The Voice

The Rejection of the Rule in Most ERISA Benefit Cases

Contra proferentem, however, has long been rejected in ERISA denial-of-benefit cases governed by arbitrary and capricious or abuse of discretion standards of review. In such cases, a plan administrator (often an insurance company) is given discretionary authority (where permitted) to decide benefit claims under an ERISA-governed plan. When a federal court reviews a lawsuit arising from a claim denial, it operates under a “duty of deference” and “functions … as a deferential review court with respect to the ERISA fiduciary’s decision.” Evans v. Eaton Corp. LTD Plan, 514 F.3d 315, 321, 322 (4th Cir. 2008).

“[C]ontra proferentem,” however,” is “inherently incompatible” with such “deference.” Clemons, 890 F.3d at 266. This incompatibility arises because:

Courts invoke [the contra proferentem] rule when they have the authority to construe the terms of a plan, but this authority arises only when the administrators of the plan lack the discretion to construe it themselves. … When the administrators of a plan have discretionary authority to construe the plan, they have the discretion to determine the intended meaning of the plan's term. … Deferential review does not involve a construction of the terms of the plan; it involves a more abstract inquiry—the construction of someone else's construction.

Morton v. Smith, 91 F.3d 867, 871 n.1 (7th Cir. 1996). As such, when a plan administrator has the discretion to interpret an ERISA plan, it (not a court) is the entity empowered to resolve ambiguities. High v. E-Systems, Inc., 459 F.3d 573, 579 (5th Cir. 2006).

This incompatibility exists even where the insurance company has a direct financial “conflict of interest” – i.e., it both administers the plan and funds the benefits. The circuit courts had been somewhat divided on this issue over the years. The Fourth Circuit in particular stood out as allowing the use of contra proferentem where a conflict of interest existed. See, Carolina Care Plan. Inc. v. McKenzie, 467 F.3d 383, 388-389 (4th Cir. 2006). However, after the decision in Metropolitan Life Ins. Co. v. Glen, 554 U.S. 105, 116 (2008) — in which the Supreme Court rejected the use of “special burden-of-proof rules or other special procedural or evidentiary rules” in situations where a plan administrator has such a conflict of interest — even the Fourth Circuit changed course. See Carden v. Aetna Life Ins. Co., 559 F.3d 256, 260-61 (4th Cir. 2009).

The Return of Contra Proferentem

Against this tide, contra proferentem has nevertheless made a noticeable return in ERISA denial-of-benefits cases. State legislatures and regulators in at least 20 states have greatly enabled this return by passing statutes and regulations in recent years that ban discretionary clauses — i.e., clauses that give insurance companies the discretion to decide benefit claims and interpret policy provisions — for certain types of insurance policies. These bans, in turn, have greatly reduced the number of ERISA denial-of-benefits cases that are governed by deferential standards of review. Without such deference, the rationale for rejecting the rule contra proferentem has vanished. And courts have taken notice, now readily applying the rule when conducting non-deferential de novo reviews of denial decisions.

In 2021, the specter of contra proferentem has already been pronounced. In the first six months alone, two federal appeals courts have issued decisions applying the rule in ERISA denial-of-benefits cases that were governed by the non-deferential de novo standard of review. Miller v. Reliance Standard Life Ins. Co., 999 F.3d 280 (5th Cir. 2021); Carlile v. Reliance Standard Life Ins. Co., 988 F.3d 1217 (10th Cir. 2021). In each case, the rule’s application resulted in judgment for the insured. Miller, 999 F.3d at 285-287; Carlile, 988 F.3d at 1227-1228. The rule also has surfaced at the federal district court level, again in a case involving de novo review. See Ministeri v. Reliance Standard Life Ins. Co., 2021 WL 495151 at*6-7 (D. Mass. Feb. 10, 2021). There too, its application favored the insured.

Conclusion

To be sure, not every disagreement about a policy term creates an ambiguity. But when a plan provision is ambiguous, practitioners should expect a contra proferentem argument and thus know when the rule is — and is not — applicable in ERISA benefits cases.

Richard F. Hawkins, III, of The Hawkins Law Firm, PC, in Richmond, Virginia, is a seasoned AV-rated attorney who regularly practices ERISA, life, health, and disability law. He was selected as a Super Lawyer Rising Star for Employee Benefits/ERISA in 2011 and is regularly included in Virginia Business Magazine’s “Legal Elite” for Labor & Employment. He has also served as a guest lecturer at the University of Richmond School of Law for life, health, disability, and AD&D insurance topics.

If you know what it is like to have anxiety about how your law firm is performing and whether the focus and attention are on the right things, you are not alone. We often talk with clients about the things that keep them up at night. Here is just a sample:

• Are we doing well financially?
• Will we run out of cash?
• Are our client relationships healthy?
• Are we effective at getting new clients?
• Are we on top of our matters?
• Are our people happy?
• Are we paying fairly?

The list could go on, but most concerns center around the need for better information.

Most lawyers have busy schedules and long lists of case priorities. They have little time for gathering and organizing the necessary data to create meaningful insights about firm performance. Adding to the problem is that there is often no easy way to collect and organize all the pertinent data. Many look to software to solve this problem only to find themselves disappointed when these systems fail to deliver. People end up frustrated and quit trying.

A primary reason for these shortcomings is that most law firm partners don’t have a data analytics background. They lack the knowledge to implement the necessary data capture systems, hire the right people, ensure data integrity, and create data analytics and visualization tools. Most lawyers might describe what they want from a performance management system as follows:

• What happened?
• Why did it happen?
• Where is it leading us?
• What should we do?

Once the system delivers these answers, the needs rightly evolve to what is happening, why it is happening, and what can we do to achieve a better outcome?

In our experience, even the worst-run firms have some sense of what happened, if for no other reason than regularly checking their bank account balance. A fair number of firms believe they know why something happened, but conclusions are often arrived at too quickly. For example, their time and billing systems provide various statistics about billable work and financial results but little or no insight into training issues.

It might help to visualize the typical law firm performance management system as a funnel turned upside down: The data capture is narrow and used to draw a wide range of often erroneous conclusions. Instead, we recommend capturing more data and distilling it into fewer, more actionable insights.

It is challenging to build a performance management system that delivers enough return on investment (ROI) to make it worth the time, money, and effort. Many of these projects fail because they are too ambitious and managed by untrained people. Another common pitfall is to approach performance management as if it is solely a software project. All that said, the benefits of these systems are potentially immense.

Borrowing from the software industry, we steer clients toward building a minimum viable product (MVP) and maturing the system over time. For example, a performance management system for a small or midsize law firm would create:

• Basic financial reports: financial statements (income, expenses, and cash flow) and productivity reports (including WIP, A/R and billings, and collections).
• Advanced financial and operational key performance indicators: trends (rates, hours, collections), timekeeper and client profitability and case efficiency metrics (average cycle time, open versus closed files period, attorney and paralegal leverage) and marketing return on investment.
• Practice management software: a tool for data capture and case, document and client management
• Attorney training and development plans: structure, scope and schedule to develop legal, managerial, client relationship and business development skills
• Employee experience program: a series of systems and processes to support a productive and nurturing work environment
• Performance evaluation system: a fair and transparent process to set expectations, measure and review performance
• Pay and progression program (compensation, incentives, progression path)
• Firm marketing system: a platform to coordinate and support individual and firm marketing efforts and build firm and individual brand awareness

Emotional Aspects of Performance Management

One aspect of a data-driven management system is that it removes much of the bias in data collection, analysis, and interpretation. Still, firm management must commit to a fair process. From our vantage point, far too many firms let the emotional aspects of decision-making impact the performance management process far too early. We have experienced firms that limit analysis because they don’t trust the analytics process to deliver their preferred conclusions. No system can overcome this type of bias. A successful performance management system requires good data, procedures, and the commitment to act honestly on the intelligence.

Brian Kennel, CEO and Lead Consultant at PerformLaw, has 20 years of experience in law firm and professional firm management and consulting. Using a hands-on approach, Brian helps clients overcome challenges and build their internal capabilities in areas of performance improvement, partner and associate compensation, financial management, new partner admittance, lateral evaluation, business development, and others. Brian knows how to get law firms where they need to be.

As a Process Analyst with PerformLaw, Jan Sander works with law firms to establish reliable systems and processes that give them a competitive edge. Using an analytical yet personalized approach, Jan helps firms to improve procedures that boost individual contributions and team collaboration. His key areas of focus with law firms include: associate and partner performance, growth management, marketing planning, practice planning, strategic, transition, and transformation planning.

To keep ahead of these trends and navigate regulatory changes for U.S. and global consumer privacy, device makers need strategies for properly designing, testing, and safeguarding the Internet of Things (IoT) and its connected components in order to ensure the Privacy of Things (PoT). 

The Rise of Connected Devices 

According to Statista, the globally installed base of digitally connected devices (IoT) is projected to reach 75 billion by 2025. While the benefits of connectivity are numerous, the challenge of protecting the valuable personal information generated or collected by those devices is paramount. Regulators are increasingly requiring businesses to protect all data, including machine generated data.

In one year since the European General Data Protection Regulation (GDPR) and associated enforcement were put into effect, regulators have extensively fined businesses for failing to protect the privacy of European citizens. Similar laws are now in effect in the United States, most notably the California Consumer Privacy Act (CCPA), which as of January 1, 2020, puts the strictest guidelines in the country on the collection and processing of personal information. In light of these regulations and the associated risks of non-compliance, it is critical for organizations to understand their role in not only protecting enterprise data but also safeguarding privacy and other personally identifiable information (PII) in their products and systems. 

Artificial Intelligence Techniques and Privacy 

Considering the enormous growth of data, sorting through this information using traditional methods is no longer feasible. In contrast, leveraging AI and machine learning techniques for big data analytics is becoming common industry practice. New industry initiatives have emerged in the AI space toward enhancing privacy and security. Notable among these initiatives are federated learning, differential privacy, and multi-party computation. Federated learning trains models on edge nodes before encrypting and transferring them to cloud-based platforms. The end effect is that data stays close to the user while trained models carry all the intelligence without jeopardizing the user’s privacy. Differential privacy on the other hand intentionally introduces noise into the data. The noise masks individual information in a manner that still maintains the integrity of the data set as a whole. Multi-party computation distributes a data set over multiple computational nodes such that no individual node has enough personal data to constitute a privacy threat. 

The ideal strategy for optimizing AI privacy may differ based on platform, organization, and regulations, but each of these methods shows the potential of AI to make devices more secure and enhance user privacy. 

Important Regulatory Changes for Consumer Privacy 

The CCPA creates new rights for California consumers relating to access, deletion, and sharing of personal information collected by businesses. According to the California government, a business will be subject to the CCPA requirements if it

• has gross annual revenues in excess of $25 million;
• buys, receives, or sells the personal information of 50,000 or more consumers, households, or devices; and/or
• derives 50 percent or more of its annual revenues from selling consumers’ personal information.

Businesses subject to the CCPA must provide notice to consumers when or before collecting data. Plus, businesses must also create procedures for consumers to opt-out, know, and delete data within specific timeframes.

Human Factors Analytics 

Unfortunately, despite the strongest technical safeguards, human actions, inadvertent or otherwise, often contribute to serious data leaks and PII breaches. Applying a robust human factors testing and assessment program to devices is often the best method of evaluating and mitigating this risk. The goal of human factors assessments is to reduce human error, increase productivity, and enhance safety and comfort with a specific focus on the interaction between a user and the product. Analysis and testing of human factors therefore should be a key part of the design processes of any system that deals with private or sensitive data. 

How Exponent Can Help

Exponent Inc., with our multi-disciplinary groups of security and privacy subject matter experts, design evaluation teams, data scientists, and human factors personnel, has been a leader in the security, privacy, and design consultancy community for well over two decades. We help manufacturers design, evaluate, test, and optimize the security and privacy of products and services to help our clients understand, detect, and mitigate risks. 

Exponent was a Premier Sponsor of DRI’s Product Liability Conference. Brad A. McGoran, P.E., CSCIP, CSCIP/G, GIAC, ACE-M, is a Principal Engineer for Exponent Inc. 

So, as I listened to the various speakers at the Diversity Seminar discuss the many challenges and obstacles they have had to overcome due to their visible traits reflecting their diversity in race, disability, and/or gender identity, it struck me—really, for the first time—that I have largely failed to acknowledge my own privilege stemming from my ability to choose how others identify me. In other words, my privilege is my discretion to reveal or hide my diversity—a choice that those who are visibly diverse do not have.

Growing up, I became familiar with the term “third-culture kid” to describe someone who, like me, spent many of their formative years living in countries and among cultures that were different than those of their parents. The idea behind the term, coined in the late 1950s by American sociologists Ruth Hill and John Useems, is that these children grow up exposed to the cultures of both their passport country and their host country or countries, resulting in a third culture that is a mix of the two. Immigrant and refugee children, as well as diplomats’ kids, “military brats,” and the children of international businesspeople are often included in this group. Third-culture kids are frequently characterized by the ease with which they adapt, at least superficially, to most environments and, as such, are often labeled “chameleons.”

Being a chameleon has some clear benefits of which I have long been aware. Aside from being able to speak other languages—Spanish and (some) Russian—I can adjust to most settings and find great joy in experiencing other cultures. I have moved more than 35 times, and lived in urban, suburban, and rural communities, so it does not take long for me to make a place my home. I know people spread over dozens of countries and nearly every state in the United States. Of course, though, with these benefits, there are also drawbacks. Because I spent much of my youth saying good-bye, it was difficult to maintain meaningful bonds; and, given the brevity of interactions, my relationships were rarely close. Another challenge was the feeling I did not belong to any culture—the idea that I was neither “fully Costa Rican” nor “fully American.” For instance, I have missed out on some of the quintessential cultural experiences of the average American my age. My wife Shannon, who grew up in the United States, will often refer to some movie, toy, song, or fashion trend, prefaced by, “Do you remember when we were kids …?” to which I have to honestly respond, “We didn’t have that where I lived.”

Overall, though, I must admit that the benefits of being a cultural chameleon outweigh any disadvantages. Today, that is clearer than ever. The strong anti-immigrant sentiments that propelled our former president into office and the growing social justice movements bringing attention to the continuing institutional racism and inequality in this country make it blatantly obvious that my specific traits (i.e., white, heterosexual, male) give me an advantage in this country. Declaring my Latino or third-culture background does not change that. In truth, my chameleon privilege is my choice to disclose my diversity while avoiding the prejudice other diverse people endure based purely on their diverse appearance.

It is past time for me to recognize my chameleon privilege. What would my experiences have been had my mother’s maiden name, Sequeira, been on my license or a job application? How would my interactions with law enforcement or traveling into the United States have been different if I was black or brown? Not once has a stranger in this country questioned my right to be here or proclaimed that I should go back to “my country.” I have not felt threatened or felt any fear, simply by getting pulled over. Nor has anyone called the police on the fear that my presence combined with my skin color alone makes me suspicious. It can be easy to take these things for granted.

I know my background is my own, and only few may relate to my specific experiences. What I hope to convey, however, is my new-found realization that the experiences of diverse people are not monolithic. In a society where people are readily judged by their outward appearances, those of us whose diversity is hidden are in many ways chameleons, and that ability to “blend in” is a privilege that we should be willing to acknowledge in an attempt to better understand the experience of those who are visibly diverse.  

Jason L. Holliday is an associate at Dinsmore & Shohl, LLP in Charleston, WV. He focuses his practice on commercial litigation, a field that rarely gives him the same day twice. His experience includes counseling corporate clients on insurance issues, construction, employment, and a variety of other pre-litigation issues. A former Chicago police dispatcher who spent years identifying and relaying essential information to first responders in emergency situations, he knows how to read a rapidly developing situation and deal with a variety of personalities in order to meet clients’ needs.

It is with this backdrop that I took on the challenge to further broach the subject of diversity by serving in a leadership role with DRI. As a leader on the Diversity Committee, the research and my experiences confirm that:

• we are losing talented, gifted lawyers who find that invisible barriers still exist, and the presumption of incompetence still exist both internally and corporately
• traditional methods of marketing and securing business are far more elusive to the minority lawyer than the non-minority lawyer
• law firm diversity committees are tools for marketing a perspective to prospective clients when internally minority lawyers are isolated

From the outside, the legal profession seems to be growing ever more diverse. Three women are now on the U.S. Supreme Court. Loretta Lynch served as the second African American to hold the position of attorney general. We have many women serving in the U.S. Presidential cabinet. Yet, according to Bureau of Labor statistics, law is one of the least racially diverse professions in the nation. Eighty-eight percent of lawyers are white. Other careers do better — 81 percent of architects and engineers are white; 78 percent of accountants are white; and 72 percent of physicians and surgeons are white. The legal profession supplies presidents; governors; lawmakers; judges; prosecutors; general counsels; and heads of corporate, government, nonprofit, and legal organizations. Its membership needs to be as inclusive as the populations it serves. 

Still, the profession needs diversity champions, who are people dedicated to supporting an inclusive profession, company, firm community to turn talk into action. As many like to say, diversity champions are folks who want to “walk the talk.”

Arguably, the challenge is that there is a lack of consensus that there is a significant problem in the legal profession. Many believe that barriers no longer exist; LGBTIQ, women, and minorities have moved up; and any lingering inequality is a function of different capabilities, commitment, and choices. However, the evidence seems to suggest otherwise. 

It is important to recognize that being a good person and being averse to diversity and inclusion are deemed mutually exclusive, though this interpretation does little to provide the nuanced perspectives that develop multicultural literary.  Consider this: We spend approximately one-third of our lives at work. This means we spend about the same amount of time with our colleagues talking, sharing, collaborating, and producing results. But do we take the time to get to know the people around us who seem vastly different than we are?  

I offer these texts that provide the opportunity to broaden your understanding of diversity and inclusion, and how to tackle the “taboo” of talking about race, privilege, and otherness. “Lies My Teacher Told Me,” by James Loewen; “How to be an Antiracist,” by Ibram X. Kendi; “Why Are All the Black Kids Sitting Together in the Cafeteria?” By Beverly Daniel Tatum; Debby Irving’s “Waking Up White”; and “White Fragility: Why It’s So Hard for White People to Talk About Racism,” by Robin DiAngelo.

Studies show that while women constitute more than one-third of the profession, however, women comprise only about one-fifth of law firm partners, general counsels of Fortune 500 corporations, and law school deans. The situation is bleakest at the highest levels. Women account for only 17 percent of equity partners, and only seven of the nation’s 100 largest firms have a woman as chairman or managing partner. Women are less likely to make partner even controlling other factors, including law school grades and time spent out of the workforce or on part-time schedules. Studies find that men are two to five times more likely to make partner than women.

Further, although minorities now constitute about a third of the population and a fifth of law school graduates, they make up fewer than 7 percent of law firm partners and 9 percent of general counsels of large corporations. In major law firms, only 3 percent of associates and less than 2 percent of partners are African Americans. The questions to ask yourself is why is this still the case and what will we do to change the course?

Importantly, despite these circumstances, and through leadership roles, I have had the opportunity to meet corporate counsel, some minority and non-minority counsel, who understand the dangerous impact of lip service to diversity and the inappropriate presumption of incompetence with no objective proof. These corporate counsels are the trailblazers of the day, as they understand that the power of their purse can effect change, even for a small law firm owner, who happens to be a person of color and a woman.

Recently, I had the unique opportunity to join a DRI Social Justice panel with Charles L. Norton, Jr, the General Counsel and Corporate Secretary of The Coca Cola Bottlers Association.  In true Champion fashion, Norton whole­heartedly believes the legal profession is on the brink of change for the better. Norton candidly shared his hopes for the future and addressed diversity and inclusion inquiries head-on during the DRI Town Hall panel on the state of social justice in America and the role of lawyers and corporations. In fact, Coca-Cola now requires diversity accountability among its U.S. law firms who bill its work. Going forward, Coca Cola will change the trajectory by measuring diversity and inclusion efforts within its law firm panel counsel. 

Companies big and small decided to recognize Juneteenth, a holiday that commemorates the end of slavery, after the killing of George Floyd set off an urgent national conversation about race. Companies and law firms are usually quiet at moments of public upheaval and hesitant to take a political stand for fear of alienating customers. But since Mr. Floyd’s killing, businesses of all kinds have expressed their solidarity with protesters, donated millions of dollars to organizations dedicated to racial justice, or vowed to change their office cultures to be more inclusive. Many have also announced intentions to make concrete changes inside their own institutions or in how they do business.

“When the dust settles and the pages of history are written, it will not be the angry defenders of intolerance who have made the difference. The reward will go to those who dared to step outside the safety of their privacy in order to expose and rout the prevailing prejudices.”  - Bishop John Shelby Spong

With a renewed focus following George Floyd’s death, I sincerely hope that other corporations and law firm managers will model Coca Cola’s measures going forward. This is an opportunity to take real action so that that minority lawyers’ value would be appreciated wholly rather than on the surface and that the need for diversity initiatives, committees, studies, and summits would be eliminated. While trailblazers in the DRI, NBA, and ABA have been educating the legal community about the value of diversity in a diverse multicultural world, law firms and Corporate America do not always reflect an acceptance of that value in its selection of counsel. There are many national law firms, panel counsel for corporations, and corporate boards that still do not have minority lawyers serving at the highest levels of their businesses.

As the world moves to a more global economy, the importance of diversity in thought, color, communication, style, and performance will have greater value. I am hopeful that we will reach a profession that accepts people for their unique value. I challenge you to trust that minority lawyer who has proven she is capable. I believe that one of the reasons people fear diversity is because they are accustomed to the way things used to be and change makes them uncomfortable. Still, others feel threatened because they perceive increased participation by traditionally underrepresented groups as a challenge to their own power.

To the extent you think promoting a diverse or LGBT lawyer to law firm leadership or hiring a minority is a risk or threat, I challenge you to examine the root of your beliefs. If you do not understand another’s values, lifestyle, or beliefs, it is much easier to belittle and devalue them. And so, the seeds of prejudice and intolerance are sown. Building a diverse organization does not mean having a few ethnic or other minorities in the office. It also does not mean a group comprised only of minorities. It means having people of diverse culture, experience, and background in all levels of a law firm. True diversity and inclusion champions require more than just checking off the requisite boxes on a checklist or survey. They require more than talk. They require action from the leadership to its workforce. My recommendation to corporations and law firm managers is to take steps today to change the trajectory of the country, community, and your organization by doing the following:

• Communicate diversity, equity, and inclusion strategies and policies to employees and spell out what actions the organization is taking.
• Give leaders and employees the skills and tools to help create a more inclusive workplace and address discrimination.
• Give managers guidance and training on how to move forward in supporting diversity and inclusion within your organization.
• Create dedicated spaces for people to talk about social injustice and inequality at work.
• Respond to the call to explicitly state your company or firm’s stance on inequality and give regular updates on how you are following through on your commitments beyond “lip service.”
• Schedule a firm leadership meeting with a diversity consultation and an agenda structured to tackle the “Taboo” of talking about diversity and inclusion issues within your organization and the plan of action with consistent measuring and accountability measures going forward.
• Become an ally. Allies play the important role of magnifying the voices of marginalized groups. Because of the inherent privileges that come with being in the majority (more access to leadership, less fear of discrimination or retribution, sheer volume of voices), allies have the unique ability to make the needs of the marginalized more visible to the eyes (and ears) of important decision-makers. Be visible and open about your allyship. Support cannot live in the dark or in comfort zones.
• Have an honest conversation with your leadership about the state of your organization on issues of equality, advancement, opportunity, and inclusion.
• Educate yourself and learn about your implicit biases and acknowledge them. Whether due to nature or nurture, we all have implicit and subconscious biases that we carry around daily. However, awareness of our own biases allows us to check ourselves and make sure that we are not acting on these biases and carrying out behaviors solely because they align with a certain bias.
• Do more than stress diversity and inclusion on your website. Expand your firm’s management culture, build a support structure and revamp recruiting efforts and opportunities to diverse law schools and communities.
• Provide opportunities for diverse attorneys to become a part of key legal teams and provide diverse lawyers with leadership training and case assignments on primary firm matters.

Champions of inclusion are fundamental to change mindsets. They are people who ensure that everyone has an opportunity to engage, and they exemplify first and foremost that they can connect, communicate, challenge, and collaborate appropriately. Indeed, what makes champions of inclusion extraordinary is that they demonstrate on a regular basis how ordinary it can be to support and promote an inclusive culture at all levels. Finally, diversity and inclusion will continue to be a cultural touchstone worthy of true allies and champions. The path to positive transformation for the profession doesn’t begin with nice gestures, but begins with foundational work, commitment, and a plan to execute the visions of true champions of inclusion – something that the legal profession and the world so desperately need.

Pamela W. Carter is the founder of Carter Law Group LLC in New Orleans, where she concentrates her practice on a wide variety of civil litigation ranging from insurance coverage, personal injury, and transportation law, to toxic tort, defective product, and general litigation matters. She is nationally recognized for her publications and presentations on issues of diversity in the legal profession.