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2020 law school graduates can’t seem to catch a break, at least here in California. First, the pandemic, then the uncertainty and chaos about the bar exam, and most recently, dreadful brush fires across the state, which are leading to evacuations and are now threatening densely populated areas. Having been an evacuee once many years ago, I know well the anxiety and uncertainty. But this is just the latest angst for the 2020 grads. My sympathies for what they’re going through, and what they may go through next month when they take the online bar exam. One collateral effect of brush fires can be power outages, and since some of the fires will not be contained until mid-October … need I say more?

A record number of test takers have registered to take the exam. Do you really think that the two-day exam will emerge unscathed from the snafus that have plagued other bar exams so far this summer? Given that so many people are taking the exam, I just don’t believe that there won’t be issues with technology. A law professor friend of mine is similarly skeptical.  Look at the technical issues Joe Patrice has discussed in a number of ATL postings over the past few months. They don’t provide much, if any, comfort to examinees next month.

Meanwhile, back at the State Bar, it has issued proposed professional licensing program rules, and they’re out for comment until September 15. The rules then need to be approved by the State Bar Board of Trustees and adopted by the California Supreme Court as a rule of court. These are the rules that permit an attorney who is eligible to take the bar between December 1, 2019, and December 31, 2020, to be provisionally licensed.

Conditions precedent to eligibility include payment of a modest fee and no adverse determination by the State Bar of the applicant’s completed Application for Determination of Moral Character. The provisional licensee also has to complete the State Bar New Attorney Training Program during the first year of provisional licensure, maintain employment under the supervision of a licensed attorney, observe the same professional conduct rules as all fully licensed attorneys, and clearly disclose to clients and the public her provisional status.

The proposal allows the provisionally licensed lawyer to do just about anything and everything that a licensed attorney can do, subject to the supervising attorney’s determination of the readiness of that person to do that work. As defined in the proposed rule, the term “supervising attorney” has a number of different components, one of the most important being professionally responsible for the work that the provisionally licensed attorney performs. I wonder what malpractice carriers are going to think about that, and if they will be reluctant to insure that provisionally licensed lawyer. It shouldn’t be any different than a law clerk or a brand-new baby lawyer who knows squat.

So, you ask, or maybe you didn’t ask, but I am going to tell you anyway: just how does the provisionally licensed lawyer go about finding a “supervising attorney” willing to supervise and take the potential malpractice risk? Here’s how the State Bar’s FAQ responds to that question.

The bar’s advice is not helpful. “If you plan to pursue a provisional license you should let prospective employers know that and work with them to identify a potential supervising lawyer.” What’s wrong with this advice? Everything. First, the proposed provisional licensee must figure out who might be a prospective employer, not an easy task especially in these pandemic times, where it can be harder than ever to network. Second, just how will a prospective employer be able to identify a potential supervising lawyer?

What will the State Bar do to help the provisional licensee find a supervising lawyer? In the State Bar’s words, it “… intends to communicate with California lawyers, bar associations, and affinity bars about the program once the rules are adopted to ensure that the legal community is aware of the opportunities provided by provisionally licensed lawyers.” Not helpful is it? What happens if there’s little interest by State Bar licensees to supervise the provisionally licensed? Does the program then just go away?

Everyone needs to get a move on, since the program ends on June 1, 2022, unless the Supreme Court extends it. It’s a given that once the program ends, the provisional license also ends.

So many unanswered questions: how many of active licensees are going to be willing to take the risk of supervision in these times especially now when so much of the legal work is being done remotely? The opportunities for interaction are not the same as they were pre pandemic. How many supervisors will be comfortable supervising from a distance? Is there a difference between supervising a newly licensed attorney and supervising a provisional licensee? How many times have you heard attorneys say, when asked about possible employment, “call me after you’ve passed the bar?” How many of the provisional licensees will find work and like the work they’re given? How many of them might wonder if they should have even gone to law school in the first place, given law school debt, the dreariness of some of the work, and the difficulty finding a job after being admitted?

How about this fact pattern? A couple, at their gender-reveal party in the Southern California mountains over the weekend, set off a pyrotechnical device and boom, a brush fire started that has now burned almost 12,000 acres, resulting in mandatory evacuations. The supervising attorney asks the provisional licensee to research and discuss all theories of liability and damage. The practice of law is issue spotting, just as it is on the bar exam.

Jill Switzer has been an active member of the State Bar of California for over 40 years. She remembers practicing law in a kinder, gentler time. She’s had a diverse legal career, including stints as a deputy district attorney, a solo practice, and several senior in-house gigs. She now mediates full-time, which gives her the opportunity to see dinosaurs, millennials, and those in-between interact — it’s not always civil. You can reach her by email at oldladylawyer@gmail.com.

Ben Dogra was, for many years, known as one of the most successful sports agents to represent National Football League players. Years ago, Dogra was brought in to Creative Artists Agency (CAA) with another super agent, Tom Condon, to turn the talent agency into a sports power. It was mission accomplished for CAA; Condon and Dogra were often named, on an annual basis, as the Contract Advisors of record for many top NFL Draft picks.

However, in 2014, CAA terminated its employment agreement with Dogra and claimed that the termination was for cause. A dispute surrounding whether the termination was truly for cause, and the damages Dogra claimed to be owed would be played out in court and arbitration for many years. Dogra’s demand included a claim of entitlement to marketing commissions from off-field deals procured for NFL quarterback Robert Griffin III. CAA assigned to Dogra its contractual rights to those commissions after an arbitrator ruled that Dogra was entitled to the monies.

That is the backdrop to the litigation initiated by Dogra against Griffin on March 22, 2019, in the U.S. District Court for the Eastern District of Missouri. Dogra sued Griffin with a stated demand of $658,000 for failure to make payment of the marketing commissions from 2014, 2015, and 2016. The court was made aware of actual invoices from 2014 ($376,827.98) and 2015 ($221,275.69), but the record contained no invoice for 2016. Ultimately, the lack of a physical invoice for 2016 played no role in the court’s final ruling.

On September 9, U.S. District Judge Stephen R. Clark held that Dogra is entitled to no marketing commissions from any of the three years. The order granted Griffin’s motion for summary judgment.

Clark said that Cal. Civ. Proc. Code §339.1 is controlling, which is the California statute of limitations that says an action upon contract not founded upon an instrument of writing must be brought within two years. Dogra’s claim against Griffin was based on an assignment of rights from CAA, and CAA’s rights derived from an oral marketing contract with Griffin.

Dogra had argued that his claim against Griffin had not accrued until 2018, but Clark was not convinced by his line of reasoning. The 2014 invoice stated that payment was due by Griffin on January 15, 2015, and the 2015 invoice, dated June 1, 2015, said that payment was due upon receipt. Furthermore, Dogra’s own testimony given in the case was very damning for his cause.

Clark noted that when Dogra was asked, under oath, when fees under the oral contract were payable, he testified that the “fees in 2014 are payable in 2014 … . The fees in 2015 are paid in 2015. And the fees in 2016 are paid in 2016.” California precedent says that a cause of action for breach of contract generally accrues at the time of breach regardless of whether any substantial damage is apparent or ascertainable.

Dogra did his best to argue that CAA did not discover the cause of action for breach of contract until 2018 because CAA was never informed until then that Griffin intended not to pay. He even provided the court with an affidavit from CAA Sports’ Chief Financial Officer, Frank Moore, to that effect. Again, Clark was not persuaded.

“The Court finds the discovery rule has no bearing on this case because CAA Sports knew, or should have known, at all relevant times that Griffin had not paid,” Clark wrote in his order. “CAA Sports could have sued Griffin for failure to pay the fees at the time they came due.” Dogra’s own words were once again used against him. He had previously testified that, “CAA Sports didn’t want to sue him. They could have.”

Dogra waited five years after the 2014 invoice was due, roughly four years after the 2015 invoice was due and in excess of two years from the due date of 2016 fees. While Dogra may have fought for years against CAA to, in part, receive what he thought to be a valuable assignment on marketing fees owed by Griffin, the assignment is now worth nothing, pending any appeal that Dogra may choose to bring on the matter.

Darren Heitner is the founder of Heitner Legal. He is the author of How to Play the Game: What Every Sports Attorney Needs to Know, published by the American Bar Association, and is an adjunct professor at the University of Florida Levin College of Law. You can reach him by email at heitner@gmail.com and follow him on Twitter at @DarrenHeitner.

* A Rhode Island woman is accused of stealing around $740,000 from her godmother’s law firm. Maybe she should have made her an offer she couldn’t refuse… [WPRI.com]

* A federal appeals court has upheld the dismissal of a lawsuit against the WWE over brain damage allegedly sustained by former wrestlers. [Chicago Sun Times]

* George Bizos, an anti-apartheid lawyer who represented Nelson Mandela, has died of natural causes at 92. [BBC]

* Attorney General Barr is claiming that the increase in violent crime in New York recently is a result of the state’s new bail reform law. [New York Post]

* President Trump announced 20 more people he may select to fill a vacancy on the Supreme Court. Happy to say I have had a beer with one person on the list… [Fox News]

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.

Ed. Note: Welcome to our daily feature Trivia Question of the Day!

For the 60 law firms recognized by Working Mother magazine as the best law firms for women this year, what is the average percentage of female equity partners?

Hint: Though the the number of women promoted to equity partner went up by 25 percent compared to five years ago, the overall percentage of woman equity partners still leaves a lot to be desired.

See the answer on the next page.

Are these the most uncivil times that lawyers have experienced? As one historian points out, the pre-Civil War Congress had heartier conflicts than us and their spiral into conflict is enlightening. For lawyers trying to balance zeal and civility, we need to mindfully address the systems that move us to war.

Make sure you take advantage of the show’s Q&A feature. You can ask Mike questions about the latest episode and he’ll answer at the end of the next episode. Just submit your question in the form at the bottom of this post.

Episode Resources:

Over the past few months, I have recommended that lawyers check out two TV series — The Paper Chase and Better Call Saul — in order to binge entertaining legal shows to break the monotony of the quarantine. My articles on these shows were extremely popular, and I received numerous emails from readers seconding that these shows should be viewed by people within the legal profession. Although Better Call Saul and to a lesser extent The Paper Chase are already well-known series among lawyers in the United States, I am willing to bet that few people in America are familiar with the TV show Rake (unless you saw the suggestions to watch this series on Netflix like I did). Nevertheless, I recently binged all five seasons of Rake, and I can say unequivocally that this amazing legal show should be on every lawyer’s quarantine watch list.

Rake is an Australian TV show about a disheveled criminal barrister who represents an interesting cast of characters and deals with his shady personal life along the way. It is hard to describe the show’s charm succinctly, but suffice it to say that Rake has all of the eccentricities of the legal profession shown in Better Call Saul, the grumpy humor of House, MD, and the courtroom drama of (the original) Perry Mason or Matlock (I assume. I’m too young to have seen those last two shows!). In addition, Rake has all of the intrigue, surprises, and other drama that viewers are accustomed to seeing in a top-notch legal series.

I would not ordinarily take a chance on watching a series like Rake, since I rarely view foreign shows. I do not like watching shows with subtitles, because I usually view streaming programs casually and do not like to be forced into viewing the screen at all times. Also, I have an extremely hard time understanding British accents, and I had to watch the British Office twice in order to understand what was going on. However, I was easily able to understand and appreciate what the Australian characters in Rake were saying. Maybe it is because I had a lot of Aussie and Kiwi camp counselors growing up, or maybe it is because I love the Outback Steakhouse (Outback, I would gladly be paid for an endorsement deal in Thunders from Down Under or Bloomin’ Onions!). In any event, I had no problems understanding the dialogue of Rake, and Australians have some incredibly colorful expressions. In fact, I hope some of their expressions make it into the American lexicon (except for calling college “uni,” that seems kind of weird).

Regardless, you might be wondering why an American audience would want to watch a show about the Australian legal system. Well first of all, many of the pop culture references and other discussions between the characters in Rake involve the United States. Rake premiered about a decade ago, so some of its pop culture references are dated, but the show contains many funny references to American singers, politicians, television shows, and other parts of American culture. Some seasons even have American characters, which definitely makes it easier for American audiences to connect with the show. I am not sure if Rake intentionally tried to market itself to an American audience with all of these references, or if Australians are more connected to American pop culture than I previously thought, but the show is very relatable to people in the United States.

Moreover, individuals within the American legal profession might uniquely appreciate Rake. I do not know anything about the Australian legal profession aside from what is depicted in Rake. However, suffice it to say that the series seems to show how the Australian legal profession is very different from the legal system we have in the Untied States. I still have no earthly idea what an instructing solicitor is (please someone explain this to me!) and lawyers and judges in Australia wear wigs and robes that make them look like they are playing characters at Colonial Williamsburg. Moreover, constitutional rights, courtroom setups, titles, and other aspects of the legal profession in Australia seem very different than the American legal system.

However, the courtroom drama depicted in Rake is extremely entertaining, especially for people within the American legal community. Cross examination, impeachment, and many of the mainstays of the courtroom are pretty universal, and no matter the technical procedures, viewers will appreciate Rake just as they appreciate My Cousin Vinny or any other classic American courtroom media. Moreover, the characters depicted in Rake, such as the down-on-his-luck solo practitioner, the uptight government lawyer, and others will be extremely familiar to American audiences. In addition, the richness of the dialogue, storylines, and acting depicted in Rake is appealing to any audience, even if viewers are not entirely familiar with the foreign procedures depicted in the show.

All told, I encourage everyone, especially individuals within the legal community, to put Rake on their quarantine watch lists. I enjoyed watching this show immensely and am pretty bummed it got canceled after only five seasons. Not only will Rake provide much-needed entertainment during the quarantine, it may teach legal professionals something about another legal system that is somewhat different, but also similar, to their own.

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.

On August 27, 2020, Trump-appointee Judge Michael L. Brown — who sits on the United States District Court Northern District of Georgia — ruled in favor of U.S. citizen dads Derek Mize and Jonathan Gregg, in their long fight for their daughter to be recognized as a U.S. citizen from birth.

Best. Podcast. Ever. Stop what you are doing now and check out this podcast interview with Mize and Gregg. Mize, at one time a practicing attorney, clearly explains the legal issues, while both dads recount the harrowing experience of their baby being denied U.S. citizenship, the prospect of being forced to live an ocean apart while Gregg undergoes treatment for a brain tumor, and the attorneys that stepped up to fight for their family. Among those legal warriors were Biglaw partner Susan Baker Manning of Morgan Lewis, Lambda Legal, and Immigration Equality.

Both Parents U.S. Citizens, But Not The Child? You might already be familiar with the backstory of this case from reading these earlier columns. Mize was born and raised in Mississippi. Gregg was a U.S. citizen from birth through his U.S. citizen mother, but was born and raised in the United Kingdom. The two adorably met at a swimming meet (again, check out that podcast interview) where Mize immediately knew Gregg was the one. Gregg was initially confused and unimpressed by Mize’s cross-pool American chin gestures (think, “what’s up” versus “what is that guy doing with his chin? Is he trying to say something to me?”). However, after an inseparable weekend, where even their future children were discussed, Gregg was convinced.

The couple married a year later. And when a British school friend of Gregg’s approached Mize at the wedding and offered to be a surrogate for the couple, they did not initially think she was serious. In the UK, unlike the U.S., a woman cannot receive compensation to act as a surrogate. Turns out, she was, indeed, serious. A few years later, their daughter Simone was born in England to the overjoyed dads.

Mize had been studious about all of the steps in the process, and even studied the American immigration code. The code said that a child “born of” U.S. citizen parents was a U.S. citizen. Case closed, that was easy. Moving on to the next item on the to do list. Unfortunately, at that point, Mize and Gregg did not know that the State Department had been interpreting the immigration code to exclude married same-sex male parents from the married parents section, nor had the other nightmare cases been publicized yet — such as the Dvash-Banks case, where one twin of a married same-sex couple was declared a U.S. citizen, while the other twin was denied U.S. citizenship.

The U.S. government has taken the position that the “born of … parents” provision of the code applies only when both parents are biologically related to the child. When one parent is not biologically related to the child — which is the case in a lot of LGBTQ+ families — the U.S. government looks to the “unwed” parents section of the immigration code, which contains a longer residency requirement. Gregg, having resided only four years in the United States, instead of the five required by the unwed section, could not pass on American citizenship under this provision.

Constitutional Avoidance. In deciding the case, Judge Brown found that the doctrine of “constitutional avoidance” required that the court not apply the U.S. government’s interpretation requiring both Mize and Gregg to be biologically related to their child to fall into the wed section of the immigration code. Instead, he concluded the statute’s plain language could be interpreted in such a way — to not require a biological connection — to avoid finding the statute discriminatory and unconstitutional.

The Judge particularly pointed out the elasticity of the government’s interpretation of “born of.” In 2014, the government changed its interpretation to include a woman who gestationally carried the child and was legally the parent of the child (but not biologically related to the child, such as in the situation of an egg donor) to be within their interpretation of the statute.

It’s Not Over.

Mize and Gregg were not the first parents with a child denied U.S. citizenship under the government’s “biological” requirement. Other couples have faced this obstacle, and brought suit. So far, each one has won their case. And, each time, the government has appealed. Those appeals are still pending. If the pattern holds, Mize and Gregg will be facing the government’s appeal shortly.

Politics aside, I can’t help but notice that the government could, like, be doing something way more worthwhile with their resources than continuing to force an interpretation of the immigration code that discriminates against gay dads, as well as couples who turn to assisted reproductive technology to have children. I have yet to see a convincing defense as to why this is a priority of our country. Here’s hoping that the U.S. government takes this moment to change course and embrace an understanding that American families are formed in many different ways — which, at times, includes surrogacy, egg, sperm, or embryo donation — and are no less deserving of citizenship and the acknowledgment and protection of our government.

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.