Author: TSA Press

—ADVERTISEMENT—

There are a lot of great continuing legal education programs out there. Today, lawyers can quite easily go online, and for a reasonable fee, learn something useful while working to fulfil their periodic CLE requirements.

But, like the black rhinoceros or the northern long-eared bat, good local CLEs where one might learn something useful about regional quirks of practice, or even the local legal community itself, are increasingly tough to come by. This is especially true in undersaturated legal markets.

If you ask my opinion, which is admittedly not based on a lot of hard evidence, but is backed by a voluminous sheaf of anecdotal experience speaking to many groups of both lawyers and non-lawyers, there is a very intuitive reason for that. Speaking to non-lawyers is rewarding, character-building, and fun. Speaking to lawyers, on the other hand, is like hacking off your hopelessly entrapped arm with a dull pocket knife.

The most recent example of this in my own life came about this past weekend, when I gave a presentation at a non-legal conference to a group of (mostly) non-lawyers. I know a thing or two about the topic, but the topic was legal only to the extent that I am a lawyer who writes about the law (and a lot of other stuff) and that background obviously colors my perspective on things that are not the law. The speech was overwhelmingly well-received. There were a dozen people waiting for me afterward who wanted to shake my hand, tell me what a great job I did, thank me for all the useful information I imparted, and chat just a little more about their individual situations. I was very happy to have apparently been of some value to these folks.

And then, waiting for me at the end of the line, was the former lawyer in the room. She did not want to shower me with compliments. Instead, she wanted to make it very clear that she was offended and upset, specifically by one sentence of an hour-long presentation, about something that made it into the content essentially only as a part of my bio. I guess her legal career had a bit of overlap with a part of mine, and she felt as though I had besmirched that part by stating something uncouthly.

I was cool, I was diplomatic, I apologized profusely, I assured her that I did not mean what I had said in the way that she had apparently taken it, and I promised that I would take her note to heart in the event I gave this presentation again in the future. After delivering a stern lecture on how we are lawyers and we thus need to choose our words very carefully, she finally let me go to lunch, offering a parting platitude to the effect of, “…and some of the other stuff you said was useful, I guess.”

I have had some variation of this experience again, and again, and again. That’s not to say that I never receive compliments from lawyers I’ve spoken to, or criticisms from non-lawyers. I invite criticisms: Every time I speak publicly about anything, I tell the audience that there is a lot of knowledge in the room beyond just mine and to raise your hand so we can have a conversation in front of the group if anyone has anything to add or to dispute. It’s just that when non-lawyers disagree with something, they seem to do it kindly and substantively, whereas the lawyers (and many more of them) continually scan for anything, however arbitrary or tangential, that they can meanly split hairs about.

I suppose some of that is a function of the way we’re trained to think by the job. I’ve never given an argument in court and heard this response from opposing counsel:

You got me! Your Honor, his argument is so airtight that there is nothing about it I can exploit, misinterpret, or take out of context to further my own agenda. You win some, you lose some, I suppose.

Another aspect of it, again, just in my opinion, is the extreme arrogance and self-importance that infects our profession. When you are speaking to a room full of lawyers, a significant portion of your audience thinks they are better than you, thinks they are smarter than you, and feels the need to prove this either by challenging you in front of your peers or by later trashing you to other lawyers behind your back. It’s unpleasant.

Maybe I’m wrong. I know I’ll get a lot of complaints and criticisms on this very article. But the further I get into my career, the more I see the miniscule rewards of giving a live presentation to lawyers as being far outweighed by the hellish nastiness of the whole ordeal. As for non-lawyers, well, please keep those speaking invitations coming. I’d love to have a chat with your group.

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.

Et tu, Centennial State?

Yes, home DNA kits are revealing all kinds of secrets we never expected. One of those secrets is that apparently it was all too common for doctors to claim to be using “anonymous” sperm — generally from a fabricated “medical student” — to assist patients with infertility. All the while, these male doctors were instead using their own, personal, freshly provided sperm to impregnate their patients.

Sadly, my own state of Colorado is the latest to uncover victims of this practice, and its own local perpetrator, Dr. Paul Jones of Grand Junction, Colorado. In a new lawsuit, attorney Patrick Fitz-Gerald — don’t forget the hyphen in his last name if you’re searching for this case by attorney name — alleges in Mesa County district court that four plaintiffs were the victims of this type of medical fraud. The defendants are Dr. Jones and his medical practice, Women’s Healthcare of Western Colorado, P.C.

Plaintiff Maia Emmons-Boring, like so many similarly situated plaintiffs, discovered through a home DNA kit that the man who raised her, and who she believed to be her biological father for the last 39 years of her life, was not, in fact, genetically related to her. Instead, she seemed to have numerous half siblings that she did not previously know. That led to her find out that, instead of the man she knew as dad, her mother’s doctor was both her and her sister’s biological father.

Emmons-Boring’s mother, Cheryl Emmons, explained the situation to her daughter, acknowledging that when she and Emmons-Boring’s father were unable to conceive, they sought the assistance of Dr. Jones. Dr. Jones informed the couple that he would use “fresh sperm” from an anonymous sperm donor in good health “who was either a medical student or law student.” (Despite the icky circumstances, I am proud to see that “law student” made the cut here as a proxy for “good genes.”) The complaint explains how Dr. Jones would not permit Cheryl Emmon’s spouse to be in the room during the procedure, but would instruct the couple to go home and “make love” that night, so that they could never really be sure whether the husband was the father to their child or not. *major eye roll*

Of course, with the advancement of medical technology and DNA testing, we can be oh-so sure now. And Emmons-Boring’s suit complains that Dr. Jones committed an act that, at the very least, should be subject to civil liability. The complaint, which includes Emmons-Boring, her sister, and her parents, seeks damages for medical negligence, lack of informed consent, fraud, negligent misrepresentation, breach of contract, battery, and extreme and outrageous conduct.

I spoke with Fitz-Gerald about his client’s case. Fitz-Gerald is also representing at least 11 other plaintiffs who may be victims of Dr. Jones’ shady medical practices. He expects to brings similar claims in those cases. Fitz-Gerald explained that they alerted the Attorney General of Colorado about the situation, and that just this past Friday, Dr. Jones voluntarily gave up his medical license. Despite this minor victory, Fitz-Gerald described how the victims are frustrated that Colorado law does not clearly define the doctor’s gross acts of deception as a crime. But that may soon change.

Colorado State Representative Kerry Tipper has been looking into the gaps in Colorado law in the reproductive technology field. Representative Tipper expects to propose new legislation in the upcoming session, starting in January 2020, to close those gaps. She explained to the Denver Post that her colleagues from both sides of the aisle were surprised to learn that this kind of behavior is not already unambiguously illegal in the state.

For his part, Fitz-Gerald expects that the fertility industry may not be a fan of new additional regulations, but noted that people’s lives and families are deeply affected in the most fundamental and devastating of ways by these scandals, and that they are currently without clear recourse under the law. Fitz-Gerald argued that it would be naïve to think that this is merely just a problem of the past, and that no doctor would do this kind of thing today.

The positive news is that Colorado can look to other states for successful fertility fraud legislation. This past year, both Texas and Indiana passed new laws to curb this type of behavior after each state discovered that it had its own bad-doctor problem. The podcast that I co-host has an excellent interview with a gross-doctor survivor, and the driving force behind the Texas legislation, Eve Wiley.

Texas passed a fertility fraud bill that added jail time to the books when a medical professional transfers reproductive cells to a non-consenting patient. Unfortunately, despite this progress, the Texas doctor who was specifically outed for this conduct continues to practice medicine, without any repercussions. In fact, the Texas Medical Board shockingly initially declined to investigate claims against Dr. Kim McMorries, despite his admissions that he had been using local sperm (like, very local, in that it was his own) to impregnate patients. However, last week the complainant, out-of-state expert Professor Jody L. Madeira, received news from the Texas Medical Board that its Disciplinary Process Review Committee voted to re-open the matter and would investigate the alleged violations of unprofessional and unethical conduct. That’s a positive step.

So, come on, Colorado. Here’s our chance to both call and raise Texas in the quest for better medical practices.

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.

It has been a while since we revisited the Isaac Royall controversy at Harvard Law School. For new people, Isaac Royall Jr. was the first benefactor of Harvard Law School. He was a wealthy man in pre-Revolutionary Massachusetts and, upon his death in 1781, he bequeathed a large part of his estate to Harvard University, for the study of law or medicine. Harvard went with the “law” option and more or less, Harvard Law School was born. Royall is remembered through an endowed professorship and his family crest used to be the seal emblazoned on the seal of the law school.

As a wealthy white man in the 18th century, it should come as no surprise that Royall was a slaver. Research into Harvard’s founding resurfaced Royall’s oppressive past, and Harvard was pressured to divest itself of all memory of Royall. Eventually, Harvard did change the seal, marking a huge victory for students and alumni who pressed the university to get right with its past.

That was back in the spring of 2016. In the fall of 2016, America elected an open bigot as President of the United States. In 2017, Harvard put up a plaque recognizing “the enslaved whose labor created wealth that made possible the founding of the Harvard Law School.” On a personal note, I’ve seen the plaque. It appears maybe five steps away from where I once stood, as a black student at Harvard Law School, protesting Kiwi Camara’s use racial slurs in a class outline and the law school’s refusal to take disciplinary action against him. Life is long, strange, circular, and generally pointless.

I kind of lost the plot on whether we were still supposed to care about properly remembering 18th century slavers and their wheat insignia when their racist ideology so clearly lives on in modern times. Isaac Royall seems like an asshole, sure. But alleged attempted rapist Brett Kavanaugh is just sitting on the current Supreme Court, and I don’t feel like the great legal minds at Harvard Law School are doing nearly enough to make that not a thing.

But apparently, the Prime Minister of Antigua and Barbuda, Gaston Browne, has not lost the plot. Additional research has shown that Royall’s slaves most likely came from those islands. Prime Minister Browne doesn’t want a damn plaque, he wants backpay. From the Harvard Crimson:

Browne’s letter calls for Harvard to send reparations as recognition and compensation of Antiguan slaves in establishing the Law School.

“Reparation from Harvard would compensate for its development on the backs of our people,” Browne wrote. “Reparation is not aid; it is not a gift; it is compensation to correct the injustices of the past and restore equity. Harvard should be in the forefront of this effort.”

We are hopefully past the point where demands for reparations are met with cries of “impracticality.” In fact, Browne’s letter points out that the University of Glasgow and the Princeton Theological Seminary have already committed to some form of compensation for their roles in the Caribbean slave trade. I’m a Harvard man; I do not believe in a world where Princeton can figure out how to do something but Harvard can’t.

Harvard University President Lawrence Bacow responded to the Prime Minister’s letter with concern, but not cash:

Bacow said he considers the memorial’s establishment — along with the removal of the Law School’s seal containing the Royall family crest in 2016 — to be in “significant steps” toward acknowledging Harvard’s history, but noted the need for additional work.

“We recognize that there is more work to be done,” Bacow wrote. “Indeed, Harvard is determined to take additional steps to explore this institution’s historical relationship with slavery and the challenging moral questions that arise when confronting past injustices and their legacies. Harvard is also committed to working with other educational institutions to study slavery and its legacy.”

There are so many ways HLS can pay this debt. Off the top of my head, I can imagine: A Harvard legal clinic in Antigua and Barbuda along the lines of Harvard’s Ghana Project; a center for Caribbean Legal Studies at Harvard that could advance the scholarship around this overlooked area of law; scholarships for Antiguans seeking LL.M.s; setting up pipelines for Antiguans who want to apply to the law school; AND cash-money to Antigua and Barbuda from Harvard’s impressive endowment. Harvard could do them ALL.

This demand for reparations is an opportunity for Harvard to think critically and creatively about what it can do to fight against the legacy of slavery from which it has profited. Let’s hope they don’t waste the chance.

Prime Minister of Antigua and Barbuda Demands Reparations for Harvard’s Association with Slavery in Letter to Bacow [Harvard Crimson]

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.

Yesterday, we reported on a recently filed racial discrimination case against white-shoe Biglaw firm Davis Polk. The plaintiff is former associate Kaloma Cardwell, who alleges as an African-American he was not provided the same opportunities for career advancement — he says he was routinely left off deal emails and excluded from conference calls — as his white colleagues. The complaint further alleges that negative performance reviews were “retroactively created after Plaintiff engaged litigation” in order to create a pretext for firing him.

While we are still far away from any formal, filed response from the firm, they have broken their silence. Yesterday afternoon, all Davis Polk employees received an email from managing partner Neil Barr letting them know the firm would “defend [itself] vigorously and will show, based on the record, that the claims are not supported by the facts or the law.”

He also defends the firm’s diversity efforts, and touts that as a core value of the firm. You can read his entire email below:

Dear Colleagues:

As you may have seen, a lawsuit against Davis Polk and several individuals was filed last night by a former associate, Kaloma Cardwell, which alleges racial discrimination and retaliation.

Mr. Cardwell’s termination had nothing to do with his race. He was terminated for legitimate, non-discriminatory reasons following negative performance reviews given in the ordinary course. We will defend ourselves vigorously and will show, based on the record, that the claims are not supported by the facts or the law.

Diversity and inclusiveness in the workplace are core values and commitments of Davis Polk. We have worked hard to develop Firm-wide  training and development programs for lawyers across the seniority spectrum, and we have devoted substantial resources to the recruitment, training, and development of diverse talent. For many years, we have had a dedicated group of partners and administrators working on these issues.

I believe, as the Firm does, that having a diverse and inclusive work environment that promotes equality is not only the right thing but also leads to a more qualified workforce and delivers better and more innovative lawyering that is more responsive to clients’ needs.

I know you understand that given the pendency of this litigation, we are unable to provide additional information at this time. We will, however, keep you updated on developments as necessary. If you receive any inquiries related to the lawsuit, please refer them to Tenley Chepiga at our office of general counsel.

Best regards,

Neil Barr

We’ll be following along with the case as it develops.

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).

We want to be flexible for our clients. Bitcoin is an easy and secure way to transfer funds, and we embrace it.

— John Quinn, founding partner of Quinn Emanuel, commenting on the firm’s recent decision to accept Bitcoin and other cryptocurrencies as payment for legal services. Less than a handful of other Biglaw firms (e.g., Perkins Coie, Steptoe & Johnson, and Frost Brown Todd) have publicly announced accepting payment via cryptocurrency.

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.