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More than 60 million Americans are currently under some type of curfew order, in almost 50 cities across the country. The President has threatened to invoke the Insurrection Act to send in the military to put down protests. Following nearly three months of COVID quarantine, the American people are now facing a different kind of shutdown, and the threat of violent enforcement is very real. And with COVID spreading nearly unchecked in jails and prisons, the consequences of mass arrests are grim.

Whether you are in the streets or sheltering in place, it’s a good time to catch up on recent developments in police liability litigation and learn how to protect protesters in the streets and the courtroom. Check out these five crucial programs:

1. Protest Lawyering: From the Street to the Courtroom: This engaging program discusses how attorneys can support protesters in understanding their rights before an arrest takes place.
2. Protest Lawyering Part II: Mass Arrest Arraignments: This course continues where the previous program leaves off, analyzing courtroom tactics and defenses when representing protesters following a mass arrest.
3. Using Police Misconduct Databases in Criminal and Civil Rights Litigation: This state driven program delves into the ways attorneys can obtain information about prior police misconduct, and how to use that data in the courtroom.
4. Police Liability Under Section 1983: The Year in Review: This 2019 program analyzes recent police misconduct litigation, including cutting-edge theories of liability and how SCOTUS is handling the qualified immunity doctrine.
5. Law Enforcement Liability Under Section 1983: Critical Steps for the Trial Lawyer: This practical program walks viewers through trial practice for a high exposure police brutality case, including discovery issues, pre and post-trial motion practice, jury selection, witness examination, and more.

If you are protesting, please take the proper pandemic precautions to stay safe and protect others. To get involved in protest defense in your capacity as an attorney, check out the National Lawyers Guild’s Mass Defense Program, or donate to The Bail Project to help get protesters out of jail.

And remember, Black Lives Matter.

Related Content:

1. COVID-19 in Jails and Prisons: Civil Rights Litigation in Response to the Crisis
2. Political Law Updates During the COVID Crisis
3. Advocating for Political Activists On the Streets and in the Courtroom

The Manatt, Phelps & Phillips, LLC law firm has been sued in the United States District Court for the Southern District of New York for allegedly breaching its engagement letter by failing to file suit against Under Armour. The complaint, which was filed on June 3 and includes a count for fraud in the inducement, was filed by Multiple Energy Technologies, LLC, which claims that it retained Manatt for the specific purpose of pursuing a false advertising claim against Under Armour.

Multiple Energy Technologies says that Manatt understood and represented that it would serve as legal counsel for the company in disputes against Under Armour and Hologenix, LLC, but that it only focused on the latter entity, failing to initiate any action against Under Armour during the four months that the representation arrangement was in place. The complaint does not attach the engagement letter, but quotes a portion of it that purportedly states that Manatt would “represent and advise [MET] in connection with a false advertising claim against Hologenix LLC, Hologenix, Inc., and Under Armour (the ‘False Advertising Claim’).”

A lawsuit was filed against Hologenix on February 28, 2019, with Manatt noticing its appearance on behalf of Multiple Energy Technologies. Multiple Energy Technologies says that it continuously asked Manatt strategy questions concerning Under Armour and that Manatt ultimately answered that Under Armour was not covered by its engagement, demanding additional monies from Multiple Energy Technologies if it wanted to pursue separate legal action against Under Armour.

Manatt eventually withdrew from representing Multiple Energy Technologies in the litigation that was initiated against Hologenix; Multiple Energy Technologies claims that the withdrawal came after Manatt attempted to impose new terms of engagement on it and after Multiple Energy Technologies made many inquiries as to why no action was being taken against Under Armour.

A lawsuit was later initiated by Multiple Energy Technologies against Under Armour, which remains pending in the United States District Court for the Western District of Pennsylvania and seeks injunctive relief as well as damages for Under Armour’s alleged breaches of duties owed to Multiple Energy Technologies as well as misappropriation of Multiple Energy Technologies’ trade secrets and proprietary information. Multiple Energy Technologies is represented by White and Williams LLP in that action.

Multiple Energy Technologies’ lawsuit against Manatt includes four causes of action. The breach of contract claim asserts that Manatt breached the engagement agreement when it unilaterally decided that Under Armour was not included in the scope of work and that the cap on fees, included in the engagement agreement, did not apply to taking action against Under Armour. An unjust enrichment claim says that Manatt should be required to return any monies it is holding onto that Multiple Energy Technologies provided as a retainer and that were not used prior to Manatt’s withdrawal from the Hologenix litigation. A declaratory judgment cause of action asks the court to rule that Multiple Energy Technologies owes no further fees to Manatt. Lastly, a fraud in the inducement cause of action claims that Manatt, through its partners (including Barry Lee), affirmatively stated that it received firm-management approval to enter into a capped-fee arrangement that included litigation against Under Armour. Multiple Energy Technologies relied on the representations and was thus injured by the reliance on such misrepresentation. Multiple Energy Technologies is seeking punitive damages based on the alleged fraud in the inducement.

I have reached out to Manatt for comment on the pending litigation and, if received, will update this story.

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.

I am generally a bit hesitant to speak up, especially when there are so many competing voices echoing similar sentiments in the social media chambers we all occupy. But I cannot be silent any longer. I have seen a number of articles addressing the plight of black professionals fighting to exist in corporate America, but I have yet to see any commentary that specifically addresses the demographic to which I belong — the black junior associate attorney working at a large corporate law firm aka “Biglaw.”

I think black attorneys such as myself are in a uniquely challenging position. In addition to being forced to maintain the same semblance of composure and level of productivity as our non-black counterparts (a level which, for a whole host of reasons, is already difficult to replicate), the potential repercussions for vocalizing our frustrations (about society, about management, about anything, frankly) are often far more subtle than an immediate dismissal. Rather than being viewed as a valued team member offering earnest feedback with the goal of making contributions to enhance your work environment (thereby leading to happier and more productive employees, increased minority retention, and a healthier bottom line for the firm), the overly vocal black associate is likely viewed as a complainer — judgmental and difficult.

And, if these sorts of mischaracterizations are not enough, there is always the ever-present threat of not being able to generate enough work. If you fail to bill an appropriate amount of hours, the writing for your future career at ABC firm is all but written on the walls. Of course, as an associate, you are not expected to generate your own client billable work. Your clients are your practice group partners and your senior associates. These are the people tasked with training you in the art of lawyering and the majority of the time, these “clients” are also your managers — the people with whom said junior associate would be expected to raise any issues or concerns.

Surely, dear readers, you can understand the inherent tension with this arrangement. It leads to black associates carrying the very real fear of being “blackballed” (wherein partners and senior associates no longer wish to work with you and rather than explicitly tell you this, they seemingly begin to not have assignments available when you ask for work, or they continually promise to “keep you in mind for the next one” but that matter never arrives). What your clients do not say is that the reason you are no longer being selected for work (and therefore no longer being invested in and trained) is because your clients are more comfortable working with Josh, your white male colleague who never really has any negative feedback to make about the firm or his clients. So, as time goes on, Josh continues to generate multiple times the amount of work you do. Your clients like working with Josh because he is psychologically easier to engage with and for many of your clients (who are also white men), Josh reminds them of themselves — eager, talented, hardworking. Next thing you know, it’s the end of the review period and your hours pale in comparison to Josh, who, let us not forget, has generated multiple times the amount of work as you. As annual reviews approach, these numbers will serve as a clear indication, immortalized in black and white ink, that you simply aren’t cut out for this line of work. You clearly weren’t dedicated enough to the work. After all, if you were, your numbers would be better. And after the low hours are unveiled, there will be meetings to discuss how you aren’t a good fit for ABC firm and that you will need to find a new job.

The aforementioned scenario happens routinely in Biglaw. It is a known contributor to Biglaw firms’ poor retention rates of black junior attorneys and one of the key reasons black attorneys are not promoted through the ranks to partnership. It is also the exact reason that being a black Biglaw associate is uniquely difficult. Anyone with a basic knowledge of the social, cultural, and historical context of the United States and the nature of human psychology can quickly understand how a junior black associate verbalizing concerns and offering valid criticisms (even asking pointed questions) can lead to undesirable outcomes for said black associate. There’s no safe and polite way for the black junior associate to express frustrations to white leadership. These are uncomfortable conversations and the potential downside is often deemed too great a risk to take.

Of course, this is the reality of the black junior associate whether there is a pandemic or not — and whether there is a highly publicized black murder or not — so it’s not that recent events have changed anything. But the lack of support that some firms’ leadership have demonstrated with their deafening silence towards their black attorneys is astounding.

Additionally, Biglaw firms are not immune from the economic impact of COVID-19, and in spite of the fact that right now black attorneys are undoubtedly feeling the most exhausted and vulnerable that they have felt in recent history, everyone recognizes the importance of being grateful for retaining your job during a recession. Few of us are interested in risking our financial security for the sake of being “authentic” or feeling “heard” or even “valued” at our firms of employment. This truth is disappointing and disheartening, and it is entirely understandable.

To be fair, not all firms have fumbled this opportunity to fight the narrative that Biglaw is another heartless faction of corporate America. There are certain firms and leaders who have made respectable efforts to acknowledge the weightiness of this moment, suggesting that their black junior associates will not be forced to carry these burdens alone. Still, there are plenty of firms that have effectively done no more than wave at their black associates who are drowning and offer them a half-deflated life vest.

Miraculously, many of us will catch the life vest, silently patch the holes, and continue to swim forward. We are our ancestors’ wildest dreams. Black people have been resilient for over 400 years and we will not stop now.

Lauren E. Skerrett is an associate attorney at a large, multinational firm. She graduated with a BA in philosophy from Washington and Lee University and obtained her JD from Northwestern Pritzker School of Law, along with an LLM from Institut d’Études Politiques de Paris (“Sciences Po”). All views expressed belong to her and should not be attributed to any organization with which she is affiliated.You can reach her by email at lauren.skerrett@gmail.com.

The outbreak has hit an economy that was experiencing its worst crisis in a decade, marked by shortages of food, medicines and foreign currency.

Minister Mthuli Ncube said the funds would be spent on protective equipment and go towards payouts to those families worst impacted by COVID-19.

In all, the government aimed to raise 1 billion Zimbabwe dollars in emergency coronavirus funding, with the rest coming from “the insurance and pension funds”, he told a parliamentary committee, without giving details.

Banks and other local investors are usually the main buyers of Zimbabwe’s domestic debt.

Zimbabwe, which has experienced bouts of hyperinflation in the last decade, does not qualify to borrow from international lenders like the Word Bank and International Monetary Fund due to longstanding arrears.

The treasury has resorted to domestic borrowing to help finance the budget, while the central bank frequently provides unbudgeted subsidies to farmers and gold producers, fuelling inflation, which rose beyond 750 year-on-year in April.

Post published in: Business

* A receiver may be appointed to oversee the dissolution of Cellino & Barnes. That receiver would have tough decisions about what to do with the jingle. [New York Post]

* The former police officer accused of killing George Floyd is being represented by a new lawyer. [Reuters]

* An attorney who is also a police officer has been prohibited from working on traffic matters in courts located in the county where he is a cop. [Bloomberg Law]

* President Trump is already being challenged over an executive order he signed targeting social media. [Washington Post]

* Steven Avery, a subject of the Netflix series Making a Murderer, has been diagnosed with COVID-19 according to his lawyer. [Daily Beast]

* The Washington State Attorney General is suing tuna companies for allegedly fixing the price of their product. Hope the defendants don’t use “canned” arguments when defending the case. [Spokesman Review]

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.

Protests demanding justice for Floyd, a black man who died in Minneapolis after a policeman knelt on his neck for nearly nine minutes, have spread across the United States and turned violent.

Robert O’Brien, President Donald Trump’s national security advisor, told ABC news in an interview on Sunday that countries such as Russia, China, Iran and Zimbabwe were adversaries that were using the unrest to stoke tensions in the United States.

Washington has frequently criticised Zimbabwe’s human rights record in the past, including crackdowns on opposition protests.

In a statement, Zimbabwe’s Foreign Minister Sibusiso Moyo said O’Brien’s accusations were “false and deeply damaging to a relationship already complicated due to years of prescriptive megaphone diplomacy and punitive economic sanctions”.

“We take due note of the measures deployed by the U.S. authorities to deal with the challenges currently confronting them. At the same time, we recall the harsh U.S. criticism and condemnation of our own response to multiple instances of illegal, violent civil unrest,” said Moyo.

In a statement in response, Nichols, the U.S. ambassador, said the United States would continue to speak out against injustices at home and abroad.

Post published in: Featured

This commentary notes that tardy official communication of policy promotes disinformation and misinformation. Further disinformation can arise from a lack of opportunities for public participation in policymaking. Resolving these problems in tackling COVID-19 information pathologies in this information age requires early communication by governments and the provision of quick and clear channels for legitimate public participation in policymaking.

Four incidents from Zimbabwe’s COVID-19 response illustrate disinformation and misinformation driven by shortcomings in the policy communication and participation scheme. The background to these incidents included widespread panic over a suspected positive COVID-19 case in mid-February 2020; the person eventually tested negative. Neighboring South Africa had also confirmed its first positive COVID-19 case at the beginning of March 2020 and was announcing exponentially rising cases and the onset of local transmission throughout early-mid March 2020.

The four incidents are as follows.

Some days before 16 March 2020, a message relating to CIMAS’ role in combating COVID-19 began circulating on WhatsApp. CIMAS, a private entity, is the dominant medical aid provider in Zimbabwe. The message stated that anyone who suspected that they may be COVID-19 positive should call CIMAS’ emergency number and they would get an ambulance to take them to hospital. Further that CIMAS would disinfect their homes. The message stated that CIMAS had been funded by the United Nations to make these services available for free. On 16 March 2020, CIMAS issued an open letter refuting this and stating that the only correct procedure when COVID-19 is suspected is to follow the guidelines outlined by the Ministry of Health and Child Care. On 20 March 2020, a Ministry of Health and Child Care toll-free hotline was established and those who suspected they may have COVID-19 were directed to call. The question of funding for an ambulance or home disinfection has not been addressed.

On or just before 17 March 2020, a press statement emerged which purported to emanate from the University of Zimbabwe, a public university which is the country’s flagship tertiary education institution. The press statement asserted that the university would be closed from the 19th of March 2020 because a student and a faculty member had tested positive for COVID-19. On 17 March 2020, the university issued a statement advising that this press statement did not originate from them. Two days later, the president announced that all educational institutions would close on 24 March 2020.

As a measure to cope with the coronavirus pandemic, the government of Zimbabwe imposed a three-week lockdown period running from 30 March 2020 to 19 April 2020. A press statement dated 10 April 2020 emerged on WhatsApp purportedly emanating from the president. The statement asserted that the ongoing three-week lockdown had been extended by fourteen days. The president declared that he had issued no such statement. The question of whether the lockdown would be extended remained unanswered until the last day of the initial lockdown period. On Sunday 19 April 2020, after 4 pm, the president announced that the lockdown would be extended by fourteen days.

Finally, a press statement purportedly emanating from the president and dated 07 April 2020 appeared on WhatsApp. It stated that rent payments would be suspended during the lockdown period. The government disavowed the statement on that day and noted that government had discussed and rejected that option, a detail that had not been publicly communicated prior to this. One week into the two-week extension – with one week left of an aggregate five-week period, the government announced that there would be a rent and mortgage payment deferral for the entire lockdown period.

The production and initial circulation of the statements amounted to disinformation.

In all four cases, the information traveled quickly through WhatsApp. While internet services are expensive in Zimbabwe, data bundles limited to WhatsApp are relatively affordable.

In all of these cases, the government was silent for a long time on matters in which the public was entitled to expect the government to set forth a position. Disinformation filled the information void created by such silence. The disinformation elicited policy clarity from authorities, even if through denials. Significantly, no attempts at disinformation controverting the authorities’ position – once one was given – have been reported in any of these matters. Information deficiency enabled disinformation to spread through well-meaning misinformation. Early clarity on the government’s position could have curbed the disinformation as the government response did curb the misinformation.

It is notable that, to the extent that the government was directly implicated, it ultimately took measures similar to those suggested by the disinformation. Thus, disinformation may also have filled a perceived participation gap. There was little public inclusiveness in the COVID-19 response. Public health experts did not play a publicly active role; the COVID-19 taskforce is composed entirely of government ministers, which has led to the view that politicians rather than scientists lead the COVID-19 response. In fast-moving circumstances where it was unclear how government was deciding issues arising in the COVID-19 response, disinformation may have sought to bring to government’s attention particular opinions on those issues.

The above situations reflect a variant of disinformation which amounts to a call – and associated misinformation which arises from the need – for early communication by governments of policy information of importance to decision-making by members of the public during crises. The disinformation may also be indicative of a desire for better participation channels during crises. Disinformation is often perceived as being motivated by a desire to harm for personal profit, for political gain or out of malice. The cases above indicate that disinformation sometimes breaks from that mold. This matters when crafting solutions to information pathologies.

Parity of reasoning suggests that disinformation and misinformation could also arise from ambiguity in authorities’ communication. Disinformation here is driven by a desire for clarity on authorities’ position, while misinformation increases because people are more likely to believe alternative information sources when they cannot trust official sources.

In the cases above, authorities rejected the statements. The day after extending the lockdown by fourteen days, the government arrested the alleged source of the lockdown extension rumor and charged him with distributing false news, an offence for which the statutory maximum sentence is twenty years imprisonment.

With disinformation motivated by information and participation shortcomings, criminal proceedings are an inappropriate response. Creating phony statements was undoubtedly misguided, but the key solution to that problem is early, clear information with provision for legitimate participation in policymaking.

Zvikomborero Chadambuka is a Ph.D. student on the Institutions, Economics & Law program at the University of Turin and a visiting researcher at Cornell Law School.

Post published in: Featured

The four leave office after completing their maximum two terms amounting to 10 years. The Commissioners were appointed in 2010. The Commission already had a vacancy after the resignation of Commissioner Carrol Khombe on 30 October 2018, which position has not been filled to date. This leaves the Commission with a total of five vacancies out of the full complement of nine Commissioners in terms of section 242(1)(a) and (b) of the Constitution of Zimbabwe, 2013 and a statutory quorum of five Commissioners for the discharge of official business requiring the Commission as a whole.

The Forum notes with disappointment the lack of urgency on the part of the authorities in appointing Commissioners leaving the Commission improperly constituted. Section 5 of the First Schedule of the Zimbabwe Human Rights Commission Act [Chapter 10:30] states that on the death of, or the vacation of office by, a Commissioner, the President shall fill the vacancy within three months. The provision is meant to ensure the smooth running of the Commission. Commissioner Carrol Khombe’s replacement has not been made for over one and half year, in violation of the legal requirement for such replacement to be done within three months. The President is required to gazette the vacation of the Commissioner from office, causing Parliament to commence a nomination and interview exercise.

Anticipating the retirement of four Commissioners in May 2020, Parliament ought to have commenced with the recruitment process to identify replacements for the retiring four Commissioners. The delay has the fatal effect of arresting procedural meetings by the Commission. Any reports made by the Commission cannot be published as they require adoption by Commissioners constituting a quorum.

The powers to investigate, document, report and recommend remedial action in terms of the Constitution are functions that are at the heartbeat of the Commission’s existence to ensure the protection and promotion of human rights for all.  Yet this is defeated under the status quo.

This comes at a time when the government has gazetted the Constitution of Zimbabwe Amendment (No. 2) Bill which, among others, seeks to remove the Commission’s powers to receive and consider complaints from the public on maladministration by public officials, effectively limiting the scope of the Commission while returning an Ombudsman Office that lacks the independent of the Commission.
The Forum calls on the following:

• The Parliament and the President to urgently finalize the process of recruitment and appointment of five Commissioners of the ZHRC to ensure that critical functions of the Commission are not unduly suspended; and
• The government to withdraw the Constitution of Zimbabwe Amendment (No. 2) Bill which takes away elements of checks and balances, institutional independence and accountability.

Post published in: Featured

A leading Zimbabwean lawyer, Adv Thabani Mpofu, has been arrested by the Police, apparently on two charges of defeating or obstructing the course of justice arising out of an affidavit he is said to have prepared and filed in court.  He was arrested on Monday and has been detained in police cells since then.  He is expected to be brought to court this morning.

The Law Society of Zimbabwe has issued a statement expressing profound concern at Adv Mpofu’s arrest and detention, pointing out that the State has an obligation to allow lawyers to perform all their professional functions without intimidation, hindrance, harassment or improper interference.  The statement can be viewed on the Veritas website [link].

Veritas associates itself with the Law Society statement and wishes to add some further points.

International Obligations

It is recognised internationally that lawyers play a vital role in upholding the rule of law and fundamental human rights, in particular the right to a fair trial.  If lawyers are to perform that role they must be independent of State control and free from harassment.  Article 16 of the UN Basic Principles on the Role of Lawyers (1990) states:

“Governments shall ensure that lawyers … are able to perform all of their professional functions without intimidation, hindrance, harassment or improper interference.”

This does not mean that lawyers are above the law or immune from arrest and prosecution.  What it means is that law enforcement authorities should not arrest a lawyer except where it is absolutely necessary to enforce a law.

Arrest Not to be Resorted to Lightly

Arrest is a drastic infringement of a person’s dignity and freedom of movement, and should not be resorted to unless it is the only practical way of bringing a person to justice.  Bringing suspected criminals to justice is the main purpose of an arrest, and law enforcement authorities must not use their powers of arrest in order to intimidate or humiliate suspects, or even to interrogate them because suspects have a right to silence guaranteed by section 50(4)(a) of the Constitution, which reads as follows:

“Every person who is arrested or detained for an alleged offence has the right … to remain silent”.

Generally, suspected criminals should be arrested only if they are likely to abscond or flee the country, or commit further crimes or interfere with the evidence ‒ none of which seems to apply in Adv Mpofu’s case.

Bringing the Arrested Person to Court

Advocate Mpofu was arrested the day before yesterday and had not been brought before a court by yesterday evening.  According to section 50(2) of the Constitution, anyone who has been arrested:

“must be brought before a court as soon as possible and in any event not later than forty-eight hours after the arrest took place”

Those words “as soon as possible” are important.  The police cannot wait until the last minute, until the 48 hours are up, before bringing a suspect to court:  they must do so as soon as possible, not when it is convenient for them.

In this case was it really impossible, throughout the whole of yesterday, for the police to bring Adv Mpofu from Rhodesville Police Station to Harare Magistrates Court?

Conclusion

Veritas cannot comment on the merits of the State case against Adv Mpofu.  But even if the case is completely watertight ‒ and from what the Law Society has said there are doubts on that score ‒ his arrest was unwarranted and his detention excessive.  The conduct of the Police gives rise to a suspicion that the State’s real objective was to silence a human-rights defender and intimidate other like-minded lawyers.

Veritas makes every effort to ensure reliable information, but cannot take legal responsibility for information supplied

Post published in: Featured