Author: TSA Press

* Corey Lewandowski is suing his lawyer for malpractice. Maybe he should ask his former boss for a list of lawyers he can use. [Boston Globe]

* Attorneys for the House Judiciary Committee have hinted that more articles of impeachment may be filed against President Trump. [NBC News]

* Am attorney who abandoned his client after receiving $8,000 in settlement funds has been disbarred. [Bloomberg Law]

* Actor Edward Norton is set to be deposed in a case involving a deadly Harlem fire. He should be fine, he played attorneys on screen. [New York Post]

* A Minnesota “revenge porn” law has been struck down on First Amendment grounds. This is definitely what the founders intended… [Pioneer Press]

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

Under Illinois law, how long should Kevin’s parents be going to jail for leaving their child alone to galavant to Paris?

Hint: Illinois Chapter 720 §12C-10 covers child abandonment which occurs when “he or she acts without regard for the mental/physical health and safety of the child and knowingly leaves that child (under the age of 13) without supervision for 24 hours or more.” In this case, “knowingly” should be met by the unbelievable level of recklessness.

See the answer on the next page.

We have reached the “LOL, nothing matters” stage of impeachment. What could be done, has been done. Now politicians are just making mouth noises, trying to show “toughness” to their bases, even as nearly everybody has tuned out for the Holidays.

In a world where this old people staring contest was “important,” Mitch McConnell, of all people, seems to have made the first blanch. McConnell came out this weekend to say that the Senate was at an impasse and everybody should go home. But the way he did it showed that he fundamentally accepted the premise of the Democratic proposition. From the Washington Post:

“The papers have to be physically brought over to the Senate, and we can’t go forward until the speaker does that,” McConnell said during an appearance on Fox News’s “Fox & Friends.” “She’s apparently trying to tell us how to run the trial. You know, I’m not anxious to have this trial, so if she wants to hold onto the papers, go right ahead.”

“Look, we’re at an impasse. We can’t do anything until the speaker sends the papers over, so everyone enjoy the holidays,” McConnell added.

Well, well, well. It might not sound like it, but that there is McConnell fundamentally agreeing with Larry Tribe, that the Senate cannot move forward until the House delivers the impeachment papers.

I’ll just remind people that McConnell did not have to agree to that position. If McConnell just wanted to start a Senate trial, with or without the formal transmission of the Articles of Impeachment, who would stop him? Iron Man? The media would cover a “fake” impeachment trial just as breathlessly as it will cover the “real” one. The Republican Senators who have debased themselves to committing to protect Trump, no matter what, would still act like Trump has been “acquitted,” transmission of papers be damned. McConnell acceding to the parliamentary game here is news.

Of course, McConnell is letting Pelosi’s argument win the day for a couple of reasons. First of all, McConnell is a Republican. Never forget the nihilist nature of the Republican party. Doing nothing IS A VICTORY in Republican logic. It always is. Like a swallow to Capistrano, Republicans always default to getting nothing done over something done. Making government not work usually plays to Republican advantages, so it’s actually not all that surprising that McConnell’s instinct here is to do nothing and see how that works out for him.

McConnell also likely believes he can get some mileage out of Professor Noah Feldman’s argument that the President isn’t really impeached until the House sends the articles over. I think Professor Feldman has the wrong of the argument. Feldman came out over the weekend to say that if the President has been impeached, then the Senate could start its trial now. He used the argument to highlight his position that the President hasn’t really been impeached yet. But, as I just said, the Senate could start its trial now, and literally nobody would show up to stop them.

McConnell is choosing not to start the trial because of McConnell, not because of the laws. As I’ve written previously, we are well beyond the safety and protection of the rule of law. All of this is just an exercise in raw political power. Right now, Nancy Pelosi has the power to make things difficult for McConnell, and McConnell evidently agrees. For now, McConnell thinks he’s better off letting impeachment hang over the President, while arguing to Republicans that the time we all saw the President impeached was just a false memory. Hey, it’s worked for Republicans before. Their ability to get their stupid voters to believe whatever McConnell and Trump wants them to believe is legendary.

Still, I think McConnell will eventually lose this particular battle. McConnell’s strategy requires patience, but his overlord, President Trump, is one of the most impatient men on the planet. Every day that Pelosi holds the articles is another day we talk about the thin-skinned President being impeached, without allowing any of his sycophants the opportunity to officially defend him. Remember when Republicans hired a “female assistant” to handle the questioning during the Brett Kavanaugh hearings? But Republican men became annoyed about not being able to scream their rape apologist defenses into the camera? So, they eventually sidelined the assistant so Lindsey Graham could have a nutty and then all the Republican men felt a lot better? You could see the same thing playing out here. Trump is a small, stupid man, the Republicans are small, angry men, being denied their opportunity to scream and yell “on the record” really pisses them off.

As it is right now, Pelosi has the power to… “re-impeach”(??) Trump whenever she damn well pleases. Maybe it’ll be after she gets some pro forma concession from the Senate? Maybe it’ll be after the Democratic primary field has settled to the point where half the Senators won’t have to stop campaigning to be at the trial? Maybe it’ll be at the time where Pelosi determines it will do the most damage to Trump’s re-election campaign? I was highly critical of how Pelosi handled the Mueller impeachment potential, but it turns out that Trump did in fact “self-impeach.” I’d be a fool who was unable to learn to assume anything other than the fact that Pelosi will send the Articles over, precisely at the best time to do so. “A wizard is never late, nor is [s]he early, [s]he arrives precisely when [s]he means to.”

So yeah, enjoy the holidays. There’s nothing to see here, folks. And really, I can’t think of a better present than not having to think about Trump for a couple of weeks.

McConnell accuses Pelosi of holding ‘absurd position’ [Washington Post]

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Elie Mystal is the Executive Editor of Above the Law and a contributor at The Nation. He can be reached @ElieNYC on Twitter, or at elie@abovethelaw.com. He will resist.

Nancey Watson works with law firms on proposal strategy and in-house legal counsel to produce the best request for proposals (RFPs) possible. According to Watson, for in-house lawyers to find legal services providers that can meet their needs, it’s key to define goals and maintain clear communications about needs and wants.

Take Time To Define Your Goals

“Defining your goals is critical,” Watson said. “For example, if in-house counsel is looking for strategic advice, what exactly are they looking for? Are they looking for general regulatory insights? Or are they looking for information about the regulatory impact in a particular country?”

When in-house professionals refer to strategic advice, once again they have to be specific about what kind of strategic advice they are they looking for. “For example, if the goal is to improve efficiency, they need to specify what that looks like,” she explained.

Watson also pointed out that efficiency is a big, broad topic. “Are you talking about using technology to assist with matters such as contract management? And if so, what kinds of systems are being used and what kind of benefits might they present? How does it actually help improve efficiency for the company?”

Clarity about the process is also important. “What processes would a law firm have in place?” Watson asked. “Are they looking to process manual work faster and better using technology?” She continued, “For example, in contract management, we have been able to use technology to implement contracts much more efficiently than an individual could by cutting and pasting from a huge database of clauses and paragraphs.”

“Law practices are really being transformed by technology,” Watson said. “A huge number of new software companies are coming into this field. Some of these providers are new but others have been in the technology field for quite a while and have experience working with law firms. Now vendors recognize that on the corporate side, they need to work with in-house attorneys.”

Watson advised, “For example, if you are asking for improved efficiency in technology for RFPs, consider specifying how you want to use that technology. Will you post answers in the tool or platform? Will you want to provide templates and checklists? What kind of technology does the legal department already have? Have they grown it themselves or have they purchased it?”

She added, “I generally support RFP software because I’ve responded to a lot of proposals, and I can see firsthand that it is a great technological advancement for in-house counsel. In-house counsel can take the RFP response data and later on compare proposals to the actual performance. Using today’s technology, you can run a much more efficient, data-driven legal operation.”

Communicate The Key RFP Information Clearly

Once you have identified your goals, communicating them clearly in the RFP is critical. “The vaguer the questions are, the vaguer -– and less useful the information coming back from the law firm and other vendors will be,” Watson said. “The more specific they are, the more specific vendors can be when responding to the request for proposal.”

“For example,” she added. “RFPs often don’t state the purpose of the RFP. They think it goes without saying or is unnecessary. But it’s helpful to know upfront whether the RFP is looking for a lower fee, whether it’s for a panel firm, or whether they’re just looking for local representation.” She continued, “A lot of times they just give a brief overview of the company. Then they go right into questions. But it can be helpful and effective to discuss the overall goal of the request for proposal.”

“I love RFP requests that include upfront what they are looking for,” Watson said. According to her, not all proposals focus on the same thing.

“Some legal departments are looking for a 10% to 15% discount across the board. In many cases, when in-house procurement professionals or lawyers can say ‘we saved 10%’ on our annual legal spend they get kudos from management.” Watson said.

“And that is really because they’re getting pressured by either the GC or the CFO or management that they need to cut their overall legal fees by a certain percentage,” she explained. “Discounts are not the best way to cut down on the legal fees, but it is easy to calculate, and everyone seems satisfied. I recommend that in-house and law firms look seriously at alternative fee arrangements (AFAs) for a more flexible way of getting assurances for legal spend going forward and it does not have to be an annual occurrence but can be spread over the year.”

Selecting panel firms is another possible purpose for sending out a request for a proposal. “It is important to know upfront if it is a panel firm RFP,” Watson said. “Then the law firms know that they are going to get a shot at a decent volume of work. Many big legal departments have relatively small panels with five or six members.” She continued, “Of course, it’s important that that panel firms actually get the work, rather than assign work to non-panel firms who have an established relationship with in-house lawyers.”

Requests for local counsel is another particularity. “It’s important to define what you mean when you say that you are looking for a local counsel,” Watson said, adding, “Do they partner with a local law firm that they have worked with previously? Do they work through an organization? Or are they are really looking for law firms that have offices that are located locally and have local feet on the ground and bricks and mortar?”

Specification and communication are key when you’re soliciting legal services proposals. In the RFP process, all sorts of opportunities exist for miscommunication, redundancies, and inefficiencies. To cut through it all and ensure a smooth RFP process, be sure to communicate upfront as much as possible about what you want.

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Olga V. Mack is the CEO of Parley Pro, a next-generation contract management company that has pioneered online negotiation technology. Olga embraces legal innovation and had dedicated her career to improving and shaping the future of law. She is convinced that the legal profession will emerge even stronger, more resilient, and more inclusive than before by embracing technology. Olga is also an award-winning general counsel, operations professional, startup advisor, public speaker, adjunct professor, and entrepreneur. Olga founded the Women Serve on Boards movement that advocates for women to participate on corporate boards of Fortune 500 companies. Olga also co-founded SunLaw, an organization dedicated to preparing women in-house attorneys to become general counsels and legal leaders, and WISE to help female law firm partners become rainmakers. She authored Get on Board: Earning Your Ticket to a Corporate Board Seat and Fundamentals of Smart Contract Security. You can email Olga at olga@olgamack.com or follow her on Twitter @olgavmack. 

JOHANNESBURG — The president of newly-formed Movement for Democratic Change Zimbabwe (MDC Zimbabwe), Thulani Ndebele, says his party is expected to beat Zanu PF in the 2023 harmonized elections as he has the people of Zimbabwe at heart.In his first-ever interview after registering his party last month with the Zimbabwe Electoral Commission, Ndebele said he has already hit the ground running and is optimistic that his party would win the presidential and parliamentary elections.

“I decided to enter the political field after realizing that millions of Zimbabweans are suffering, millions of people are unemployed, people cannot buy basic commodities, people are facing a lot of challenges due to the current harsh economic situation in the country. This makes me believe that we will win the next elections as people want positive transformation in the country.

“I have realized that the MDC led by Khuphe is fighting against the MDC led by Nelson Chamisa, Zanu PF is fighting against the MDC led by Chamisa and as a result people are completely neglected. They are left out. As a result, I believe that we are the only alternative to these parties. We are getting a lot of support from the people and we will do our best to make sure that their dreams of a better Zimbabwe are met.”

He denied allegations that he is being used by the ruling Zanu PF party, saying he is looking for positive social, economic and political change in Zimbabwe.

Ndebele, who was supposed to contest the 2018 general elections under the National People’s Party led by Joice Mujuru, said he withdrew his name in the last minute after realizing that there were chances of splitting votes among opposition parties.

“I withdrew in favour of the MDC candidate. I realized that we were going to split the votes as the opposition. I resigned after I was quizzed by the NPP why I supported an MDC candidate.”

Asked why he chose the name MDC Zimbabwe, Ndebele said, “There is nothing wrong in using the name MDC. We are the true MDC and not these other MDCs.”

However, MDC activists are viewing Ndebele as a ruling party project designed to create confusion among MDC formations.

Douglas Mabuza, a member of the MDC formation led by Thokozani Khupe, said, “I only support the MDC led by Khupe, it’s the only legitimate MDC … This MDC Zimbabwe is fake.”

His views were echoed by Zanu PF member, Joseph Tshuma, who noted that all MDC formation won’t dislodge Zanu PF from power. “These parties are very confused. They don’t know what they want.”

The MDC was formed by various stakeholders in Zimbabwe in 1999 but has split over the years due to differences over political ideologies and push for change.

A new report from the Institute on Taxation and Economic Policy has been getting a lot of attention. The report found that for 2018, the first year in which Trump’s signature Tax Cuts and Jobs Act was in effect, 91 profitable Fortune 500 companies paid no income taxes at all. None. Furthermore, across all 379 of the profitable Fortune 500 companies, the average effective tax rate was only 11.3 percent.

The low corporate tax rate, or absence of a corporate tax rate for 91 of those large companies, was in part due to the fact that Trump’s tax law lowered the overall corporate tax rate (for larger companies, at least). Previously, the corporate tax rate was based on a tiered structure in which the largest and most profitable companies paid higher rates than smaller, less profitable companies. Under the structure that predated Trump’s tax law, companies paid just 15 percent on their first $50,000 of income, and the corporate income tax rate increased from there, up to the highest rate bracket at 39 percent. Trump’s tax law set a flat 21 percent corporate tax rate, increasing the taxes paid by the smallest companies and decreasing the taxes paid by all the higher-earning corporations.

Of course, lowering the overall corporate tax rate to 21 percent does not explain how so many very large and very profitable companies got to 11.3 percent, or to zero percent. Turns out Trump’s corporate tax rate is a flat tax only in the sense that a slice of Swiss cheese is flat. While the rate doesn’t go above 21 percent, it is riddled with loopholes inserted by corporate lobbyists. These loopholes — “tax breaks” as they are more diplomatically referred to in the ITEP report — allow companies with savvy lawyers and lobbyists to avoid taxes by writing off more for a variety of things, from luxury automobiles to bicycle commuting reimbursements. According to the ITEP, had the 379 profitable Fortune 500 companies actually paid the full 21 percent rate without taking advantage of loopholes, they would have collectively paid income taxes totaling $161 billion for 2018, rather than the $86.8 billion they actually paid. The savings corporations realized by building the loopholes into Trump’s tax law appear to have been well worth the $6 billion spent annually on lobbying. (In addition to lobbying, corporations also spend directly on federal elections, to the tune of $2.6 billion in 2018.)

Tax Cuts And Jobs Act Increased Amount Paid By Humans, Decreased Amount Paid By Corporations

The relative tax rates of corporations and individuals are interesting, and relevant. But examining the rates for individuals versus corporations is not necessarily an apples-to-apples comparison. The raw amount of total tax dollars collected might give a more complete basis for comparison, and looking at that total, the systemic corporate tax dodge that is the Tax Cuts and Jobs Act can clearly be seen as coming at the expense of all the rest of us (actual people).

The Office of Management and Budget publishes an annual summary of federal government receipts by source going all the way back to 1934. For 2018, the federal government took in a total of $204.733 billion in income taxes from corporations — no small sum. Yet, it pales in comparison to the amount of income taxes collected from flesh-and-blood human beings: $1,683.538 billion. In 2018, you and I and all of our friends and relatives collectively paid more than eight times the total U.S. income tax paid by all the Targets and Walmarts and Raytheons of the world.

The year before Trump’s tax law went into effect, we humans paid a lot less, while corporations paid a lot more. In 2017, human beings paid $1,587.12 billion in income tax. Corporations paid $297.048 billion. We bloodbags still paid a lot more than the moneymaking business entities, but it was only about five times more instead of the eight times more we are now paying.

The total amount of income tax paid, by corporations and by people, has fluctuated over the years. In modern times, corporations have always paid a bit less overall than what is paid by actual people. You have to go back to 1943, when people paid $6.505 billion in income taxes and corporations paid $9.557 billion, to find a year when business entities with a core function of making money paid more income tax than biological entities with a core function of staying alive. So, I guess we’ve more or less settled on the status quo being that corporations contribute somewhat less than people to income tax receipts.

But it sure seems like corporations should be footing a little more than an eighth of what we’re all paying. And anyone who says Trump’s Tax Cuts and Jobs Act was anything more than a corporate giveaway at the expense of human taxpayers hasn’t spent the time that I have going through OMB spreadsheets.

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Jonathan Wolf is a litigation associate at a midsize, full-service Minnesota firm. He also teaches as an adjunct writing professor at Mitchell Hamline School of Law, has written for a wide variety of publications, and makes it both his business and his pleasure to be financially and scientifically literate. Any views he expresses are probably pure gold, but are nonetheless solely his own and should not be attributed to any organization with which he is affiliated. He wouldn’t want to share the credit anyway. He can be reached at jon_wolf@hotmail.com.

Good tidings and joy!  Time with family!  And no one reading Above the Law. (Hi, Mom!)

This gives me my annual opportunity to veer a little off-topic with my column.

Consider judicial partisanship. I was recently reading some articles about the hyper-partisan cases making their way through the court system — cases involving the various subpoenas seeking President Trump’s tax returns, legislative attempts to obtain Trump’s tax returns, the Emoluments Clause, funds to build “the wall,” that sort of thing.

As I was reading those articles, I was struck each time by a desire to know who had appointed the judge (or judges) involved in the case. Were the judges Reagan appointees? Bush I or II? Clinton? Obama? Trump?

Somehow, a Trump (or Trump administration) loss before an Obama appointee seemed less significant than a Trump (or Trump administration) loss before a Trump appointee.

If the articles didn’t tell me who had appointed the judges, then I thought a relevant point had been omitted: Surely this mattered, and shame on the reporter who had failed to provide the information.

Then I realized that this was the first time in my life that I’ve thought that the identity of the president who appointed the judge was relevant to a judicial decision.

In the past, I was certainly aware of the implications of who had appointed judges. Republican judges were generally seen as more pro-business, for example, and Democrats as more pro-consumer. But I never thought that an article describing a case had omitted a relevant fact if it hadn’t disclosed the identity of the appointing president.

In some of today’s cases, I do.

That’s a disaster.

I’m a pretty firm believer that, although judges are inevitably shaped by their life experiences, judges can cast aside their party affiliations when they don their robes. A serious person can focus on the facts of a case and ignore its political implications.

If even I — a believer in judges’ ability to remain neutral — am now keenly interested in the political affiliation of a deciding judge, then something has changed in society.

I suppose there are three possibilities: First, some of today’s cases may be more fiercely partisan than the cases that I’m remembering from my past.  Many cases — business disputes, breaches of contract, and the like — involve no partisanship at all. Some cases — criminal cases, civil rights disputes, and so on — might involve partisanship at a very general level. Even politicized cases — abortion, gay rights, the death penalty — don’t seem to involve as pointed partisanship as today’s cases involving Trump, on the one hand, and Democrats, on the other.

Maybe I’m right to care about the identity of the judge in today’s cases, just as I was right not to care in the past.

Second, maybe I’m simply forgetting some past cases in which I was deeply interested in who had appointed the presiding judge — maybe some Clinton-era cases that seemed partisan? If I’m finding political meaning in what is actually a failure of recall, then society is safe.

Third, maybe although I’m curious about who appointed judges, that curiosity is misplaced. Although I personally am now interested in who appointed judges, a sensible person wouldn’t be; it really doesn’t matter.

Still, the fact that I’ve developed this interest disturbs me.

Something has prompted this: The nature of the disputes; the press coverage; divisions within society; something.

If others, like me, are developing a feeling that judicial party affiliation matters more today than it did in the past, then the judiciary is losing a form of societal respect that we may be sorry to see interred.

Despite that, enjoy the holiday season!

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Mark Herrmann is the Chief Counsel – Litigation and Global Chief Compliance Officer at Aon, the world’s leading provider of risk management services, insurance and reinsurance brokerage, and human capital and management consulting. He is the author of The Curmudgeon’s Guide to Practicing Law and Inside Straight: Advice About Lawyering, In-House And Out, That Only The Internet Could Provide (affiliate links). You can reach him by email at inhouse@abovethelaw.com.

2019 was the year that expanded parental leave became a real trend in Biglaw. But just because the year is closing doesn’t mean parental leave is done having its moment in the sun. Just last week, another Biglaw firm announced an expanded policy — effective in 2020 — that’s applicable to all of its employees.

Biglaw firms should now know they need to offer some pretty good parental policies in order to stay competitive with their peer firms. We are seeing more and more firms offering their attorneys generous paid leave, and the programs are increasingly gender neutral and offered without a primary caregiver stipulation.

The latest firm to offer improved parental leave is Sheppard Mullin. As their announcement notes, the new policy is designed to take the needs of all employees into account:

We are pleased to announce the Firm will be enhancing our parental baby bonding leave policy to support our SMRH employees (qualified attorneys and professional staff) as their families grow.  We recognize that every family is different.  We want our parental baby bonding leave policy to reflect the needs of each employee.

The highlights of the new policy include:

• All new parents can take up to 12 weeks of paid parental baby bonding leave for the birth, adoption or foster care placement of a child.

• Birth mothers will receive an additional 6-8 weeks paid disability leave for childbirth recovery depending on the period of actual disability.

• Paid bonding leave must be initiated within the first six months of the birth, adoption or foster care placement and completed within the first year.

• Ramp Time:  Attorneys and paraprofessional timekeepers planning for a parental leave that is eight continuous weeks or longer, will have a reduced hours expectation of 60% of his or her full time equivalent (FTE) during a ramp down and ramp up period of 6 weeks before and post leave.  This ramp up/ramp down will have no negative impact on a potential hours-based bonus.

The firm also circulated a list of best practices for taking leave to ensure that employees that take leave are put in the best possible position:

• Communication is key!  Partners and supervisors are encouraged to speak to the attorney or professional about their expected departure and return date.

• Those planning to go on leave should provide a status report and project list to their supervisors.

• TM/HR will send regular notice of pending and current leave dates, and expected return dates to Practice Group Leaders, Office Managing Partners, Office Administrators and/or Chiefs.

• As this is a leave of absence, no work should be given to the attorney/employee.  If there are extenuating circumstances, the supervisor should first speak with the PGLs or Chief to see if there is additional coverage, then with the CHRO, and finally with the attorney/employee.

Folks at the firm seem very pleased with the change. From a tipster:

Sheppard Mullin continues to make itself a premier place to be an associate. It’s amazing how much effort they put into listening to associates and actually implementing feedback.

Kudos to the firm!

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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).

So Goldman Sachs is about to pay a hair under $2 billion and have some unimportant Asian subsidiary plead guilty to helping bilk Malaysia out of $6.5 billion, to get the Justice Department to shut up about the whole thing. Talks with the Malaysians are not going quite as well, what with their seeing $2 billion as a starting point for talks about the interest Goldman should have to pay, before getting into the meat of the matter.

“There is still a Pacific Ocean gulf between Malaysia and Goldman Sachs,” he said. “But as far as we’re concerned, the door to settlement is always open. They know where we are, they can come and see us if they want to find us….”

Malaysia will seek compensation from Goldman Sachs that includes the $6.5 billion value of bonds the bank arranged for 1MDB, as well as interest. That totals $8 billion to $9 billion, he said.