Author: TSA Press

Federal clerkships are a stepping stone to an elite legal career, but the ranks of federal clerks still remain fairly homogenous.

In this week’s episode of The Jabot, I speak with folks dedicated with diversifying clerkships: Danielle Barondess, a federal law clerk in Hawaii, and Steven Arango, a federal law clerk in Texas, who founded a new program, Law Clerks for Diversity. The organization’s mission is clear — they want more diverse candidates to be able to successfully navigate the clerkship application process:

There are hundreds of law students and lawyers from diverse backgrounds who would make phenomenal federal law clerks, but they do not know how to navigate the process, who to connect with, or how to make their applications stand out. The black-box nature of clerkships and the mindset that clerkships are “exclusive-province” must change. That is where Law Clerks for Diversity comes in. Our vision is to increase the diversity of federal clerks by helping diverse applicants navigate the process and find the right opportunities to maximize their potential to land a clerkship.

We chat about developing this mission, why focusing on federal clerkships is important, what the program entails, and how folks can get involved (spoiler alert: here).

The Jabot podcast is an offshoot of the Above the Law brand focused on the challenges women, people of color, LGBTQIA, and other diverse populations face in the legal industry. Our name comes from none other than the Notorious Ruth Bader Ginsburg and the jabot (decorative collar) she wears when delivering dissents from the bench. It’s a reminder that even when we aren’t winning, we’re still a powerful force to be reckoned with.

Happy listening!

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).

* Novartis has settled a lawsuit which included allegations that the drugmaker gave money to doctors to induce them into prescribing certain medications. These claims would have spiced up the movie Love and Other Drugs… [NBC News]

* An Ohio attorney has been arrested on federal bribery and extortion charges. [Toledo Blade]

* Only seven law firm mergers and combinations have occurred during the second quarter of 2020 according to Altman Weil, likely due to the chilling effects of the ongoing COVID-19 pandemic. [The American Lawyer]

* The New York Attorney General has agreed to settle sexual misconduct lawsuits against Harvey Weinstein for $19 million. [Guardian]

* A lawyer has lost his bid to avoid the bankruptcy discharge of his $156,000 in legal fees for handling a client’s divorce. [Massachusetts Lawyers Weekly]

* A former judge and lawyer has been suspended from practice for participating in an inappropriate email chain nicknamed the “forum for hate.” Be sure to check out the messed up things that were said by the group which are included in the article. [ABA Journal]

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 this week’s episode of the Lawyer Forward podcast, Mike Whelan talks about race, both in America generally and the legal system specifically. He uses the story of Italian-American internment in World War II to explore the idea of “otherness.” Out of preferences and perceptions, as well as a history of identifying white culture with professionalism, the legal industry has created a context that’s hostile to African Americans. Resolving that distance will only come after first owning our ugly history.

Make sure you take advantage of the show’s Q&A feature. You can ask Mike questions about the latest episode and he’ll answer at the end of the next episode. Just submit your question in the form at the bottom of this post.

Earlier this month, a couple filed suit against a fertility clinic in New York. They claimed negligence, fraud, intentional inflection of emotional distress, and negligent infliction of emotional distress. The complaint tells a story of an especially rough road of fertility treatments. Before their family was complete, the couple, Christopher and Nicole Mooney, went through 13 egg retrievals and 15 embryo transfer procedures. That is a lot!

The couple seeks damages from the clinic and its doctors for, among other things:

• Transferring a different embryo than intended (instead of a healthy “normal” one, an embryo that had been designated with a “special consideration” status was used).
• “Losing” an embryo for a year and half (the healthy embryo they thought had already been transferred showed up for transfer 18.5 months later).
• Transferring a different number of embryos than they were told (they were told two, but medical records showed only one).
• Prescribing medications to Nicole in amounts inconsistent with medical norms (twice the dosage!).
• Prescribing medications to their gestational carrier for a time period inconsistent with medical norms (only 7 days, versus the usual month-ish).

The clinic, New York Fertility Institute, denies the couple’s allegations, stating they were surprised by the lawsuit, never lost the couple’s embryos, and never transferred the wrong number of embryos. Sounds like some pretty fundamental factual issues in the case!

What Does The Expert Say?

Colleen Quinn is a Virginia attorney with a strong assisted reproductive technology (ART) law practice and litigation practice — a unique combination, and one well-fitted for the new rising tide of ART litigation. Quinn explained that “embryos are actually pretty easy to lose or mis-identify when clinics do not maintain careful record keeping and accountability.” She described how embryos are stored in tiny little straws “as small as a sewing needle” and each straw has to include identifying information. That does sound tough — and open to human error. And clearly those of us who can’t find our keys most days should steer clear of a profession in embryology.

Making The Grade

Quinn further explained that embryos are typically graded on their level of viability. However, not all grading is the same, depending on the clinic, or even the person doing the grading. Some may be viable and some may not be viable — or some may even be semi-viable. How they are marked in such teeny-tiny space in the cryogenically preserved minuscule straw, versus what is placed on paper, requires attention to detail and meticulous record-keeping. But in this context, attention to detail and meticulous record-keeping should be the bare minimum features of the standard of care, when each and every embryo, and the viability or “grading” of each, is essential to the patients who have paid so much for the creation of each and every embryo — as well as the hope that the patient has for each embryo to be their future child.

Quinn believes that patients should have access to information as to the exact status of each of their embryos and their viability. How it was graded, where and how it was kept, whether it was kept in the same vessel or straw as other embryos and if so, which ones, as well as which ones were thawed and discarded, and ultimately, which ones were transferred to the patient’s or gestational carrier’s uterus. “As both a litigator and ART attorney, I am seeing more and more of these lost or misplaced or mislabeled embryo cases. This could be avoided with better and more careful record-keeping. I know most reputable clinics and fertility doctors do their absolute best — however, we are talking about super tiny, yet mega-valuable material — that has been created at both a high financial and emotional cost!”

Embryo Transportation

Although the Mooney case does not involve the transportation of embryos from one clinic to the other, Quinn notes that this is a point in the process especially vulnerable and ripe for litigation. When embryos are transported to another clinic, the record-keeping of what got sent and what got received is critical. “I have seen so many mishaps in the transportation and accounting process.”

Time For (More) Regulation

The Mooneys and their attorney have stated that the purpose of the lawsuit is not just to obtain monetary damages, but also, at least in part, to encourage greater regulation of fertility clinics. Of course, greater regulation often means greater cost, and fertility treatment is already prohibitively expensive for many. But given the devastation and heartbreak caused by missing embryo and mixed-up embryo cases in the United States, it does seem appropriate that there be strict record-keeping requirements. The alternative, for some clinics, will be more lawsuits like the Mooneys. And that just means going to court when tragic losses happens, as opposed to preventing them in the first place.

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.

If America’s police want to improve their public image, they should immediately hire the social media person for the Clayton County Georgia Sheriff’s Department. This anonymous hero’s post, entitled “Ku Klux Klan Paraphernalia Found At Suspected Meth House Busted By The Elite COBRA Unit. SHERIFF VICTOR HILL,” is a tour de force. You’ll laugh, you’ll cry, you’ll laugh so hard you cry and forget that we’re only halfway through the endless hell that is 2020.

It starts out slow.

When Sesame Street wrote the famous song “Who Are The People In Your Neighborhood”, it depicted the interesting people from all walks of life and professions that you could possibly meet in or near your subdivision.  The song ends happily saying “they”re the people that you meet, when you’re walking down the street, their [sic] the people that you meet each day”.  Sesame Street probably never imagine or thought about the type of people in the neighborhood that Sheriff’s Deputies removed from the Bonanza subdivision yesterday when they wrote this wonderful song.

“But what does Sesame Street have to do with Klan hoods and meth,” you are asking, as you hum the tune destined to haunt your every waking hour for a week at least.

Last night, members of Sheriff Victor Hill’s elite COBRA Unit executed a search warrant for a suspected meth house on Sanderling Ln in Jonesboro Ga.  COBRA quickly surrounded the location and called out suspect Eric Spencer who realizing there was no where for him to escape, wisely came out surrendering with his hands up.

While searching Inside the house and backyard, approximately 6-7 ounces of Methamphetamine was located along with scales and baggies for sale purposes . A small amount of marijuana along with a hand gun was also located. Spencer who has no job was in possession of approximately 4-5 thousand dollars in drug money.

Presumably COBRA stands for “Chemical, Ordinance, Biological, and Radiological,” not the “Consolidated Omnibus Budget Reconciliation Act of 1985,” or the “Combined Old Boys Rugby Association,” or Karate Kid villain Cobra Kai. In any case, good job coming out with your hands up, Mr. Spencer!

Sheriff’s Deputies also found something else that was disturbing to say the least.  Down the main hallway of the residence shadow boxed and encased within the wall for display was a original klansman suit approximately 60 to 70 years old.

Well, that took a turn. Helpfully the Sheriff’s Department included a photo.

Image via Clayton County Sheriff’s Office

Yikes! You have to be serious about your bigotry to have a whole glassed-in display of your terror robe and swords. Did the neighbors have any inkling that Mr. Spencer had more than a passing interest in racist oppression?

Turns out, they did!

Long time neighbors stated they found it a little extreme when on Halloween they would see nooses hanging in the front yard, but they never imagined where the idea probably originated from.

Yes, who could imagine that a person who hangs nooses in his front yard harbors racist sentiments? So very unexpected! But never fear, it all worked out in the end.

The person “in the neighborhood” is now facing the wall at Georgia’s toughest para-military jail better known to the world as “The Hill-ton”.

What exactly is a para-military jail? That’s not entirely clear. But if your kid gets suspended from school, you can sign him over to Sheriff Hill to “spend the days of suspension at the Sheriff’s Office instead of staying home unsupervised. This is a day of hard labor washing patrol vehicles, cleaning bathrooms, and eating punishment jail food.”

Sheriff Hill also appears to have some legal troubles of his own. But if anything should happen to him, the Office will be safe in the wise hands of whoever handles their social media.

They’re the people that you meet, when you’re walking down the street.  They’re the people that you meet each day.

Ku Klux Klan Paraphernalia Found At Suspected Meth House Busted By The Elite COBRA Unit. SHERIFF VICTOR HILL [via Nixle]

Elizabeth Dye (@5DollarFeminist) lives in Baltimore where she writes about law and politics.

Is anyone else freaking out about the fact that half of the year is over? While we would all like to see 2020 in our rearview mirrors, we are only halfway there. The legal world still spins.

The Washington State Supreme Court has decided to ditch its pilot program of limited license legal technicians. Although the program was initiated in 2013 to provide access to justice in family law matters, this noble experiment has bit the dust. The court found that the juice was not worth the squeeze, given the program costs and the small number of “interested individuals.” The program will sunset next year.

The court’s decision was not unanimous. Justice Barbara Madsen wrote a scathing dissent, stating that the court’s decision ended a “completely viable licensing category that the public can draw on.” Not done, she made it clear that courts have an obligation to end racial disparity and that the court’s sua sponte decision to end the project, an effort to address access to justice in race and income, was a step backward.

Is the court’s decision an example of not walking the walk? What about the fate of other, similar projects across the country? What does this decision mean for California, which is taking its first tentative baby steps toward a similar project? To be determined.

Remember the furor several years ago when a judge in Northern California sentenced a young male defendant to a six-month sentence for sexual assault? Outraged county voters recalled Judge Aaron Persky in June 2018. Judges should be free to decide without fear or favor, which was what he did and with which the citizenry disagreed.

The Canon of Judicial Ethics precluded Persky from defending his sentencing as judges have long been prohibited from speaking publicly about pending cases. After Persky’s recall, the California Supreme Court solicited public comment as to whether judges should be able to comment upon pending cases if they are criticized about their decision in a case and they are up for re-election or recall. Given the proliferation of social media and the increasing level of vitriol in public forums, incumbent judges have had no way to defend themselves, and bar associations, which have tried to play a part in defending judges, have had little to no impact. Who cares what bar associations think? Precisely.

So, effective today, the California Code of Judicial Ethics has been amended to provide, among other things, that judges can speak publicly about a pending case if they are criticized for a ruling during a recall or re-election campaign but only if the public comment would not reasonably be expected to affect the outcome or impair the proceeding’s fairness. Would that have made a difference in the outcome of Persky’s recall? Your thoughts?

To appear or not to appear? That is the question (sorry, Hamlet). It’s the question troubling lawyers these days as they decide whether to go to court to argue a motion of one sort or another. The Italian American Bar Association here in Los Angeles recently had a Zoom presentation with both the presiding judge and assistant presiding judge of the Los Angeles Superior Court.

While neither of them would come right out and say so, my sense is that they would much prefer that attorneys appear remotely.

We all grew up as lawyers being told that appearing in person was critical. The court would see you; you would see the court and whether the judge was frowning, smiling, smirking, or eyes glazing over while you argued. If you decide to go to court these days, the only thing to be seen will be the eyes, as being masked in court is mandated, at least here in Los Angeles County. So, how much body language do you glean from eyes only? What if the court doesn’t make eye contact and is reading a file (not necessarily yours)? What’s the message?

We were also told that if we didn’t physically appear and just submit it on the pleadings filed in the case that showed we didn’t really care about the outcome (au contraire), and thus we forfeited our chance to make the compelling argument that wins the motion. How many times have we all heard “Counsel, do you have anything to add that is not in the papers?” Gulp.

Times sure have changed from those days. The angst that lawyers feel about what to do is perfectly understandable: what will the client think if you don’t appear in person? What will the court think? Will opposing counsel think that she has you on the ropes? Both the presiding judge and the assistant presiding judge made it clear that the number of times in which they changed their tentatives was negligible compared to the number of motions that they have heard on the bench. Do you pick up any clues here?

How about this clue? In its most recent news release, the court said its “remote technology options promote social distancing by reducing the number of people appearing in person.”

Consider how high the stakes are in looking at making the physical courtroom appearance: the ruling on the issue as it affects the case, your health, your client’s health, and the safety and well-being of the court and staff. High-stakes decision or low? Not an easy call.

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.

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This weekend, Americans will celebrate Independence Day, which  commemorates the day when the colonial Continental Congress declared independence from the British Empire almost 250 years ago. It is notable because it comes as another group of people recently tried to declare their independence from the American Empire.

In early June, a group of protestors in Seattle took over a six-block portion of the city and called it the Capitol Hill Autonomous Zone (CHAZ). It was later renamed to the Capitol Hill Organized Protest (CHOP). This was inspired by the mass protests around the country triggered by the death of George Floyd at the hands of four Minneapolis police officers.

Rather than controlling the protestors, the city police and Seattle Mayor Jenny Durkan have for the most part left the area alone. This portion of the city basically became a limited law-enforcement area or a “sandbox” where the law does not apply. The protestors set up barricades surrounding the zone. They also took over the East Precinct, the only police station in the area, renaming it the Seattle People Department.

Why did the local government let this happen? Perhaps it was a way to contain the protestors and let them express themselves in a designated area. Otherwise, the protests and possible property destruction could have spread randomly throughout the city. Containment was also important in order to control the spread of the COVID-19 virus.

What was life like in the CHAZ/CHOP? It depends on who you ask. It was either a festival-like atmosphere or a “summer of love” as the mayor called it. Others have called it a zone of uncontrolled, lawless anarchy.

In the beginning, life in the autonomous zone seemed pretty good. There was free food from various cultural cuisines (and vegan), yoga classes, speeches on police brutality, and movie screenings. Volunteers were caring for the homeless. You saw people of all races walking around in the local park. At night, there were demonstrations. The zone even had some makeshift public services such as a medical center and a volunteer security force.

It seemed like the ideal society that functioned because everyone chipped in and everyone got along. There may have been some minor incidents and disturbances, but it was nothing the local leaders or the volunteer security force couldn’t handle. When everyone gets along, who needs the police? And local government for that matter?

But we soon learned why we cannot have nice things. It was only a matter of time before the criminals and trolls become aware of what they could get away with when Five-O is not around. Also, people are going to disagree, and some will turn to violence to get their way.

Since June 20, there were multiple shootings at the CHAZ. This resulted in two deaths, both of whom were African-Americans. There were anecdotal reports of people and businesses being victims of extortion as they were forced to pay for protection. There was a report of arson and a deaf woman being sexually assaulted.

And those are the crimes the police know about. Who knows about the crimes and acts of intimidation that went unreported. The victims could have been scared of retaliation. Or they think no one will believe them because witnesses don’t want to snitch. Or they weren’t confident that the security force didn’t have the power to protect them. Or their moral or political conviction was so strong that they were willing to sacrifice their dignity if reporting the crime would be used as justification for shutting down CHAZ, discrediting the Black Lives Matter movement, or worst of all, proving that President Donald Trump could have been right.

The criminal activity became so bad that the police chief and the mayor said that CHAZ will be dismantled. The barricades surrounding the protest zone will be removed. And the police are expected to return to the East Precinct in the near future. Even the so-called leaders acknowledged that the CHAZ movement has concluded.

CHAZ was an interesting observation, and the party was fun while it lasted. It was not meant to be a miniature attempt at secession. The protestors claimed they would disband if the government met their demands, which included defunding police, abolishing prisons, reparations for victims of police brutality, and retrials of people of color imprisoned for violent crimes, by a jury of their peers. Some of these demands would be difficult or near impossible to meet without causing greater chaos.

But as an alternative society, CHAZ really wasn’t sustainable. How long was the free food going to last? Eventually, it will stop unless someone is willing to pay for it. Will it get corporate sponsors, or will protestors somehow shame them into “donating”? Or will they charge an admission fee? Or will there be some sort of tax system?

The volunteer security force wouldn’t last long as well. Risking your life on a volunteer basis is not something most people will want to do on a long-term basis. Also, they might be outmatched and outgunned if organized gangs decide to seize control.

While CHAZ was unsuccessful in its declaration of independence, there will be future attempts to set up an autonomous zone or some other “regulatory sandbox” with one or more idealistic purposes. On a very simple level it might work. But we live in a complex society where idealism must be tempered with practicality. In the case of CHAZ, the free food will stop coming eventually. And some people will resort to violence and will only respect a greater power than themselves.

While CHAZ tried to show the possibility of a police-free society, it ironically showed why law enforcement is necessary as the number and severity of crimes began to increase. The city and the “leaders” of CHAZ wisely shut the project down before the violence got out of hand.

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.