Category: News Feeds

Last Thursday, Rhode Island’s State Legislature passed an updated version of the Uniform Parentage Act advancing the state’s laws on parentage by over four decades! The efforts to update the archaic state laws have been in the works for years. The new law came ever so close to passing last year, but last-minute objections by Family Court Judge Michael Forte derailed the project for another year. Now its time has arrived. And Governor Gina Raimondo, has indicated her support and full intent to sign the bill into law.

The Bizarre 40-Year-Old Legal Process

The problems with the current version of Rhode Island’s parentage laws — passed in the 1970s — were numerous, and especially at issue were the state’s failures to legally recognizing different forms of families. LGBTQ parents, in particular, struggled for legal acknowledgment. Testimony in support of the bill revealed the expensive and uncomfortable legal process that many parents were forced to undertake. The nonbirthing parent of a same-sex couple, for instance, had to go through a full-blown traditional adoption process. And to do that, the couple was often required to go through a home study. Even the state’s child protective services agency testified in favor of the updated parentage laws, expressing frustration that the current requirement of home studies for same-sex couples having to adopt their own children was a waste of the department’s resources.

Even more nonsensically, the outdated law then required the couple to pay for a publication of notification to the anonymous sperm donor about the intended adoption. Seriously. That was a real requirement. And when the parents finally got to a hearing before a judge, testimony revealed that, at least in some cases, an officer of the court would call out in the hall seeking to see if there were any respondents to the publication regarding the anonymous sperm donor. “Hey, is anyone here Donor 7219!? Are you here to object!?”

So the new law removes these outdated features like they were Providence Plantations, and recognizes nongenetically related parents without requiring an adoption process. A huge step forward.

New Surrogacy Law!

Of course, I can’t not talk about my favorite topic — surrogacy. The updated law contains a section on gestational surrogacy, acknowledges the legal relationship of the parties, and codifies important legal protections. Nice! Great work, Rhode Island! Among these protections are requiring both the intended parents and the surrogate to receive a medical evaluation and mental health consultation, as well as requiring independent legal counsel. Good work on that last one especially. It’s nice to feel needed.

In a departure from the 2017 Model Uniform Parentage Act (UPA), the Rhode Island parentage law requires that at least one of the intended parents to a surrogacy agreement be a United States resident for it to be enforceable. By contrast, the current model UPA does not require any party to be a resident of the United States, or even a resident of the state at issue. Instead, having “at least one medical evaluation or procedure or mental health consultation under the agreement” occur in the state is sufficient.

Rhode Island’s change, while somewhat protectionist, is likely meant to address the reality that surrogacy is not permitted in many countries, and hopeful intended parents frequently come to the United States for surrogacy to complete their families. This provision makes it clear that “surrogacy tourism” is not welcome in Rhode Island. While a surrogacy arrangement with two non-United States residents would not be legally prohibited in Rhode Island — no one is going to jail here — however, the new law does make the gestational carrier agreement in such a situation unenforceable.

Baby Steps For Donor-Conceived Persons

The new Rhode Island Uniform Parentage Act also includes language from the model UPA intended to acknowledge the demand by donor-conceived persons to have access to information relating to their genetic history. This language follows that adopted in the states of Washington and California, which provides that a donor-conceived person is entitled to receive the name of their donor upon reaching 18 years of age. That is, unless the donor has opted not to release their identity. That is a big caveat.

Per the new statutory language, all gamete banks or fertility clinics in the state that collect donor gametes are to have the donor sign a declaration either permitting their identity to be disclosed to a resulting child upon turning 18, or not permitting the disclosure. A choice not to disclose identity can be withdraw at any time, while, in contrast, a choice for disclosure cannot be withdrawn. If the donor signed and did not withdraw a declaration for nondisclosure, the gamete bank or fertility clinic is instructed by the law to make a good faith effort to notify the donor of a resulting child who reaches out for the information after turning 18, and the donor may elect to withdraw the donor’s declaration of nondisclosure. Additionally, regardless of the donor’s option, the clinic must make a good faith effort to provide medical information to the donor-conceived person (or their parent, if still under 18) about the donor.

Given no prior legal requirements of disclosure of a donor’s identity or medical information, this is certainly a step forward.

While not everyone will agree on every aspect of Rhode Island’s new law, I think we can agree that it is, overall, a much-needed improvement. Congrats, Rhode Island, for this major victory.

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We’re encouraged to use the scientific method in innovating our practices. The only problem is that the method we were taught in school — and the heroic narratives we build around them — isn’t how science works at all. In this episode, learn about the discovery of chemotherapy and two secret missions in World War II.

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 below.

Episode Resources:
Lawyer Forward book page
Disaster at Bari
The Scientific Method is Crap

In order to stay competitive in today’s fiercely competitive legal services market, law firms must have their financial houses in order. In today’s digitized world, the best way to do so is by embracing cloud technology to ensure that proper bookkeeping is being done, which is crucial for a successful practice. After all, nowhere are high-tech solutions more needed, or the value of automation more apparent, than in the accounting department.

Innovative legal technologies can automate and streamline your workflow, optimize your revenues, and free up your time. Make your firm more efficient by finding a tool that will eliminate your need for redundant manual data entry, automate your expense recording, track your transactions, connect your bank accounts and credit cards, and integrate with other cloud-based programs so that you can leverage all insights to garner the best results internally.

What best result does every firm want? Increased profitability. Done right, automating your bookkeeping and billing could really help your bottom line.

To find how legal technologies, such as PwC’s InsightsOfficer, can help with your bookkeeping essentials, download our “Getting Your House In Order – Driving Efficiency in Law Firm Accounting” eBook now.

The only thing you can do is cut costs and the number one cost is people. I imagine that some firms are going to find themselves in uncomfortable situations now and I just think that the reality is the longer this goes on the more cuts we’re going to see.

— Bruce MacEwen, owner and principal at law firm consultancy Adam Smith, Esq., commenting on the likelihood that more people, lawyers and staff alike, will lose their jobs at Biglaw firms the longer the coronavirus crisis continues. According to an analysis performed by Bloomberg Law, 48 of the top 100 firms in the country instituted austerity measures due to the pandemic, be they equity partner payment reductions or delays, attorney and staff salary cuts, furloughs, or layoffs.

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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.

Oh this is fantastic. It’s really the best kind of benchslap because you don’t need to know any details about the case to understand the devastating slap this federal judge dropped on the Biglaw firm of Gibson Dunn.

The defendant, One Technologies, is represented by Gibson Dunn, led by partner Brian Robison, and co-counsel, Lynn Pinker Hurst & Schwegmann. In a brief, a reply in support of a motion for reconsideration, defense counsel referred to district court judge Sam A. Lindsay’s interpretation as “nonsensical,” and well, he does not take kindly to that. He analogizes — with citations — using “nonsensical” to calling him stupid, and that is a pretty glaring no-no in the judge’s book.

Take a look at the full benchslap:

Before the court addresses the parties’ arguments, it addresses the statement of counsel for Defendants that the court’s prior interpretation was “nonsensical,” among other things. Defs.’ Reply 1-2. The court takes no umbrage with an attorney disagreeing with its rulings, as at least one party will usually always be adversely affected by what the court does. Disagreement is not uncommon in a highly competitive legal environment. If an attorney believes that the court has made an incorrect ruling concerning a client, the attorney may take advantage of the appellate process.

Defendants’ attorneys’ tone and use of the word “nonsensical” are “beyond the pale.” The court considers the term “nonsensical” to be synonymous with “stupid” and the functional equivalent of using the term “B.S.” This understanding is supported by Merriam Webster’s Collegiate Dictionary. That Defendants’ counsel would display such effrontery to the court is astounding. In any event, if similar conduct recurs, the court will address such conduct with appropriate sanctions, as it will not tolerate such impertinent conduct. The court places the fault squarely at the feet of Defendants’ counsel, as they are responsible for filing documents, as well as the content therein, with the court. The court now addresses the substantive arguments made by the parties.

So everyone with cases in the Northern District of Texas, update your practice manuals and don’t ever, ever call Judge Lindsay, or any of his arguments, nonsensical again.

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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).

There is no such thing as a “proactive arrest.” There is no such thing as a “noncustodial arrest” where an individual is transported to another location and detained. There is no such thing as probable cause because a person was standing in a group of several hundred people, five or six of whom are suspected of committing a crime.

That is not how any of this works!

And yet here’s Chad Wolf, our acting Secretary of the Department of Homeland Security, explaining to Fox News that his agents simply have to snatch random black-clad kids off the streets of Portland because those mean Democratic mayors won’t welcome his storm troopers into their cities with open arms.

The Department, because we don’t have that local law enforcement support, we are having to go out and proactively arrest individuals. And we need to do that because we need to hold them accountable. This idea that they can attack federal property and law enforcement officers and go to the other side of the street and say, “you can’t touch me,” is ridiculous.

Wolf, who has no law enforcement or legal background and made his name championing DHS’s family separation policy, has consistently described large crowds of overwhelmingly peaceful protestors as “violent anarchists.” Which is handy wordsmithing, since it recasts the demand that police stop killing black people as a call to overthrow the government, while simultaneously imputing criminality to thousands of people at once to justify “proactive arrests.” Whatever those are.

There’s no evidence that these yellow-shirted moms were participating in any illegal activity at all, but that didn’t stop Wolf’s stormtroopers beating and gassing them like everyone else last night.

Wolf continued to misunderstand basic tenets of American criminal law at a DHS press conference yesterday. When asked by a reporter about people getting snatched off the streets and thrown into vans for questioning — “What exactly is the standard of probable cause you are getting, and how is that not a violation of civil liberties?” — Wolf again garbled the legal underpinnings of his argument with vague assertions of group criminality.

This is a very difficult environment to work in. You have 500, 600 violent individuals, violent criminals across the streets that try to inflict harm on your property and law enforcement officers. We do our best to identify who they are using probable cause. What we don’t do is we don’t go into the crowd. We don’t try to go into a violent crowd of 400 people to arrest people.

Probable cause is a means of identification? Umm, okay.

Then Wolf turned the microphone over to his deputy Kris Cline, head of the Federal Protection Service, to take another stab at it. Cline started off strong, noting that agents have the right to investigate crimes on or against federal property. But he ran into some trouble when defending the widely disseminated video of his agents jumping out of a van and grabbing up a black-clad kid off the street.

The individual they were questioning was in a crowd and an area where an individual was aiming a laser at the eyes of officers.

So just on the face of it, that does not sound like “facts and circumstances within the police officer’s knowledge would lead a reasonable person to believe that the suspect has committed, is committing, or is about to commit a crime.” As Harvard Law professor Andrew Crespo pointed out in an excellent Twitter thread last night, guilt by association is really not a thing in American law.

Cline’s description doesn’t even sound like “reasonable suspicion” that the individual was involved in criminal activity such as would justify a brief, non-consensual detention. In fact, it sounds like just the type of heavy-handed, extra-legal policing that brought thousands of people out onto the streets of Portland for the past 54 nights. But go on, sir!

In this instance, the CPB officers approached him. And you saw the approach, it was peaceful, there is no tackle, no get on the ground, they wanted to talk to him.

In fact, we did see “the approach,” and that is definitely not how we would describe it. We would describe it as unmarked agents who wordlessly grabbed this guy off the street without identifying themselves, much less announcing their intention to question him. As for Cline’s assertion that “they asked the individual to please get in the van,” well, he seems to be, ummm, mistaken about that.

“They did take him to an area that was safe for both the officers and the individual to do the questioning,” Cline continued. “So, it’s not a custodial arrest.”

As we pointed out last week and Professor Crespo noted last night, this is the very definition of a custodial arrest, so cleanly within the margins that it could be lifted from a criminal law exam. He was detained, transported to another location without his consent, he was not free to leave, and he was questioned about criminal activity. And if the guys in charge of those shock troops unleashed on America’s streets don’t understand the basics of WHAT IS “ARREST,” then they’re in no position to guarantee that the First, Fourth, and Fifth Amendment rights of US citizens are being protected.

Nonetheless, Wolf bridles at criticism that his troops trample civil liberties and needlessly inflame an already tense situation.

“These police officers are not storm troopers. They are not the Gestapo, as some have described them,” he huffed indignantly. “That script is offensive, hyperbolic, and dishonest.”

You can tell DHS and the FPS aren’t Gestapo stormtroopers by how often they feel the need to deny it.

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Elizabeth Dye (@5DollarFeminist) lives in Baltimore where she writes about law and politics.

Despite the ongoing disruption and uncertainty of our current circumstances, it is safe to assume that mandatory continuing legal education will continue to be an obligation for all practicing lawyers.

We wanted to check in with the ATL audience and get a sense of how you feel about mandatory continuing legal education during these unprecedented times.

Which of the following best describes your circumstances?  Take a quick poll here.

Like a lot of the South, Louisiana is in the midst of a COVID infection spike. While the governor has responded swiftly and called to defeat the disease with three days of prayer and fasting, the state supreme court opted for a more grounded response when it came to the looming bar exam.

In a narrow vote, the Louisiana Supreme Court just granted a qualified diploma privilege option for many prospective attorneys. All those not covered by the conditions of the order will have the option of taking a remote bar exam.

If an applicant had registered for the July or October exam, graduated either in the Spring or last December from an ABA-accredited school, and not previously sat for the exam, they are eligible to skip the written bar examination. Other requirements such as the MPRE are still required.

Anyone admitted under this provision will have until the end of 2021 to complete the following added requirements:

a. Complete 25 hours of CLE. 12.5 of the credits shall be obtained in accordance with the requirements set forth in Supreme Court Rule XXX(3)(b), and the remaining 12.5 hours may be in any other approved subject matter.
b. Complete all requirements of the Louisiana State Bar Association’s “Transition Into Practice” program.

The Transition Into Practice program is a mentoring program that seeks to provide practical lawyering skills to new attorneys.

This decision generated some amazing dissents that underscore exactly why states like Louisiana are suffering massive outbreaks. A justice declared that canceling the in-person July exam was an “overreaction to the virus.” Another dissenter branded it “gifting a license,” while yet another declared:

This Order labels this free pass as an “emergency admission.” And I ask, “Just what is the emergency?”

Hmm. Where could that emergency be? On June 22, Louisiana’s three-day rolling average of infections was 575. Yesterday, it was 2,667. So, yeah, there’s the emergency.

In fairness, Justice Genovese pivots from this to claiming that there’s no reason to let any of these applicants practice law because there are already enough lawyers in the state by his estimation. He also zeroes in on the canard that because 25 percent of examinees fail the bar exam this order will mean a quarter of these new attorneys will lack competence, which isn’t how bar exam scoring works and it takes very, very little effort to do the research to figure that out.

“There’s no emergency! It’s all an overreaction!” This is what a death cult looks like.

Thankfully, cooler heads narrowly prevailed in Louisiana.

(Full order on next page.)

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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.

The coronavirus and the resulting government shutdown orders have profoundly altered our way of life. Most had to work from home while some couldn’t work at all. In-person meetings with clients and colleagues became impractical or even illegal in order to control the spread of COVID-19.

The existing tax law applied to the new normal will create some tax surprises. Here are a few situations.

Fewer deductible auto expenses. Due to the shutdown orders, many people did not drive as much as they used to. The good news is that people are paying less in gas and maintenance bills. Many insurance companies offered to (or were required to by law) reduce insurance premiums during the shutdown period.

But this also means that self-employed people will have less in automobile deductions. Generally, auto expense deductions are claimed using one of two methods. The standard mileage method generally allows a deduction for every mile driven for business purposes. The actual expense method generally allows a deduction for the expenses actually paid, such as gas, maintenance, depreciation, registration, and lease payments. But the deduction is prorated, based on the percentage the car is used for business purposes. For example, if you spent $1,000 on auto expenses for a car that is used 80% for business, you are allowed to take an $800 deduction.

I doubt that the IRS will make special accommodations for the auto expense deduction rules due to COVID-19. Just keep in mind that if you are driving less and spending less on auto expenses, expect to get less in tax deductions as a result.

Meal expenses. Currently, the rule on meal expenses connected with a business activity is that 50% of the cost is deductible if the price is not extravagant or lavish, the taxpayer or their employee is physically present, and the meal is provided to a current or potential business contact.

The problem is that the shutdown orders prohibits dining-in at restaurants. Also, when the shutdown orders are lifted, most restaurants are limiting the number of guests in order to meet social distancing guidelines. So most business lunches with business contacts are done virtually at home.

Despite the restrictions, it is possible to comply with the rule. For example, a business owner can invite a colleague to his home and discuss business. Food can be ordered and delivered to his home. However, I do not see people doing this on a regular basis.

But the shutdown order can create ambiguities. For example, suppose one person can pay for the food and have it delivered to their contact. But if they talk virtually using video, are they physically present?

What I realistically see happening is that people will pay for their own meals when participating in a virtual meeting with business associates. Since the meal is not provided to a business contact, is the meal expense still deductible? What if I made the food at home? Are the cost of groceries tax deductible?

I am hoping the IRS will issue some guidance — either through a notice or temporary regulations — that addresses business-related meal costs in these situations. Virtual meetings — either by phone or video chat — should temporarily be considered meeting the “physically present” requirement.

Also, food purchased from a restaurant for personal consumption should be deductible so long as it was purchased before a scheduled virtual business meeting. That can incentivize businesses to order more often from struggling restaurants. And the tax deduction can help since we are paying not only for the food but also tax, tip, delivery fee, the health insurance surcharge, the living wage surcharge, the climate change surcharge, and now the COVID-19 surcharge.

Unemployment income is taxable. Currently, unemployment benefits are taxable income. Why? I have no idea.

With the federal Pandemic Unemployment Assistance providing $600 per week on top of the state’s existing unemployment benefits, some people can receive substantial money, which can mean substantial surprise taxes. I say surprise taxes because most people mistakenly (but understandably) think that unemployment benefits are tax free.

This tax tends to be most painful to those who are already in a mid- to high-tax bracket and received benefits in the high four-figure range.

Expenses paid with PPP money are not tax deductible. Many businesses received money through the federal government’s Paycheck Protection Program (PPP). The money is a loan, although it can be forgiven if a certain portion is used for payroll and the rest for certain expenses such as rent and utilities. Thankfully, the forgiven amount is not considered taxable income.

However, the IRS has ruled that if expenses are paid with PPP money, and the loan is forgiven, those expenses are not tax deductible. The rationale is that since the forgiven money is not taxable income, it is only fair that you cannot take a deduction using that money.

The problem is that a lot of people — particularly gig economy independent contractors — will either not know about this rule or forget about it. Some bookkeepers and accountants also might not know about the rule or may not apply it correctly for a number of reasons. Given the low audit rates at the IRS, this might make the rule difficult to enforce.

I anticipate that the SBA will issue a tax form to the IRS informing them of the PPP loan amount the taxpayer received and whether it was forgiven. The IRS will then require the taxpayer to complete a special form detailing what the PPP funds were used for and then add the amount back to taxable income.

So if you received PPP money and managed to get it forgiven, just remember to expect a higher tax bill.

Take advantage of the home-office deduction. As most of us are forced to work from home, our home utility bills are likely to rise as a result. If you are self-employed, then a portion of these expenses are tax deductible if your home is considered a home office.

To qualify for a home-office deduction, you must regularly use part of your home exclusively for conducting business.

Also, the home must be the principal place of business. This means that you use your home regularly for administrative or management activities and you have no other fixed location to do so. Alternatively, your home is the principal place of business if you physically meet clients and customers there.

Before COVID-19, some self-employed people did not qualify for the home-office deduction because they had a separate office location, and that is where they did most of their administrative work and physically met with clients or customers.

But now, most government shutdown orders and landlords prohibit or severely limits when business owners can enter their offices. There are also similar prohibitions and limitations on when business owners can meet with their clients or customers. So an argument can be made that your home is the principal place of business because there is no other fixed location to perform administrative or management duties. And it is difficult or impossible to meet clients in your office due to the shutdown orders.

Some people did not take a home-office deduction even though they qualified for it because they thought it would turn them into an audit target or the compliance rules were just too difficult. But now that working from home is the new normal, more people will claim this expense.

For single people, I would recommend using the largest room in the house as an office to maximize the deduction. Since these are usually the living and dining rooms, this strategy is not feasible for family households.

While I think IRS auditors will be understanding if the home-office deduction becomes an issue, it would be very helpful if they issued guidance on claiming the home-office deduction in light of COVID-19 and the shutdown orders.

Due to the lifestyle changes we were forced to make due to COVID-19, we are spending less money on tax-deductible expenses. Assuming income remains steady, some businesses might expect a higher tax bill. It is best to know about it now and prepare for it.

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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.

Ken Griffin is known to be rather particular about the security and use of his trade secrets. And, as it turns out, those of his clients as well.

Over a two-year period until September 2014, the market-maker removed hundreds of thousands of large OTC orders from its automated trading processes, according to Finra. That rendered the orders “inactive” and so they had to be handled manually by human traders.

Citadel Securities then “traded for its own account on the same side of the market at prices that would have satisfied the orders,” without immediately filling the inactive orders at the same or better prices as required by Finra rules, the regulator said….

Nearly half of the 467 limit orders reviewed by the regulator in the six years until September 2018 were found to violate Finra’s requirements to display orders. The bulk of the violations were for failing to execute trades against existing quotations in a timely manner, Finra said.