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Over the past couple weeks, we have seen vigorous legal argumentation in hearings — by Zoom, of course — as to who has the legal right to be a United States citizen. Two cases — that of little Simone Mize-Gregg and Kessem Kiviti — stemmed from the U.S. government’s denial of citizenship to a child born abroad through surrogacy to a married same-sex couple where at least one parent is a United States citizen.

The U.S. government applied the “out of wedlock” section of the immigration code to both families despite their being married, arguing that the regular “wedlock” section requires that the parents of the child not only be married, but also that both parents be biologically related to the child. In response, the parents argue that that interpretation is incorrect, since the language of the statute, you know, doesn’t say that.

Two weeks ago, the United States District Court for the Northern District of Georgia heard argument by the government and the attorneys for two U.S. citizen dads (that’s right, both parents are citizens in this case), Derek Mize and Jonathan Gregg. Mize and Gregg are arguing that their daughter ought to be considered a US citizen. The government contends that, while Mize is a U.S. citizen by birth, he is not a genetic parent to the child and therefore does not pass his citizenship to his daughter. Gregg, on the other hand, is a genetically connected parent to their daughter. However, he is a U.S. citizen through his U.S. citizen mother, but born and raised in England. When looking to the “out of wedlock” section of the immigration code, a U.S. citizen genetic parent must also meet a U.S. residency requirement (which does not appear in the married parent section), to pass citizenship to a child born “out of wedlock.” The government contends that Gregg does not meet the residency requirement and therefore does not pass US citizenship to his daughter.

The attorneys for the family laid out their case that the government was (1) not abiding by the immigration code, and (2) doing it in a way that raised some serious constitutional questions.

Of intense debate was the question of the meaning of the statutory words “born of … parents.” The family’s attorneys argued that a child can be “born of” a married couple without being genetically related to both parents. After all, assisted reproductive technology (ART) with the help of donor eggs, sperm, and embryos, is common and growing. Moreover, traditionally, parents without genetic connections have long been recognized as parents through a marital presumption of parentage. For example, even 50 years ago, if a woman conceived a child genetically related to someone other than her spouse, the spouse was always legally recognized as the parent of the child.

The government’s attorney, however, argued that the plain meaning of “born of” requires that there be both a legal connection between the parents and the child and a genetic connection between both parents and the child.

Separate But Equal?

Last Friday, the District Court for District of Maryland held argument in the Kiviti case. Like in Mize-Gregg, the issue was the citizenship of the Canadian surrogate-born daughter of two dads, Roee and Adiel Kiviti. Different court, different judge. But the case involves similar facts and the same legal team for plaintiffs. While much of the debate was similar to the Mize-Gregg hearing in Georgia, the government attorney attempted to argue that there was little reason to be concerned for the non-U.S. citizen child, since she could just go through the naturalization process. To that, the judge had an interesting retort, “are you saying that [that process] is ‘separate but equal’?” For all of you junior litigators, I’ll tell you that it’s never a good sign if a judge asks you that question!

Citizenship by birth and naturalization are not, in fact, equal. You probably already thought of the first distinction, which is that naturalized citizens can never be president. More likely to be an issue, though, is the long and expensive nature of the naturalization process. Also, the decision to grant an application for naturalization is, at the end of the day, itself discretionary. The government can choose not to grant any application for U.S. citizenship. And then, even if you succeed at naturalization, the U.S. government can de-naturalize a citizen, if it so chooses, under certain circumstances. The government cannot, however, revoke citizenship to those who are entitled to it by birth.

Immigration Equality, a nonprofit with a focus on legal representation and advocacy for LGBTQ+ and HIV-positive community members, has been leading the charge in both of these cases, as well as two others of a similar nature. The most famous of the four cases — partially for the pure outrageousness of the facts — is that of Andrew and Elad Dvash-Banks. In that case, a married gay couple had twin boys with the help of a gestational surrogate in Canada. When the dads went to process the U.S. passports for the twins in order to move to Los Angeles to be closer to family, they found themselves in the bizarre situation where one twin was granted citizenship, while the other twin was denied.

The family prevailed in a case before the 9th Circuit, with the judge ordering that the government issue a U.S. passport for the other twin. However, ever conscious of the consumption of government and judicial resources, the government went ahead and appealed the decisions, and, despite having a lot of new judges in its ranks, the 9th Circuit Court of Appeals has been taking its sweet time getting to the case.

A fourth case, that of a married same-sex female couple, Allison Blixit and Stefania Zaccari, whose second child is being denied U.S. citizenship based on the same “born of” logic of the U.S. government, is in a bit of a transition. The case was moved from the District of Columbia to the District of New Jersey, following the family’s relocation to the Garden State, and is still pending a hearing.

The representation in the hearings for both the Mize-Gregg family and the Kiviti family included, in addition to Immigration Equality, Biglaw powerhouse Morgan Lewis Bockius, and Lambda Legal.

I had a moment to catch up with the Executive Director of Immigration Equality, Aaron Morris, to get his thoughts on the latest judicial movement. Morris noted that it is always hard to “read the tea leaves” from a judge’s questions, no matter how positive a hearing seems in your favor. However, he remained optimistic that justice would, ultimately, prevail.

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.

I haven’t been out with the protesters. You know I am old, which automatically puts me in the high-risk category. Plus, I have an autoimmune disorder … Strike Two! If I put a knee down for even a minute, it would be ugly. Getting old is not for sissies, but at least I have had the chance to grow old, which is more than can be said for George Floyd.

If you have ever read any of my rants on diversity and inclusion — and there have been a fair number of those over the years — now is the time to redouble our profession’s efforts. We have not been at the forefront. I don’t care what other professions or businesses have done or not done. I care about what we, as lawyers, have done and have not done. Does anyone else see the irony that a profession purportedly dedicated to justice and fairness has been dragging its heels on making us look more like what this country and certainly my state look like?

These two examples show we have a long way to go: this Wisconsin lawyer needs a refresher in common courtesy to both protesters and police these days. The lawyer should pay for coronavirus test for the protester. Spitting at someone is never cool, especially now. Disciplinary charges are pending, as well they should.

Remember “sticks and stones may break my bones, but words will never hurt me?” Au contraire. Which is worse? Spitting and assaulting or lawyers who think that words never hurt? What is wrong with us? I know we’re only a microcosm of the society at large, but really?

It’s not just diversifying legal practice but legal tech as well. As Bob Ambrogi notes in his blog, one aspect to increasing diversity is for consumers to buy products from diverse vendors, not just the same old, same old. It’s not different really than trying to get that first break in whatever career or trying to become a member of a union that requires a certain number of gigs before membership. Sometimes that first break is all that is needed. We all had one, didn’t we? Or if we didn’t, we should have had.

It’s no different in the legal profession. It’s an opportunity, the hand up that allows people the chance to show what they can do. How will COVID-19 affect efforts to diversify the profession? Since the profession’s response so far to diversity and inclusion efforts has been “meh,” I wonder if the pandemic will give the profession cover to not increase those efforts.

As if this is any indication, African-American applicants to law school are down.

This is not what we should want to see.

Even when African-Americans pass the bar, they don’t have the same career opportunities or opportunities for advancement. Black attorneys make up less than four percent of the lawyers in Biglaw, and barely over two percent of partners in the AmLaw 200. African-Americans compose 13 percent of the general population.

We lawyers speak out against injustice for our clients, arguing (or blustering or whining, whatever works) something is unjust or unfair. But we don’t seem to have much of a voice when it comes to diversity and inclusion. Why is that? And please don’t tell me it’s the clients that drive the decision as to who staffs a case. That should be our call, not the clients, but we often wimp out because it’s a “good client” that we don’t want to lose.

General counsel must share in that metaphorical knee to the neck. Donald Prophete’s opinion is worth the read.

So, it’s one thing to call for change, but it’s another thing altogether to make change happen? How do we do that? How do we improve our profession so that it looks more like this country demographically? How do we increase the pipeline of African-Americans who want to become lawyers but find barriers at every turn?

The experiences of a female African-American associate at a Biglaw firm explain how difficult professional life can be.

Women associates have a hard-enough time, but layer on the additional factor of being black, and it’s much worse.

Corporate America promises to do better, but that’s been heard before, again and again, ad nauseam. As a recent article in the New York Times pointed out, it’s not just criminal justice that needs attention, but economic justice. Whatever happened to the Occupy movement a decade ago protesting economic inequality?

Biglaw has trumpeted its commitment to racial justice, to stamping out racism. ATL has collected statements from approximately 60 law firms. So, how will those words translate into action a year or two from now? Will the needle have risen on the number of black lawyers in Biglaw? Will there be any more black partners? Any more black senior partners?

What steps will firms and corporations take to increase the number of black lawyers, the number of black law students? Any more black general counsels? Any more black lawyers in corporate legal departments? Any more black law school graduates? Talk has always been cheap. The legal world should not go back to business as usual. It shouldn’t but will it? All the firms’ statements are variation on the same theme that racism is evil and should be eradicated. What changes do firms and corporate legal departments intend to make? How will we know about them? And what will happen if changes are not made?

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.

As numerous lawyers already know from firsthand experience, many courts have had to adapt to the ongoing COVID-19 pandemic in order to continue operations while social distancing. A number of courts, especially in areas hard-hit by the pandemic — like New York and New Jersey, where I practice — are conducting virtual hearings and conferences because of current health concerns. In many circumstances, courts have used Zoom, Skype for Business, and other platforms in order to conduct virtual operations, which was rarely done before the pandemic. However, the tried-and-true method of holding court proceedings by phone is the most efficient way to conference matters in most circumstances.

Even before the COVID-19 pandemic impacted the courts system, it was not uncommon for court proceedings to be held by phone. Sometimes, attorneys were stuck in traffic and could not be at an appearance on time, so they were allowed to call into the proceedings remotely. At other times, attorneys had conflicts, and were given the ability to call into conferences by phone so that everyone was available to conference a case at a time that was acceptable for a court. In other instances, when conferences concerned trivial matters, courts did not see the need to bring all the parties into court to discuss the matter, and judges were content with holding conferences by phone. Most attorneys are used to calling into court conferences, and this typically involves using a call-in number and access codes, a process that is pretty hard to mess up.

However, since almost all court operations are being conducted remotely, many courts for the first time have been using videoconferencing platforms to hold court conferences recently. It has been difficult for many lawyers to get used to this new technology. As this website has covered at length, some attorneys have even appeared shirtless, in bed, or with unprofessional backgrounds while participating in videoconferenced court proceedings. I’d like to hope that this was due to misunderstandings about the technology, but we can’t count out the fact that some lawyers may have simply not understood decorum over videoconferenced court proceedings.

In any case, there are other practical concerns with videoconferencing court proceedings, which I have noticed while participating in remote court conferences over the past several months. If someone is on a videoconference, it is much more difficult for them to change rooms. Most people call in to remote court proceedings from home, and it is sometimes necessary because of noise and distractions to change locations. However, it is very difficult and awkward to change locations in your home when you are videoconferencing, since it is hard to keep the camera on your face, and other people on the call can see you moving around.

Furthermore, the use of videoconferencing apps is causing significant delays in some court proceedings. Sometimes attorneys need to download software in order to participate in videoconferenced court proceedings, and this can hold up appearances. In addition, issues with the internet can make the audio and visual feeds extremely choppy, which can make it difficult to understand what some people are saying. Moreover, videoconferencing usually makes the process of attending a court proceeding more stressful. When people videoconference, they need to make sure their space looks tidy, wear professional clothes, and take extra steps to ensure that people do not bother them during the call. Since people are usually home with some level of craziness already going on all around them, this can make an already stressful event even worse.

While it is understandable why courts wish to connect with attorneys through video, many judges have continued to simply hold phone conferences recently, and the results have been mostly great. Although people may sometimes talk over each other a little more on a telephone conference versus a video conference, this is usually not a big deal unless there are numerous attorneys on a call. Indeed, I recently attended a settlement conference by telephone, and although the case did not settle, the conference went smoothly. All of the parties could understand each other, and if the judge wanted to speak to one attorney without the other attorney listening, he could just call each lawyer directly. I admit that I have been on phone conferences that went too long, and the next conference called in, interrupting our conference. In addition, I have been on some videoconferenced court proceedings that have gone very smoothly. However, by and large, court conferences by phone have been the most efficient and least stressful way to hold remote proceedings.

All told, if the Supreme Court is conducting their oral arguments by telephone, courts across the country should also consider ditching videoconferencing in favor of the old-fashioned conference call. Dozens of judges and litigators have emailed me over the years, and I’d love to hear any input from jurists or practitioners about why videoconferencing is preferable for run-of-the-mill court conferences. Of course, evidentiary hearings, trials, and proceedings that require people to be seen may be better by videoconference. However, holding most remote court proceedings by phone can help reduce stress and eliminate technical challenges inherent with videoconferences.

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.

How is the employment scene looking for recent law school graduates? We’ll start with the good news: compared to the class of 2018, a larger percentage of 2019 law school graduates were able to find full-time, long-term jobs where bar passage was required or for which a law degree offered an advantage within 10 months of receiving their degrees. About 81 percent of 2019 graduates landed these plum jobs, up from 78.6 percent in 2019. In fact, these are strongest entry-level employment statistics in more than a decade. Hooray! Congratulations, one and all.

Now, for the bad news: the good news we just discussed wasn’t so good after all, because while the total number of desirable law jobs recent graduates landed increased by 720, more than 300 fewer law school graduates were trying to secure jobs. This is the sixth straight year that the declining number of law graduates has propped up their employment rate.

So, with fewer law school graduates competing for jobs, one would assume, or hope, that would mean that fewer law school graduates were unemployed 10 months after receiving their degrees, right? Wrong (and this data pre-dates the pandemic, so things could look even worse now for 2019 graduates).

Law.com produced several helpful charts based on law school employment data for the class of 2019. Today, we will highlight the most alarming chart of all, the law schools with the highest percentage of unemployed graduates. Here are the top 10 law schools on that chart for your sadistic viewing pleasure:

1. Pontifical Catholic University of Puerto Rico: 30.99 percent
2. Inter American University of Puerto Rico: 26.37 percent
3. Appalachian School of Law: 25.81 percent
4. North Carolina Central University: 23.93 percent
5. Western Michigan University: 22.26 percent
6. Golden Gate University: 21.50 percent
7. University of San Francisco: 21.01 percent
8. University of Puerto Rico: 20.24 percent
8. Southern Illinois University: 20.24 percent
9. Santa Clara University: 17.54 percent
10. Western State College of Law: 16.98 percent

That was depressing. (Once again, we suspect that all three Puerto Rico law schools landed on the list due to the fact that the island was devastated by Hurricane Maria and later by earthquakes and has been in recovery mode ever since.)

Click here to see the rest of the law schools with the highest percentage of unemployed graduates, as well as other informative charts detailing the law schools with the highest percentage of graduates working in Biglaw and in state and federal clerkships.

Are you a recent law school graduate who hasn’t been able to find a job? What has your law school done to help you? We’re interested in learning about your experiences — good or bad — and may anonymously feature some of your stories on Above the Law. You can email us, text us at (646) 820-8477, or tweet us @atlblog.

Law Grads Hiring Report: Job Stats for the Class of 2019 [Law.com]

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.

A Texas attorney is in hot water over the… unique way he chose to express his displeasure over COVID-19 precautions. Eric Yollick is facing a misdemeanor charge of criminal mischief for allegedly egging Montgomery County Judge Mark Keough’s car. Though Yollick has entered a plea of not guilty on the charge, he has also given interviews admitting to the egging.

Yollick told the New York Post he egged the judge’s car because he was angry over the COVID-19 stay-at-home order (which he characterizes as “unconstitutional,” because, of course he does), saying, “I threw one egg at Judge Keough’s car. I did this for all the right reasons. Mark needed to get this message because he wasn’t listening to people.” Probably because “people” aren’t virologists, but I digress.

Yollick’s account of the incident tries to play it off as a friendly joke:

“I wasn’t angry or anything,” Yollick said. “It was a humorous gesture between friends: ‘You laid an egg on Montgomery County, so here’s an egg for you.’ ”

Yollick said he then asked a female friend with him to snap a photo before getting paper towels to clean up the mess. Yollick also offered the judge $20 for a car wash, but Keough declined the offer, the attorney said.

Hours later, Yollick said, he went to Keough’s home and the pair hugged, seemingly putting the incident behind them. The pair had been “good friends,” Yollick said, adding that Keough is the pastor at the church he attends.

Yollick also made comments on social media and other forums that were critical of the judge’s order and he says that factors into the charges:

“It’s retribution by Mark Keough because he doesn’t like to be criticized for his lockdown orders,” Yollick said of the charge, punishable by a $150 fine.

Of course, those comments aren’t part of the charge, only the egging.

Judge Keough’s chief of staff of staff, Jason Millsaps, says he witnessed the egging.

“It’s unfortunate that he would go around egging people’s cars, not just the judge’s car, but anyone’s car for that matter,” Millsaps said.

But Millsaps wouldn’t comment further due to the ongoing investigation.

Trial for the misdemeanor is scheduled for October 7th.

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).

Moving to the cloud means changing perspectives, especially as clients and business demands shift. Firms need to determine what data needs to be secured, the cost of doing so now and in the future, and if they are best equipped to be the ones securing the data.

Firms should be evaluating their data security based on five criteria, while comparing internal measures against cloud provider offerings:

1. Physical security
2. Digital security
3. Intruder detection
4. Disaster recovery
5. Security processing

In the wake of George Floyd’s killing by Minneapolis police and the resulting protests, the White House has belatedly realized that perhaps they should do something about police violence after all.

Well, some people at the White House have grokked that there may be issue. The president is still tweeting insane nonsense about 75-year-old ANTIFA supersoldiers on a secret mission to jam police scanners. But with 69 percent of Americans saying that George Floyd’s killing is indicative of “broader problems in treatment of black Americans by police,” his staff have concluded they need to at least pretend to be concerned.

So they did what they always do. They went to Jared Kushner, who has successfully solved the Middle East, the opioid epidemic, and coronavirus, not to mention his stellar work revitalizing the government’s digital information systems. So he’s the just the man for the job!

Apparently the police have already heard and answered our prayers!

But just in case the country wants more than a hearty round of self-congratulation for the cameras, the presidential son-in-law and White House Chief of Staff Mark Meadows trooped down to the senate to visit the highest-ranking African American lawmaker on their side of the aisle, South Carolina Senator Tim Scott.

Scott, who is no stranger to being treated like a unicorn within his own party, recently authored a book with retired congressman Trey Gowdy on their “unlikely friendship,” predicated on the idea that no one would expect two members of the South Carolina congressional delegation from the same party to socialize together when one is Black and the other is white.

“They work together, eat meals together, campaign together, and make decisions together,” the publicity materials exclaim. Whodathunkit!

House Democrats, who were roundly mocked for kneeling in kente scarves in silent tribute to George Floyd — scarves which were given to them by the Congressional Black Caucus — unveiled a police reform bill which would ban chokeholds like the one which killed George Floyd, put an end to no-knock warrants of the kind police were executing when they shot Breonna Taylor in her sleep, limit qualified immunity, create a national registry of police misconduct to prevent bad officers from moving to other departments, increase Justice Department oversight of local law enforcement, restrict the transfer of military equipment to local police, and make lynching a federal crime.

The Republican plan, spearheaded by Senator Scott, is …. more modest. It would still permit police departments to use chokeholds and no-knock warrants and leave qualified immunity unchanged, but would instead offer more training to police. Plus, it would establish a commission to study the issue!

Speaking to NPR, Scott lauded “the establishment of a ‘National Police Commission’ study, so that we can figure out best practices that can [sic] used across all departments that we would at least direct funding and resources toward in that direction.”

“I basically shy away from telling local law enforcement: You shouldn’t do that or you can’t do this,” he added later. “I think [the Democratic] bill has a tendency to be seen as perhaps a nationalization of some of the underlying issues or techniques.”

Heaven forbid that “National Police Commission” get crazy and actually “nationalize” its conclusions!

Later the senator took to Twitter to defend his party against accusations that it hides behind the very few minorities in its ranks as cover for racist policies.

Which conveniently omits the fact that there are 51 members of the Congressional Black Caucus, all of whom are Democrats, including House Majority Whip James Clyburn and Caucus Chairman Hakeem Jeffries. The lone black Republican in the House of Representatives, Will Hurd of Texas, has not joined the group and is retiring anyway.

But forget all that. What’s important is that the GOP has finally overcome its reluctance and will agree to support an anti-lynching bill to prosecute civilians who target minorities for assault and murder. As for cops, though, they really need a commission to study the matter further.

Led By Tim Scott, Senate Republicans Begin Drafting Their Own Police Reform Plan [NPR]

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

In a bit of exciting news for those of you registered for the DC Bar Exam for the primary purpose of using the full portability of the UBE, the Court of Appeals just released a new order allowing applicants to request refunds.

DC announced a few days ago that it would cancel its September UBE administration and offer a non-portable online exam in October. Despite being the prudent public health decision, this caused an uproar among those applicants who signed up for the DC administration because their home jurisdictions, for example New York, had announced that certain applicants wouldn’t be able to take the test in the autumn.

For those applicants, removing portability from the DC bar exam eviscerated the whole value proposition. Rather than take an online exam in October and still need to take another exam at a later date, they may as well wait until they can take the home exam and then waive into DC with that score. Unfortunately, in its original order pushing off the exam, DC stuck to its deadline on issuing no refunds. Thankfully, that’s been clarified today.

If, despite these ongoing efforts to establish reciprocity, applicants wish to withdraw from the October D.C. Bar Exam, the court has made arrangements to refund fees. The court had previously indicated in the May 4th order that fees would be creditable to a future application for admission, but not refundable. Applicants may withdraw and request refunds by emailing BarExamRefund@dcappeals.gov. The deadline to request a refund is September 15, and applicants should allow 14 to 21 days for processing. Applicants who wish to withdraw and credit their fees to a future application, no later than July 2021, may do so by emailing BarExamWithdrawal@dcappeals.gov.

Good news for all those who were worried that they were out the money. And an impressive show of responsiveness from the Court!

Earlier: DC Bar Exam Manages To Screw Up Doing The Right Thing
Law School Deans Rail Against Grave Injustice Of… Waiting A Few Months To Take The Bar Exam

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.

There is no such thing as a “high-functioning,” impaired lawyer. There are only degrees of loss of functioning.

Brian Cuban (@bcuban) is The Addicted Lawyer. Brian is the author of the Amazon best-selling book, The Addicted Lawyer: Tales Of The Bar, Booze, Blow & Redemption (affiliate link). A graduate of the University of Pittsburgh School of Law, he somehow made it through as an alcoholic then added cocaine to his résumé as a practicing attorney. He went into recovery April 8, 2007. He left the practice of law and now writes and speaks on recovery topics, not only for the legal profession, but on recovery in general. He can be reached at brian@addictedlawyer.com.