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One year ago, I sat at a local pub and had a plate of fish and chips for lunch. It was St. Patrick’s Day, and it was the last day before all the restaurants closed in my little corner of the world.

Hospitals filled up; lots of people died. We stopped doing almost everything, and struggled to find ways to do our remaining everyday tasks in a fashion that wouldn’t kill our (or anyone else’s) parents. Somewhere in there a mob of lunatics stormed the Capitol. So, yeah, not a great year.

With everyone’s mental health shot, I think we could all use something a bit more positive right now than another week of my melodramatic political musings. One of the few upsides of the pandemic was a lot more time to read, and I ploughed through books over the past 12 months. Thus, in no particular order, here are 15 of the best nonfiction books I read during the worst year of everyone’s life, and why I would recommend each one of them to you.

Endurance: Shackleton’s Incredible Voyage, by Alfred Lansing

Not only a gripping story, but an exquisite case study in good leadership. Anyone who works within an organization of any type, nautical or otherwise, should read this book.

Wreck of the Medusa: Mutiny, Murder, and Survival on the High Seas, by Alexander McKee

Also a gripping story, but one that should be read by anyone within any organization as a counterexample. Worst leadership ever. Be forewarned, this one involves a little cannibalism (sadly this excellent book is out of print, but you can find a used copy easily enough).

In the Heart of the Sea: The Tragedy of the Whaleship Essex, by Nathaniel Philbrick

The true story of the disastrous whaling voyage that inspired Moby-Dick: enough said. Well, maybe I should also say this too has some cannibalism (I was really on a maritime kick for a while there, what can I say? It happens at sea sometimes).

Nature Obscura: A City’s Hidden Natural World, by Kelly Brenner

A little gem of a book. There’s a whole lot of stuff hiding all around you that you won’t have thought to consider interesting until reading this book. Plus Kelly Brenner gives a nice Zoom presentation.

The Story of the Dinosaurs in 25 Discoveries: Amazing Fossils and the People Who Found Them, by Donald R. Prothero

People, the T-Rex was covered with feathers. If this is the first time you’re reading that, better get caught up on your dinosaur research. It’s far from a bone-dry paleontology text, though (see what I did with the pun there?). You’ll know what I mean when you get to the Bone Wars.

Blood and Thunder: An Epic of the American West, by Hampton Sides

A nuanced portrait of the American westward expansion and one of the key figures within it. Sides does not pull punches in describing Kit Carson’s complex legacy: a man of stunning courage, loyalty, and, at times, compassion, who could still chillingly take life when provided with the thinnest of justifications from superiors. It’s almost as if there’s good and bad in everyone, and we’re all imperfect human beings just doing our best.

Billion Dollar Whale: The Man Who Fooled Wall Street, Hollywood, and the World, by Tom Wright and Bradley Hope

Except for Jho Low, a person whose redeeming qualities you really have to struggle to unearth. A sweeping tale of financial fraud that will make you think both, “Huh, how’d he get away with that?” and “If that’s all he had to do, I could probably get away with that.”

Charlatan: America’s Most Dangerous Huckster, the Man Who Pursued Him, and the Age of Flimflam, by Pope Brock

Come to think of it, there’s not a lot good to say about John R. Brinkley, either. I guess at least he spread around to the little guy some of the obscene wealth he gained from scamming people literally to death (but, like, he also used some of it to tile his pool with swastikas). It you’ve ever pondered how so many Americans can fall so easily for seemingly obvious scams, this story is for you.

An Elegant Defense: The Extraordinary New Science of the Immune System: A Tale in Four Lives, by Matt Richtel

Other than the dual subtitle, there’s not much to criticize about this presciently timed reminder that real medical science is amazing and eventually always trumps flimflam. Actually understanding the extraordinarily imposing defenses your body has at its disposal sure bolsters the spirits of a reader facing down a pandemic.

Educated: A Memoir, by Tara Westover

This is the only book on this list that is pure-form memoir. In addition, it’s easily the most popular, and therefore requires no further explanation from me. If you haven’t already read it, read it.

American Buffalo: In Search of a Lost Icon, by Steven Rinella

As a hunter myself, I loathe the trophy pop culture portrayals of hunting as a toxically masculine death romp through the woods. Rinella nails it here though, with hunting as it should be: a live-action ode to self-reliance, and a subtle form of nature worship. A great overview of the cultural significance of the bison within the American psyche.

Un-Trumping America: A Plan to Make America a Democracy Again, by Dan Pfeiffer

The only overtly political book on this list is an instruction manual on what the Democrats need to do if they want any hope of enacting some of their broadly popular policy proposals. This one holds a special place in my heart, as I acquired my copy at the last truly public event I attended before the pandemic really took a bite out of American social life. That being said, Dan, maybe skip the footnote thing with your next book.

The Dinosaur Artist: Obsession, Betrayal, and the Quest for Earth’s Ultimate Trophy, by Paige Williams

You can’t put it down and feel bad at the end of it, which I mean as a compliment. Sometimes pursuing our passions too vehemently is actually a bad thing (at least when those passions are being relied upon to pay off ballooning household debts).

A (Brief) History of Vice: How Bad Behavior Built Civilization, by Robert Evans

A splendid combination of historical tidbits, quasi-responsible experimentation, and unexpected insights make this book worthwhile for boozehounds and teetotalers alike (to the latter, this stuff is part of your heritage too, like it or not, although I don’t know if you’ll enjoy Evans’ signature brand of humor as much as I do). When you finish the book, check out Behind the Bastards, the podcast hosted by Evans that has almost nothing to do with the book, but that does somehow make it fun to learn about history’s most awful people.

The Data Detective: Ten Easy Rules to Make Sense of Statistics, by Tim Harford

Could have also been titled something like How Not To (Accidentally or Otherwise) Lie with Statistics. Learn how to effectively process all that information flying at you every day. I’ll be thinking of several of Harford’s rules when citing statistics in future columns — it’s a quick, useful read.

There you go, get reading. In an often-joyless time, you can still delight in the fact that there is a bottomless pool of good books in this world — seriously, this is only an excerpt of one year of my reading, it became a top 15 list when I couldn’t whittle it down to 10, and, even at 15, I was shaving off several worthy contenders. You don’t have to take my word on any of these titles, by the way, you might have your own mental list of preferred books (and yours almost certainly comes from a more diverse pool of authors, I will have to work on that myself in the coming year). But if any of these books spark an interest, pick up a copy. Find something that intrigues you, learn a little more about a worthy topic, and get absorbed in a good story. You’ll never regret spending time or money on a good book.

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Jonathan Wolf is a civil litigator and author of Your Debt-Free JD (affiliate link). He has taught legal writing, written for a wide variety of publications, and made 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.

As we all know far too well, the coronavirus crisis has completely changed the justice system. Court hearings and trials are now done virtually, as are meetings of all kinds. The pandemic forced a once tech-averse profession to suddenly adopt and learn to how to use new technologies to function properly. But just how well have lawyers adapted to the new normal?

We polled more than 100 attorneys — with our largest cohorts of respondents hailing from Biglaw firms (31.18%), midsize firms (23.66%), and small firms (23.66%) — to find out how things haved worked out for them in their new technology-enhanced worlds.

Despite the fact that 60% of our respondents reported that they did not receive any training on their use of remote networking software, over half said that they now have a strong knowledge of that software (with almost 60% noting that they do not have support staff who oversee their use of it). The majority of respondents (77.78%) reported that Zoom is most often the software of choice for virtual depositions and courtroom hearings (Microsoft Teams came in at a far distant second place with 9.09%, with Webex in third, with 8.08%).

How often is your camera on for virtual hearings and depositions?

Almost 70% of respondents said their camera is always on for virtual hearings and depositions.

How often is your camera on for virtual meetings (not hearings)?

About 61% of respondents said that their camera is sometimes on for virtual meetings.

How often do you wear formal business attire for virtual hearings and depositions?

Almost 62% of respondents reported that they always wear formal business attire for virtual hearings and depositions.

How often do you wear pajamas or loungewear for virtual hearings and depositions?

The majority of respondents, about 80%, reported that they never wear pajamas or loungewear for virtual hearings and depositions.

Have you been involved in or witnessed a remote hearing mishap?

Responses were equally split between those who had and those who had not been involved in or witnessed a remote hearing mishap. Here are some of the best (and most outrageous) responses we received:

• I’ve seen parties driving and parties in bed.
• During a remote deposition, the court reporter lost audio and took 30+ minutes to get it back at a crucial point in the questioning. Also, CourtCall has been struggling for telephonic hearings and attorneys frequently lose connection or have poor audio quality.
• A witness’s audio decisively failed in the middle of a trial… twice… also once accidentally showed notes during attempt to pull up exhibit on ShareScreen.
• A lead attorney lost connection and couldn’t reconnect.
• I saw a litigant who lit up a blunt.
• I once saw a lawyer who had apparently been using his Zoom profile to troll for kinky sex with toys.

Would you be able to immediately turn off a cat filter if necessary?

There can be only one Cat Lawyer. Almost 60% of respondents reported that they would indeed be able to immediately turn off a cat filter if necessary.

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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.

When the New York state Assembly hired a law firm to investigate the allegations swirling around Governor Andrew Cuomo, it was always going to be an elite firm. Maybe a top-flight boutique, but probably a ginormous Biglaw firm able to wield the legal know-how and brute force necessary to handle such a high-profile investigation.

Biglaw firm Davis Polk got the nod for this assignment. Today, Speaker Carl Heastie and Judiciary Committee Chair Charles D. Lavine made the announcement:

“Since Thursday, Chairman Lavine led a vigorous search for a top-flight firm to assist with the investigation. I have the utmost faith that Assemblymember Lavine and our Judiciary Committee will conduct a full and fair investigation,” Speaker Heastie said. “Hiring Davis Polk will give the Committee the experience, independence and resources needed to handle this important investigation in a thorough and expeditious manner.”

“The addition of Davis Polk will allow my colleagues on the Judiciary Committee and me to fully and fairly investigate the allegations,” Assemblymember Lavine said. “These are serious allegations, and they will be treated with fairness, due process and discretion.”

The matter will be led by partners Angela Burgess, Greg Andres, and Martine Beamon, and “[t]hey are authorized to vigorously pursue all the evidence to determine the extent to which violations of the law have occurred.” We’re all waiting to see what they turn up.

But not everyone is optimistic about DPW’s involvement. Debra Katz, attorney for one of the former Cuomo aides alleging sexual harassment, points to Davis Polk’s connection to one of Cuomo’s political allies, New York Court of Appeals Chief Judge Janet DiFiore. DiFiore is married to Dennis Glazer, a former partner at the firm:

“Political independence is fundamental to the integrity of the investigation. We were alarmed to learn that Speaker Heastie has hired Davis Polk to assist with the investigation, given the connection between Dennis Glazer, who spent more than 30 years as a partner at Davis Polk, and the Governor. This is an unacceptable conflict of interest,” the attorney for [former aide Charlotte] Bennett said in a Wednesday morning statement. “The impeachment investigation must operate free of political influence and must be transparent, detailing for the public the steps being taken to protect the integrity of their impeachment investigation. We already know the extent to which Governor Cuomo has surrounded himself with people in the Executive Chamber who enabled his behavior and swept evidence of sexual harassment under the rug. If there is even a hint of political influence in the impeachment investigation, it will taint the entire proceedings.”

“While Ms. Bennett is committed to cooperating with all appropriate governmental inquiries, including the impeachment investigation, the involvement of Davis Polk gives her pause. I suspect it will have the same effect on other women who were sexually harassed by the governor,” Katz added.

But remember, this isn’t the only investigation Cuomo is facing. Employment lawyer Anne L. Clark of Vladeck, Raskin & Clark, P.C. and Joon Kim of Cleary Gottlieb are investigating the governor on behalf of NY Attorney General Tish James.

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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).

Sheldon Whitehouse has some questions. And, well, same.

The Democratic Senator from Rhode Island released a letter to newly confirmed Attorney General Merrick Garland about the Judiciary Committee’s oversight of the Department of Justice in four key matters:

review of civil litigation, based on tobacco industry precedent, concerning climate change denial and obstruction by the fossil fuel industry; the cursory and politically constrained FBI investigation of allegations of sexual assault regarding Brett Kavanaugh; the Antitrust Division’s interaction with automakers regarding their California fuel efficiency standards negotiation; and the Department’s failure to investigate apparently false statements made by politically active nonprofit groups to the Internal Revenue Service.

By far the splashiest inquiry is that surrounding now-Justice Kavanaugh. As you’ll recall, his confirmation hearing came to a halt (and then quickly started right back up again) when the sexual assault allegations of Dr. Christine Blasey Ford became public. Since then, questions about how the FBI’s background check could have overlooked such major questions have circulated. But, finally, with Garland in charge of the DOJ, there may actually be someone willing to take action. And Senator Whitehouse would finally like some answers.

After Dr. Blasey Ford came forward and testified, the FBI was contacted by law firms representing other witnesses, but were shut down. As Whitehouse notes:

This was unique behavior in my experience, as the Bureau is usually amenable to information and evidence; but in this matter the shutters were closed, the drawbridge drawn up, and there was no point of entry by which members of the public or Congress could provide information to the FBI.

And even after a tip line was opened, well, nothing much was done about it — and Whitehouse doesn’t mince words calling out the BS he sees:

After several days with the drawbridge up against evidence or information, the FBI ultimately opened up an entry point for additional allegations and other potential corroborating evidence through a “tip line.” When allegations flowed in through that “tip line,” we received no explanation of how, or whether, those allegations were processed and evaluated.[21] Senators were later given only highly restricted access, over intermittent one-hour windows, to review various materials the FBI had gathered. In addition to showing some cursory efforts to corroborate Dr. Ford’s hearing testimony, our brief review showed that a stack of information had indeed flowed in through the “tip line.”

It did not appear, however, that any review had been undertaken of any of the information that flowed through this tip line. We could get no explanation of the tip line procedures. In 2011, the FBI had posted a video, “Inside the FBI’s Internet Tip Line,”[22] in which the Bureau described procedures for review of tip line information in criminal investigations, for sorting out investigative wheat from the chaff such tip lines customarily produce, and for forwarding credible information appropriately within the Bureau for further investigation. The FBI appears not to have followed these procedures, and the Bureau has repeatedly refused to answer questions from Senate Judiciary Committee members about this matter. This ‘tip line’ appears to have operated more like a garbage chute, with everything that came down the chute consigned without review to the figurative dumpster.

He also raises the allegation that the entire investigation was “fake,” and if it was an earnest investigation, well, that doesn’t bode much better for the FBI:

If standard procedures were violated, and the Bureau conducted a fake investigation rather than a sincere, thorough and professional one, that in my view merits congressional oversight to understand how, why, and at whose behest and with whose knowledge or connivance, this was done. The FBI “stonewall” of all questions related to this episode provides little reassurance of its propriety. If, on the other hand, the “investigation” was conducted with drawbridges up and a fake “tip line” and that was somehow “by the book,” as Director Wray claimed, that would raise serious questions about the “book” itself. It cannot and should not be the policy of the FBI to not follow up on serious allegations of misconduct during background check investigations.

We can only hope such pointed questions don’t fall on deaf ears, and something finally gets done.

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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).

The pandemic brought all the problems with the bar exam and state licensing into focus. Issues that had bubbled among a small clique of legal observers for years exploded in a white hot flame of disaster over the last year. The over-reliance on limited administrations exacerbated health and technology problems, the disconnect between the test and any conception of minimum competency frustrated efforts to promote open book options to cut back on technical obstacles (like those that arbitrarily flagged one-third of applicants as cheaters in California), and the out-of-control power of state regulators went on full display as they threatened to refuse licenses to critics.

A Wall Street Journal op-ed yesterday by Clifford Winston of the Brookings Institute, citing work he’s done with co-authors David Burk and Jia Yan for the book Trouble at the Bar: An Economics Perspective on the Legal Profession and the Case for Fundamental Reform (affiliate link), took aim at the bar exam and the state licensure process. But he’s going a lot further than diploma privilege…

Congress may soon strengthen the antitrust enforcement powers of the Biden administration’s Justice Department. The department should use those powers to eliminate the American Bar Association’s monopoly in determining what constitutes an acceptable legal education and state licensing requirements, which restrict the supply of lawyers.

There’s a lot to be said for his argument and ultimately it’s exciting that resistance to the bar exam and enthusiasm for reforming the legal profession has made it into the pages of the Wall Street Journal. The country has a pronounced shortage of attorneys serving key sectors. Prospective Biglaw ranks may be swelled, but the rest of the country lacks reasonable access to attorneys. “One study by the National Center for State Courts found that 75% of civil matters in major urban areas had at least one self-represented party,” according to the article, and the access to justice problem has blown past the poor and placed services outside the reach of the middle class in many cases.

Eliminating both the ABA’s monopoly control of legal education and states’ licensing requirement would allow alternative legal education programs to flourish, including vocational and online courses that could be completed in less than a year and college programs that offer a bachelor’s degree in law. Graduates of those programs could expand the availability of effective, low-cost civil legal services. Three-year law schools would be forced by the new competition to reduce tuition and the time to graduate. More J.D.s would be free to pursue a career in public-interest law if they were less encumbered by law school debt.

Three-year law school is, at present, an expensive waste that pushes graduates toward higher-paying jobs exacerbating the justice gaps described. But despite harboring a healthy share of skepticism about how the ABA performs its role in accrediting legal education, I can’t get behind removing them — or someone filling their prescribed role — from the process.

If there’s been a failing of the ABA it’s been the fact that it lacks the requisite strength to police subpar law schools siphoning off student funds and then leaving graduates twisting in a jobless void. The status quo may be the worst of all possible worlds with the ABA championing costly and anachronistic models, but with its watchdog powers functionally blunted, we have a preview of the harms of a deregulated environment. My argument for diploma privilege rests upon strengthening regulatory power to hold law schools accountable to provide minimum competency education, thus making the bar exam unnecessary.

Which, of course, tracks the history of the bar exam, a test originally devised to measure the competency of those without a formal legal education. It would become weaponized in the 19th century as a means of closing off the profession to Black applicants despite earning law degrees. If the bar exam were to persist as an alternative avenue to practice for those wishing to avoid crushing law school debt by taking their chances with the test, that’s one thing. But opening the door to fly-by-night vocational schools turning loose attorneys on the public unchecked would make the fear-mongering of state licensing authorities — comically overblown in the status quo — pretty much a reality.

The lesson of the past 40 years or so is that the answer to poorly regulated industries is more thoughtful regulation and not deregulation. We’ve watched deregulation ruin cable television — a harm that’s metastasized into kneecapping broadband, which then got a double hit during years without net neutrality. We’ve watched it transform the airline industry into a too big to fail oligopoly that has crushed service across the country. The cycle keeps repeating itself: terrible regulators mess up an industry, it gets wholly deregulated, and the worst actors in the industry consolidate power creating a landscape worse than it started.

There are a lot of destructive licensing regimes out there closing off careers based on silly requirements. People complain about nail salons requiring expensive licenses, but breeze over the fact that it’s a job where lax safety gets workers poisoned. The right answer resides somewhere between protectionist regulation and laissez-faire anarchy.

Formal legal education should junk its 19th century model that’s ballooned into an overexpensive boondoggle. The bar exam is a poor method for testing lawyer competence and should be redundant to an accredited legal education. Alternative legal providers should have an avenue to deliver appropriate legal services to the masses — Washington’s Licensed Legal Technicians program was a good idea to deliver low cost legal services and it’s a tragedy that the state gave up on it. Continuing legal education is treated by many as a farce and should be beefed up given that disciplinary records suggest that harm to the public from doctrinal mistakes is generally more likely to come from experienced attorneys than those fresh from school. But in all of these scenarios, the answer is fixing the regulation of the profession and not walking away from it. State regulators may not be able to prevent all fraud in the status quo, but tales of attorneys taking advantage of the most vulnerable and indeed non-attorneys getting in on the act, highlight the importance of oversight to proactively filter out risky actors before they’ve harmed clients.

Maybe the ABA and state licensing authorities aren’t up to the task and need to be blown up and replaced with new authorities. Perhaps it needs to be blown up to prompt the crisis that invites more responsible regulation down the road? I’ve not had an opportunity to read the whole book yet so I can’t dismiss the thesis out of hand, but based on the op-ed there’s an implied optimism that a wide-open field will invite nothing but honest actors and that’s just a little hard to believe given the troubles we already find in lower-tier law schools. Permanently walking away and trusting the market to shake everything out on the back end has a nasty track record.

Eliminate The Bar Exam For Lawyers [Wall Street Journal]

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Joe Patrice is a senior editor at Above the Law and co-host of Thinking Like A Lawyer. Feel free to email any tips, questions, or comments. Follow him on Twitter if you’re interested in law, politics, and a healthy dose of college sports news. Joe also serves as a Managing Director at RPN Executive Search.

Amid a pandemic during which the elderly have suffered greatly, the country’s largest senior living facility operator is being accused of patient safety violations.

The state of California, along with a coalition of district and city attorneys, has sued Brentwood, Tennessee-based Brookdale Senior Living. The lawsuit alleges the operator’s 10 California skilled nursing facilities violated patient safety laws and manipulated its quality-of-care rating by providing false information to the Centers for Medicare & Medicaid Services.

Brookdale denies engaging in intentional or fraudulent conduct.

“We are disappointed in the allegations against the skilled nursing industry,” said a Brookdale spokesperson, who declined to be named, in an email. “Publicizing unproven allegations is reckless and undermines the public’s confidence in a service necessary to the care of elderly individuals, especially during the Covid-19 pandemic.”

The lawsuit claims Brookdale increased its profits at the expense of patient care by abruptly discharging residents and without preparing them to be discharged safely. The operator’s California skilled nursing facilities allegedly initiated tens of thousands of transfers and discharges without providing the required 30-day notice to its patients or local ombudsmen.

This resulted in potential harm to patient health, the lawsuit claims. In one instance, a nursing home discharged an 80-year-old man suffering from a range of health conditions, including Alzheimer’s disease and congestive heart failure, without providing notice or discharge planning.

Within a week of discharge, the man was admitted to an acute care hospital, the suit states.

“We are holding Brookdale accountable for artificially increasing its profits by cutting corners when transferring or discharging its patients,” said California Attorney General Xavier Becerra in a statement issued Monday.

Further, the lawsuit accuses Brookdale of providing incorrect data, like false nurse staffing information, to get higher star ratings awarded by CMS. The agency publishes these ratings on its website to help the general public select healthcare facilities and nursing homes.

“Choosing a skilled nursing facility is no simple task,” said Becerra, who is poised to become the new head of the Department of Health and Human Services. “Seniors, people with disabilities and their families rely heavily on accurate data to make that decision. Californians have been directly impacted by Brookdale’s behavior. We will ensure that they face consequences for violating the public’s trust.”

The state and other plaintiffs — the district attorneys of Kern, Alameda, San Diego and Santa Cruz Counties, and the Los Angeles city attorney — are seeking civil penalties for violations proved at trial.

Over the past year, there has been a renewed focus on senior care facilities. These facilities have seen some of the highest Covid-19 case counts and deaths during the pandemic. More than 640,000 total residents across the country contracted the deadly virus and around 130,000 people died from it, according to data from CMS.

Photo credit: Drazen Zigic, Getty Images

At-home DNA testing kits, like 23andMe and AncestryDNA.com, have uncovered an unnerving number of doctors who, unknown to their patients, substituted their own sperm for the promised donor sperm or spouse’s sperm. Many of the doctors who have been caught are deceased or retired. Some have been close enough to retirement that they immediately retired once their inappropriate conduct was discovered. But there’s one guy who refuses to accept the gravity of his actions: Dr. Kim McMorries of Nacogdoches, Texas.

McMorries has, shockingly, continued to practice medicine — in obstetrics, gynecology, and infertility, no less — since the news broke several years ago about his insemination activities with a number of his patients. One of the resulting offspring, Eve Wiley, tells the made-for-TV-movie story of discovering that she was donor-conceived as a teenager. Her mother helped her contact the sperm bank from which Wiley’s parents chose Donor 106, and Wiley and the donor met and established a father-daughter relationship over the next 13 years. Only when one of Wiley’s own children had medical issues did she DNA test herself for more information. That’s when she found out that her mother’s doctor, McMorries, had not, in fact, used the sperm of Donor 106, as Wiley’s parents’ requested, but instead used his own sperm.

The Law Has Failed Us

Wiley — and quite frankly, every sane person who has heard about this story — has been shocked to find out that the law did not explicitly prohibit or punish this behavior. Even in other well-known cases of doctor-donors, such as that of Dr. Donald Cline in Indiana (with over 60 offspring from his “donations”), the prosecutors only charged him for “obstruction of justice” after lying to investigators.

Wiley worked with Texas state legislators and other advocates to change the law in Texas to be crystal clear that doctors cannot engage in this activity. No more doctors trying to swap in their own sperm (or other nonexplicitly consented to reproductive material) with patients, even when the arrangement is for “anonymous” donor gametes. The law passed, thankfully. But of course, the law is not retroactive and does not apply to McMorries. He continues to treat patients.

What About The Texas Medical Board?

Ok, so no ex post facto criminal prosecution. But how has the Texas Medical Board permitted McMorries to continue to hold an active license to practice medicine, given his notorious past? Last year, Professor Jody L. Madeira — an expert in fertility fraud, and a force behind doctor-donor legislation throughout the country — filed a complaint with the Texas Medical Board regarding McMorries. Initially, the Texas Medical Board indicated that it would not even investigate McMorries, but then at least reversed course on that.

Still, did McMorries hang up his speculum and retire? No. McMorries responded by suing the Texas Medical Board for opening the investigation!

The Doctor’s Case Against The Medical Board

In the doctor’s 53-page complaint against the Texas Medical Board from last November, he takes several interesting approaches. For one, he argues that neither the Texas Medical Board, nor anyone else, can appropriately judge his actions from “bygone days” (ah yes, the “it was the 1980s” defense).

McMorries’ complaint waxes poetic about changing times and quotes authors and historians to justify the idea that standards were different 30 years ago. But were they, really? I hope we can agree that it was never acceptable for a doctor to inseminate an unknowing patient with his own sperm, instead of like, the actual sperm donor chosen by the patient.

Another tact taken by McMorries in the lengthy brief is to take aim at the Texas Medical Board complainant, Madeira, herself. “[I]f physicians will not be the judge of what a physician should or should not have done, then who will be? Lawyers? Law professors?” OK, now he’s gone too far. McMorries also argue that Madeira can’t credibly opine that his misconduct was actual malpractice since she’s never practiced medicine, and because she’s too young to understand what the ’80s were like.

Statute of Limitations — Texas State Law Vs. Medical Board Rules

Almost six months after the McMorries complaint was filed against the Texas Medical Board, the arguments have boiled down to whether the Texas Medical Board’s rules are consistent with Texas state law. State law provides that “The board may not consider or act on a complaint involving care provided more than seven years before the date on which the complaint is received by the board.” The Texas Medical Board Rules have identical language under section “(a) Standard of Care,” and then provide under section “(b) Other Violations. There is no statute of limitation for the filing of complaints in relation to any other violation including action by another state licensing entity or criminal conduct.”

McMorries argues that section “(b) Other Violations,” which is not subject to the seven-year statute of limitations, is contrary to the Texas Medical Board’s limited and time-bound authority. The board, by contrast, argues that the seven-year limitation was clearly limited to complaints “involving care,” and if the legislature wanted that provision of the law to apply to all complaints against a doctor, it would have said so.

Ultimately, regardless of the statutory construction and the application of the Texas statute of limitations, perhaps the real question is, how does this doctor still have patients? The DNA evidence is undeniable, and his former patients have been clear — they did not consent to their doctor using his own sperm. So if you have a friend in Nacogdoches, Texas, make sure they aren’t seeing Dr. Kim McMorries!

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Ellen Trachman is the Managing Attorney of Trachman Law Center, LLC, a Denver-based law firm specializing in assisted reproductive technology law, and co-host of the podcast I Want To Put A Baby In You. You can reach her at babies@abovethelaw.com.

We know what you’re thinking: Hard-hit Americans and their hard-hit economy have waited long enough for another serious stimulus jolt. They’ve waited since at least the Georgia runoff elections in December which made it possible. They’ve waited as unpaid bills piled up and fridge shelves emptied. They’ve waited and listened to the expert inveigh on how vital it all was. They’ve waited through some typically bad-faith Republican “negotiations.” They’ve waited as they learned about arcane Senate rules, and they’ve waited through Joe Manchin and Kyrsten Sinema’s maverick cosplay. They’ve waited so long that President Biden decided to move his gala signing ceremony for what will almost certainly be the biggest bill and signature achievement of his administration. Surely, surely, everyone must agree that everyone who’s eligible (thanks, Kyrsten and Joe!) has waited not only long enough, but indeed too long!

Yesterday, the House of Representatives passed a bill that would extend the Paycheck Protection Program (PPP) application deadline to May 31. This was in response to complaints that people did not have enough time to prepare the loans, particularly since there were some significant rule changes earlier this month. But since the government is in the mood to tweak the PPP rules again, I would like to propose changes listed below which I think will help small businesses and their employees.

Sole proprietors who received their PPP loan should be allowed to amend it to take advantage of the gross income rule. The Biden administration recently announced that sole proprietors who receive Form 1099s and file  Schedule C’s on their tax returns would be allowed to use gross income instead of net profit when calculating their PPP loan amount. This was because businesses reporting low profits did not qualify for a large loan so either they didn’t apply for the loan or their bank did not accept their application. A significant percentage of these people were freelance gig workers who likely needed more money to support themselves.

By switching from net profit to gross income, these businesses and gig workers would receive a larger loan. One of my clients qualified for $20,000 as opposed to $2,500 if her net profit was used.

The problem was that some people applied early and received their PPP funding using their net profit before the new rule was implemented. According to CNBC, the SBA stated that if borrowers had a loan that was approved but had not yet been disbursed, lenders could cancel it and the borrower could reapply. Even if a loan had been disbursed, lenders could cancel the loan and borrowers could repay the money and reapply with the new applications, but only if the lender had not yet submitted Form 1502, which includes payment and loan information, to the SBA.

This means that some businesses will be out of luck because they submitted their application too early.

The SBA could simply change their rules to allow businesses that received loans using the net profit rule to get a supplemental loan using their gross income numbers. The process should be quick and simple as opposed to the time-consuming process of canceling a loan, returning the money, and starting the loan process over again.

Small business corporations seeking under $100,000 in loans should be treated like sole proprietors. Corporations that apply for PPP loans are subject to different rules than sole proprietors. In short, a corporation’s PPP loan amount is two and a half months of its total employee compensation (including retirement contributions and health insurance) in 2019 or 2020, whichever is larger. Unlike a Schedule C, net profit or gross income is not included when determining the loan amount.

This can result in different PPP loan amounts solely based on the business entity structure, usually because the owner-shareholders give themselves a low employee salary from the corporation. This could be seen as a way to reward the owners who pay themselves a “reasonable salary” while punishing those who didn’t pay themselves a salary or low-balled it to avoid payroll taxes. Also, owners who pay little to no salaries to themselves to avoid payroll taxes probably won’t lose much since the payroll taxes and PPP money might offset each other.

I’ve found that the problem with the above rationales is that it fails to consider a corporation’s nonowner employees. The owners of a struggling corporation might decide to not apply for the PPP and shut its doors early if they cannot get funding for themselves. Without the funding, there is no point in keeping the business open as it will just incur additional debt which is likely to be guaranteed by the owners. The former employees will have to resort to unemployment benefits and may suffer a financial hardship since the $600/week extended benefits are no longer available.

I also suspect that popular opinion will not support giving corporations PPP money because they are presumed to be wealthy and do not need it. Look, some chronic internet commenters might find this hard to believe, but not all corporations own their own country. Many corporations are small businesses and they incorporated to minimize personal liability and taxes.

So for the sake of the many employees working for small business corporations, these entities seeking PPP funding should be treated like sole proprietors (as described above) for the purpose of determining their loan amount so long as the amount funded is under $100,000.

Sole proprietors with no employees should be eligible for loan forgiveness immediately. Sole proprietors or gig workers with no employees have very simple rules on using the PPP money. Like other entities, they are supposed to use the money for payroll purposes. Except that the owners also count as employees. So by accepting the money, they have simultaneously used the entire loan amount for payroll. Therefore, they should be eligible for forgiveness immediately.

The SBA website states that a borrower can apply for forgiveness once all loan proceeds for which the borrower is requesting forgiveness have been used.

But some banks (particularly the large ones) are not accepting forgiveness applications until at least six months after the loan was disbursed. Other banks seem to have some kind of waiting period before taking forgiveness applications.

I get that banks need time to understand the SBA rules as they constantly change. But their rule on when loan recipients can apply for forgiveness is pretty clear.

Maybe imposing a waiting period is their way to weed out fraud. Or it’s an attempt to treat all business equally.

I’ll call it: For 99.9999% of gig workers, PPP is a grant pretending to be a loan. Those who apply for forgiveness are almost certain to get it since they met the requirement one second after receiving the funds.

These people are likely to be lower-income individuals. They are probably more likely to forget to submit the applications, or not understand the rules. They may not have access to professionals who can help them complete the applications. So unless it is easier for these people to apply for forgiveness, they may end up repaying the loan when they don’t have the money to do it.

Letting banks accept forgiveness applications early is more efficient. People will submit applications gradually instead of everyone trying to get them in during a cramped time frame. Their applications will not be mixed in with the large companies where a banker has to spend the weekend verifying that the salaries of its 199 employees were not cut by more than 25%. Similarly, professionals assisting their clients with the forgiveness applications will not be burdened with a deluge of requests.

Assuming the pandemic is going away this year, this will likely be the final major stimulus push from the federal government. So they should ensure that those who need it most get as much as they are entitled to. Also, the forgiveness process should be easy and straightforward. Otherwise, delays will happen, people will forget, and some people without resources may be forced to pay back a loan which could have been forgiven.

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Steven Chung is a tax attorney in Los Angeles, California. He helps people with basic tax planning and resolve tax disputes. He is also sympathetic to people with large student loans. He can be reached via email at sachimalbe@excite.com. Or you can connect with him on Twitter (@stevenchung) and connect with him on LinkedIn.

* The first general counsel of DraftKings is joining legal tech startup LinkSquares. Guess he’s taking a “gamble” on the new company… [Bloomberg Law]

* Three more people have been arrested in connection with a home invasion that left a well-known Maryland lawyer dead. [WTOP News]

* A mysterious person named “Ricky” seemingly accepted service of litigation papers for Donald Trump. Maybe it was John Barron. [Insider]

* A U.S. Attorney in Ohio is accusing individuals of using a kosher meat store as a front for drug trafficking and money laundering. Can see their beef. [Cleveland Jewish News]

* A San Antonio fire chief was caught cursing at a lawyer during an arbitration hearing held via Zoom. Guess he needs to put out another kind of fire now… [ABC News]

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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.