Author: TSA Press

According to Vault’s Annual Associate Survey for 2020, which Biglaw firm ranked first in associate career prospects?

Hint: The firm has had a total of nine name changes in its history, picking up its current moniker in 1939.

See the answer on the next page.

Direct-to-consumer DNA kits have changed our reality. The wall of secrecy that was once behind conception and parenting — including adoptions, affairs, and the use of donor eggs, sperm, and embryos — is crumbling. One major facet of this reckoning with the truth has been the stark realization that many, many doctors were using their own sperm to “treat” their unknowing patients.

Sometimes this practice was in place of “anonymous donor” sperm; sometimes, it was actually in place of the spouse or partner’s sperm. It’s pretty gross to think about. But even grosser is the complete lack of accountability for the doctors who must have known of the ethical and moral shortcomings of their actions.

The Justice System Has Been Failing Us

A doctor using his own sperm to impregnate a patient, without her knowledge or consent as to the source of the sperm, must be a crime, right? Or at least a pretty solid tort? For many states, you guessed wrong. More and more cases of those doctors’ egregious practices have been uncovered. And more and more lawsuits have been filed. However, each prosecution or lawsuit has faced an uphill battle.

Take, for example, the case of Donald Cline, formerly a licensed medical doctor in Indiana. In one of the most notorious cases in the United States, DNA tests have shown Cline to have used his sperm in unknowing patients, resulting in at least sixty children. When the betrayed patients and offspring sought legal remedies against Cline, they were unsuccessful. After all, the patients had consented to Cline inseminating them with sperm. Cline did plead guilty to two charges of obstruction of justice, after lying to officials about using his own sperm with patients. But that, to most victims, was not sufficient.

Time To Change The Law

Since current law has been failing the victims, many have sought, and are currently seeking, to change the law. State by state, if necessary. Last year, two successful bills were passed. One was in Indiana, unsurprisingly, as ground zero of the Cline fiasco. Another was in Texas, where Eve Wiley led the charge. (Listen to this podcast where Wiley and her believed-donor tell the twisting and fascinating tale of uncovering the truth of Wiley’s genetic history.) In Texas, without a civil cause of action due to the state’s recent tort reforms, and without a viable criminal cause of action to charge him, Wiley’s “doctor daddy” is still actively practicing medicine even today. That’s crazytown.

Now other states are following suit, and closing the legal loopholes that existed for doctors to take advantage of their patients in this most intimate of areas. And while I doubt that as many doctors are so casually using their own sperm these days, there are certainly modern horror stories involving assisted reproduction, including that of a staff member at a Utah clinic swapping out countless sperm samples with his own.

The states currently making progress in this area include my own home state of Colorado with HB20-1014 (Go, Representative Kerry Tipper!), Nebraska with LB 748, Ohio with HB 486, and Florida with SB 698. Other states, as well, appear poised to introduce their own fertility fraud legislation. While the proposed laws vary, they are consistent in their goals of ensuring or clarifying that this type of behavior by trusted medical professionals is not acceptable and not legal, and providing a path forward for justice.

In Texas, Wiley faced criticism for her push for better legislation with comments like, “you should just be grateful that you are related to a doctor.” But those critics are jerks, to say the least. Most of us can agree that regardless of whether we think it is a good thing to be genetically related to a doctor, patients should be entitled to relevant information and to make their own choice when it comes to whose sperm is — or is not — inserted in them. And when that information is not given or a patient’s choice is not respected, there should be legal consequences.

Tip Of The Iceberg

As more people test their DNA and learn surprising truths, it’s possible we have only, to date, seen the tip of the iceberg as to the extent doctors were engaging in this practice. Wiley explains that she and Professor Jody Madeira are being contacted almost weekly about new cases. Unfortunately, one common path they have seen is for victims to settle in private mediation, in exchange for anonymity for the doctor. Wiley notes the frustration with this option, since “This leaves the doctor to continue practicing, with his reputation intact, and to continue offending unbeknownst to his patients. The lack of a clear path to justice leaves most victims feeling they don’t have voice and to suffer in silence.”

Professor Madeira of Indiana University’s Maurer School of Law is an academic devoting significant thought to the legal complications of these cases and a best path forward. For more on the topic, check out her recent law review article in the Columbia Journal of Gender and Law, Understanding Illicit Insemination and Fertility Fraud, from Patient Experience to Legal Reform, and her article in Fertility and Sterility, Against seminal principles: ethics, hubris, and lessons to learn from illicit insemination.

What To Do?

What if you just found out that you are one of the many victims of this practice? Wiley and Madeira are a great source of assistance for figuring out your options with the current (bleak) legal landscape. Both welcome your polite and respectful contact, understanding that they still have jobs and personal lives to attend to. Wiley explains that she aims to help others feel as informed and empowered as possible under the circumstances. She points victims to support groups specifically for the “donor deceived,” suggests legal resources, and, acts as a sounding board as they work through incredibly complex feelings. And, of course, if they are interested, she discusses legislative efforts. After all, what better way to deal with the holes in the legal system than to fix them. It might not bring justice to the victims, but at least they are playing an important role in protecting others and preventing anyone else in their state from finding themselves in this devastating position.

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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.

Mentoring is one of my favorite topics. We don’t do it as much or as often as we should. Sometimes we don’t even know we’ve done anything, but we have, and it’s those times when we realize that even the tiniest bit of mentoring can have an impact well beyond what we might have thought.

The recent Oscar awards telecast is a perfect example of what I mean. Yes, I live in La-La Land, and the Oscar awards are of little interest to most outside the Los Angeles fantasy world. (Ratings for the show were dreadful.) Four Oscars went to Bong Joon-Ho and his movie Parasite. What’s my point?

When he accepted the award for best director, Bong gave a shout out to Martin Scorsese, who Bong considered a mentor (even if Scorsese didn’t know it). Bong said Scorsese had said that “the most personal is always the most creative.” So, here’s an example of how mentoring takes many forms; there can even be “stealth mentoring,” (the mentor has no idea about the impact of her words on someone else).

Both Scorsese and Quentin Tarantino, who Bong also acknowledged as supporting his work, may well not have known that Bong was going to say anything. I bet both of the acclaimed directors were touched by the gesture. Bong didn’t have to say anything at all, but he did so in a heartfelt and generous way. How often do we acknowledge mentoring and how it has helped us along the way?

Bong’s translator at the awards was a young woman, Sharon Choi, with directorial aspirations. So, in his own way, the 50-year-old Bong is paying it forward for her.

Mentoring doesn’t have to be grandiose. It doesn’t even require any acknowledgement per se of the mentoring relationship. It can be as understated as answering a question or two for a newbie lawyer, directing a lawyer as to where to find something, sharing pleadings, contract forms and points, and authorities forms. (Remember when we used to all keep form files? Those are relics of a bygone era.) The point is to pass on accumulated knowledge so that others can benefit from what you have learned: what works, what doesn’t, what sets a judge off like a rocket, while another could care less.

There’s so much talk today about the “sharing economy.” I think mentoring is sharing. Of course, some people share less than others, and some not at all. Everyone is familiar with the “you eat what you kill” mentality.

Mentoring can be coffee, a meal, or even grabbing a more experienced lawyer during a trial recess to help figure out how to handle an issue that just arose. When I was a baby deputy district attorney. trying my very first misdemeanor petty theft case, counsel for the two defendants asked for a mistrial because they claimed that they were missing a page of discovery. I asked for a brief recess, went out into the courthouse hallway, and grabbed the first experienced deputy DA I saw, and asked him what a mistrial was.

Mentoring is not necessarily just for law students, newbie lawyers, or those further along than newbies. I think mentoring is just as important for those “pre-law” students (what the hell is a “pre-law” major anyway?), for those in the “pipeline,” so to speak, deciding whether to drop a whole wad of cash or incur six figures in debt, only to decide that being a lawyer is not all that it’s cracked up to be. How many of us watch lawyer shows on television and laugh at the contrast between how lawyers are portrayed on screen and the life of a real lawyer?

For most of us, lawyering is a lot of drudge work, paper shuffling, meeting with clients who don’t want to hear what we have to say, trying to collect receivables, and other unpleasantries. Lawyering is not glamorous, no matter how many times we see otherwise on television, especially when the lawyers are young, attractive, and if a woman, able to walk in stilettos while pushing briefcases full of documents.

I think UCLA Law Dean Jennifer Mnookin has nailed it. Her advice is simple and straight to the point: don’t go to law school if you don’t think you want to be a lawyer. Sounds obvious, doesn’t it? As the dean says, it’s a huge investment of time and money and, as the profession continues to adopt artificial intelligence to use in bread and butter tasks, it may well become harder to earn a decent living.

Think about the sunk costs of spending three to four years in law school, studying for the bar and then taking it, awaiting results and then scrambling for a job (if you’re not from one of the top schools, then “scrambling” is probably an appropriate term. Of course, that assumes you’ve passed the bar exam.)

Steven Chung has sounded a similar warning in his ATL post, a sort of “test yourself” as to whether becoming a lawyer is really, really, really what you want to do. If you really really want to be a lawyer, then find a mentor early on. If you don’t have the passion, the burning desire, then find something else that will engage you. There’s no guarantee that you will make big bucks in practice, and if that’s the motivation, then do something else.

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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.

Donald Trump famously demands loyalty from “his” employees. But as U.S. Attorney Jessie Liu found out yesterday, that loyalty only goes one direction. He will burn your career to the ground the moment you become an inconvenience, and never give it a second thought.

Liu has worn a lot of hats in the Trump Administration. This veteran of Bush’s Justice Department worked on Trump’s transition team and as deputy general counsel at Treasury before being confirmed as U.S. Attorney for D.C. in September of 2017.

As head of the largest U.S. Attorney’s Office, Liu loyally carried out the president’s directives. Like investigating James Comey over an unproven leak allegation from 2017. Or doing her darnedest to get a grand jury to indict former Deputy FBI Director Andrew McCabe. (Cough, cough NO BILL.)

But Liu also inherited some cases from Special Counsel Robert Mueller that were not to the president’s liking. Her failure to go easy on former National Security Advisor Michael Flynn, who pled guilty, or his crony Roger Stone, who was found guilty by a jury, put her in the conservative crosshairs. Barbara Ledeen, a well-connected Republican Senate Judiciary Committee staffer who worked with Michael Flynn to obtain Hillary Clinton’s phantom emails during the 2016 campaign, was particularly outraged by Liu’s failure to drop the Flynn prosecution, according to the Washington Post.

It’s probably not a coincidence that the Judiciary Committee killed Liu’s nomination last year to fill the number three job at the DOJ, ostensibly over her connection to the pro-choice National Association of Women Lawyers. But in December Liu got another shot when Trump announced his intention to nominate her for Under Secretary of Terrorism and Financial Crimes at the Treasury.

Her name was officially advanced to the Judiciary Committee on January 6, and she handed the reins at the U.S. Attorneys Office in D.C. over to her successor Timothy Shea that very day. Which is very much not normal, since nominees don’t typically quit their day jobs until they’ve actually been confirmed to the new position.

There is speculation that Barr needed Liu out of the way so he could “take control of legal matters of personal interest to President Donald Trump,” as NBC described it. The network reports that Barr himself intervened immediately after Liu’s abrupt departure to get the prosecutors in DC to lessen sentencing recommendations for Flynn and Roger Stone. But with her position in limbo and Trump enraged over the Stone prosecution, Liu was uniquely vulnerable.

The Post reports that Trump pulled her nomination yesterday, both because of Ledeen’s imprecations and because he realized that a confirmation battle would mean that Democratic senators got to ask Liu about the Stone case in an open hearing:

Speaking on the condition of anonymity to discuss the situation, the person said Ledeen had made little headway before the recent storm over Stone’s sentencing, calling it a turning point. Treasury officials believe Trump himself made the call to withdraw Liu because her confirmation hearing before the Senate Banking Committee was set for Thursday, and Trump was concerned she would be asked about the case, the person said.

CNN confirms that Trump himself withdrew the nomination because he was pissed off that Liu refused to do more to help out his buddies Flynn and Stone.

For her part, Ledeen denied having anything to do with Liu being unceremoniously kicked to the curb, telling the Post,  “I’m a Senate staffer. I can’t lobby either the Senate or the White House. I’m kind of amazed my name came up in this. Somebody likes to throw around my name.”

Which is simply adorable coming from the person who got caught redhanded sending unsolicited emails to Flynn’s former counsel attempting to coordinate his defense strategy with House Intelligence Chair Devin Nunes’s appearances on Sean Hannity’s show.

But whoever stuck the knife in, Liu is the one left high and dry here. And while we’re not crying for a lawyer who’ll no doubt wind up on the payroll at Kirkland & Ellis or Jones Day within a week, it’s certainly a cautionary tale for all the line attorneys being asked to toe the party line as Bill Barr decimates the independence of the Justice Department. Sooner or later, that train will jump the tracks and run you over, too!

Barr takes control of legal matters of interest to Trump, including Stone sentencing [NBC]
Trump withdraws Treasury nomination of former U.S. attorney for D.C. Jessie K. Liu after criticism of her oversight of Mueller prosecutions [WaPo]

Back on September 30th, Judge Carlos Murguia of the District of Kansas was formally reprimanded by the Judicial Council of the U.S. Court of Appeals for the Tenth Circuit, chaired by Circuit Chief Judge Timothy Tymkovich, for “inappropriate behavior.”

The council found Murguia sexually harassed court employees, specifically finding he “gave preferential treatment and unwanted attention” to female employees, and engaged in “sexually suggestive comments, inappropriate text messages, and excessive non-work-related contacts, much of which occurred after work hours and often late at night.” They also found Murguia had a years-long extramarital relationship with a felon on probation (who is now back in prison), and was “habitually” late for court.

Murguia admitted to the misconduct and apologized for his behavior. But despite the reprimand, a week later on October 7th, Murguia was back on the bench.

Now House Judiciary Committee Chairman Jerrold Nadler and three other committee members have sent a letter to Tymkovich, District of Kansas Chief Judge Julie Robinson, and Secretary of the Judicial Conference of the United States James Duff calling for a “a frank examination of the adequacy of the steps taken to address” Murguia’s misconduct.

Specifically, the letter asks the following questions about the misconduct and the investigation/consequences:

• The reprimand did not state when Murguia’s misconduct began or how many people were harassed. Will the information be disclosed at a later point? Are there policies in place for disclosure to prevent future misconduct?

• What protections have been provided to those who were harassed, and what steps have other federal courts taken to ensure support for individuals in similar situations?

• Is there a system in place allowing court employees to anonymously report misconduct?

• What policies are in place to review personnel decisions that may be influenced by misconduct committed by a judge or supervisor?

• Will the district of Kansas investigate whether other judges were concerned about Murguia’s behavior and, if so, why they didn’t file complaints?

As Nadler said in a statement, “No one should experience harassment, discrimination, or other misconduct in any workplace — and especially not in our federal courts, where so many Americans expect to turn for justice.”

A judiciary spokesperson said the reprimand “is not the final step in the process.”

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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).

My motto for the year is ‘leave no vacancy behind.’

— Senate Majority Leader Mitch McConnell, in comments given to conservative radio host Hugh Hewitt, about the lasting impact on the federal judiciary he’s helped President Donald Trump create thanks to the Senate’s nonstop confirmation of appointees to lifetime positions. Trump’s 51st federal appellate judge was confirmed earlier this week.

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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.

When it comes down to trying to fix Wells Fargo, Charles Scharf could have started a lot of difference places: consumer lending, community banking, investment banking, wealth and investment management, risk management, HR, IT. There really isn’t any part of the bank that couldn’t use something between a substantial improvement and a gut renovation. Choosing which disastrous unit to focus on first is, thus, a near-impossible task. And so the new CEO is starting at the top.

The bank said on Tuesday that it plans to split its three business units into five. What had been known as the wholesale bank will be split into a commercial bank that provides back-end services for companies, as well as a separate investment bank that focuses on capital markets.

The lender also will split its consumer bank into two units: one that focuses on branches and small businesses and another that focuses on consumer lending.

Fiction and nonfiction reading, as well as audiobooks, are an essential part of my mental health maintenance program. Like many lawyers, much of my reading focused on academic works within my profession. Educational and vital but not exactly mind-expanding outside of that world.

There was a time when I was into some fiction. I read John Grisham’s early works and was a big fan of Michael Crichton. Somewhere along the line, I stopped. The paradox is that my mental health struggles played a role in that.  Why would I pick up a book when I can’t get out of bed? Why would I pick up a book to read through tears when I have no idea why I am crying? Why would I pick up a book when I don’t think I will be around in a year? The sum total of the common depressive thought: “What’s the point?”

When I began my recovery, writing played more of a role then reading. I blogged my anger, pain, and trauma. It helped, and that’s for another column. I, however, still had no interest in reading until I decided to write my fiction two years ago. Because I had written two nonfiction books, I was arrogant in my approach. It’s easy! Anyone can do it. I was so wrong and gave up because, like walking into a courtroom to try a case for the first time, I realized I was not yet born, when it came to writing fiction.

Several people recommended that I read “About Writing” by Stephen King. In that book, he stressed that it is challenging to learn the art of fiction without reading it.

I began to read and listen to audiobooks nonstop, and not just Grisham-type stuff. I read contemporary, classic, romantic, thriller, comedic. I listened, while I jogged. I listened while I drove. I read while I lounged with my cat sleeping on my stomach.

There was no mental health epiphany but a gradual comfort with reading and enjoying fiction for the sake of itself.

Reading temporarily takes me out of my world of intermittent worries, obligations, and stresses. It allows me to be present in a new, uninterrupted reality for a set time every day. I connect and empathize with characters and stories. I have even found myself crying for a character or feeling good when he or she beats the odds. I reflect on my own issues when I encounter a character that reminds me of myself. Even in the context of a fictional world, characters I identify with allow me to feel part of something more significant at times when I may be questioning my purpose, which is not uncommon as we grow older. This of course pulls me back into my world but often with a comforting feeling that many of the things I feel are a universal experience. I don’t feel as isolated.

That is not to say that books should be looked at as an evidence-based treatment modality to pull out of a depression. If I couldn’t get out of bed, I could not be expected to open a book. What I can say is that reading is helpful as a means of diversifying my thought processes rather than fixating on something that can trigger me into a depressive episode.

Think about how reading outside of your comfort zone and professional life may be able to benefit you. Pick up a book. Pick up a Kindle. Give one a listen — just one book. My passion for recovery started one day at a time. My love for books began one book at a time.

By the way, as I write this, I am reading The Border by Don Winslow.

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Brian Cuban (@bcuban) is The Addicted Lawyer. Brian is the author of the Amazon best-selling book, The Addicted Lawyer: Tales Of The Bar, Booze, Blow & Redemption (affiliate link). A graduate of the University of Pittsburgh School of Law, he somehow made it through as an alcoholic then added cocaine to his résumé as a practicing attorney. He went into recovery April 8, 2007. He left the practice of law and now writes and speaks on recovery topics, not only for the legal profession, but on recovery in general. He can be reached at brian@addictedlawyer.com.

On Monday, federal prosecutors recommended that Roger Stone, a longtime confidant and informal advisor to Donald Trump, receive up to nine years in prison for obstructing a congressional investigation, witness tampering, and making false statements to federal investigators. On Tuesday, Trump took to Twitter to decry the “horrible” and “very unfair” treatment Stone was receiving. “Cannot allow this miscarriage of justice!” he said. Not long after, the Justice Department swatted the prosecutors’ recommendation aside, suggesting a much more lenient sentence for the president’s pal.

And that’s when all four of the prosecutors working on Stone’s case — Jonathan Kravis, Aaron S.J. Zelinsky, Adam C. Jed, and Michael J. Marando — decided they’d had enough. Three of the four prosecutors on the Stone case withdrew, and a fourth decided to quit his job outright. This is unheard of, according to the New York Times:

David Laufman, a former chief of the Justice Department’s counterintelligence unit, said he could not recall another criminal case in which an entire team of prosecutors had resigned en masse, apparently to protest improper political interference.

“This is a ‘break glass in case of fire’ moment,” he said. “We have now seen the political leadership of the department, presumably acting on the president’s desires, reaching down into a criminal case to withdraw a reasoned sentencing recommendation to the court.”

A spokeswoman for the Justice Department claimed that Trump’s Twitter tantrum didn’t play a role in Stone’s new sentencing recommendation, and Trump reportedly said he hadn’t discussed the matter with the DOJ.

You know something has gone incredibly wrong at the Justice Department when lawyers of this ilk — some former Supreme Court clerks, all career prosecutors — feel the need to do something this bold. It used to be that DOJ attorneys didn’t have to check their ethics at the door. Now, we’re not so sure about that anymore.

Prosecutors Quit Roger Stone Case After Justice Dept. Intervenes on Sentencing [New York Times]
These Are the Roger Stone Prosecutors Who Quit the Case [New York Times]

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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.