). Just don’t bet on West Virginia, Kentucky, or Wyoming.

Compliance: The “Donald Trump Effect”

Donna Skibbe
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With a new president in the White House, it’s time to get a fix on what might be happening moving forward with respect to the future of compliance and compliance job opportunities. With this in mind, I interviewed corporate compliance and operations executives and personnel in the financial services (investment advisor firms, securities brokers and dealers, insurance, banks, hedge funds), healthcare, and education industries, the three largest employers by far of compliance professionals. I also spoke to regulators at several federal and state regulatory agencies.

To my surprise, my sources were unanimous in concluding that compliance still has a very bright future despite President Trump’s vow to dramatically cut back on business regulation. They saw no adverse impact on hiring. To the contrary, they said that compliance hiring is certain to be as robust as ever. An insurance executive told me that, once artificial intelligence has its way (see Volume 15, I Robot: Opportunities and Threats in an Orwellian World  in our 21st Century Legal Career Series, coming soon), “compliance professionals may be the only employees left at corporate headquarters.”

How can they possibly be so optimistic when President Trump has declared all-out war on regulation? Here’s how:

  1. The large number of regulators

    2. For example, major financial services companies must answer to the following compliance and enforcement authorities:

  • U.S. Department of Labor (re: ERISA-qualified plans)
  • Financial Industry Regulatory Authority
  • Municipal Securities Rulemaking Board
  • Consumer Financial Protection Bureau
  • State Insurance Departments/Commissions
  • State Banking Regulator
  • State Insurance Fraud Bureau
  • Internal Revenue Service
  • Office of the Comptroller of the Currency, Federal Deposit Insurance Corporation, and/or Federal Reserve Board
  • Possibly also the Commodity Futures Trading Commission
  1. Complexity. At least with respect to these industries, their activities are incredibly complex and getting more so every year. Several examples tell the tale:

Healthcare is in the midst of a technology revolution exemplified by:

  • DaVinci surgical robots that can perform intricate operations with a dexterity beyond human capabilities;
  • long-distance surgery via robots controlled by off-site physicians;
  • robots that perform “grand rounds” in hospitals absent accompanying physicians;
  • anesthesia administered and adjusted by machines instead of anesthesiologists or nurse anesthetists; and
  • image-interpretation bots that can read and diagnose X-rays, CAT scans, and MRIs with a greater degree of precision than radiologists.

Financial services is now dominated by sophisticated software programs, such as:

  • financial analytics programs that can put together financial plans that perform better than the human, cobbled-together variety;
  • predictive analytics programs that forecast market trends;
  • deep learning programs that refine their client-friendly output as they absorb new and more nuanced information;
  • client advisory programs; and
  • automatic communication bots that keep clients informed of new developments and changes to their portfolios;

In addition, broker/dealer fiduciary standards of care vis-à-vis clients have been raised in recent years by the host of regulators that impact the industry. That has necessitated increased compliance hiring. For example, the Labor Department recently raised the standard of care required of sellers of qualified plans. Elevated standards are not likely to go away because the public (investor) demand for them is intense and universal.

Education, which has become a poster child for intense government scrutiny as a result of:

  • the 300+ regulatory mandates of the Higher Education Opportunity Act of 2008;
  • education delivery systems becoming “technologized,” due to the rise of distance education platforms and student bodies scattered around the country and abroad; and
  • globalization, which means more foreign students attending U.S. universities, all of whom must be closely monitored by schools as agents for immigration compliance and enforcement.

Another reason for compliance’s bright future even in the face of deregulation, one that is completely independent of regulators, is the increasing number of lawsuits on behalf of investors who believe they were misled by poor financial advice.

To sum up, the compliance specialty is not going away anytime soon. In fact, it is predicted to grow by all of the parties involved, as well as the Bureau of Labor Statistics and the Society of Corporate Compliance and Ethics, the principal compliance professional association.

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