Category: News Feeds

In 1984, a Soviet computer engineer and his clinical psychologist friend created a new game called Tetris. That set off a legal battle fit for a spy novel. In the end, one of the friends achieved fame and friendship; the other lost his life in a gruesome death. For lawyers, the distinction shows how our habits of mind make us ill-prepared for the internet’s “new socialism.”

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.

Home DNA tests have made fun gifts and brought to light some shocking truths. These often involve learning that a loved parent is unexpectedly not one’s biological parent. And, all too often, also learning that your mom’s fertility doctor is actually your biological father! Given the somewhat shocking number of discoveries along these lines, it has become clear that this was not an isolated practice by one or two doctors, but instead practically routine for some fertility doctors.

The shocking news doesn’t end there. The patients — who never agreed to a fertility procedure with the doctor’s own sperm — and their resulting children, have been surprised to find either limited or absolutely no legal recourse against the doctor. Many have tried, and, while a recent case provides a glimmer of hope, most claims through the courts have been dismissed.

The largest hurdle is the statute of limitations, which is inevitably long past by the time a holiday sale on 23andMe reveals the truth. Other obstacles include the fuzzy legal lines of what, specifically, the patient consented to. Does consenting to “anonymous donated sperm” mean that the “anonymous” part applied only to the patient (and not the donor-doctor); does a broad medical waiver or consent form include the doctor’s own sperm? Moreover, does a resulting child have standing against the doctor?

Since justice for victims has not come via the judicial system, legislatures have provided the next best hope. California, Indiana, and Texas have successfully passed legislation clarifying that this type of behavior by a medical professional is not okay and necessitates criminal and civil consequences. Two more states just successfully joined the world of updated laws for updated technology. Welcome, Florida, and my own state of Colorado.

Despite a pandemic grinding legislative wheels to a halt across the world, Florida and Colorado managed to successfully squeak out smart fertility fraud legislation in their 2020 sessions.

Florida’s New Crime: Reproductive Battery

Florida’s new law became effective July 1, 2020. It creates the crime of a reproductive battery, a third-degree felony, punishable by up to five years in prison, for any healthcare practitioner who intentionally transfers human reproductive material to the body of a recipient, knowing that the recipient has not consented to the use of the reproductive material or embryo from that donor. Further, if the healthcare practitioner is the donor of the reproductive material, the penalty increases to a second-degree felony, which means up to 15 years in prison. Importantly, the statute of limitations for reproductive battery does not begin to run until the date that the violation is discovered and reported to law enforcement. And, it is not a defense to the crime that the recipient consented to the use of an anonymous donor.

Colorado: Misuse Of Human Reproductive Material

Colorado’s legislature passed its fertility fraud bill, HB20-1014, on the very last day of the session with unanimous support. Governor Jared Polis signed the bill into law July 6, 2020.

The bill specifies that it is a class 6 felony for a healthcare provider in the course of assisted reproduction to use gametes or embryos with a patient without specific consent to that reproductive material. A class 6 felony in Colorado is punishable by one year to eighteen months in prison. It also creates a civil cause of action with specified compensatory damages, or liquidated damages of $50,000. The bill provides standing for not only the patient and patient’s spouse, but also for any child conceived as a result of the misuse of human reproductive material. Further, the bill specifies that conviction under the law would amount to unprofessional conduct under state licensing laws, which means the doctor would generally have to give up the right to practice medicine (a number of known doctor-donors currently continue to practice medicine).

I had a chance to connect with Maia Emmons-Boring, a victim of fertility fraud committed by a Colorado doctor, and one of the driving forces behind the Colorado bill. Emmons-Boring explained how her Colorado attorney (she currently has a case pending against her Colorado doctor-donor) set up a meeting for her with Colorado State Representative Kerry Tipper. She was nervous going into the meeting, never having spoken face-to-face with a state representative before, but was immediately put at ease by Tipper. She told her story — one of Emmons-Boring’s mother and father seeking fertility treatment, and trusting their doctor and his promise of an “anonymous donor.” Only decades later did they learn of the doctor’s breach of trust by using his own sperm. And then they learned that the law in Colorado did not clearly make these actions a crime or even clearly subject to civil action. Tipper promised to sponsor a bill to fix the egregious legal hole.

Emmons-Boring and her mother have been living in Texas since 2009 and, at their own expense, repeatedly traveled to Denver for the legislative hearings to tell their very personal stories. Emmons-Boring had been prepared to start over again in 2021, bearing the expense and emotional anguish as long as necessary. She was overjoyed to learn of the passing of the bill on the last day possible. She explained that the passing of this bill meant the world to her and her half-siblings, who were other victims of the same Colorado doctor.

One might think that this is a problem that will go away on its own, now that people can use of home DNA tests, and no self-interested medical provider would engage in this conduct. So what is the point of the legislation now?

Eve Wiley, a prime mover behind the Texas fertility fraud bill, has explained that these pieces of legislation are important for four reasons.

1. They act as a deterrent for bad acting doctors in protecting those struggling with infertility.
2. They serve as part of an educational campaign to highlight how grossly unregulated some parts of the fertility industry are.
3. These bills offer some sort of measurable accountability in a legal landscape that otherwise leaves the victims feeling helpless.
4. It opens the floor for conversation to the other marginalized voices within the fertility industry. For example, the donor conceived offspring, a lack of a national donor registry, and the lack of cap on live birth per donor. (Check out this podcast interview with Wiley and her donor-not-donor dad.)

These are, indeed, important discussions needing a great deal of further discussion — and action — in our country. In the meantime, good work, Florida and Colorado.

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.

Now that most people are quarantined at home with few diversions other than watching television and movies, many people have been talking about their quarantine watch list. Indeed, most of my friends have been discussing each of the series they have been binge-watching since the enactment of stay-at-home orders, and all of the somewhat strange and interesting TV shows and films that bring them joy during this rough time.

I myself have some weird tastes in television shows and movies, and I even still subscribe to Netflix DVDs so that I can get my hands on hard-to-find media that interests me. However, I hope readers will not find it too odd when I suggest that lawyers should watch The Paper Chase TV series in order to binge a good television show during the quarantine.

Most people within the legal profession are familiar with the classic 1973 film The Paper Chase. The movie stars the legendary John Houseman and involves the tribulations of a first-year law student as he handles his studies as well as a romance with the daughter (pre-Bionic Woman Lindsay Wagner) of his contracts professor. When I was in law school about a decade ago, people were still recommending that individuals watch The Paper Chase movie to get a sense about what law school was like and how they can succeed in classes. Of course, law school has changed a lot since the 1970s, and the research methods, teaching strategies, and other aspects of the movie do not really relate to the modern law school experience. However, the movie does encapsulate many of the difficulties that law students faced in the past and still encounter today.

I discovered during my second year of law school that The Paper Chase had been turned into a four-season television series during the 1970s and 1980s. I had never heard of a TV series involving law students before, so I decided to get my hands on the DVDs of the episodes. At first, I ordered the DVDs one at a time through Netflix DVDs, but I eventually heard that a hallmate of mine had seasons one and two on DVD. You see? At least one other person was interested in the series! In any case, I then churned through the first couple of seasons of the show pretty quickly, but seasons three and four were not available on DVD at that time. Fortunately, those seasons became available more recently, and I have since seen every episode of the series.

The Paper Chase is one of the most incredible television series I have ever watched. Probably the most unique aspect of the show is that even though it was filmed decades ago, it still mostly relates to the modern law school experience. For instance, the episode about on-campus recruiting is somewhat reminiscent of the environment during on-campus recruiting at many law schools across the country in the present day. In addition, the episodes about dorm life, politics among law review editors, and the stresses of exams are extremely accurate.

Of course, some of the book research that the students conduct in the television series has little bearing on the modern law school experience. In addition, episodes about the fights between law students and computer science geeks are more appropriate for media like Revenge of the Nerds rather than a true-life depiction of the law school experience. However, the series does capture the nuanced issues faced by all types of law students.

For instance, season three includes a middle-aged empty nester who attends law school later in life, which reminded me of many classmates I had in law school. In addition, the episodes about difficult decisions law students must make between clerking and taking a high-paying law firm job are also very real to many law students. In any case, no TV series or movie is going to be completely accurate about the subject matter it depicts, but The Paper Chase series does an amazing job detailing the trials and tribulations of law students.

This is the reason why pretty much every lawyer can enjoy and appreciate the series. Virtually every practicing attorney went to law school, and although there are different types of law schools, they all contain many common experiences: being cold-called in class, taking high-stress final examinations, jockeying for positions on law journals, competing for job offers, and a number of other struggles.

As a result, all lawyers can appreciate the situations of the series’ characters, since lawyers can definitely see themselves in the experiences depicted in the show. In addition, perhaps the older generation of lawyers would appreciate the series the most. The show is a reminder of how legal education was several decades ago, and we can appreciate all of the advancements that have been made more recently.

In the end, I highly recommend that lawyers check out The Paper Chase. Some may be immediately turned off by the fact that the television series is old, and some of the plot lines do not apply to more modern experiences. However, many lawyers can relate to the stories depicted in the show, and as a result, the series should definitely be on any lawyer’s quarantine watch list.

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.

The support from the PPP enabled [the council] to maintain operational continuity at a time of severe disruption due to the pandemic. We were able to maintain all our vital services to schools and candidates and at the same time develop a new online delivery system for the LSAT that enabled candidates to earn a score from the safety of their own homes and enabled this year’s applicant volumes to catch up with last year’s.

— Kellye Testy, president of the Law School Admission Council, commenting on the $5.3 million paycheck protection program loan the council received enabled it to develop the LSAT-Flex, an online version of the law school admissions exam that was used for the first time in June 2020 following the cancellation of in-person tests due to the COVID-19 pandemic.

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.

Let’s face it: 2020’s been a little rough. But tough times, like necessity, can be the mother of invention, and law firms can rise from the ashes from the lessons of this difficult year.
In this webinar, we will understand the primary drivers of profitability and how to drive more revenue through automation.

Join Bob Ambrogi, founder of LawSites Blog, and Rocket Matter’s CEO Larry Port for a webinar on July 9th at 1 p.m. ET/10 a.m. PT who will dive into ways to streamline your business.

Key Objectives:

1. Explore techniques to predict and improve profitability for law firms.
2. See tech demonstrations that make routine tasks, including getting paid, automated.
3. See how hourly billing can move to alternative fee arrangements and drive more revenue with technology.

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Holy structuring, Batman!

Yesterday Deutsche Bank inked a $150 million settlement with New York’s Department of Financial Services (DFS) for the bank’s failure to comply with anti-money laundering laws in its dealings with Jeffrey Epstein and two small, foreign banks.

In the Consent Order, DFS describes Epstein’s attorney making 97 cash withdrawals on his client’s behalf, totaling $200,000 over just four years. When asked why he needed so much money, the unnamed attorney claimed Epstein needed it for “travel, tipping and expenses.”

But the attorney had questions of his own for Deutsche.

In May of 2014, the attorney “inquired into how often he could withdraw cash on behalf of Mr. Epstein without triggering an alert.”

RELATIONSHIP COORDINATOR-1 sent an email to the branch manager stating that ATTORNEY-1 “asked how often they could come in to withdraw cash without creating some sort of alert,” and asking “Is it once a week? Twice a week? Once every other week?” The Bank has represented that it has no record of any response.

DB claims to have understood this as a question about its own $7,500 limit on third-party withdrawals, not an attempt to evade triggering a mandatory report to the Treasury Department for a cash transaction of $10,000 or more.

UH HUH.

In 2017, Epstein’s lawyer asked again, but this time he specifically wanted to know “whether a withdrawal transaction in excess of $10,000 would require reporting and, upon being advised that it would, broke up the withdrawal transaction over two days.”

Why said attorney asked the bank teller instead of Mr. Google about Treasury reporting triggers is unclear. But if he had done a minimum of research, he’d probably have discovered that the government takes a rather dim view of structuring transactions to evade reporting requirements.

Faced with the attorney’s apparently unequivocal admission that his goal was to evade federal reporting, not the bank’s own rules, Deutsche’s compliance department sprung into action!

No, not really, but they definitely gestured in the direction of action.

[An anti-money laundering officer], among others, spoke with ATTORNEY-1 and advised that (a) his patterns gave the appearance of structuring, (b) this pattern was unacceptable, and (c) he would be provided with additional information about CTR reporting requirements. ATTORNEY-1 represented that he had not intended to structure cash withdrawals. Bank personnel found ATTORNEY-1 credible and permitted him to continue to withdraw cash from his own and Epstein’s accounts.

They asked him if he was committing a crime, and he said “no.” Case closed!

Then in 2018, just before Deutsche closed the branch nearest Epstein’s house, the same attorney made a $100,000 cash withdrawal. When asked, he explained that “Mr. Epstein needed the funds for tipping and household expenses.” Which seemed to satisfy the bank.

It did not, however, satisfy the New York State Department of Financial Services. And if it wants to lean on this attorney for cooperation against Epstein’s still-living co-conspirators, it appears to have ample leverage.

Great job, ATTORNEY-1!

Consent Order [In the Matter of Deutsche Bank AG]

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

Lately, I have seen a lot of interest from lawyers wanting to set up their own practices. Maybe they are sick of being an employee. Or they didn’t get the job or promotion they wanted. Or they got laid off. Or that’s what they always wanted to do.

So for the next few columns, I will write about what it takes to set up a simple law practice. When I mean simple, I mean a practice with minimal overhead, costs, and management. I am hoping these columns might be useful for new attorneys or experienced employees who want to start their own firm. It might be useful for law firm owners who want to cut costs or “get back to basics” while the world is changing. But this column is one opinion and should be read with similar columns on this topic as I am sure I’ll miss a few things.

The Things You Will Need To Pay For

Annual state bar dues. Average $250/year.

City or county business license. Average $200/year.

E-fax machine ($15 – $50 startup fee plus monthly or annual subscription fee). Unfortunately, some people still use fax machines. Not a lot but enough to justify paying for one. Thankfully the startup and recurring costs are pretty negligible. You do not need to get an actual fax machine. Your computer along with your printer or scanner can also fax the documents.

Computer, printer, and scanner ($0 to $1,500). If you already have one of these, then good for you. Otherwise, invest in a reliable laptop at a minimum. As for printers, a good all-in-one device that can print, scan, and fax should be enough. While laser printers have slightly better print quality, they are also more expensive. As a rule of thumb, you do not need a laser printer unless you do a lot of printing.

As for a standalone scanner, it might be a good idea to have if you have a truly mobile practice and want to scan documents on the go. Good options are the Fujitsu Scansnap series or the Neatdesk scanner. Otherwise, if your printer can also scan documents, that should be enough.

Office supplies ($100 – $900). Most regular office supplies are inexpensive so startup costs should not exceed more than a few hundred dollars. However, you might want to invest in office software like Microsoft Word and Excel so you can set up billing and print your own letterhead and mailing labels.

Professional attire ($1,000 – $5,000). Look, I know we are working from home, and the lawyer dress code may have relaxed a bit. But we are respected professionals. And some of us are paid more per hour than what people in some countries make in a month. Our clients trust us with their money, intimate details, and even their lives. So we have to look the part. While you don’t need to spend $1,000 or more on a suit, you should look like you have.

Things You Will Need That You Do Not Need To Pay For.

Employer ID Number (EIN). An EIN is useful for a lot of things. First, it can act as a substitute for your social security number. A client may ask you to complete a Form W-9 before they pay you. Unless you have an EIN, you will have to input your social security number on that form. Second, you will need one to set up a business bank account. Third, you will need one to have employees and file federal and state employment tax returns.

Thankfully, getting an EIN is free and fairly simple. You can apply for one through the EIN Online webpage. In most cases, you will get an EIN almost immediately after completing the application.

Second bank account. Technically, you do not need a second bank account if you are fairly organized, do not have multiple sources of income, and have a credit card solely for business expenses. But generally, a second bank account used exclusively for your practice is a good idea.

Now I said second bank account. Not a business bank account. I’ve found that for simple practices, a separate business account does not provide any advantages. The only advantage is that your business name will be printed on checks. So establishing a business checking account might be a good idea if your business issues a lot of checks.

On the other hand, setting up a business bank account might require more work. You may need to have an EIN. Also, some banks require you to pay a monthly service fee unless you maintain a minimum balance (usually ranging from $1,000 to $5,000).

For new or simple practices, you might be better off getting a second personal account, particularly if it is free. Make sure that this second account lists your business address on the checks.

Google Voice. Assuming you have a smartphone, the Google Voice app is a must. It is free. Also, it gives you a second phone number that can be used for calls and text messages. Finally, it can record and email voice messages. And it also gives you a voice transcript (although it is not perfect).

Google Calendar. Google calendar is a great scheduling tool. It can send you reminders through your phone or through email.

Things You Do Not Need To Pay For

A limited liability entity. A lot of attorneys ask whether they should set up a corporation or a limited liability company (LLC) as soon as they start practicing. The two main reasons for wanting to do so is to protect their assets and for tax savings purposes. Also, they may have worked for attorneys who have set up entities for their practice.

The entity might not provide the protection you were hoping for. In almost all states, operating under a limited liability entity does not shield you from professional malpractice liability. It might also not help you get out of a debt, especially if you sign as a personal guarantor in case the entity defaults on their payments.

As for tax purposes, most lawyers opt to choose an S-corporation and a rare few use a C-corporation. While this subject deserves a column of its own, generally, it is better to wait until the practice starts making significant money before incorporating. Otherwise the costs of maintaining the entity will exceed the tax savings. For example, in California, it costs $800 per year to keep a corporation in good standing. The corporation must also pay a $25 annual statement of information fee. Also, you may need to pay $100 to $300 per year to purchase payroll software or hire a payroll service. Finally, you may need to pay state unemployment and disability taxes. This is because the corporation must pay the managing shareholder like an employee and must pay them a reasonable salary. So a corporate practice must save at least $1,000 in taxes in order to break even and justify the corporation’s existence.

Based on the above, you may be better off waiting until your practice starts making money before setting up an entity.

Marketing and advertising. Keep a few things in mind. First, marketing and advertising can be free — you simply need to advertise yourself. It’s slow, and occasionally dull but it eventually works.

Second, and most importantly, marketing and advertising are crapshoots. You don’t really know what works and what doesn’t, no matter what some salesperson’s “analytics” tell you. As such, as a general rule, you should spend only the amount you can comfortably afford to lose.

Startups should at a minimum spend money on a simple website and business cards.

In these pandemic times, there are less in-person networking events and more virtual events. So be familiar with conferencing apps like Zoom. And you may want to spend more time in social media groups.

The above are the bare-bones minimum startup fixed costs to start a simple law practice. I am sure I am missing a lot of other expenses. So depending on your situation, you will spend anywhere between a few hundred and a few thousand dollars to get started. In my next Simple Practice column, I will discuss recurring expenses such as rent. If you have questions or suggestions, feel free to reach out to me.

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.

Partners may have wide latitude to run their practice as they see fit, but one of the fundamental principles of legal representation is, you know, that you are representing the interests of a client. So that means — as a bare minimum — lawyers cannot settle cases without approval from their client first. Yes, even when the client is an insurance company.

Asher Brooks Chancey was fired from his position as a partner in the Philadelphia office of Am Law 200 firm Goldberg Segalla in May 2018. This was after he settled cases he was working on without informing the insurer, Knight Insurance Group, that hired his then firm. Chancey self-reported the lapse in judgment to ethics regulators in September 2019 and was temporarily suspended at that time. Now, the the Pennsylvania Supreme Court has weighed in with its final judgment.

Chancey has been suspended, on consent, from the practice of law for three years, retroactive to his temporary suspension in September. In settling on the punishment, the court cited mitigating factors including his self-reporting, lack of other misconduct, remorse, and Chancey’s diagnosis of depression and anxiety.

As reported by ABA Journal, Knight Insurance has filed malpractice claims over the conduct:

Chancey is accused of agreeing to settle auto accident cases in amounts ranging from $35,000 to $1.5 million without informing the Knight Insurance Group. He is also accused of failing to tell the insurance group about scheduled arbitration hearings and default judgments, failing to file court documents, failing to respond to discovery requests, and failing to pursue evidence.

Chancey has not commented on his suspension.

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).