Category: News Feeds

Flatten the Research Curve

Flatten the Research Curve

Wolters Kluwer

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

According to the ABA Section of Legal Education and Admissions to the Bar, which law schools out of compliance with accreditation standard 316, which requires 75 percent of students pass the bar exam within two years?

Hint: The ABA announced the noncompliance at its May 15th virtual meeting, and the schools were asked to submit a report by Feb. 1, 2021, and if those reports do not demonstrate compliance with the standard, they’ll be asked to appear at the council’s May 2021 meeting.

See the answer on the next page.

Deutsche Bank has gotten into a lot of trouble over the years for a lot of things, but mostly for money laundering and all that goes into it, especially not being very good at detecting money laundering. But it’s not the only Teutonic financial institution with an uncanny ability to look the other way when cash needs washing.

The Financial Conduct Authority has handed German lender Commerzbank’s London branch a £37,805,400 fine for failing to enforce proper anti-money laundering controls…. The fine relates to a five year period from October 2012 to September 2017, during which the FCA published guidance on how firms could step up their efforts to tackle money laundering.

Flatten the Research Curve

Flatten the Research Curve

Wolters Kluwer

Recently, the United Kingdom and Canada made the news regarding the estates of two violent citizens. In April, Gabriel Wortman died after he shot 22 people in Nova Scotia. Many consider the shooting the worst in Canadian history. Last week, in the United Kingdom, a judge ruled that Sally Challen would be allowed to inherit from the estate of Richard Challen, her dead spouse. Sally killed Richard in 2010 after decades of abuse. She was thereafter convicted and sentenced to life in prison. Last year, her murder conviction was overturned, and the act was deemed to be manslaughter. Her reduced sentence was credited with time served, and she has been set free.

During her court cases, Challen argued that she suffered from years of abuse by her husband, whom she killed by repeatedly beating him with a hammer. The defense team claimed that she was the victim of coercive control and suffered psychiatric illness as a result of the violent and consistent abuse.

The Slayer Rule is a common law doctrine wherein one who murders another cannot inherit under the decedent’s estate, whether it be through the laws of intestacy or the law of wills and trusts. In practice, the application of the Slayer Rule is complicated in cases where abuse is present, and questions will often arise as to whether the death was murder, manslaughter, or some form of self-defense. By Challen’s conviction changing from murder to manslaughter, she was able to reap the benefit of the inheritance laws.

In Challen’s case, she successfully challenged the murder conviction, which resulted in not only a mitigation of punishment, but an inheritance. Judge Paul Matthews, in his decision, noted the extreme and terrible conditions under which Challen was abused and also emphasized that every situation has its own set of facts. In this case, he stated that the circumstances were extraordinary and that the decedent certainly contributed to his own death.

Prior to Wortman’s mass shooting and arson of several Nova Scotian houses, he physically assaulted his common law wife. On the day of the killing spree, he attacked her and tied her up. When the spouse escaped from captivity, she ran to a neighbor’s house and reported Wortman to the police, warning them that he had firearms. Wortman was shot dead at a gas station following his killing of 22 people.

Wortman collected police memorabilia, including police cars and uniforms. He used a car marked Royal Canadian Mounted Police in his shootings and even wore parts of the police uniform.

Wortman, who was a denturist,  had a sizable estate, consisting of about $1.2 million in real property as well as savings accounts. He wrote a last will and testament in 2011 and named his common law wife as his executor and sole beneficiary. She has since renounced her role as executor. The Public Trustee will serve instead. Witnesses report that there was a history of abuse in their relationship.

Questions also remain as to where the firearms were acquired, although it is believed that he received them from a deceased friend. Some have stated that Wortman was paranoid as a result of the COVID-19 pandemic.

There also exists a proposed class-action lawsuit seeking damages from Wortman’s estate. The case claims that Wortman’s estate is liable to the families of the victims. Nicholas Beaton is the representative plaintiff because his pregnant wife, Kristen Beaton, unlike Wortman’s and Challen’s widows, did not survive.

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Cori A. Robinson is a solo practitioner having founded Cori A. Robinson PLLC, a New York and New Jersey law firm, in 2017. For more than a decade Cori has focused her law practice on trusts and estates and elder law including estate and Medicaid planning, probate and administration, estate litigation, and guardianships. She can be reached at cori@robinsonestatelaw.com.

With the new year looming, and no reason to believe COVID will be gone, how are students feeling? Harvard Law is going to online next semester and across the country, according to a new survey from TestMax, many law students and prospective law students are rethinking law school under those conditions. We chat with TestMax founder Mehran Ebadolahi about the survey results and his thoughts on how COVID might usher in lasting changes to the law school model.

On June 9, 2020, Health Canada’s Reimbursement Related to Assisted Human Reproduction Regulations came into force. Canada has long banned payment to egg and sperm donors, as well as surrogates, and questions have persisted as to when a reimbursement or other exchange of money might count as a “payment” and risk criminal prosecution under Canada’s Assisted Human Reproduction Act, and when it is permissible.

I had a chance to speak to Sara Cohen, a Canadian attorney and assisted reproduction technology law expert, about the new guidance and whether it is a step forward. Her answer was nuanced. Yes, the guidance document was generally positive in clarifying certain matters, but it did not address a bigger issue — the underlying law.

Good News. Cohen was quick to praise Health Canada in its process for developing the clarifications to the law. The agency had reached out to numerous professionals in the area, including Cohen, and she believes that the guidance document reflects the government really listening to what the professionals in the trenches were saying as to how the law was, and should be, interpreted. Good work, Health Canada!

For example, the Regulations permit reimbursements for things such as expenditures for groceries and telecommunication expenses. It wasn’t entirely clear before what those expenses could include. Health Canada provided a guidance document that clarifies that the costs must be extra and related to the assisted reproduction. The guidance document describes how a pregnancy requires the consumption of an extra 350 to 450 calories a day. (As does quarantine, no?) So intended parents can cover the costs related to the extra calories but should not be covering all of the surrogate’s groceries or her family’s groceries. Similarly, intended parents can pay telecommunication costs related to the pregnancy, such as long-distance charges to speak to related professionals or the intended parents. (Apparently long-distance charges are still a thing in Canada.) “However, much like for groceries, the person who reimburses must be able to demonstrate that the amount being reimbursed is for the costs that are directly related to the surrogacy and not disguised forms of payment (e.g., paying a surrogate mother’s entire telecommunications bill, including for cable TV, high speed internet, etc.)”

Bad News. While Cohen felt Health Canada did a good job of listening to practitioners on the surrogacy front, she thought the guidance document failed to address certain concerns when it came to gamete donation. Specifically, Section 12 of the Assisted Human Reproduction Act allows for surrogates to receive reimbursement for lost wages. By contrast, Section 12 specifies that a donor cannot be reimbursed for any expenditures in the course of donation, unless specified by the regulations. It then proceeds to leave donors out of the section permitting reimbursement of lost wages.

Cohen explained that many donors necessarily have to travel for a donation, and often, as a consequence, have to miss work. Failing to specifically permit the reimbursement of lost wages places an undue burden on the donor, and, for recipients who choose to reimburse, places them in danger of being found in violation of the law. The guidance document, though, specifically states that Health Canada does not believe that reimbursing a donor for her net lost wages is in violation of the Assisted Human Reproduction Act, even though it is not listed in the Regulations.

Further, the new Regulations provide for specific documentation of all reimbursement items. Cohen thinks, with the new government-issued forms on reimbursements, this is going to lead to a whole lot more required paperwork for surrogates and donors than was previously believed to be necessary.

Worse News. Cohen notes that while the guidance document is helpful to understand and safely work within the current law, the law itself is a problem. Cohen believes that Canada has outgrown the paternalistic law preventing surrogacy compensation and that it’s time to move on to more fitting regulation for assisted reproductive technology. Specifically, Cohen believes that Canadian egg and sperm donors, as well as Canadian gestational surrogates, like their American counterparts, should not be legally prohibited from receiving compensation beyond reimbursement of expenses.

Cohen is not alone. In 2018, Member of Parliament Anthony Housefather proposed a bill to permit compensating gamete donation and surrogacy in the Great White North. Since then, Senator Lucie Moncion has taken up the banner, with proposed legislation this year to strike out the compensation prohibitions.

Moncion’s proposed revisions to the law still include safeguards around the process, such as protections that prohibit any person from inducing someone to be a donor or surrogate if they’re incapable of consenting or if there is reason to believe they are being coerced. Makes sense. That is, after all, one of the concerns — that compensation of a donor or surrogate could lead to economic coercion. But if we can find better ways to protect against coercion, and other concerns, is it so unreasonable that a surrogate or donor receives compensation for their time and effort to help someone else achieve the dream of a child? In the United States, we have clearly answered the question in the affirmative. Perhaps, Canada, our strong and free neighbors to the north, will in time agree.

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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.

Clarence Darrow, America’s original celebrity lawyer, came out of retirement in 1931 to take up the defense of Grace Fortescue, a racist Honolulu socialite and murderer. In this week’s episode of the Lawyer Forward podcast, Mike Whelan uses the bizarre and incredible story of the Fortescue murder trial as a launchpad to explore racism, power, and moral flexibility in lawyering. What are the implications of the “emotional labor” required of lawyers in order to advocate for clients or causes with which they disagree? How far can values be bent before they break?

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.