Author: TSA Press

As concerns about Covid-19 (“Coronavirus”) ramp up, companies all over the world are facing questions about how they can limit risk and continue operations in the face of an outbreak.

In response to this public health crisis, Lawline is now offering a new CLE free of charge to help attorneys and employers address these issues. Creating a Coronavirus Response Plan: A How-to Guide for Employers is taught by Susan Gross Sholinsky and Nancy Gunzenhauser Popper from Epstein Becker Green’s Employment, Labor & Workforce Management practice, and provides critical information for today’s situation. 

Related Content: 

1. Quarantine Law: Constitutional & Practical Considerations
2. Lawline’s 2020 Live Webcasts and Election Year Specials are Here
3. It’s Not If But When: What You Need to Know to Prepare For & Respond To a Data Breach

This isn’t particularly fashionable to say right now, but the love affair reasonable America is having with New York Governor Andrew Cuomo — to the point where people have to actually consider whether or not he’s going to turn up and unseat Biden at the convention — is deeply unsettling. Look, it’s not that he’s wrong to worry about the public health crisis unfolding in his state. After all, that’s actually his job! It’s what’s fueling his meteoric rise in the public’s esteem. Because it feels like folks are way more enamored of the idea of him than any steps he’s actually taking.

The common thread in all the Cuomo love is an appreciation for “big” and “bold” steps. This appreciation is usually couched in contradistinction to either Donald Trump’s bumbling efforts or Mayor Bill de Blasio’s cautious attempts to contain the disease without, you know, collapsing his city. The uneasiness of the political moment is not with any specific policy coming out of Albany, but the uncritical sense of relief people seem to feel the “bigger” and “bolder” the step. It’s a feeling Cuomo tacitly embraces with every television hit: “Look at me, they said close schools, so I closed your bodega! They said 6 feet, so I made it work from home! Screw you Chris, mom likes me better!” At what point are people responding to policies as opposed to the idea of policies that sate their desire to see something done to address a natural disaster? Because there are good ideas and bad ideas and right now I’m not convinced a random sample of Brooklyn craft-beer sippers feel much compunction to sort out the difference so long as Cuomo said it and de Blasio didn’t.

That may not seem like a big deal, but how America resolves this tension is pretty important. We’ve already got isolation orders around the country that are probably not constitutional and there are a lot of other, much more troubling policies out there that are easily pitchable as possible solutions to this disease. What’s off-putting is that an action-addicted America might be ready to embrace anyone pitching them without a second thought.

The extent of this mood is the subject of a piece in The Atlantic yesterday from a number of professors titled, “Red and Blue America Agree That Now Is the Time to Violate the Constitution.” The work reflects a poll the data-centric academics took of a representative sample of 3,000 Americans to opine on eight different but almost certainly unconstitutional policy options: “including forced quarantine in a government facility, criminal penalties for spreading misinformation, bans against certain people entering the country, and conscription of health-care workers.” What they found was that Americans of all political stripes are pretty comfortable with the idea of an executive authority just imposing its will right now:

A majority of respondents supported all eight of these policies, most by considerable margins. The proposals with the lowest support were seizing businesses and banning all citizens and noncitizens outside the country from entering, but these policies still had 58 and 63 percent support, respectively. The proposals with the highest levels of support were banning noncitizens from entering the country (85 percent) and conscripting health-care professionals to work despite risks to their own health (78 percent). Both policies burden a defined minority of the population, so it’s not surprising that large majorities support them. But criminalizing speech based on its content, an idea antithetical to modern American constitutionalism, was also very popular: About 70 percent of respondents supported restricting people’s ability to say things that may qualify as misinformation. Likewise, 77 percent of respondents support suspending all religious services and gatherings, thereby restricting religious freedom. And even when we explicitly told half of our sample that the policies may violate the Constitution, the majority supported all eight of them—even the speech restrictions.

And despite the dismissive propagandizing from Fox News downplaying the crisis and asking grandparents to sacrifice themselves at Carousel to appease the economy, the study found that Republicans actually do recognize the extent of the crisis. They just want Trump to get off his ass and be the one willing to take “big,” “bold” steps to violate the Constitution himself. Truly, we have united the country!

Everything about the political landscape right now eerily mirrors the immediate aftermath of 9/11 when no invasion of liberty seemed too small. The primary distinction is the federal chief executive this time is too stupid to glean exactly how much of a blank check he could be cashing. Sure, this stimulus bill is an astounding Republican power grab, but pales in comparison to the Patriot Act and launching a war in a country that had nothing to do with the attacks. At some point, this guy is going to figure out that he can be “The Decider” and start figuring out how the disease spreads faster among people from Mexico or something and we’re all screwed.

As the professors conclude:

Often, efforts to roll back civil liberties face political opposition, but now bipartisan support for rights-restricting COVID-19 responses could smooth the path for constitutional erosion. James Madison predicted as much when he described constitutional rights as “parchment barriers,” easily transgressed when the majority is so inclined. And indeed, history presents numerous examples of liberty violations made in the face of security threats: the Alien and Sedition Acts signed into law by President John Adams, Japanese American internment camps during WWII, and the use of torture after 9/11. After the threat has subsided, Americans must recognize any constitutional violations for what they were, lest they become the new normal.

Look, this is serious, and sometimes dogged adherence to the Constitution offers an ill fit when confronted with advances in technology, or the many vectors of modern calamity, or the pretending the government isn’t an anachronistic reflection of a legalized slave economy. But there are broad strokes in that document that are at the very least symbolically useful and if we’re really going down the road of pushing these freedoms to the limit, it would be nice if we were willing to have a deliberative chat about it beforehand.

The very least we can do is be really queasy about the idea of lionizing someone for it.

Red and Blue America Agree That Now Is the Time to Violate the Constitution [The Atlantic]

Earlier: Texas Lt. Governor Will Death Panel Your Nana To Save The Economy

Joe Patrice is a senior editor at Above the Law and co-host of Thinking Like A Lawyer. Feel free to email any tips, questions, or comments. Follow him on Twitter if you’re interested in law, politics, and a healthy dose of college sports news. Joe also serves as a Managing Director at RPN Executive Search.

Wachtell partner William Savitt has had just about enough of your BS. After all, there’s a global health crisis going on that means we’re pretty far afield from business as usual.

The co-chair of the litigation department sent a memo to clients earlier this week lashing out against normal litigation practices in “nonessential” cases. Savitt said in the memo he was “dismay[ed]” at the “flood” of trivial cases and motion practice while the rest of the world was trying to deal with the fallout from the spread of coronavirus.

Savitt went on to tell Law360 that life under COVID-19 “requires triage for everyone, including and in some ways especially for lawyers. Lawyers, like everyone else, need to avoid insisting on priority for matters that aren’t urgent, and should avoid filing or pressing fringe cases in this environment.”

Savitt’s incredibly practical advice is that shit is just going to take longer now that everyone is simultaneously also dealing with a pandemic. Instead of clinging to the pre-coronavirus rules, lawyers have to be flexible and understand nothing is going to be “normal” for a while:

“Insisting on rules and schedules that apply in normal times in nonexpedited cases isn’t sensible, because times aren’t normal,” Savitt told Law360. “Everything will take longer in this environment, both because of the massive disruption in the way we are working and the press of newly urgent human and legal business.”

Everyone is doing the best that they can, and it is super important to remember that. As Savitt said, “We all have to take care of each other and that includes in the way we litigate.” And how nice to hear that message from someone at the top of a profession as notoriously cutthroat as Biglaw.

Kathryn Rubino is a Senior Editor at Above the Law, and host of The Jabot podcast. AtL tipsters are the best, so please connect with her. Feel free to email her with any tips, questions, or comments and follow her on Twitter (@Kathryn1).

We basically don’t want the intention of assistance from the federal government to be offset by a corresponding and equal reduction in assistance from Harvard, because then it’s not assistance at all, right?

— Alexandra M. Jordan, a Harvard Law School graduate, commenting on a letter that was signed by about 50 current and anticipated future participants of the school’s Low Income Protection Plan (LIPP), which asked that current levels of financial aid be maintained despite the fact that the federal government plans to suspend federal student loan payments and waive interest on those loans due to the coronavirus pandemic. Harvard Law’s LIPP program was created to help graduates working in lower-paying public service or private sector positions.

Staci Zaretsky is a senior editor at Above the Law, where she’s worked since 2011. She’d love to hear from you, so please feel free to email her with any tips, questions, comments, or critiques. You can follow her on Twitter or connect with her on LinkedIn.

Remember when Donald Trump promised to “open up” America’s libel laws?

“Isn’t it a shame that someone can write an article or book, totally make up stories and form a picture of a person that is literally the exact opposite of the fact, and get away with it without retribution or cost,” he tweeted in 2018. “Don’t know why Washington politicians don’t change libel laws?”

It’s fun to tweet nonsense about the First Amendment during Hannity’s commercial breaks! But it’s even more fun to draft nonsense cease and desist letters. Which is why Trump’s re-election campaign sent this very serious letter to station managers in Florida, Michigan, Pennsylvania, and Wisconsin demanding that they pull an anti-Trump ad, OR ELSE.

On behalf of Donald J. Trump for President, Inc., President Trump’s principal campaign committee, this letter notifies you that your station is airing a patently false, misleading, and deceptive advertisement, entitled “Exponential Threat,” which was paid for by the Priorities USA Action Fund (“PUSA”), a Super PAC formed by Barack Obama loyalists. PUSA stitched together fragments from multiple speeches by President Trump to fraudulently and maliciously imply that President Trump called the coronavirus outbreak a “hoax.” As fully set forth in the enclosed facts sheet, and President Trump’s full quote below, the facts show beyond reasonable doubt that he was talking about the Democrat’s politicization of the outbreak when he used the word “hoax.”

Oh, supercuts are bad now? But last month when Trump himself tweeted a doctored video that made it look like Nancy Pelosi ripped up Trump’s State of the Union speech just as he was honoring a Tuskeegee Airman, and Facebook refused to take it down, it was totally cool?

Last May, Trump shared a clip of Nancy Pelosi, deceptively edited to make it look like she was drunk, which Facebook also left in place. But now “your station has an obligation to cease and desist from airing it immediately to comply with FCC licensing requirements, to serve the public interest, and to avoid costly and time-consuming litigation.”

To rebut the ads which “fraudulently and maliciously imply that President Trump called the coronavirus outbreak a ‘hoax,’” the campaign includes a longer quote showing the full context.

Now the Democrats are politicizing the coronavirus. You know that, right? Coronavirus. They’re politicizing it. We did one of the great jobs. […] One of my people came up to me and said, “Mr. President, they tried to beat you on Russia, Russia, Russia.” That didn’t work out too well. They couldn’t do it. They tried the impeachment hoax. That was on a perfect conversation. They tried anything, they tried it over and over, they’ve been doing it since he got in. It’s all turning, they lost. It’s all turning, think of it, think of it. And this is their new hoax. But you know we did something that’s been pretty amazing. We have 15 people in this massive country and because of the fact that we went early, we went early, we could have had a lot more than that.

This is supposed to be helpful? Because Donald Trump bragging at a campaign rally on February 28 that only 15 people in the entire country were sick thanks to his brilliant pandemic response is … not exactly a great look.

There’s certainly a strong case to be made that the ad is misleading — although the guy who lies so aggressively that he turned fact-checking reporter Daniel Dale into a media star is perhaps not the guy to make it. And indeed, he isn’t the one making it.

The Trump campaign can threaten to “pursue all legal remedies available to it in law and in equity,” but, as any 1L CivPro student could tell you, those legal remedies amount to exactly nothing because the campaign doesn’t have standing to sue on Trump’s behalf. And neither do Trump’s “healthcare positions,” whatever those might be.

Which is why those station managers just dropped this BS letter in the circular file after reading, “We will not stand idly by and allow you to broadcast false, deceptive, and misleading information concerning President’s Trump’s healthcare positions without consequence.” (Presumably while rolling their eyes and making the jerk-off motion.)

Here’s the ad, which tens of thousands more people have now seen thanks to the Trump campaign’s little stunt.

And here’s another one the campaign re-tweeted this morning.

Because they are just very, very good at this whole media thing!

Pro-Trump group demands TV stations stop airing liberal super PAC ad [The Hill]
Read the letter Trump’s campaign sent to TV stations threatening the FCC could pull their licenses over anti-Trump ad [RawStory]

Elizabeth Dye lives in Baltimore where she writes about law and politics.

If a law firm is seeking out a practice management platform with a longstanding reputation for quality, it would be hard-pressed to find a better option than Clio. Clio is a global enterprise with a foothold in North America, where it has the most users and the most integration partners of any similar technology option.
And, having just raised the largest capital investment in legal tech and Canadian history, Clio is here to stay.

However, buying the right software is only half the battle; it’s still true that most lawyers don’t get the true benefit of the softwares they use.  There are a number of reasons for this, including the fact that law firms do training about as well as they water ski, but it’s mostly about priorities. Since most law firms are so heavily focused on revenue, the modus operandi is always to get into the base program features as quickly as possible, and then to dive back into the “real” work of running a law firm — i.e., making more money.  This means that attorneys tend to gloss over really useful system features that would, ironically, save them time and make them even more money on the back-end. So how do we reverse that trend? By sharing the inside scoop on the simple ways you can get more out of Clio and ensure the financial health of your law firm.

Register below to download the free report: Super 7: Clio Accounting Hacks You Need to Know.

When a man caught his junior barrister wife in an affair with a senior Queen’s Counsel, she graciously explained to him that they shouldn’t cite “adultery” as the motivation for their impending divorce, claiming that it would be easier to just cite “unreasonable behaviour.” The unnamed man who, for probably the first time in his life, figured out that maybe he shouldn’t blindly trust everything she’s telling him, opted to seek out legal counsel to protect his interests.

Well, not quite. He decided to ask Reddit what he should do. In the words of our friends at Legal Cheek, “As you do.”

My wife is less than 1 year qualified and the QC has gotten her a new, much more senior, position at another firm and will be using her as his junior counsel on trials. Not sure how ethically sound this is or if it constitutes an abuse of power.

The classic British understatement remains as robust as ever as he’s “not sure” if this is ethically sound.

In any event, Reddit came to the rescue and gave this man the advice that all of you are currently yelling at your computer screens:

1. don’t listen to what she says. Get your own lawyer and follow that advice.

2. she may or may not work in your interest so it’s imperative that everything you do must be through another lawyer to protect you and your interests.

It’s possible that the woman is offering fair advice. One commenter noted that adultery requires more proof than “unreasonable behaviour,” but there’s also no reason to believe he doesn’t already have that proof. May as well check with a lawyer on that one.

Another wrote, “Lawyer up,” and another wrote, “The only advice I can give is to not listen to the person you are divorcing or their lawyer for legal advice, moreso when they are the same person.” Some 64 comments in, the man started to notice a pattern:

Thanks for your response.

Seeing a trend in the comments here and I think you’ve hit the nail on the head. I’ll look into getting a solicitor.

Reddit law school wins! Who says the internet is just for hate groups and porn?

Husband asks internet for legal advice after catching junior barrister wife having affair with QC colleague [Legal Cheek]
I [28M] am divorcing a divorce lawyer [28F] and looking for advice [Reddit]

Joe Patrice is a senior editor at Above the Law and co-host of Thinking Like A Lawyer. Feel free to email any tips, questions, or comments. Follow him on Twitter if you’re interested in law, politics, and a healthy dose of college sports news. Joe also serves as a Managing Director at RPN Executive Search.

But first of all our sincere condolences to the Makamba family, and indeed to all Zimbabweans, on the untimely loss of our second confirmed COVID-19 case, Zororo. Our hearts go out to the family in solidarity, and we take very seriously all the observations they made about our unpreparedness for this disaster, and the hardships and mental torment they had to endure.

This is a wake up call for Zimbabwe and we must respond promptly and appropriately to this challenge.  I must point out that this brings our case fatality rate to 50%! This is not acceptable. Let’s watch this number as we go along. We must achieve case fatality rates of a fraction of 1%. Then we know our health delivery system is working as it should. The big lesson we learn from this first fatality is that preparedness is not something we can only wish, but we’ve got to work hard at it and deploy resources big time towards preparedness.

Mere reassurance from those in authority will not work. Waiting for donations is not a viable option. We must take the lead in prioritizing healthcare in our expenditures.  At the end of 60 days or so we should look back with satisfaction and say “that money was well worth spending”. To that end we ask government to suspend all non life saving program expenditures and channel resources to health care for the next 2-3 months.

We have another disaster looming. Healthcare workers cannot continue to work in this toxic environment without the necessary personal protective equipment (PPE).  We have noted how health care workers died in countries and economies much tougher than ours. We also note with much trepidation that 4800 health care workers have been infected by COVID-19 in Italy, and that this represents 9% of total cases. We should not sacrifice any doctor or nurse on the altar of self imposed poverty in a country that is so well endowed with resources.

It is imperative that government provides forthwith the necessary PPE for health workers so that they can come to work with the confidence that they will return home safely. At this point in time we wish to emphasise that we are firmly behind the health workers for demanding proper working conditions in the face of a highly infectious virus.  Provision of water at all our hospitals is also non-negotiable. We urge the government to go the extra mile and give a risk allowance as requested by some health workers. This has been done in the past and it went a long way towards incentivizing the health workers to continue to serve the nation in very dangerous environs. Any non-availability of health workers from the hospitals and any ensuing disastrous consequences will squarely be on the government’s shoulders.

We further urge the government to institute a total lockdown of our cities, and to close all borders except for the most essential travel.

Communication with the public is key at all times.

The message on constant hand washing, use of hand sanitisers, social distancing, banning of public gatherings, self isolation, and working from home whenever possible must be reinforced daily. Telephonic consultations are encouraged at this time to minimize human to human contact.

We wish to appreciate the international community for your valued assistance at this difficult time, our local authorities for the hard work and taking the challenge on head on under very difficult circumstances, all our health workers in general, and all Zimbabweans for your great fortitude.

We will subdue the virus if we climb with care and confidence, looking after each other’s needs, watching each other’s backs, and prioritizing health care.

H. Madzorera
Secretary for Health & Child Welfare
Movement for Democratic Change