Author: TSA Press

Why on earth would any lawyer without a Fox News contract agree to represent Rudy Giuliani? The man cheerfully trots out on television every night to screech out conspiracy theories and slander a major presidential candidate. He texts dozens of reporters in D.C. and New York every single day. And he appears to be practicing law in a jurisdiction where he holds himself out as being on inactive status, as George Washington University Fellow JJ MacNab pointed out on Twitter 18 months ago.

Not to quibble, but Greenberg Traurig gave him the boot in May of 2018 after he went on Sean Hannity’s show and claimed it was his standard practice to launder payments to his clients’ paramours through the firm’s escrow account. Very cool, and very legal!

And yet, Giuliani does appear to have found himself competent representation in his fellow NYU Law Class of ’68 alum Jon A. Sale, currently of counsel in the Miami office of Nelson Mullins Riley & Scarborough and co-chair of the firm’s White Collar and Government Investigations Practice Group.

The former Watergate prosecutor is a veteran Assistant U.S. Attorney, having represented the government in New York, Connecticut, and Florida. He’s currently admitted to the bar in several federal circuits, multiple states, and — we checked! — has maintained active status with the D.C. Bar since 1974.

So why on earth would this guy agree to represent Rudy?

“Every time I turn around, Rudy’s on another TV show,” Sale told CNN. “He and I could have a conversation, and then I turn on the television and he could be doing something else.”

Indeed he is. Like potentially waiving privilege by telling The Atlantic’s Elaina Plott, “I’m not acting as a lawyer. I’m acting as someone who has devoted most of his life to straightening out government.” Or partnering with the State Department in his Ukrainian misadventures in ways that make it unclear who his actual client is. Or perhaps failing to execute a written retainer agreement with Donald Trump, which is required in both New York, where he maintains active status, and D.C., where he doesn’t. Or plastering the White House and State Department with so much anti-Biden propaganda on stationary from the Trump Hotel that the horrified State Department Inspector General hotfoots it to Congress to dump it on them. Or, according to the Washington Post’s Josh Rogin, “manufacturing White House logos and sticking them on non-White House documents and pushing the real government to act on them.”

Or … whatever this is.

Will Mr. Sale be representing his client in the matter of Rudolph Giuliani v. The Swamp? Good thing he’s barred in so many jurisdictions!

Oh, wait, Rudy’s narrowed the scope of his prospective litigation. Now he’s threatening to sue the United State Congress for … SOMETHING.

So it’s Giuliani v. The U.S. House of Representatives, then. Or will Mr. Sale sit Rudy down for a scotch and cigar to reminisce about that day in the fall of 1965 when their beloved Con Law professor explained the Speech or Debate Clause?

Giuliani has been subpoenaed by three House Committees in conjunction with the impeachment inquiry, and says he intends to consult counsel and his client Donald Trump before deciding how to respond. For his part, Mr. Sale is unconcerned, telling Law.com, ““He 100 percent did not do anything illegal,” before adding, “I think the congressional forum is very partisan.”

Well, best of luck on landing such a high-profile client. We’re sure it will all work out for the best.

Rudy Giuliani hires Watergate prosecutor as attorney in impeachment inquiry [CNN]

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

A total of US$17, 852 was raised at the 19th annual Victoria Falls Anti-Poaching Unit (VFAPU) Golf Day at Borrowdale Brooke Golf Club on September 20, where 136 players, making up 34 teams, teed off for the charitable cause playing a 4 Ball Alliance format.

The tournament was won by the Toyota 2 team, made up of Yeukai Gatsi, Felix Sachiti, Fanuel Moffat and Irimayi Madyambudzi, who finished on 99 points, while Curverid Tobacco’s Natural Disaster and Paperhole Investments took second and third places respectively.

The lucky winners each took home an accommodation voucher for two nights for two people at the premium Victoria Falls Safari Club, with breakfast included, and one dinner at The Club restaurant.
Dendairy won the Best Dressed Ladies’ Team, while Trentyre was named the Best Dressed Men’s Team, and the Zimbabwe Special Olympics Team, sponsored by The Bronte Hotel, participated in the event for the sixth year.

The lucky raffle winners went home with a four-night fully inclusive safari package for two, staying at Matetsi Private Game Reserve and Camp Hwange; two return regional air tickets on BA Comair; and three nights for two at Ruckomechi Camp in Mana Pools.

Africa Albida Tourism (AAT) chief executive Ross Kennedy said the success of the VFAPU Golf Day was yet another example of the incredible strength and character of our community in the midst of a very tough economy.

“Many regular supporters stated it was the best VFAPU Golf Day ever, and we thank every single person involved for making it happen … our AAT team, Borrowdale Brooke Golf Club and all players, sponsors and donors,” Kennedy said.

The golf day is just one element of our continued fundraising efforts and so we urge those who can still assist in cash or resources to please consider supporting VFAPU,” he said.

VFAPU head of operations Charles Brightman thanked everyone involved, saying the funds raised annually at this tournament were vital to VFAPU’s survival and this would go a long way towards covering the unit’s operational costs.

VFAPU’s 17 scouts, who tackle all forms of poaching in the Victoria Falls region, have arrested 792 serious poachers since the unit was established in 1999 by Brightman, a professional guide and conservationist, and Victoria Falls Safari Lodge, AAT’s flagship property.

The unit, which works closely with the Zimbabwe Parks and Wildlife Management Authority and the Zimbabwe Republic Police, has also removed nearly 22 500 wire snares from its operational area, and rescued 243 mammals injured by snares.

Post published in: Featured

No job meant she was also homeless, along with her grandmother with whom she had shared a small home provided by the farm’s owners.

Mazorodze jumped at the opportunity to get a small plot of land of her own – distributed by the leaders of Chisumbanje, her village – but soon realised there was a price to pay.

“The traditional leader of the area told me I was young and not entitled to allocated land, since it was meant to benefit the elderly,” she told the Thomson Reuters Foundation in a phone interview.

“He blatantly said if I wanted a piece of land … I had to have sex with him. Out of desperation and poverty, I agreed to his terms,” the 37-year-old said.

Land is unevenly distributed in Zimbabwe and women, particularly in rural areas, are largely treated as dependants of men, not as landholders or farmers in their own right, according to the U.N. Food and Agricultural Organization.

Mazorodze said she was not the only one to be forced to offer sex for land out of desperation, adding that most women she knows are too embarrassed to speak out about their experiences.

She is a victim of sextortion, a growing form of corruption that forces women to offer sexual services in exchange for land, employment or job opportunities, according to Transparency International Zimbabwe (TIZ), an anti-corruption charity.

Sextortion is a global phenomenon that causes serious harm, robbing women of dignity and opportunity and undermining confidence in public institutions, rights groups say.

But legally it often falls between the cracks and does not get prosecuted as either a sexual crime or corruption, said Marilyn Sibanda, a legal officer at TIZ.

“The moment you consent, the criminal element falls out,” she told the Thomson Reuters Foundation.

“Of course, institutions or companies might have policies in places for people to report sexual offences. But villagers in secluded rural parts of the country don’t have measures to curb this form of corruption,” she added.

Her organisation’s research shows sextortion is becoming more common in Zimbabwe, she said, although there are no statistics available at a national level.

John Makamure, a commissioner in the Zimbabwe Anti-Corruption Commission (ZACC) said the organisation was ready to investigate such cases.

“It is crucial for people to bring forward evidence on this corruption, then ZACC can investigate. ZACC cannot just start investigations based on sentiments alone,” he said.

CORRUPTION RIFE At 160th place, Zimbabwe ranks towards the bottom of Transparency International’s Corruption Perception Index, a tool which ranks 180 countries by their perceived levels of public sector corruption.

Studies carried out by TIZ throughout Zimbabwe in 2016 showed women are vulnerable to sexual abuse when they try to access land for both residential, business and agricultural use.

“TIZ has conducted mobile legal clinics in rural areas… where we asked women if they knew about ‘sextortion’. The women concurred they know about the abuse and some confirmed they were victims of this corruption,” Sibanda said.

Researchers also found evidence of sextortion in Zimbabwe’s southwestern Matabeleland South province, where women said they were asked for sex in exchange for gold mining rights.

“We realise that in mining, it is difficult for women to own a gold mining claim,” said Scha Ndlovu, director for Community Youth Development Trust, a charity working with rural communities in the provice.

“Women are then forced to sleep with Mr So and So to gain mining rights in order fend for their families.”

SEXTORTION IN THE CITY

Sextortion is not confined to rural areas, said Farai Mutondoro, head of programmes at TIZ.

“In urban localities, we gathered information that as a result of demolitions of illegal settlements and displacement, woman bear the brunt of ‘sextortion’ as they need places to stay,” he said.

Mutondoro added that TIZ recorded cases of land corruption in the southwestern city of Bulawayo where women were excluded from a housing scheme and replaced with male candidates.

“Data show widows are losing out on estates because relatives bribe officials at the deeds office and put a different name (on the deed),” he said.

TIZ also recorded cases of women who confirmed they were exploited sexually in exchange for vending spaces in the city.

Malandu Ncube, a councillor at Bulawayo City Council, said the authority was aware of the problem and urged victims to come forward.

“Sometimes this occurs because there are women who prefer to cut corners, then fall victim to such exploitation. However, women must speak out about against such exploitation,” he said.

But deep-rooted cultural beliefs and blaming women rather than men for sextortion might make it hard to root out the problem, said Reginald Shoko, chair of the Affirmative Action Group, a non-profit association.

Shoko said some would doubt “sextortion” was real as sex is seen as a normal exchange between adults.

“It feeds into the perception that when most women make it to leadership positions, they would have offered sexual favours,” said Shoko. (Reporting by Lungelo Ndglovu; Editing by Astrid Zweynert and Zoe Tabary. Please credit Thomson Reuters Foundation, the charitable arm of Thomson Reuters, that covers humanitarian news, women’s and LGBT+ rights, human trafficking, property rights, and climate change. Visit www.trust.org)

Post published in: Agriculture

A partner at DLA Piper has released an open letter accusing a senior partner of sexual assault and asking the firm to release her from their mandatory arbitration agreement so she can “assert [her] civil claims for assault, battery, sexual harassment and retaliation in our transparent court system.”

Vanina Guerrero alleges the co-managing partner of the firm’s Silicon Valley office, Louis Lehot, repeatedly sexually assaulted her, beginning shortly after she began working for the firm in 2018. She goes on to allege that Lehot’s position at the firm and “extreme temper” initially prevented her from reporting the abuse:

Less than two weeks into my new job working for Mr. Lehot, I suffered his first sexual assault. This happened in his hotel room on a business trip to Shanghai. I suffered the second assault several weeks later during a business trip to Brazil. By November 2018, I had endured two more sexual assaults, one in Chicago and one in Palo Alto. Having moved my two toddlers and husband that I support financially from Hong Kong to California for this job, I was petrified to believe what was happening to me, much less tell anyone. Mr. Lehot’s extreme temper and angry tirades that include shouting and clenching his fists are common knowledge at the office. Lawyers, staff and admin assistants do everything possible to avoid his wrath. My many attempts to fend off Mr. Lehot’s sexual advances failed.

She goes on to detail the impact of the alleged assaults, both on her career and her health:

Mr. Lehot controls my work and my ability to advance. When I dared to tell him to stop, Mr. Lehot would refuse to speak to me for weeks, threaten to take me off of client deals, and accuse me of underperformance. Horrifically, I later learned that he suggested to numerous men at the Firm, and to certain clients, that he and I were involved in a consensual relationship. After months of Mr. Lehot’s relentless campaign and physical advances, I began experiencing panic attacks and stress related medical conditions that landed me in the emergency room several times.

Guerrero, who also filed a complaint with the Equal Employment Opportunity Commission, alleges that Lehot demeaned her accomplishments as an attorney, saying “she was a successful lawyer only because men were attracted to her” and allegedly undermining her career by spreading rumors that “clients and lawyers are ‘uncomfortable’ working with her because of her sexual appeal.” This is despite Guerrero being highly recruited by the firm, and Lehot allegedly telling her as part of the pitch to come to DLA that “‘you’ll be my boss soon.’”

When Guerrero finally complained about the treatment, she alleges she was told by Sang Kim, co-managing parter of the firm’s Northern California practices, that it “sounded like a ‘he said, she said’ situation and that the best way to resolve it was for me to ‘talk it out’ with Mr. Lehot and three other senior partners – all men.” She says only a few days after this, she was taken off a major deal.

A firm spokesperson has responded to the open letter and complaint:

“We are aware of these allegations by one of our partners and take them seriously,” said Josh Epstein, a spokesman for DLA Piper. “As soon as we were notified of the allegations, we took appropriate steps to investigate them. This process is ongoing.”

There’s been no word, as of yet, from DLA as to whether they will hold Guerrero to the forced arbitration clause that is a term of employment at the firm. As you may recall, DLA Piper has come under fire for their use of mandatory arbitration, and has refused to do away with the practice despite protests against mandatory arbitration outside of their office.

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).

Calling All Legal Ops Leaders: The 2019 LDO Survey Is Live

Calling All Legal Ops Leaders: The 2019 LDO Survey Is Live

LDO and Above the Law

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According to data collected by Lawschooli, for the calendar year 2017, which jurisdictions had overall bar passage rates below 50 percent?

Hint: There are only two jurisdictions that fall below that 50 percent threshold — with Alabama managing a 51.83 percent passage rate.

See the answer on the next page.

Whenever I need a taxi, I usually call a transportation service in my city. I met the owner a few times at local business mixers where he advertised his services. His prices were fair and I prefer to support small and local businesses whenever possible. But on one occasion, he was unavailable, so I used Uber instead.

During the ride, I got to know the driver. He was a man in his thirties who has a day job at a financial institution. He initially became an Uber driver full-time to make ends meet when he was unemployed. But now he does it part-time to make some extra pocket change. He also drives for Uber’s competitor, Lyft. He, like other Uber drivers, works whenever he wants. He prefers unusual hours or Saturday nights because they don’t conflict with his day job and the pay is better.

When he worked full-time as a driver for Uber and Lyft, he claims to have made between $5,000 to $6,000 per month. But he had to pay for his own gas, insurance, and maintenance costs which became more frequent since he drove a lot more than usual.

He also knows other people who drove for Uber but quit soon after because the money wasn’t worth it after expenses.

Uber drivers are highly cited as examples of workers in the “gig economy” where people are paid based on the individual jobs or “gigs” they take, usually through a smartphone or computer app. The platforms generally do not require its workers to work a set schedule. They also do not provide tools or equipment to their workers. The advantages to the workers are that there is more flexibility and they can choose which jobs to accept.

The gig economy model encouraged companies like Uber and Lyft to treat its workers like independent contractors rather than employees as their activities were analogous to operating a small business. After all, how is this different from a freelance graphics designer who can pick and choose assignments they see on a classifieds ad or on a business group posting?

From the employer’s perspective, there are many advantages to treating workers like independent contractors as opposed to employees. Independent contractors can be paid with one simple payment. Employees must have taxes withheld and quarterly employment tax returns must be filed by the employer. Employers must also pay employment taxes for every employee they hire — including one half of their social security and Medicare taxes along with state unemployment taxes. Independent contractors are not subject to labor laws that regulate things like indemnity, expense reimbursement, mandatory break times, overtime, and sick pay. And independent contractors generally do not have legal remedies for discrimination and harassment.

Because of the above, there is a great temptation for businesses to classify workers as independent contractors rather than employees. Some will do it illegally and hope that they do not get caught. Others will restructure their business practices so that their workers meet the requirements for independent contractor treatment.

So how does a person qualify for independent contractor treatment? Most states follow the common law test with some variations. The common law test looks at many factors including the level of control the employer has over the person, whether the employer provides tools, and whether the person can work for other businesses. Many states allow certain professions such as lawyers, doctors, accountants, and architects to be automatically treated like independent contractors.

The many factors have led to confusion and disputes with conflicting decisions. For example, if I need someone to draft a basic contract, I can hire a non-barred law school graduate with previous firm experience or a contract attorney. Both will require minimal supervision. Yet one I may have to pay like an employee while the other I can pay like an independent contractor.

The growing presence of gig economy jobs will only magnify the confusion. In most cases, the worker will have their own tools and supplies. For example, Uber drivers will use the cars they already have. Also, most can work remotely and do not need to be present at an office. And usually they can work whenever they want. While this might sound like something freelance workers or small home-based businesses would do, in reality, most gig economy workers are not operating actual businesses. Instead, they are turning to these firms to earn additional income.

Some states, most recently California, have decided to eliminate the multi-factor common law test in favor of a simplified test known as the “ABC test.” This test looks at three requirements and if a person meets all of them, he or she can be treated like an independent contractor. They are:

(A) the worker is free from the control of the employer in connection with the performance of the work, both under the contract for the performance of such work and in fact;

(B) that the worker does work that is not in the usual course of the hiring entity’s business; and

(C) that the worker is customarily engaged in an independently established trade, occupation, or business of the same nature as the work performed for the hiring entity.

California’s AB 5 not only codified the California Supreme Court’s decision in Dynamex Operations West, Inc. v. Superior Court of Los Angeles, (Cal. Sup. Ct. 2018) adopting the ABC test, but also expanded its use for determining whether a person is an employee or independent contractor. The provisions of AB 5 will take effect starting January 1, 2020.

The Dynamex decision and AB 5 was designed with gig economy jobs in mind and so businesses are looking into whether they should convert their existing independent contractors into employees. Uber and Lyft have announced that they will not comply with AB 5 because they claim that their drivers are independent contractors even under the new ABC test.

Gig economy jobs blurred the line between who is an employee or an independent contractor under the common law. California has passed the ABC test to simplify the rules and others states are contemplating doing the same. Some businesses are contemplating whether to comply while others plan to continue their operations. Will the ABC test clarify the confusion? Are other tests available? Will this make Uber more expensive for me? These will be the topic of a future column.

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.