Author: TSA Press

We immediately initiated all necessary steps to protect employees, clients, courts, and business partners on the basis of an action plan. … [T]he virus test started within 24 hours after our partner’s illness became known. We conducted it on our own initiative and at our own expense in order to obtain certainty. Last Friday, in a first wave of testing, over 200 employees were tested, and this Monday an additional 80 employees were tested.

— a statement from Austrian firm Wolf Theiss, commenting on its ailing partner’s coronavirus diagnosis. The 72-year-old lawyer fell ill in February and since then, the firm has been trying to protect the rest of its employees. Thus far, three other employees have tested positive for coronavirus and have been placed in quarantine. “[D]ue to the immediate continuous testing of our employees,” the firm noted, “it is ensured that client, court, and employee contacts are only made by employees who have tested negative.”

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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.

Things got a little, erm, testy during Supreme Court oral arguments on Tuesday. The case is Seila Law v. Consumer Financial Protection Bureau and sparks were flying during an exchange between Supreme Court Justice Neil Gorsuch and Kirkland & Ellis’s Paul Clement. Clement was making his impressive 101st argument in front of the Court, but that doesn’t mean Gorsuch is about to go easy on him.

Gorsuch began the exchange by inquiring how, in terms of presidential removal powers, to distinguish between single-director agencies and cabinet officials and multi-member agencies. When Clement responded, as reported by Law.com, with the best of intentions:

“So I want to be responsive,” but added that he wanted first to point out that “you don’t avoid drawing a line by adopting the solicitor general’s position.”

But that wasn’t really answering the justice’s question. And when given the second chance to answer the question, Clement again drew a comparison between his position and the solicitor general’s. That — which Gorsuch interpreted as “disparaging” — was no bueno:

Gorsuch said he understood, “now if you could answer my question.” Clement gave an answer, but not to Gorsuch’s satisfaction. The justice rephrased the question and Clement answered: “I offer you two limiting principles, which I think is two more than the solicitor general’s offered you. But here’s the first: The first is—”

Gorsuch cut off Clement. “If we could avoid disparaging our colleagues and just answer my question, I would be grateful,” Gorsuch said. Clement then offered two limiting principles and added, “And I didn’t mean to disparage my colleague. I was just saying the 
same limiting principle ultimately has to be in 
place for multi-member commissions.”

Gorsuch regularly deploys the passive-aggressive zinger of being “grateful” for an answer. That usually means he’s fed up and advocates in front of the Court better hurry up and answer. A sampling of instances of Gorsuch using such a polite sounding word to express his displeasure includes one from an early moment in Gorsuch’s tenure on the bench:

In 2016, while answering one of Gorsuch’s very first questions as a justice, [Jones Day partner Shay Dvoretzky] was interrupted by the justice saying, “I’m sorry for interrupting, counselor. If you would just answer my question, I’d be grateful.”

And it’s a rhetorical crutch he’s kept coming back to:

Last October, in the argument over Puerto Rico’s bankruptcy, Gorsuch engaged with Gibson, Dunn & Crutcher’s Ted Olson during one exchange.

“Mr. Olson, I’m confused. I honestly don’t understand what the difference between your test and the government’s test is in this case. If you could articulate that in a few sentences, I’d be grateful,” Gorsuch said.

Sometimes, Gorsuch helps out a colleague. In the November argument in Maui v. Hawaii Wildlife Fund, Gorsuch asked David Henkin, counsel to the wildlife fund, “But counsel, could you just answer Justice [Samuel] Alito’s question? I’d be grateful if you would.”

So, if you ever find yourself arguing in front of the Supreme Court, watch out for insults disguised in “grateful” clothing.

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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).

Two years ago today, on March 4, 2018, embryo storage disasters resulted in the catastrophic loss of thousands of human ova (eggs) and embryos. Bizarrely occurring on the same day — but thousands of miles away from each other — storage tanks in San Francisco, California, and Cleveland, Ohio, experienced failures, critically impairing the reproductive options for over a thousand patients. That’s because for many patients, the destroyed embryos were stored before age or serious medical conditions reduced their chance of traditional conception to essentially zero. The lost genetic material, in other words, was for many patients, their only hope of ever becoming a parent with a genetic connection to their hoped-for future children.

Understandably, numerous lawsuits resulted, as well as some movement to provide greater oversight and regulation of embryo storage facilities. The lawsuits continue. On the legislative front, many efforts have fizzled out over the past two years. However, New Jersey recently succeeded at becoming the first state to pass a law requiring the state to oversee and regulate facilities storing embryos. Is the law going to make a difference?

So What Does This New Law Do?

The new law was enacted on December 4, 2019, and requires that 14 months after the effective date — which means approximately early 2021 — any facility storing human embryos in New Jersey must be licensed to do so by the New Jersey Department of Health. In the meantime, an advisory panel is figuring out the actual substantive details. These details include the nitty gritty of what standards, exactly, a storage facility must comply with, and what hoops it has to jump through in order to hold and maintain the now-mandated license.

What Will The Regulations Say?

To learn more about what we can expect from the advisory panel, I spoke with Debra Guston, a New Jersey attorney who specializes in adoption and assisted reproductive technology law. Guston is also in a uniquely good position to tell us what we can expect from the advisory panel, since she is an appointed member of the newly formed panel! I’m glad to hear that they have qualified people on board!

Guston, along with fellow well-credentialed panel members, are already working to promulgate thoughtful rules for embryo storage that safeguard hopeful parents’ family building dreams. It is a public process, with draft regulations expected to be published this summer for public comment. Importantly, Guston explained that the panel was also being very cognizant and careful not to over-regulate the storage process. While the panel is prioritizing protecting embryos with standardized safeguards, it is also aiming not to significantly increase costs to patients, or cause storage of embryos to be moved out of state to avoid regulation. It’s a fair concern that whatever the cost of compliance will be, storage clinics may simply pass those along to hopeful parents, who are already paying substantial sums to grow their families.

To regulate without significantly increasing costs? That’s a fine line to walk! But if anyone can help make it happen, it’s Guston. After all, she was one of the driving forces behind reversing New Jersey surrogacy law, which outlawed the practice for 30 years before now specifically permitting and protecting surrogacy arrangements in the state. In short, Guston is deeply familiar with the issues surrounding assisted reproduction in the Garden State.

How Serious Is New Jersey About This? Very.

While the panel works on what the standards will be, it’s obvious that failing to meet those standards will have severe consequences. For instance, once the licensing requirement goes into effect, any “person who operates or assists in the operation of an embryo storage facility which does not have a license …, who offers, advertises, or provides any service not authorized by a valid license… shall be guilty of a crime of the third degree.” That sounds bad. So I looked it up. Apparently the potential penalties for a third degree crime in New Jersey include a term of incarceration ranging from 3 to 5 years, a fine of up to $15,000, and a felony conviction on your criminal record. So get those licenses, folks, and don’t go to jail!

Of course, the worst part about the 2018 mass loss of embryos was that those losses were, for the most part, entirely preventable. Both locations had experienced numerous false alarms prior to the incident. Then, when the real incidents started, no one was alerted, or able to recognize a real alarm from a false alarm. Given the utter devastation caused by the loss of human embryos, it’s quite understandable that state government would want to get involved and try to stop such preventable heartbreak from happening to anyone else. Frankly, it’s surprising that other states have not already put statutory safeguards in place. I suspect others will be following in New Jersey’s footsteps.

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Ellen Trachman is the Managing Attorney of Trachman Law Center, LLC, a Denver-based law firm specializing in assisted reproductive technology law, and co-host of the podcast I Want To Put A Baby In You. You can reach her at babies@abovethelaw.com. 

The on-campus recruiting game has always carried a bit of capriciousness to it. There are lotteries and scheduling conflicts and just the bad luck of hitting a distracted interviewer who just got a bad email about a deal. Law students can’t guarantee they’ll manage to get in front of the firm that really suits them and firms can’t guarantee they’re seeing the complete pool of ideal candidates.

The on-campus recruiting team from White & Case is introducing a new video interview platform this year called Launchpad with an eye toward casting a wider net in recruitment efforts by untethering the process from scheduled on-campus interviews from specific schools. And, of course, this frees up the student’s scheduling options too. This isn’t a replacement for the traditional in-person interview — if students are lucky enough to score one they can go for it — but it allows those who might not be able to meet in-person to get themselves in front of White & Case.

The way Launchpad works, a student records the interview at any time, from any device, which is then uploaded to the White & Case recruiting site. It mirrors a successful process the firm has employed in the UK for awhile now.

This doesn’t replace the full hiring process. Obviously there will still be callback interviews at the office and everything. But it’s a good way of getting a look at a broader pool of interviewees. And, importantly, it provides a measure of consistency that in-person interviews can’t always match because every candidate is responding to the same questions asked in the same way allowing reviewers to make apple to apple comparisons when deciding upon callbacks.

This isn’t the first technological fix White & Case has offered law students. Last year, we wrote about a tool the firm unveiled allowing students to get a handle on Biglaw work assignments with InsideSherpa. That platform offered students a virtual access to the day-to-day work of a young attorney.

Once again, White & Case is thinking outside the box when it comes to getting an advantage over its peer firms when it comes to winning the talent war.

Earlier: Technology Allows Law School Students To Work On A Deal Before Joining Biglaw

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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.

Another day, another bullshit defamation suit from the Trump campaign. After suing the New York Times last week for accurately pointing out that Don Jr. discussed lifting Russian sanctions with a representative of the Russian government, the Trump campaign has turned its attentions to The Washington Post. Although they had the courtesy to hire Charles Harder, and not Devin Nunes’s nutbag attorney Steven Biss, so #Blessings to all the Trump campaign donors who spared us having to wade through another 58 pages of gobbledygook. Eight pages was plenty, thank you very much!

The Trump campaign alleges that it was grievously defamed by two Opinion columns in the Post last June, which the suit describes creatively as “false reporting.” Both columns refer to an interview by ABC’s George Stephanopoulos last June, during which Trump said he would absolutely accept dirt on his political adversary from a foreign government.

STEPHANOPOULOS: Your campaign this time around, if foreigners, if Russia, if China, if someone else offers you information on opponents, should they accept it or should they call the FBI?

TRUMP: I think maybe you do both. I think you might want to listen, I don’t, there’s nothing wrong with listening. If somebody called from a country, Norway, “We have information on your opponent.” Oh, I think I’d want to hear it.

STEPHANOPOULOS: You want that kind of interference in our elections?

TRUMP: It’s not an interference, they have information. I think I’d take it. If I thought there was something wrong, I’d go maybe to the FBI. If I thought there was something wrong. But when somebody comes up with oppo research, right, that they come up with oppo research. Oh, let’s call the FBI. The FBI doesn’t have enough agents to take care of it, but you go and talk honestly to congressmen, they all do it, they always have. And that’s the way it is. It’s called oppo research.

Worse, he insisted that no one would really call the FBI if a hostile government offered them dirt on an electoral rival.

TRUMP: I’ll tell you what: I’ve seen a lot of things over my life. I don’t think in my whole life I’ve ever called the FBI. In my whole life. You don’t call the FBI. You throw somebody out of your office, you do whatever you–

STEPHANOPOULOS: Al Gore got a stolen briefing book. He called the FBI.

TRUMP: Well, that’s different. A stolen briefing book. This isn’t a (inaudible). This is somebody who said “We have information on your opponent.” Oh, let me call the FBI. Give me a break, life doesn’t work that way.

STEPHANOPOULOS: The FBI Director says that’s what should happen.

TRUMP: The FBI Director is wrong. Because, frankly, it doesn’t happen like that in life.

Which is possibly why the lawsuit left out the hyperlink to ABC’s reporting in its lawsuit. Because Paul Waldman’s editorial says “who knows what sort of aid Russia and North Korea will give to the Trump campaign, now that he has invited them to offer their assistance?” And the Trump suit refers to “the defamatory statement ‘who knows what sort of aid Russia and North Korea will give to the Trump campaign, now that he has invited them to offer their assistance?’” Can you spot the difference?

Moreover, the Trump Campaign indignantly insists that it has repeatedly disavowed foreign election interference, pointing to multiple statements by the White House. Which is, again, not the same thing.

The Trump Campaign claims it was similarly defamed by a second editorial, this one by Greg Sargent, entitled “Trump just invited another Russian attack. Mitch McConnell is making one more likely.” The suit refers to “the defamatory claim that Special Counsel Robert Mueller concluded that the Campaign ‘tried to conspire with’ a ‘sweeping and systematic’ attack by Russia against the 2016 United States presidential election,” and then goes on to insist that the Mueller Report had “concluded there was no conspiracy between the Campaign and the Russian government, and no United States person intentionally coordinated with Russia’s efforts to interfere with the 2016 election.”

First of all, we’ve all seen Don, Jr.’s email welcoming a meeting with a “Russian government attorney” offering dirt on Hillary Clinton, gushing, “If it’s what you say I love it especially later in the summer.” The president’s son was similarly receptive to advances from Wikileaks, which the Mueller Report confirmed was acting as a Russian cutout. So if the Trump campaign didn’t manage to get a conspiracy off the ground, it sure as hell wasn’t for lack of trying.

Second, let’s just check the actual text of Sargent’s piece, shall we?

Mueller also concluded that Trump and/or his campaign eagerly encouraged, tried to conspire with, and happily profited off of those efforts. Yet Mueller did not find sufficient evidence of a criminal conspiracy.

Oh, look, another hyperlink that didn’t make its way into the complaint! And an explicit acknowledgement that Mueller did not find evidence sufficient for a criminal case. Which is not the same as an acquittal — just ask the crowds braying to LOCK HER UP Hillary Clinton, despite multiple investigations establishing she should not be charged for her private email server.

Third of all, this is not a real lawsuit, it’s just a fundraising gimmick.

And fourth of all, this case just got randomly assigned to Judge Ketanji Brown Jackson. LOL, forever.

Okay, enough of this bullshit. We have actual cases at SCOTUS to worry about today.

Donald J. Trump for President v. WP Company, LLC [D.D.C., Case No. 1:20-cv-00626-KBJ]
Transcript: ABC News’ George Stephanopoulos’ exclusive interview with President Trump [ABC]
Trump: I can win reelection with just my base [WaPo]
Trump just invited another Russian attack. Mitch McConnell is making one more likely. [WaPo]

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

The shockwaves from the coronavirus case in the New York legal community continue to reverberate. Last night, the lawyer infected with the virus was identified as a 50 year old partner at the boutique trusts and estates firm, Lewis & Garbuz. We also found out yesterday that a law student at Cardozo Law had contact with the firm, and was in self-quarantine as a result. Now comes news that another corner of the legal world has been impacted by the virus.

Another law student — this one at New York Law School — had contact with Lewis & Garbuz (side note: for a seven-person law firm, they sure have extensive contact with law students). The student, as well as their roommate, are on self-quarantine and will be tested for the virus. But NYLS is going a step further.

In an email to the NYLS community, Dean Anthony Crowell informed everyone that the law school will be closed — for at least today — as the entire facility is cleaned and disinfected. Classes, exams, and activities are canceled. The campus is closed entirely, and where possible, the staff should work from home. The law school will reach out as soon as possible with information about whether they’ll be opened tomorrow.

Stay safe out there everyone, and for goodness’ sake, wash your damn hands.

Read the full email from Dean Crowell below.

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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).

A very long time ago, I had an issue with a client. He claimed to have brought some paperwork to my office the day before. But my spidey sense suspected that he wasn’t being truthful. That was confirmed when my officemates told me that no one came to drop off paperwork that day.

As I am 95% certain he lied, I subtly tried to call him out on it on a later phone call. Unfortunately, this resulted in a heated argument. He continued to claim that he did what he said he did. But a short time later, he deflected by saying “I am the client.” At that point, I tried to end the argument as soon as possible because I realized that he had a point. Even if I won the argument and got him to admit his lie, it could do more damage in the long run.

As lawyers, we occasionally run into people who have trouble being truthful. Sometimes, you find a way to deal with their alternative facts. For others, their constant web of deceit makes it impossible for you to do your job.

Why do clients lie? A lot of reasons, depending on the situation. Sometimes, they do it to gain more sympathy or make their case sound more favorable than it really is. Or they do it to trick you into lowering your fee. Or they don’t want you to get angry at them. For some people, lying is so integral to their manipulative personalities that they don’t even know they are doing it.

Obviously, working with a lying client will make your work more difficult. You have to verify everything the client says, which can take up time. And you will view your client with a degree of skepticism.

You might be tempted to call out you client on the lie, hoping that he will stop doing it moving forward. But you can end up having a very awkward, distrustful relationship or lose the client altogether.

You may have heard that “the customer is always right.” Most businesses know that following it literally is an exercise in futility, particularly in this line of work. But I think it just means that you should endeavor to give the client exceptional service and give the benefit of the doubt whenever possible.

Even if you catch the client lying, confrontation requires some discretion. If you react too callously, the client may fear you and might not feel comfortable disclosing information. Also, people in general don’t want to lose face. This is truer in some cultures than others. Clients may end up being difficult and hostile and, in some cases, you may end up losing the client.

Here are a few things I try to do to ensure that the client is truthful with me.

The first thing is to convince the client of the importance of telling the truth. This should be done as soon as they sign the attorney-client contract. How to do this might depend on the client’s personality. Some clients should be told straight out that they need to be upfront with you about everything. For others, you need to assure them that you take the attorney-client privilege seriously. For clients who are sensitive about money, you may want to tell them a story about how a lie forced you to spend additional hours cleaning up the mess and how the client was billed accordingly. The best way to deal with a lying client is to give them every incentive not to.

But let’s suppose you caught them lying. How do you deal with it? It depends on the importance of the lie. Take the example I gave with my client. Looking back, I regret arguing with him as the issue of dropping off documents was not that important in the big picture, and it did not negatively affect my day’s duties. I probably should have talked to him about alternative means of dropping off paperwork.

But what if the client’s lie is serious? In that case, at a minimum, I have to let him know the damage that his lie has caused to his case. He may have prolonged his case, lost credibility (possibly irreparably) with the judge or jury, or could have committed perjury.

Also, I take precautions to ensure this does not happen again, if possible. In my example, I told the client to email me documents from now on. It would be beneficial for him since he could do it at the comfort of his home and not have to drop by my office. You may need to ask clients for documentation to verify their claims. Or meeting face to face more often if that forces the client to be honest. And you may have to make ultimatums that a future lie can be a dealbreaker.

Unfortunately, in this profession, we sometimes run into people who lie for a number of reasons. Simply telling them not to lie might not fix their behavior. I find that it is generally best to establish a relationship where the client feels comfortable telling you the cold, hard truth. But for others, you have to put the fear of God (or prison) in them. And for minor things, it might be best to just let it go. I could say that I’ve got all of this figured out. But then I’d be lying.

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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.

I cannot believe it has been over a year since I started my own law firm. As mentioned in a few prior articles, about a year ago, I decided to quit my job and begin my own legal practice. I would be lying if I said I wasn’t scared to take this drastic step and forge my own path into self-employment. In fact, I distinctly remember sitting on the train on my way home from my last day of my job at another firm feeling absolutely petrified about my decision to begin my own shop. However, I can honestly say that the past year has been one of the most fulfilling and enjoyable times of my life. Since many readers of this column may be considering their own move into self-employment, I wanted to share some reflections on my first year of running my own law firm.

The main thing I want to convey to anyone thinking about starting their own firms is that success as a solo or small firm practitioner is a lot more achievable than you think. Most of the people I know who have started their own law firms either had a client base to start with or had a spouse who has a job or some other income source upon which they could rely. However, I had zero clients when I started my firm, and although I had side hustles that I could rely on for some money, those gigs did not provide all of the income I needed.

Nevertheless, I got my first clients a few weeks after I opened the firm, and I made a modest amount of money that first month. Several months into self-employment, I was earning a respectable amount of money, and right now, my firm is humming. Take it from me, if you believe in yourself and put in the work to be successful, you will be able to make a living by running your own law firm.

Another thing that is important to convey to anyone thinking about starting a firm is how fulfilling and enjoyable starting a law firm can be. While working at a firm, I hated commuting. It never made sense to me that I had to be in the office whether I had work to do or not, and it seemed like I wasted a lot of time due to the inefficiencies of working for a firm. I also disliked doing work at the office, since I didn’t have the comforts of home while at work. As weird as it sounds, I would sometimes wait to get home to complete work-related tasks because I was more comfortable there.

Now that I run my own firm, I do not waste any time on traveling unnecessarily. If I have to be at a meeting or a court appearance, I know I need to travel, but I don’t take time out of my day just to be present at an office when I don’t need to be there. Furthermore, working from home has added a lot of joy to my life. Watching the news or Netflix in the comfort of my own home while completing legal tasks has made working almost not feel like work at all, and this has made me a lot happier.

Another perspective I have from my first year of self-employment is that there are a lot of negative perceptions about people who start their own firms. Some folks seem to think that people must have started their own firms out of necessity, since they lost their jobs or did not have other opportunities. Other times, people think that self-employed attorneys might not be doing well financially, since they do not earn a salary like many other legal practitioners.

In reality, these perceptions are mostly false. For many people, opening a law firm is the realization of a long-held dream, not a move out of desperation. For me, self-employment has been an aspiration ever since I started practicing law, and I was not forced into self-employment by any stretch.

In addition, you can make a comfortable living running your own law firm, even shortly after you start your own shop. Whereas many law firms have high fixed costs, smaller firms do not have as much overhead. Since smaller firms usually charge similar rates as other non-Biglaw shops and have fewer expenses, it is easy to see how self-employment can be a lucrative proposition.

The most important point I want to convey while reflecting on my first year of self-employment is that anyone reading this article can start their own law firm. Most of the time when I speak with lawyers about starting a law firm, the other attorneys relate that they once aspired to do the same but have obligations that keep them from doing so now. This includes familial responsibilities, a comfortable life in their current roles, and an array of excuses as long as my arm. I always feel like these folks are trying to justify to themselves why they didn’t take the plunge to start their own firms.

However, take it from me, if you have ever thought of starting your own law firm, you should go ahead and do it. Being successful as a self-employed attorney is more achievable than you think, and you can live a comfortable life through self-employment within months of opening your shop. In addition, there are a number of issues with working at a law firm, and the benefits of being your own boss are well worth the risks of starting your own shop.

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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.