Author: TSA Press

You know that client confidentiality obligation lawyers have? The one that shapes how you meet with your clients, what you do online, and how hard you laugh at TV shows about lawyers? Therapists have that too. As the American Psychological Association explains, they need to guarantee confidentiality so that people will open up so the therapists can, you know, do their jobs.

So the psychiatric community was shocked last month when the Washington Post reported that the Trump administration has been using notes from immigrant minors’ therapy sessions against them in immigration court. Although this is a blatant violation of the APA’s Ethical Principles and a horrifying betrayal of vulnerable children’s trust, the Post reported that it’s not technically illegal because the therapists work for the Department of Health and Human Services, which stands in as a parent for unaccompanied immigrant minors.

“One of the big factors we consider is, are we putting the community at large at risk?” said Jallyn Sualog, deputy director for children’s programs at the relevant division of HHS, and a person who has to rationalize her choices somehow.

As a result, Democrats introduced a bill last week seeking to outlaw both HHS sharing therapists’ notes with ICE and ICE requesting them. They’ve also asked for a formal Inspector General investigation and written a couple of pointed letters. Apparently, they have a different take on responsible use of parental power.

The Washington Post story focuses on Kevin Euceda, who was 12 when his physically abusive, alcoholic grandmother died, and MS-13 gang members moved into his home. They forced him to work for them until he was 17, when he ran away because they ordered him to murder a stranger. With his older sister, he made his way from Honduras to south Texas, where he fell into the tender in loco parentis care of the Trump HHS.

Most of that information comes from conversations with Euceda’s first therapist, who told him (and probably believed) their conversations were confidential. However, she made the mistake of telling the truth to her supervisors, who used it as an excuse to transfer Euceda to a high-security detention center in Virginia that’s been accused of physical abuse and misuse of psychiatric drugs to keep kids “chemically restrained.” You know, like a good parent does. His new therapist there certified him as a victim of human trafficking, but that did not stop the Trump administration from using therapist notes to appeal all four of the immigration court decisions releasing him.

Euceda is now 20 and has spent more than 1,000 days in federal custody, with months more expected. As for HHS, Secretary Alex Azar (who has grown a beard, perhaps to signify that we are now in the evil mirror universe) told the Washington Post that this was just an oopsie that they’ve fixed. Because that’s what people do when they get caught.

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Lorelei Laird is a freelance writer specializing in the law, and the only person you know who still has an “I Believe Anita Hill” bumper sticker. Find her at wordofthelaird.com.

We have, admittedly, been a bit skeptical about the, shall we say, seemingly over-the-top reaction to the coronavirus pandemic (officially, now). Without downplaying the seriousness of the spreading illness to vulnerable populations, it seemed like some sensible, moderate precautions—washing one’s hands until they bleed, keeping off of public transit and generally away from other people if one feels unwell, laying in a reasonable stock of necessary supplies should it be necessary for you to cool your heels for a couple of weeks, staying the hell away from Steve Cohen—was really all that was called for. Attempting to force each of the seven-and-a-half billion people on earth to stay at least six feet away from every single one of the other seven-and-a-half billion people on earth, cleaning out the local Costco of hand sanitizer and everything else, cancelling all flights and trains and taxi rides, and selling every single security you own frankly, seemed like a bit of an overreaction.

While media — in particular social media — seems unable to grasp this, it is possible to have a serious pandemic and not react with breathless panic. There’s an illness out there with no vaccine that spreads even when carriers are showing no symptoms. But it’s also not lethal for most of the population and — because it requires close contact to spread — fairly easily defeated by vigilant hygiene. All these things can be true!

All this is to say, that people need to lay off of Lawrence Garbuz, the New York attorney who tested positive for COVID-19 and currently has over 50 cases traced back to him. The state locked off New Rochelle due to the outbreak traced to Garbuz.

Speaking with the local NBC affiliate:

“I hope the Garbuz name becomes associated not as the ones with coronavirus but the ones who were instrumental in helping get this contained,” Adina Lewis Garbuz wrote on Facebook Tuesday afternoon. “I have not wanted to speak out as I have no urge to be in the limelight and I am sure my husband would be most horrified knowing he was, but I am willing to if it in any way can be helpful to others, to allay fears and restore feelings of calm.”

While you’d like to think we live in a society that doesn’t blame people for catching a disease, that’s sadly not where we are right now. Even charitably affording people the viewpoint that they aren’t blaming him for catching the disease, but for spreading it, this strikes at the principal danger of COVID-19: it spreads even when patients are showing few if any symptoms. None of this is Garbuz’s fault, so just cut him a break here. And remember that it takes two to tango here: wash your hands and keep some distance (though, no, you don’t need to become a hermit) and you’ll be alright even if the person down the hall has the bug unbeknownst to them.

In fairness, you should have been doing this the whole time. The flu is deadly to vulnerable populations too, so these hygienic measures shouldn’t stop even after this is eventually declared under control.

“It is easy to be fearful and scared and believe me, my family has been seen plenty of irrational bad behaviors based on it,” she said, referencing a laundromat that refused to serve her children despite them being out of the country and cleared by the Centers for Disease Control, or a nurse who “hugged the walls” as they walked by. But Lewis Garbuz implored that people not let emotion and fear control their behavior, writing that “We are in very unchartered (sic) waters with this virus and unknowns are scary but we also know quarantines and testing are helping. Let facts override bad thoughts.”

This is what a breakdown in public health information looks like. A government that wasn’t proposing a $1.2 billion cut to the CDC right now could be doing a lot more to keep people both safe and calm instead of letting panic run wild.

Not that the lawyers are helping the situation trying to substitute their judgment for doctors even though their failure to grasp organic chemistry is the only reason they became lawyers in the first place. And don’t think we haven’t noticed some of you suddenly lobbying for more restrictive government measures than the public health officials recommend. We see your clients’ force majeure clauses. We’ve got prominent political figures out here acting like the disease wouldn’t really exist if Trump weren’t president, which is dangerous levels of magical thinking. Not everything needs to be cast in absolutes — Trump’s failures can be pronounced without pretending he’s the cause of a worldwide outbreak.

Everyone just needs to stop. Listen to doctors. Keep clean and stay home if you’re sick or vulnerable. Don’t be a panicky jerk blaming people for catching something.

Wife of Lawyer at Center of NY COVID-19 Outbreak Urges Public Not to Blame Family [NBC 4]

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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.

* Michael Avenatti’s lawyer is afraid to visit him in jail over coronavirus fears. And Avenatti has a substantial need for legal counsel right now… [New York Post]

* A District Attorney is launching a price gouging investigation over price increases related to coronavirus. [NBC News]

* Since Above the Law no longer has a regular lawyerly lairs segment, I feel it is my duty to convey that the house of a founder of 1-800-LAWYERS has hit the market. [New York Post]

* The California Attorney General is dropping a lawsuit over the merger of T-Mobile and Sprint. [LA Times]

* The New York GOP has filed an attorney ethics complaint against Senator Chuck Schumer for making alleged threats against Supreme Court justices. [New York Post]

* Check out this piece on an attorney who decided to open up a doughnut shop. That’s one way to make dough… [NBC News]

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Jordan Rothman is a partner of The Rothman Law Firm, a full-service New York and New Jersey law firm. He is also the founder of Student Debt Diaries, a website discussing how he paid off his student loans. You can reach Jordan through email at jordan@rothmanlawyer.com.

In February 2020, Glorious All Time Functions started developing and constructing a wedding venue at Hillside Park wetland in Harare’s Hillside suburb despite being barred from doing so by High Court Judge Justice Owen Tagu who, on 22 May 2019, prohibited the property developer from undertaking such work.

This compelled Hillside Park Association, represented by Memory Mafo, Paidamoyo Saurombe and Fiona Iliff of Zimbabwe Lawyers for Human Rights (ZLHR), to file an urgent chamber application for execution of Justice Tagu’s judgment, to suspend all development on the wetland pending the determination of an appeal filed in the Supreme Court by Glorious All Time Functions challenging the High Court’s order.

In terms of the order of Justice Tagu, which is now in effect in terms of the order of Justice Muremba of Tuesday 10 March 2020, the planned development on the Hillside Wetland has been ruled unlawful and Glorious All Time Functions have been ordered to permanently cease all construction work related to the development and remove all machinery on site.

The Hillside suburb wetland is the latest to be saved by ZLHR after the human rights organisation has intervened on several occasions to prevent unlawful developments on wetlands, which are important ecosystems and a critical source of water for City of Harare. 

Post published in: Featured

Sometimes a good legal strategy is a lousy publicity strategy. Case in point, the U.S. Soccer Federation (USSF), which is defending itself in a pay discrimination suit by several popular female players by pointing out that they are smaller and slower than the male players, and thus should be paid less for winning than the men are paid when they lose.

“Plaintiffs ask the Court to conclude that the ability required of an WNT player is equal to the ability required of an MNT player, as a relative matter, by ignoring the materially higher level of speed and strength required to perform the job of an MNT player,” argues the USSF in its latest motion. And while they may have a valid point about the Men’s National Team (MNT) and Women’s National Team (WNT) each negotiating separate contracts covering their different schedules and venues, saying that the women are intrinsically inferior makes USSF sound like … an asshole.

As does mentioning that, “Plaintiff Alex Morgan is receiving 75% of her $100,000 annual salary even though she cannot play because she is pregnant.” Although it does, in some sense, bolster the argument that the contracts are different, not because of sexism by USSF, but because the women chose to give each player a decent base salary, rather than compensating individual players based on performance like the men.

USSF has similarly pointed to the $34 million prize differential between the Women’s and Men’s World Cups, as if FIFA could justify an American employer paying women less than men. Here’s USSF President Carlos Cordiero doing just that in an open letter Saturday, on the eve of the SheBelieves Cup game between the USWNT and Spain. Timing is everything!

“I guess if that’s how you want to celebrate International Women’s Day and show support for, not only your players, but future players and girls all over the place, that’s one way to do it,” Megan Rapinoe told The Athletic.

In its most recent motion, in addition to taking multiple swipes at the women’s game, USSF insists that the men play at a higher level, because “[t]here is a significantly deeper pool of competition in men’s international soccer than there is in women’s international soccer.” Simultaneously, USSF argues that the men have a harder job because men’s soccer fans are all hooligans, and, even at home games, the stands are filled with supporters of their Central American opponents.

Opposing fan hostility encountered in these MNT road environments, especially in Mexico and Central America, is unmatched by anything the WNT must face while trying to qualify for an important tournament. (2nd King Dec. ¶ 16.) Even the hostility of fans at home crowds for the MNT in some friendlies can be unlike anything the WNT faces.

This might possibly have something to do with the fact the WNT has won four of the past eight Women’s World Cups, including the most recent rounds in 2015 and 2019. The men’s team is undoubtedly stronger and faster, but they might find more of their own fans in the stands if they won more.

Indeed, there may be strong legal arguments that the women’s and men’s contracts are not comparable for reasons having nothing to do with sexism. But arguing that the women play more games, but carry less “responsibility” because the prize money is lower and their fans don’t throw beer bottles on the field certainly gives the impression the USSF is bunch of sexist jerks.

Alex Morgan v. USSF, Inc. [Defendant’s Memorandum of Points and Authorities, Case 2:19-cv-01717-RGK (C.D. Cal., March 9, 2020)]
US Soccer Doesn’t Want To Give The Women’s Team Equal Pay Because The Men Have “More Responsibility” [BuzzFeed]

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

I dithered about what to write this week. I wasn’t going to write about COVID-19. I also wasn’t going to write about the turmoil in the financial markets, only to say that my 401(k) is now a 201(k) and I share everyone’s pain.

Mark Herrmann’s most recent post about how to succeed as a lawyer by not being a damn fool was music to my ears as a former in-house counsel. A-ha! Here is a topic that, no matter how many times in-house counsel tries to tell outside counsel about the importance of deadlines, they almost always fall on deaf ears. (Of course, you don’t mean me, do you?) Why is that?

Contrary to public (e.g. nonlawyer) opinion, lawyers are not paid by the word. If that’s the case, then why is it so hard for lawyers to write concisely and simply? Why is it so hard for outside counsel to follow the directions of in-house counsel and provide her with what she needs and not a treatise? The client hollers at the cost of getting something that is unusable and doesn’t answer the client’s questions. I know why. Being easily understandable would force the outside counsel to opine. We pay for your opinion.

Have you ever considered that the failure to follow the directions of in-house counsel makes her look bad and thus you as well? Think about that before you write a screed that is too long and not read. And don’t forget to consider how your precious billable time is going to get whacked because the pleading or agreement was too long, not read, and thus, essentially useless.

Some outside counsel seem to think that in-house lawyers have nothing to do but wait for your draft. Au contraire. We are useful, not decorative. While you polish that draft to a sparkling shine, inside counsel is putting out fires, practicing preventive law, and cutting outside fees, so that the client doesn’t face outrageous bills. When we say we want a draft by X date and time, that’s not a suggestion. That’s a deadline so that the draft can be reviewed internally, commented upon, and returned in a timely fashion.

Deadlines are imperative in litigation filings as well. If the court won’t accept a late-filed document, why should in-house counsel be expected to drop everything to review a draft of a summary judgment motion that is due that very afternoon? Really, you’re kidding, right? And people talk about stress on outside lawyers, imagine the stress of in-house lawyers who are juggling caseloads that are way beyond the comprehension of mere mortal outside lawyers. How can outside counsel afford to be so cavalier about these kinds of deadlines? You tell me.

I have found that it’s no different as a mediator asking lawyers to file briefs so that I have time to read them (always a good idea before the mediation) and understand them, writing down questions for points that I don’t understand. I ask for briefs at least a few days in advance and then, hopefully, clear up my confusion in a premediation phone call.

May I tell you how many times I have not received briefs until midnight of the day before the mediation? Am I allowed to get any sleep? Do I read briefs while on the toilet? Deadlines seem to be flexible to everyone but me.

Not only does this practice show an appalling lack of courtesy for the mediator’s time, especially if the mediator is doing this pro bono, it also displays an appalling lack of attention management. You can’t just attach as exhibits voluminous motions and discovery responses and submit them all by 11:59 p.m. the day before the mediation and expect the mediator to be fully conversant by 9 a.m. the next day. How do you spell laziness?

(I know, I know, there are in-house counsel who don’t assign work to outside counsel on a timely basis and set unrealistic, unworkable deadlines. A topic for another column. Remind me.)

In an article in the New York Times last year, Adam Grant, an organizational psychologist, says that productivity is not an issue of time management, but rather the issue is attention management. I think he’s right.  How many times have we been told to “pay attention,” both as kids and adults? It’s human nature to want to pay attention to what interests us, but we don’t always get to do that.

Grant defines attention management as “prioritizing the people and the projects that matter, and it won’t matter how long anything takes.” It’s the “art of focusing on getting things done for the right reasons, in the right places and at the right moments.” Easier said than done when the project that is due is drudgery, such as responding to discovery, filing a motion to compel, or similar root canal-like tasks. But they must be done and on time, so guess who gets the least amount of time to review and comment? Good guess.

We need it when we need it. Few in-house counsel live to torture outside counsel; okay, maybe a few do. Apologies for tardiness by outside counsel are useless. We lawyers often wait until the last minute to submit whatever it may be because the particular project is so tedious that you want to stick a fork in it.

However, you don’t get brownie points for being verbose or late. You don’t get brownie points for paying attention to what needs to be done and when it’s due, in other words, for simply doing your job.

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Jill Switzer has been an active member of the State Bar of California for over 40 years. She remembers practicing law in a kinder, gentler time. She’s had a diverse legal career, including stints as a deputy district attorney, a solo practice, and several senior in-house gigs. She now mediates full-time, which gives her the opportunity to see dinosaurs, millennials, and those in-between interact — it’s not always civil. You can reach her by email at oldladylawyer@gmail.com.

We’ve all had a lot of fun with the 1MDB scandal, excluding, of course, everyone at Goldman Sachs (most especially 17 current and former executives) and Deutsche Bank (if the latter have even noticed another scandal strewn in with everything else). I mean, it gave us $13 million Vegas parties with Leonardo DiCaprio, the saga of Mr. Kimora Lee Simmons (and his part-time party planning, bigamy and horndogging), a few million dollars worth of diamonds on the person of the wife of the former prime minister of Malaysia, and a $600 million job. (It also gave us “The Wolf of Wall Street,” but nothing’s perfect.)

Unless you have been living in a well-ventilated cave with no internet, you have heard about novel coronavirus or COVID-19. While coronaviruses have been around for a long time, this newly discovered version has no cure and can be fatal, particularly to the elderly and those with weakened immune systems. While some may find this analogous to the flu, this novel virus is serious enough for some cities and even a country to quarantine their entire population in order to try to control the spread.

It has caused a global panic. While I have tried to stay calm, educate myself, and even joke about the virus, I must admit that it is starting to concern me.

I am not scared of the virus itself. I have done my best to minimize the chances of exposing myself to the virus. That means spending more time working from home. I have encouraged clients to send paperwork via email and the cloud. For those who prefer the old ways, I accept regular mail and offer to reimburse them for postage. Since this is tax season, I and other tax professionals have voluntarily self-quarantined ourselves for the next month and a half.

Despite the precautions, I have accepted that I will eventually be infected. This is not because I have eaten at four Chinese and two Korean restaurants in the last week and a half. It is not because I didn’t purchase 36 rolls of toilet paper. Most likely it will simply be because I was at the wrong place at the wrong time. I might be strolling at an empty park and Patient Zero just happens to jog past me.

If I do get infected, I take solace knowing that statistically, I am likely to recover. But for the sake of others, I have made plans in case I need to quarantine myself. This mostly involves renewing my Playstation Plus and Disney+ subscriptions.

So what scares me about the coronavirus? The chaos it has caused.

First, it has turned social media into a trainwreck. People are posting pictures and videos of the long lines at Costco. Or the empty shelves where bottled water and toilet paper used to be. Or the rushes to stores that are reminiscent of midnight on Black Friday. Or you might see crowded emergency rooms where people are treated by people in full protective gear. Or stressed out health care workers complaining about the lack of resources and giving ominous warnings. All of this might give some the impression that the rapture is upon us. I get that most people are posting these things with good intentions, but it might not have the effect they desired.

Also, we are getting conflicting opinions, even from health care professionals. Some are saying we should shut down everything and quarantine everyone as they did in Wuhan and Italy. Others are saying to simply wash your hands for twenty seconds, stay home if you feel sick and be careful of your surroundings. I am willing to blow off tirades from internet armchair immunologists, but when credentialed, impartial (hopefully) professionals give differing opinions, it is hard to determine who is credible.

Finally, the timing of this outbreak couldn’t have been worse. As this is a presidential election year, the media has been sensationalizing information and have entertained farfetched accusations and conspiracy theories. Media personalities are saying and doing whatever they have to do to ensure that their candidate or political party controls the government. For the good of the country, of course.

As lawyers, we are trained to advocate for our clients. And while I won’t get into details, I am sure some of us are using the coronavirus to our advantage.

But we are also trained to search for the truth, even if we are not medical professionals. This means detecting bias and speculation, qualifying experts before allowing them to give their opinion, and generally rejecting hearsay.

My hope is that we as lawyers will calm the panic and help people make educated choices by calling out the liars, profiteers, and opportunists, all of whom are taking advantage of this panic for their own personal gain. In these divisive times, we might not change many peoples’ minds, but it is worth a shot. And we should do our best to keep politics out of this. Lives are at stake. There will be grave consequences for any politician who maliciously tries to prevent the public from getting the help they need.

The coronavirus is not only becoming a pandemic, but also a “panicdemic” which is as scary as the virus itself. While the pictures of the long lines at Costco might be informative and even funny, they can unintentionally keep the panic going. To this day, I am still not clear how toilet paper became the new hot commodity item. While lawyers are not medical professionals, I am hoping that we can help those in our sphere of influence see through the lies and sensationalism. We will still debate on what is the proper response to the coronavirus, but as long as the smoke and mirrors are out of the discussion, I can feel less scared about the future.

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Steven Chung is a tax attorney in Los Angeles, California. He helps people with basic tax planning and resolve tax disputes. He is also sympathetic to people with large student loans. He can be reached via email at sachimalbe@excite.com. Or you can connect with him on Twitter (@stevenchung) and connect with him on LinkedIn.