Author: TSA Press

As always, Nicolas Cage is the barometer of truth when it comes to America’s legal foundations. While the back of the Declaration of Independence may not provide a treasure map, it does have something to say. What’s written on the back of the Declaration of Independence?

Hint: It might be a lot more practical than a map.

See the answer on the next page.

Kyle Gordy is a 28-year-old man who lives in Southern California. He is also a “private” sperm donor. That means that Gordy does not go through a sperm bank when he donates his sperm, and instead cuts out the middleman, going directly to people who want to have babies.

Unfortunately, being a private sperm donor often means that the sperm does not undergo the routine screening and testing process that sperm banks have in place. Gordy, however, notes that he does undergo frequent testing for sexually transmitted infections and offers recipients the option of paying for any other testing, such as genetic screening. Why would hopeful parents go this route? Well, unlike sperm banks, Gordy provides his sperm for free! He also has a pretty good marketing campaign going, as he personally promotes his services to intended parents. Gordy explains his motivation — he doesn’t expect to raise children of his own, so this is his way of having kids, while also helping others.

Gordy explains the benefits of choosing his sperm over a sperm bank: “1) I do not charge; and 2) You know what you are getting.” Gordy cites to the infamous Xytex case — which I have previously written on — wherein a sperm bank under-delivered on its promises to numerous hopeful parents. Initially, they were told that the sperm was from a donor with a 160 IQ, a Ph.D. in neuroscience, and proficiency in five languages. Wow. That would be impressive, if it had been true. However, the sperm bank did not verify any of that information. And the recipients later learned that their children were, instead, genetically related to a schizophrenic, college drop-out felon. Not nearly as impressive.

But even granting Gordy’s point that some sperm banks have been unreliable at fulfilling their promises, he faces fundamental legal issues as to the possible responsibility and liability for the children conceived from his donations.

Should I Sign A Fake Name On The Contract?

I spoke with friend-of-the-column Amira Hasenbush, assisted reproductive technology legal specialist and sperm-legal-issues guru (and podcast guest!), about the legal pitfalls of private donation arrangements. Gordy explained that while his practice is to confirm to his satisfaction that recipients are financially able to provide for the child, he does not enter into written contracts with single women, because of his concerns over unknown liability. In fact, he explained, one recipient demanded that he sign a written contract. Fearing that the recipient or the government may one day seek child support, and that the contract would make it easier to find him, he opted to sign a fake name. (This is one of those moments where the lawyer poker face comes in handy to avoid the noticeable eyeroll or groan.)

Hasenbush discussed the statutory protections provided in Gordy’s home state of California. While many states require a sperm donation to take place under the supervision of a licensed physician, since 2016, California Family Code Section 7613 has also provided protections to donors and families who go the at-home route. California law provides for protections in non-clinic donations if (1) there is a signed agreement before conception or (2) if there is no written agreement, but the court can find clear and convincing evidence that there was an oral agreement that the sperm donor was not intended to be a parent.

So Gordy is in luck to live in a state that is protective of non-doctor-supervised oral donor arrangements. But given the burden of providing clear and convincing evidence (to a judge, which means you are involved in expensive litigation) — and the fact that people living in California occasionally overstate or lose their fortunes — he might want to sign a written agreement before conception. With like, his real name.

As for the argument that signing a contract makes him easier to find,the reality is that he will be easy to find no matter what. Even if the recipient hadn’t already been in direct contact with him (which is most often how it works in a private donation arrangement), DNA testing has become prevalent and reliable, unearthing identities and new discoveries every day. Ancestry.com, your help line is ringing.

What If The Recipients Break Up?

Gordy explained that another legal concern he has is when his recipient couples divorce or split up. Does that put him at greater risk of child support? Logically that might increase the chance of one of the parents trying to disclaim themselves or the other parent as having obligations to the child, leading to a parent, or the state, coming after Gordy. However, the same legal analysis would apply in those cases. It would be irrelevant whether the intended parents are together or not when a court makes a determination about whether the donation fell under California statutory protection. The California test turns on the agreement of the parties prior to conception. Of course, in any other jurisdiction, that could be a very different story. Additionally, if Gordy were to act as a parent (by, for example, taking the child into his home and holding him or her out as his own natural child), he could turn himself into a legal parent pursuant to California Family Code Section 7611(d). This was the ruling in the infamous Jason Patric case.

Stop Having Sex With “Recipients”!

Gordy also explained that because some recipients consider it more effective, sometimes he provided his donations to recipients the old fashioned way. That is, cough, through sexual intercourse. Legally speaking, that sexual intercourse would not fall into the purview of assisted reproductive technology. Nor would it be sperm “donation” under California law. It is something else. So even in the Golden State, that kind of Californication could get Gordy into trouble.

Hasenbush warns recipients “buyer beware.” Not all private donors are like Gordy, undergoing frequent STI testing and offering additional testing. Sperm banks provide screening for sexually transmitted infections, as well as serious genetic conditions (although possibly not always to the level promised). Either way, it’s best to carefully confirm what kind of screening should be completed and what has been completed. And if it’s a private donation, maybe check that the donor’s ID matches the named signed on the contract. Remember that there’s no such thing as a free lunch. Or in this case, sperm. Oh, gross. Sorry.

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.

On June 28, 2019, the Task Force On Access Through Innovation Of Legal Services, a committee appointed by the State Bar of California Board of Trustees, met to discuss proposals to change the rules regarding legal practice to address the access to justice problem.

At the end of the day, the task force made a number of recommendations. Here are some of the more controversial ones:

• Allowing non-lawyers to deliver legal services.
• Allowing non-lawyers to have an ownership interest in law firms.
• Allowing technology-driven legal systems to provide legal advice.

All of the above will be allowed with proper regulation which has not been specified at the meeting.

The debate over letting non-lawyers practice is nothing new. The rationale is to increase access to justice for those who cannot afford to pay an attorney. The assumption is that allowing non-lawyers to enter the legal marketplace will increase supply and will incentivize cost reduction.

In 2013, the ABA Task Force On The Future Of Legal Education in its report recommended that access to justice can be improved by allowing non-lawyer technicians to practice law in certain cases. And Washington state has implemented a limited license legal technician program in 2012.

The task force’s proposed amendments to the rules would not only allow licensed technicians but would also allow “technology-driven legal systems” to practice law. The task force made it a point to state that regulated entities that are permitted to practice law should not be limited or restrained by any concept or definition of artificial intelligence. This seems to suggest that artificial intelligence should be allowed to give legal advice once the technology is available and is properly regulated.

It appears that not many California lawyers know what’s going on. To my knowledge, the California Lawyers Association has not issued a statement about this. When I brought this up to colleagues, most did not know about this meeting. This is unsurprising since most solos and small-firm lawyers do not regularly check the California State Bar website. Most of us go to the state bar website for four reasons: to pay annual dues, look up opposing counsel, check if their law clerk, relative, or friend has been admitted to the bar, or to see who got disbarred and why.

If non-lawyers are allowed to practice, it is very likely to affect solo and small firms the most as they tend to serve the low-income/middle class market. The public will have little sympathy because they think that all lawyers are rich and greedy. What people don’t know is that self-employed lawyers — like any other business -– have to pay bills and because of this, even the most frugal and selfless attorney can only reduce their prices by so much. This includes office overhead, staff, online research access, and bar dues. And lawyers usually pay more these things than others because again, everyone thinks lawyers are rich. And most lawyers have to pay nondischargeable student loans where balances seem to increase with every graduating class.

Proponents of alternative business structures or technology-driven legal systems argue that they are trying to service those who cannot afford an attorney. But I’m sure they wouldn’t mind accessing a much bigger consumer market: those who can afford an attorney but don’t want to pay for one.

If the task force’s proposals pass, I question whether this will result in limited license non-lawyers opening up shop in remote parts of California. Instead, it will open the door for venture-capital-funded startups to set up AI powered legal self-help websites. People can access these sites with their legal questions or issues and artificial intelligence will provide the answers and probably the documents as well.

Or this can result in the creation of “Uberlaw” where a website connects the client with the attorney. But the website will set the price and the terms of the attorney-client relationship. And if the client gives the attorney less than five stars, the lawyer can be removed. Meanwhile, the lawyer will still be responsible for her overhead and will be responsible if something goes wrong.

The proposals can affect the big players as well. The Big 4 accounting firms would love to enter the legal market so they can service their existing Fortune 500 clientele. Their tax departments already hire lawyers for consulting and compliance work. This might be of particular interest to Arthur Andersen. Yes, that Arthur Andersen who had a major role in the Enron scandal although I think their current staff had nothing to do with it. They are now trying to revive the brand by promoting their legal advising services.

Finally, despite assurances of regulation, there may be some who will use this opportunity to scam the public. A well known example is the notario, a nonlawyer who offers legal services in Hispanic community. Hispanic immigrants confuse them with “notario publico,” a person with extensive legal training in most Latin American countries. The California State Bar has warned immigrants to be careful when dealing with unlicensed notaries. Also, during the housing crisis, nonlawyers set up loan modification shops. They promised customers that they can save their homes from foreclosure and can set up loan modification agreements where the principal is reduced. The nonlawyers owners of these companies hired lawyers (usually new graduates) to negotiate with the banks. Most of these shops were shut down and the lawyers involved had their licenses suspended or were disbarred.

The task force’s proposals to expand who is allowed to practice law in California is something that every lawyer should know about. The California State Bar Board of Trustees will meet on July 11, 2019, to review these proposals and they will invite public comment for 60 days. It should not be ignored thinking that it will go away if nobody cares. Even if you don’t live in California, you might want to keep an eye on this because your state might be next. I’m looking at New York in particular. This can result in non-lawyers owners telling the lawyers how to do their job which was the main concern when the ABA prohibited fee-splitting and nonlawyer ownership. Also, most trench lawyers know firsthand how some of their clients have been hurt because they turned to unqualified people. Their stories must be told as a warning.

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.

I don’t separate my person from my job. But it just so happens that my person is being highlighted because of the audacity that I have to be myself. But my job is very serious. I take it very seriously.

People immediately want to come in and identify the defendant because they think there’s a look. So then I talk about myself. It’s weird that this has all kind of come full circle. I talk about the fact that if you looked at me in my dress outside the courtroom you would never assume that I was the presiding judge because assumptions fail us all the time.

— Judge Amber Givens-Davis, Presiding Judge of the 282nd Judicial District Court in Dallas County, Texas, in response to critiques of her shaved-sides hairstyle and “bold” makeup. Judge Givens-Davis now hosts discussions with young women about individuality and self-confidence.

Staci Zaretsky is a senior editor at Above the Law, where she’s worked since 2011. She’d love to hear from you, so please feel free to email her with any tips, questions, comments, or critiques. You can follow her on Twitter or connect with her on LinkedIn.

Yesterday, the House Ways and Means committee finally sued Steve Mnuchin and the Treasury Department to compel them to release Donald Trump’s tax returns to the committee, as required by law. The Trump administration has vowed to fight the subpoena all the way up to the Supreme Court. Depending on how the Court is feeling, we could get a decision on whether Trump must release his tax returns by early next year.

The House is pursuing the matter along two legal fronts. The first is statutory. 26 U.S. Code Section 6103(f) says, PLAIN AS DAY, that the Treasury Secretary SHALL furnish tax returns upon the request of Ways and Means. Handing over the Trump’s taxes is a point-and-click application of the statute. There is no reasonable wiggle room here. Mnuchin hands over the taxes or laws don’t matter.

If statutory clarity isn’t enough for you, the Federalist Society is very sad you won’t apply this strictly textualist answer to the issue and demand Donald Trump release his returns to Congress (I’m joking, of course, because FedSoc are craven hypocrites). But beyond boorish textualism, there is a good reason for Section 6103 to exist as clearly as it does. Tax returns are just information. It’s information about citizens collected by the government. House Ways and Means represents the government, so does the Treasury Department. All the “government” is doing is asking “government” to share information collected by “the government.” There’s no good reason, not structurally in terms of separation of powers, or philosophically in terms of good-government principles, for one branch of the government to hide information it has collected from another branch of the government. The people who write the tax laws and the people who administer the tax laws should know what each other knows about information available in tax returns.

Allowing Congress to see Trump’s taxes under Section 6103 isn’t a hard case. But the House is also pursuing the returns under Congress’s subpoena power. This gets a little tricky. The Trump administration says that Congressional subpoena power is limited to the purposes of law-making or oversight. The House has thrown up a bunch of legislative and oversight reasons for wanting the taxes. They’re compelling enough… if you’ve been living under a rock. But if we can just all sit upon the ground and tell sad stories about the death of kings, like adults, then it’s fairly obvious that the House just wants the tax returns to hurt Trump and potentially build a case for impeachment.

The problem with this second House approach towards getting Trump’s taxes is that there is a Constitutional way to discover information that might help you build a case for the impeachment of a President. THAT WAY IS CALLED IMPEACHMENT. For the love of GOD, people, INCLUDING PEOPLE IN CONGRESS, need to stop acting like impeachment hearings and articles of impeachment are the same things. Upon convening impeachment proceedings, the House’s subpoena power is no longer limited by legislative purposes, it becomes a criminal investigative body. It is THROUGH impeachment hearings that Congress gathers the evidence to make the case for impeachment. Impeachment is just the CHARGE. It’s up to the Senate (lol) whether the case is strong enough to convict.

Trying to conduct these “impeachment-like” investigations is, frankly, bullshit. And it potentially hurts the Constitutional separation of powers. Because you know what, Congressional subpoena power should be limited to legislative and oversight purposes. It should not be used to harass or embarrass the executive branch. Trump’s taxes are not necessary for “oversight,” the argument that they need to know if Trump is passing laws that help his business is kind of crap. Congress needs these returns to hold the President accountable, and the way to do that is IMPEACHMENT not whatever the hell this is.

Of course, a normal President, one with “nothing to hide,” one who cared about the Constitutional separation of powers and the stature of the office he will leave behind, would just hand over the taxes under section 6103 and avoid this entire damaging case. Trump thinks his handpicked Supreme Court justices are going to deliver him a victory on the legislative purpose question, but either way a ruling on this issue is terrible. If Trump wins, the Court will essentially be saying that the executive branch never has to submit to a Congressional subpoena ever again. If Congress wins the Court is opening the door to potentially endless Benghazi-like harassment of the executive branch in the future. Either way, the delicate balance of powers is damaged, all so Trump can continue his corrupt fight to hide his likely tax fraud. Even Richard freaking Nixon was not this selfish.

I don’t know what the Supreme Court is going to do, because the Court has become a borderline illegitimate body. Brett Kavanaugh is a Trump patsy. Neil Gorsuch shouldn’t even be there. Clarence Thomas and Samuel Alito just want to watch the world burn. John Roberts just needs a plausible reason to let Trump be racist. Who knows what these five men do when confronted with this case.

But there’s only one right answer: a 9-0 unanimous decision that Mnuchin has to hand over the taxes under Section 6103, and refusal to consider the legislative purpose question on the merits. A slam dunk, and a punt. Anything less will cause lasting damage to the separation of powers, all because Democrats are too afraid to impeach the President and Trump is selfish to defend the law.

How House Democrats set the stage for a Supreme Court showdown over Trump’s tax returns [Washington Post]

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.

Here at Above the Law we care a lot about increasing transparency at Biglaw firms — that’s why we spend so much time reporting on bonuses and salaries and benefits. And while reporting on the market standard and leaders will always be a part of our mission, we also want to hear about what it’s like to actually work in the halls of Biglaw.

So, we’re asking our readers to fill out a brief survey about what they wish they knew about their firm before they started working there. We don’t care about the firm’s PR line, but about what associates really feel about the firm. We’ll be integrating the results of the survey into a new transparency project that’ll be launched later this summer.

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).

The United Nations says more than 6 million Zimbabweans (or nearly 40 percent of the population) require food aid between now and the next harvest in April 2020 due to the drought and the impact of Cyclone Idai which hit the country, together with Mozambique and Malawi in March.

The Herald newspaper reported Wednesday that Public Service, Labor and Social Welfare Deputy Minister Lovemore Matuke had told a ruling ZANU-PF party meeting in Masvingo that the government had completed a document which outlined modalities on the implementation of the Food for Work program under which beneficiaries get food packs after working on identified projects.

The last food for work program was undertaken in 2016 following another serious drought in the country. Generally, priority is placed on projects that achieve food security. The incapacitated still receive food under the government’s drought relief program.

Matuke said the government had finalized the document which has already been sent to all the country’s provinces, adding that the program should be designed in a manner that promotes productivity, particularly irrigation, to ensure the country is self-sufficient in terms of food requirements.

“We need projects which have significant social economic impact,” he said.

“We need our people to provide labor on projects such as irrigation schemes, projects that help the country achieve food security rather than working on projects that have little or no impact on the economy. They should be well-designed to ensure the objectives of Vision 2030 are achieved.” he said.

He said while the government had put in place some measures and resources to alleviate food shortages in light of the El-Nino induced drought, efforts must be equally put in place to harness domestic resources to build self-food sufficiency.

Post published in: Agriculture