Author: TSA Press

Every day of the Trump administration is like an extended issue-spotter law school exam. This afternoon, we’re headed for tax class. READY?

See how many potential problems you can spot here:

Charitable Organization A is a 501(c)(3) run by religious leaders who are campaign and policy surrogates for Government Official T in his desultory outreach efforts to a particular minority group. Organization A holds public events at which it hosts speakers touting Official T’s policies while simultaneously giving away envelopes of cash to attendees, who must be present to claim their prizes. The cash comes from anonymous, tax-deductible donations to Organization A. At one such event, the host handed an envelope of cash to the mother of a well-known sports figure, joking, “She don’t need the money. She do not need the money!” When questioned about the propriety of the cash disbursements, the religious leader claimed it was fine because he required recipients to fill out a W-9 tax form. 

It’s funny, because it’s true. As Politico reported this morning, Pastor Darrell Scott, who co-chairs Black Voices for Trump along with Diamond and Silk and Herman Cain, founded the Urban Revitalization Coalition in 2017. Since then, Scott and the Coalition’s co-founder Karim Lanier have met with multiple Republican officials at the White House to promote Trump’s proposed Opportunity Zones under the First Step Act.

The Coalition’s $30,000 giveaway scheduled to honor Trump and Jared Kushner last week at the historically black Union University in Richmond was canceled by the school. But at the group’s “Christmas Extravaganza” in Cleveland, deputy presidential assistant Ja’Ron Smith and Fox’s Geraldo Rivera were in attendance. That evening, Lanier gave a speech comparing Democratic scrutiny of Donald Trump “to the plight of wrongfully incarcerated black men” and describing him as first president in the history of this country to incentivize people who have the money to put it into … urban areas.”

Then they gave away $25,000 in cash to multiple recipients whose names were drawn from a bin, including a woman dressed as an elf who shouted “Four more years of President Trump. Yay!” and the mother of Golden State Warriors forward Omari Spellman. Which suggests that these cash disbursements were simply random gifts to people willing to listen to Trump campaign surrogates talk, rather than tailored to a specific charitable purpose.

Or, as Marcus Owens, former director of the Exempt Organizations Division at the Internal Revenue Service currently in private practice at the law firm Loeb & Loeb told Politico, “It’s not immediately clear to me how simply giving money away to people at an event is a charitable act.”

Asked about the legality of the giveaways in a brief phone interview, the Urban Revitalization Coalition’s CEO, Darrell Scott, said that most gifts were between $300 and $500, and that the group mandates that anyone who receives over $600 fills out a W-9 form in order to ensure compliance with tax law. He did not respond to follow-up questions about how the giveaways were structured and whether they met the legal standard for a charitable act.

Scott declined to name the donors funding the effort. “I’d rather not,” he said. “They prefer to remain anonymous.”

Do charitable institutions regularly issue W-9 forms to aid recipients? Is a MAGA rally a charitable purpose? Should Darrell Scott, a guy who once accused Democrats of “st[anding] next to the inner cities just like a pimp stands next to a prostitute,” really be handing out envelopes of cash in a major metropolitan area to a room full of African Americans? And how long will the IRS agent on this case have to lie on the floor before the room stops spinning?

Trump allies are handing out cash to black voters [Politico]

Otherwise [senators that vote against witnesses in the impeachment trial] you’ll never be able to explain the way you voted without adopting this remarkably absurd and extreme and dangerous theory that my former colleague Alan Dershowitz is peddling. Namely, it doesn’t matter if a president uses the vast powers of his office to shake down an ally and help an adversary in order to get dirt on an enemy and corrupt an election. That doesn’t matter and therefore you didn’t need to hear any witnesses. But nobody will really accept that as a plausible theory. In fact, there is no legal scholar in the country, other than Alan Dershowitz, who believes it.

—Laurence Tribe urging senators to vote to hear witnesses in the impeachment trial on MSNBC throws shade at Alan Dershowitz and his… evolved theory of impeachment. Tribe goes on to say of Dershowitz’s legal theory, “Not only is he out of a limb from other constitutional scholars, he’s out on a limb from the framers of the constitution.” Burn.

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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).

No, that was not an earthquake that rocked Los Angeles, and the world this past Sunday, although it certainly felt like one. It was the news that Kobe Bryant, retired Laker superstar, lost his life in a helicopter crash. His 13-year-old daughter, Gianna, died with him, along with seven other adults and children, whose lives may not have been as well known, but were of equal value.

What caused the deadly crash? To be determined; there could be multiple causes. It will be a while until we know.

There has already been a lot of conversation about Kobe’s legacy and that will continue in the days, weeks, months, and even years ahead. He was only in his early forties, and had already begun his post-Laker life, including winning an Oscar for his animated short film, Dear Basketball.

But his legacy is not untarnished. Would his Colorado sexual assault case have concluded in the same way now, in these #Me Too days? No way to know.

What does it mean to leave a legacy? Abraham Maslow said that once a person’s basic needs are met, he or she wants to feel that his or her life mattered. It’s a pyramid: physical, security, social, ego, and at the top, self-actualization. That’s one way to look at a legacy, that the person has made a difference, whether it makes a difference to one person or a group of people. It is placing a personal imprimatur on the future. It’s making a contribution in any number of ways. Kobe did so. He was devoted to basketball, but once he left that behind, his focus was on family and various business ventures. Family mattered to him, especially given the amount of time he had to devote to the game to the detriment of everyone and everything else.

What will be your legacy to our profession? I asked that question two years ago, and I ask it again now.

How do we want to be remembered by our peers, our clients, our colleagues, even opposing counsel? What matters to you in terms of a legacy? Lots of reported cases that have changed the law in a particular area? What if it was only one case, not reported, but it made a major difference to your client? A transaction that allowed your client to start or expand a business? A bankruptcy filing that allowed a client to get out from under and start fresh? (Yes, I know that there are some who think that bankruptcy screws creditors, but get over it.) Acquittal in a criminal case that allowed a client to keep her job?

How about mentoring? Helping younger lawyers navigate through the perils of practice. If anyone says there are no perils of practice, I say phooey. I don’t care whether younger lawyers say that they don’t need any guidance, they do. They’re not being candid with themselves and with the disciplinary system if they get into trouble because of incompetence in handling a matter.

What about pro bono work? Do lawyers still make time for it? As we dinosaurs retire, are pushed out, or take a hike, is pro bono a way to leave a legacy?

I hope people will remember Bryan Stevenson, the founder of the Equal Justice Initiative in Montgomery, Alabama, who has saved people from death row and prompted the United States Supreme Court to modify how juvenile defendants are punished. The Equal Justice Initiative also created the Legacy Museum and the National Memorial for Peace and Justice. If you haven’t read Stevenson’s book, Just Mercy, or seen the movie of the same name, do so.

With rare exceptions, lawyers are not celebrities in any lasting way. Not like a sports icon such as Kobe Bryant. Even if a lawyer becomes a celebrity, it is usually in the context of a particular event, and once that event or case ends, it’s usually phffft for his celebrity. People remember cases, but rarely the lawyers.

A legacy can be good or evil — or both — at the same time. This week marks the 75th anniversary of the liberation of Auschwitz. The concentration camp was the personification of Nazi evil. However, it was, and remains to this day, a legacy of how individuals can survive the worst of circumstances and tell their stories of survival to generations who have no clue about what happened and who need to know and understand.

In a world dominated by talking heads and nasty Twitter conversations, we forget how to feel. Lawyers are told to detach, to remain uninvolved. Unfortunately, that slips into personal lives as well.

Maybe Kobe’s legacy, at least a part of it, is one that we all would do well to acknowledge: life is fleeting, and tell people now, while they are alive, what they mean to you.  A “celebration of life” for one who is gone is too late.

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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.

Andrew Paul Leonard is a photographer whose primary focus is microscopic imagery. (Disclosure: my firm has represented Leonard in the past, though not in this case). In his travels through the human anatomy, he once had the occasion to create a compelling and colorful image of human bone marrow stem cells. The National Aeronautics and Space Administration, run by the U.S. government, found Leonard’s work noteworthy and published this photograph on its website. In doing so, it did not reach out to him or otherwise gain his consent. The NASA page on which the photograph appeared was created in 2004, updated for the last time in 2007, and was still online in the three-year window before Mr. Leonard filed a copyright infringement lawsuit over the usage in 2018

After being served with the complaint, the guv’ment called foul, arguing to the court that Leonard was dilatory and that his suit was barred by the statute of limitations, which is generally three years from the date of the discovery of the infringement. The court was tasked with deciding whether the relevant acts of alleged infringement began and ended in 2004 or whether the site being online in the three-year window was sufficient for the case to move forward.

In the past, it was no big whup to nail down the date on which an infringement started and ended. For an infringing film, you looked at the film’s opening date and the date it vacated theaters, for example. Or, when a film was released on DVD, you could with relative ease identify the dates on which the DVDS were distributed. And it was universally understood that each showing or distribution of an infringing copy of a film was a violation of a copyright holder’s Section 106 rights for purposes of the statute of limitations.

But, today, when so much of the world’s copyright infringement, like everything else, has abandoned the physical world and migrated online, it is far more difficult to ascertain the dates on which a series of infringing acts begins and ends. And this is important, because (setting aside the discovery rule and tolling) a copyright case cannot proceed unless an infringing act separately accrued within the three-year window before the complaint was filed.

The Supreme Court, in Petrella v. MGM, noted this “widely recognized” rule of separate accrual for copyright claims and concluded that a copyright holder could, at the very least, recover for any acts of infringement that took place in the three years preceding the filing of the complaint.

Per this rule, “when a defendant commits successive violations, the statute of limitations runs separately from each violation.” Thus,” each infringing act starts a new limitations period,” and a defendant who has “engaged (or is alleged to have engaged) in a series of discrete infringing acts” is liable for those that fall within the three-year window. This holding established that every act of copyright infringement within that window is an independently actionable legal wrong, and a copyright holder will not be faulted for “sitting still, doing nothing, [and] waiting to see what the outcome of an alleged infringer’s investment will be.”

The question that arises modernly, though, is when the statute of limitations bars claims for infringing content published online. If a website posted an infringing photograph or story back in 2005 and continued to host the infringing material online until 2020, there is a lack of clarity as to whether an independently actionable legal wrong occurred within the three-year window.

Courts have addressed the question in a number of ways, with the best analysis recently issuing from Leonard’s case, which dug deep into the above facts in reviewing the Government’s motion to dismiss. The court in the case entitled APL Microscopic, LLC v. United States, 144 Fed. Cl. 489 (2019) engaged in a thorough and nuanced look at the language of the Copyright Act’s Section 106, which delineates a copyholder’s exclusive rights, and noted that at least two of those rights are violated in a separately accruing fashion when an infringing website remains online within the three-year window.

The court points to the copyright holder’s exclusive right to “display the copyrighted work publicly” and notes display in this context means “to show a copy of it, either directly or by means of a film, slide, television image, or any other device or process[.]” Given these statutory definitions, the court readily concludes that “each time a user viewed NASA’s webpage, [Leonard’s] copyrighted Work was displayed on the user’s computer,” and each display is a separately accruing act that “infringes on the owner’s right of public display.” As it is likely that such viewership occurred while the infringing website was on line during the three-year window, the court finds for the photographer and denies the motion to dismiss.

The APL court also found that a website owner that publishes infringing content engages in a separately accruing violative act each time it “distributes” a work in contravention of the artist’s exclusive right to distribute her work. The court rejected the government’s assertion that a distribution occurs when a work is “made available” for distribution, and instead holds that infringement of the right of public distribution under Section 106(3) requires “actual dissemination of either copies or phonorecords.” Thus, NASA’s “act of transmitting the webpage — and the [Leonard photograph] therein — to a user would infringe on this right.” And to the extent this happened within the three-year window, such conduct would be inside the statute of limitations.

NASA must thus answer for its use without consent of Leonard’s work. And this APL decision will chart the course for courts in online exploitation cases grappling with the question of when infringement begins and when it ends.

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Scott Alan Burroughs, Esq. practices with Doniger / Burroughs, an art law firm based in Venice, California. He represents artists and content creators of all stripes and writes and speaks regularly on copyright issues. He can be reached at scott@copyrightLA.com, and you can follow his law firm on Instagram: @veniceartlaw.

Not to downplay all of the more important issues at play in the $200 million gender discrimination lawsuit against Jones Day, but the simplest takeaway from the brewing battle is this: Jones Day would rather fight a pitch battle over gender discrimination than join the rest of Biglaw in being upfront and honest with its employees about compensation.

The firm could defuse discrimination concerns quickly by opening up its black box — that it hilariously claims is not a black box — but it doesn’t want to invite all the criticism that comes with it. Is this because the firm is systematically discriminating against women (and minorities) as the lawsuit suggests? Keeping compensation under wraps was infamously how Lilly Ledbetter found herself on the short end of decades of discrimination. Or maybe the firm just knows it risks reputational damage if they told the world that they are not capable of keeping up with the big kids. Whatever it is, the firm feels that fighting this case tooth and nail — including seeking sanctions against the attorneys bringing the claim — is better than the disinfectant of transparency.

It’s in pursuit of sanctions that Jones Day offered up its Orwellian defense of keeping associates in the dark about pay:

“When compensation is individualized and merit-based, confidentiality helps to promote collegiality by avoiding jealousy, bitterness, and anger (on the part of the lower-paid) and arrogance, superiority, and ego (on the part of the higher-paid),” the firm wrote. “It also prevents embarrassment both for those who make less than their peers and those who make more.”

This is, of course, the party line of any employer trying to pull a fast one past the workers. Hiding between the lines of the superficially fair statement is how an employer banks on those feelings of private embarrassment to keep undercompensated employees from opening up and, potentially, learning that the excuses made to short their pay had no impact on a similarly situated co-worker. Attorneys are professionals… feel free to treat them that way.

Despite claiming that everyone’s happy because compensation is a black box, Jones Day argued without missing a beat that the plaintiffs’ attorneys should be sanctioned because they could have easily figured out their whole pay scale by just emailing around the firm and asking. Apparently the arrogant top earners and the embarrassed paupers are expected to be totally open amongst themselves about pay? It’s a mind-blowing pivot.

It’s almost as though the zeal to levy sanctions is getting in the way of the rest of the Jones Day defense. The firm claims that discovery is bearing out their claim that pay varies on a gender neutral basis and yet, it argues, the plaintiffs shouldn’t have needed discovery because it was so easy to unravel this admittedly confidential system without the legal process.

Do they have two different teams working on the sanctions and the case proper? Because if so, the sanctions team should be paid less.

In the very near future, we’ll be unveiling a form to allow attorneys — at Jones Day and elsewhere — to confidentially inform us of your compensation. You’ll stay anonymous but your contribution to this project will help us report on firm pay patterns going forward. Keep an eye out in the coming days and please chip in, even if you’re paying a relatively boring lockstep salary.

Jones Day Says Black Box Pay Model Keeps ‘Anger,’ ‘Ego’ at Bay [American Lawyer]

Earlier: Jones Day Files For Sanctions In Ongoing Gender Discrimination Lawsuit
Plaintiffs In Jones Day Gender Discrimination Case Want It To Be A Class Action
New Discrimination Lawsuit Against Jones Day Is Already Getting Messy
Jones Day To Gender Discrimination Plaintiffs: You Don’t Deserve To Be Paid On The Cravath Scale

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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.

Date: February 6th, 2020
Time: 4pm ET / 1pm PT

In our earlier webinar with our friends at Ooma, we explored the ways in which the humble telephone remains the most important piece of legal technology for your practice.

In our next webinar, we will take a look at how to OPTIMIZE your phone system. Webinar will touch on:

• Studies show clients want information about the legal process via voicemail, so learn how to utilize voicemail features to create compelling messages.
• Never let a client call go unanswered: Leverage phone system’s routing functionality.
• Meet the challenge of implementation in a firm-wide environment, with a discussion of how to optimize a phone system for a large group of staff.

Join us on February 6th and learn how to optimize your practice’s phone system.
Learn from the experts, from our friends at Ooma all about the benefits of a truly efficient, economical phone system fully integrated into your attorney workflow.

Can’t make the live event?  Register anyway and webcast will be available on-demand 24 hours after the live event. 

Well the Trump Bump is alive and well. For The uninitiated, the law school Trump Bump is the phenomenon in legal academia that more — and smarter —  people want to be lawyers because of the tumultuous political landscape, and it’s led to real changes in law school enrollment.

Now comes a new Kaplan Test Prep survey of more than 100 law schools. And it still looks like politics are influencing law school decisions. A whopping 84 percent of admissions officers say the current political climate was a significant factor in this year’s increase of 3.3 percent in law school applications. Of that 84 percent, 26 percent say it is “very significant” factor.

This is in addition to a separate Kaplan survey of over 400 pre-law students, where 41 percent of the students said that the political climate was behind their decision to pursue a J.D.

As one respondent noted:

“It’s getting harder and harder for people to come together over basic policies, and as a result, those with less influence (i.e. marginalized individuals/communities) are being forgotten. I want to be a lawyer in large part to bring a voice back to these individuals and fight for equality under the law.”

But as Jeff Thomas, executive director of admissions programs at Kaplan Test Prep, noted, it takes more than just a passing interest in politics to sustain an actual legal career:

“Since 2017, we’ve seen increases in both LSAT® takers and law school applications, which has fueled speculation about how much impact the political climate is having on the law school admissions landscape. At Kaplan we thought it would be worth securing hard data on the issue and tracking this for subsequent cycles. We now have an answer: the impact remains significant and appears to have staying power,” said Jeff Thomas, executive director of admissions programs, Kaplan Test Prep. “As law school admissions officers point out, caring about politics alone is not a strong enough reason to attend law school.  Your career in law will outlive any particular presidency. A term in the House lasts two years, law school lasts three years, and a presidency can be as short as four years, but your career will last decades. That’s why we continue to advise pre-law students to think carefully about why they are applying and what they plan to do with their degree in the long term.”

Another trend of note is that law schools are getting increasingly selective about admissions, now that they have their pick of applicants:

“The fact that the number of 1Ls is essentially unchanged from last year despite an overall application increase suggests that law schools may be becoming more selective about who they let in. The number of jobs in the legal sector isn’t keeping up and they are mindful of that. It’s also worth noting that over the past year or so, several law schools have announced plans to close or not accept any new students. This is having an effect too.”

Just another thing to consider before you get your sights set on a J.D. that you’re convinced with help change politics as we know it.

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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 health IT company that made a free, ad-supported electronic health record system will pay $145 million to resolve an investigation of a kickback scheme the company entered with an unnamed pharmaceutical company.

Practice Fusion admitted to receiving kickbacks from a major opioid company in exchange for using its software to influence opioid prescriptions, the Department of Justice said on Monday. The company agreed to pay more than $26 million in criminal fines and forfeiture as part of a deferred prosecution agreement. It will also pay $118.6 million to resolve civil allegations related to pharmaceutical kickbacks and misrepresenting its EHR software’s capabilities.

“Practice Fusion’s conduct is abhorrent.  During the height of the opioid crisis, the company took a million-dollar kickback to allow an opioid company to inject itself in the sacred doctor-patient relationship so that it could peddle even more of its highly addictive and dangerous opioids,” U.S. Attorney for the District of Vermont Christina Nolan said in a news release.  “The companies illegally conspired to allow the drug company to have its thumb on the scale at precisely the moment a doctor was making incredibly intimate, personal, and important decisions about a patient’s medical care, including the need for pain medication and prescription amounts.”

In their criminal probe of opioid makers, federal prosecutors have indicted pharmaceutical company executives, physicians and pharmacists. But this is the first ever criminal action against an EHR vendor, making the case all the more shocking.

“It’s completely unexpected. It really underscores just how many different ways pharmaceutical companies were exploring to drive up utilization and prescription of opioids,” said Matthew Fisher, a partner with Massachusetts-based firm Mirick O’Connell, on his reaction to the case.

According to court documents, Practice Fusion received just short of $1 million from an unnamed pharmaceutical company to develop a clinical decision support tool that could boost prescriptions of extended-release opioid painkillers. The payment was allegedly made by the opioid company’s marketing department, which also had input in how the software tool was designed.

Sometimes, Fisher said, pop ups will appear in a health record system to remind physicians to do particular things, or check off certain quality measures.

“What’ll frequently be done in an EMR, it will provide prompts to provide reminders about needed actions, or guide (physicians) down a particular workflow,” O’Connell said. “It could guide in that direction by making it feel like part of the normal workflow.”

The final version of the system included three separate alerts related to pain, according to court documents. The first one encouraged healthcare providers to record a pain score from patients. The second encouraged them to take a brief pain inventory (BPI) of patients that had recorded pain scores above a four. A third alert indicated that the physician should create a follow-up plan for treating the patient’s pain, which included a drop-down menu of treatment options, including opioids.

Opioids were reportedly listed on equal footing with other, non-opioid treatments, even for patients reporting less-than-severe pain. It’s still not clear to what extent the alerts affected physicians’ prescribing behavior.

The alert system was live on Practice Fusion’s platform from July of 2016 to spring of 2019. During that time, it alerted more than 230 million times, with physicians writing hundreds of thousands of extended-release opioid prescriptions after the alerts had been triggered, according to court documents.

“Healthcare providers who received the Pain CDS alerts prescribed (extended release opioids) at a higher rate than those that did not,” the lawsuit stated.

Practice Fusion was charged with two felony counts for violating the Anti-Kickback Statute and for conspiracy. In addition to the criminal fine, the company must forfeit the nearly $1 million it received in payments, cooperate in ongoing investigations of the kickback arrangement, and make information about the investigation public through a website.

Three strikes

This isn’t Practice Fusion’s first run-in with the law. The San Francisco-based EHR vendor settled with the Federal Trade Commission in 2016 over allegations that it misled patients into sharing medical information in reviews of their physicians, which were posted in a public directory online. Later, the DOJ began investigating the company around how it had received its software certification from the Department of Health and Human Services.

Prior to these allegations, the high-flying heath IT startup had raised more than $150 million, with J.P. Morgan estimating its valuation at $1.5 billion in 2016. Allscripts had planned to acquire the company for $250 million in 2017, but the deal fizzled after news broke that another EHR vendor, eClinicalWorks, would pay $155 million to resolve a False Claims Act lawsuit. Allscripts ultimately acquired Practice Fusion in a fire sale for $100 million in 2018.

In mid-2019, Allscripts disclosed it would pay $145 million to settle an investigation the DOJ had brought against Practice Fusion for its compliance with the anti-kickback statute and HIPAA.

“These investigations had many similarities to investigations that have either been settled or remain active with many of our industry competitors,” Allscripts President Rick Poulton said in the company’s second quarter earnings call. “After acquiring Practice Fusion, the DOJ investigations continued to expand and required expanding levels of resources from us to support. The main focus has been on actions that occurred prior to our ownership, and thus we were highly motivated to reach an accord with the DOJ as soon as possible…”

Three months later, Poulton answered questions around the investigation in another earnings call, noting the company was finalizing the settlement with the Department of Justice. He also indicated that Allscripts expects to receive recoveries from “a variety of third parties.”

“But I think that’s going to play out through 2020, possibly even beyond,” Poulton said.

One might think Allscripts would have buyer’s remorse, with the legal costs now outweighing the original purchase price.

“This does create one of those horror stories that you always worry about in health care,” Fisher said. “If you’re buying a company and taking it over, and assuming liabilities, you’re always doing diligence, but if it’s something you might not have known about… you always worry about that.”

Despite the allegations, Allscripts doesn’t appear to be abandoning its investment in Practice Fusion. In an emailed statement, the company said it had strengthened Practice Fusion’s compliance program and was pleased to complete the settlement.

“Allscripts recognizes the devastating impact that opioids have had on communities nationwide, and we are using our technology to fight this epidemic,” Allscripts Executive Vice President, General Counsel and Chief Administrative Officer Brian Farley wrote in an emailed statement. “We remain committed to Practice Fusion and believe this matter should not overshadow the important and valuable work it is currently performing.”

The DOJ still appears to be investigating the broader kickback scheme, given that it has asked Practice Fusion to report similar behavior from competitors as part of the settlement. It’s unclear whether any other EHR vendors might be implicated in the case.

“The bottom line is this one was extremely surprising,” Fisher said. “I hope it’s not indicative of other cases that could be out there. This is one of those cases where you hope it’s an outlier.”

Photo credit: VladimirSorokin, Getty Images

Recently, Arizona has been ground zero for legal disputes on embryo dispositions. Over the past few years, we have been subjected to whiplash by the Arizona courts in the heart-wrenching Torres case, culminating in last week’s decision by the Arizona Supreme Court. I’ll discuss that ruling in a moment. But separately, the state passed an aggressive, and controversial, law ordering judges to ignore the parties’ wishes as to the future of their own genetic material and future offspring.

Where to start? Hold on, let me secure my neck brace.

AZ Supreme Court Reverses Court Of Appeals

To recap, the Torres case facts started with the diagnosis of Ruby Torres with an aggressive form of cancer. Doctors advised her that if she hoped to have biological children in the future, she would need to go through an egg retrieval, and the formation of embryos, prior to starting chemotherapy. One problem, egg freezing alone, at least at that time, did not have the greatest success rate. Hence, Torres was recommended to make embryos — meaning she needed sperm to combine with her eggs before freezing.

Should Have Gone With The Ex-Boyfriend

At the time of her diagnosis, Torres happened to be dating John Joseph Terrell. They must have been somewhat serious at the time, because Torres asked Terrell to donate his sperm to create embryos with Torres’s eggs. He initially said no. However, after she asked an ex-boyfriend — who said yes — Terrell suddenly had a change of heart and agreed to provide his sperm for Torres to form embryos before starting her cancer treatment. The couple later married, but, in 2017, they divorced.

Naturally, as every in vitro fertilization (IVF) patient must do, Torres and Terrell signed routine forms with the fertility clinic. The form they signed became the crux of the case at hand. The forms were not easy to interpret, however. Even the judges sitting on Arizona’s Court of Appeals and Arizona’s Supreme Court — all very smart individuals — could not agree as to what that consent form meant.

One part of the form noted that no party could use the embryos without the consent of the other party. But another part, which the parties initialed, said that “In the event the patient and her spouse are divorced or the patient and her partner dissolve their relationship, we agree that the embryos should be disposed of in the following manner (check one box only).” Torres and Terrell selected, “[1] A court decree and/or settlement agreement will be presented to the Clinic directing use to achieve a pregnancy in one of us or donation to another couple for that purpose.” No, you’re not crazy. Those two provisions are confusing, and could be read to conflict with one another.

The Court of Appeals ruled that the initialed selection meant that the court had discretion to decide who should be able to use the embryos, including a decision that could be against one of the party’s wishes. It took that route, weighed the parties’ interests, and then awarded the embryos to Torres. But the Arizona Supreme Court, on the other hand, reversed, and decided that the initial provision regarding mutual consent must be given more weight. That basically meant that the couples agreed to one of two possible paths: either (1) reach an agreement between themselves as to the disposition of the embryos, or (2) donate the embryos to another couple to achieve a pregnancy. Since (1) didn’t happen, the court ordered that (2) — the donation option — occur.

Well, that’s definitely one reading of the contract. And broadly speaking, it is good that courts pay attention to contracts, since people should have control of their own genetic material. If we agree in writing with others as to the disposition of our genetic material, a court should, indeed, follow that. So the Arizona Supreme Court ruling is a good one. But why doesn’t it feel that way?

Terrell Is Willing To Be A Father, Just Not With His Ex-Wife

I understand the cases, like Rooks, where an ex-spouse does not want to have a child (or another child) out there in the world genetically related to him or her. That’s not unreasonable. But in this case, Terrell was not objecting to having a genetic child; he just didn’t want such a child to be raised by Torres. Despite Torres’s repeat promises that if Terrell allowed her to use the embryos she would not ask him to parent or provide financial support for the child, he will not permit her to use them. So now BOTH Terrell and Torres may have a child — sharing both of their genes — but raised by a third party with no familial connection to either one of them. It’s an unusual result.

It Only Gets Worse

Of course, this case does not even scratch the real issue — the new Arizona Revised Statute 25-318.03. The judges in the Torres case did not consider the new law, given that it passed after the case started (it was, after all, inspired by the case), and was not retroactive. The statute provides that any judge presiding over a divorce case in Arizona where the couple has cryopreserved embryos must award the embryos to the party most likely to “bring them to birth,” regardless of what the couple may have agreed to when going through IVF together. There’s not yet evidence that attorneys throughout the country are advising their divorcing clients who want control of the couple’s embryos to move to Arizona, establish residency, and then file for divorce. But once words gets out, that strategic possibility will make the Grand Canyon State an attractive option for some people. And a disaster for the soon-to-be ex.

I spoke to Arizona-licensed assisted reproductive technology attorney, Christina Miller, on her take on the situation in Arizona. She felt that the Torres case highlights the complexity of parenthood through IVF, and the need for appropriate counseling — especially legal counsel — prior to individuals or couples embarking on fertility treatments. Separately, Miller felt that the Arizona embryo disposition statute was destined to be found unconstitutional, based on the statute overriding fundamental rights to privacy and reproductive freedom.

Until then, the takeaway: always go with your ex-boyfriend’s sperm. Or, maybe better yet, when possible, opt for gamete (egg or sperm) freezing over embryo cryopreservation. The technology is getting better! At the very least, when forming embryos — or dealing with any type of gamete or embryo reproductive treatments, seek legal advice to truly understand the scenarios you may be facing in the future, in order to make the best decision possible at that time.

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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.

A few months ago, 59-year-old Cynthia Marie Rodgers, who recently graduated from Capital Law School, applied for admission to the Ohio State Bar and underwent their character and fitness review. While the initial reviewers recommended admission, the Board of Commissioners on Character and Fitness of the Supreme Court of Ohio started a new investigation where they recommended denial of her application.

In their denial, the board expressed concern about the numerous lawsuits she filed on her own before going to law school. The diverse subject matter of her lawsuits resembles a first-year law school curriculum: personal injury, property law issues, bankruptcy, probate, and an automobile sales dispute to name a few. These lawsuits were filed in federal, state, and municipal courts. The board found that many of these lawsuits were repetitive and possibly frivolous. One of the defendants even filed a motion declaring her a vexatious litigator.

The board was also concerned about her past debts. Rodgers had a history of fighting creditors and avoiding paying debts until they became uncollectible. They also noted the size of her student loans. She and her husband owe a combined total of $900,000. Her share is $340,000 coming from a law degree, a bachelor’s degree, an associate’s degree, and a failed attempt at getting a master’s degree. According to Law School Transparency, a student of Capital Law School receiving no tuition discounts will have $204,390 in student loans upon graduation. Due to an accident that, according to Rodgers, left her disabled, she can only work part time. She told the board that she is on an income-based repayment plan, and she expects to pay only a portion of her income for the rest of her life or until the loans are forgiven.

Based on the above, the board found that Rodgers did not prove by clear and convincing evidence that she had the character and integrity to practice law.

Adam Minsky over at Forbes finds it troubling that the board denied Rodgers’ admission even in part due to her student loans. Although they noted in their decision that Rodgers took on massive student loan debt knowing that it will never be repaid, it is unclear whether the board would have made the same decision based on her student loans alone. However, I think that student loans alone should not disqualify anyone from admission. Otherwise, most lawyers’ careers would end before they begin.

Rodgers’ story offended a lot of people on the internet, even those who I thought would be sympathetic based on their ideology. They accused her of taking advantage of the student loan system, scamming others, and abusing the legal process. For a while I agreed with them and the board. But as I thought more about this, I thought we should be looking at this opinion from a different perspective.

Let’s look at her lawsuits. Maybe some of them were indeed frivolous. She filed them herself most likely because she cannot afford an attorney, and no attorney would help her pro bono or at a reduced cost. Or no lawyer would take her case, which is understandable from a business and professional perspective. But based on the board’s evaluation of a small sample of her lawsuits, it seems as though each of them had some level of objective merit. At least she is not like Jonathan Lee Riches who sued everyone for just about anything from the comfort of his prison cell.

But from her perspective, she filed a lawsuit because of the principle. Maybe she didn’t file the right paperwork or in the wrong court. Maybe she did not do a cost/benefit analysis or did not understand the work and expense a lawsuit entails. All she knows is that somebody wronged her, and she wasn’t going to take it lying down. As she stated, something had to be done, or it wouldn’t be dealt with. Haven’t some lawyers made similar mistakes when they first started practicing? How many lawyers initially wanted to become a lawyer primarily to do what’s right regardless of the obstacles? Or have we all become disillusioned and burned out?

Next, let’s look at her debts. So she may not have paid her debts as agreed because they were either written off or were legally uncollectible due to the passage of time. But the opinion states that all of her current debts have been paid, with the exception of her six-figure student loans. Her background and employment history indicates that before law school she didn’t have the education that would make her competitive for a high-paying job. Not only that, she suffered a serious injury that limited her work options.

Finally, she is on an income-based repayment plan, which is legal and was designed for people in her situation. For those criticizing her for becoming an IBR lifer, how is this different from a young law school graduate who works for the government or for legal aid and takes advantage of PSLF?

If Rodgers owed $34,000 or maybe even $90,000, people would not be upset at her. But she and her husband owe $900,000 in student loans. Her share of the debt, which is $340,000, is not unusual for members of her graduating class. Those who went to more expensive schools are graduating with similar levels of debt and comparable job prospects.

The opinion does not state how the balance got so high. Did Rodgers and her husband use that money to live lavishly before their Ponzi scheme failed, and they were forced to live in subsidized housing? Or was it because loan servicers arbitrarily added usurious “collection fees” that are an additional 25% of the additional balance. Or because they do not know the original balance because the accounts have been shifted from one company to another with paperwork being lost in the process.

Based solely on the facts provided on the opinion, I can understand why the board found that Rodgers did not prove with clear and convincing evidence that she had the character and fitness to be a lawyer. But I think they could have done a better job understanding why she filed these lawsuits and how her student loan debt got so high in the first place.

In the final analysis, the powers that be must predict the future based on past conduct. If Rodgers became a lawyer in Ohio, would she continue to file frivolous lawsuits? Or would she help those without means fight in order to right a wrong? Is it wrong to turn to a legally permissible payment plan that potentially allows her to avoid paying her student loans in full? Or will this encourage unethical behavior that will harm clients? I am not sure if there is a clear and convincing answer to these questions. But if she is denied the right to practice law immediately, the chances of paying down her and her spouse’s loans will go down significantly.

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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.