Category: News Feeds

Estate matters are not usually litigated in the federal courts. Probate and intestacy issues are relegated to the states, and specialized courts known as probate or surrogate’s courts, hear these kinds of matters. There are exceptions, however, especially when an estate or trust is involved in litigation involving large sums of monies, multiple states, or even sometimes when the estate can sue on a federal cause of action.

The U.S. Court of Appeals for the 7th Circuit has just vacated the dismissal of an estate lawsuit and remanded the case to district court. That matter involves the 2013 death of Indianan Cary Owsley, whose death the county coroner ruled a suicide. The decedent’s son, Logan Owsley, claimed that Cary’s wife, Lisa Owsley, and her children were somehow responsible for the death. That was never proven.

Lisa, as surviving spouse, was appointed representative of the estate. In the Indiana state court, Logan tried, but failed, to have her removed. Logan also filed a civil rights law suit in federal court arguing that eight Bartholomew County public officers destroyed or lost evidence relating to the decedent’s death, raising a federal civil obstruction of justice claim against the sheriff, coroner, and several deputies. Several of the  sheriffs  were disciplined because they made judgment errors during the investigation. They allegedly allowed Lisa’s ex-husband to enter the death scene, where he removed the decedent’s body from the home, handled the handgun, and cleaned up the blood at the scene.

In April 2019, the federal  circuit court dismissed the lawsuit against the defendant officials who successfully argued that Logan did not have legal standing to assert a claim. They also claimed immunity and that the matter failed to state a claim for which relief could be granted.

While the federal matter was pending, Indiana state court considered Logan’s standing in the estate to pursue causes of action like the one in federal court.  Although the estate was closed in 2016, Logan was assigned “any interest” the estate had in the federal lawsuit. The assignment was not enough for the federal district court, which dismissed the case in 2019.

Seven years since the death, Logan’s case persists as the 7th Circuit’s decision notes that the district court wrongfully did not rule on the merit of the assignment, instead focusing on the fact that Logan did not suffer any personal injury. The 7th Circuit wrote, “Federal law permits assignees to sue on assignors’ claims” citing Logan’s estate assignment and Sprint Communications Co. v. APCC Services, Inc., 554 U.S. 269 (2008), focusing the case on the assignment itself.

Interestingly, the 7th Circuit noted that Logan did not argue that the defendants blocked the estate from filing a wrongful death suit. Logan argued that the defendants, by hiding or destroying evidence, prevented the estate from pursuing a claim against Lisa or her children, and he argued that the evidence also could have been used to remove Lisa as administrator. This, Logan argued, violated the Constitution, and is the reason he is before the federal court.

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.

We all know that there are lawyers and judges who engage in stupid behavior. Why they risk their licenses, their judicial offices, their professional dreams, mystifies me and always will.

So, here’s a little roundup of some of more recent situations of lawyers acting stupid and paying the price. I’ll get to the bench in a little while.

In Vermont, an attorney was arrested for brandishing a gun in a retail store. She (yes, a she) apparently didn’t like the store’s sign that called for social distancing. I don’t know about you, but I’d comply with the social distancing rather than risk a criminal charge and possible disciplinary action. What’s the big deal about six feet?

This one is a variation on the “use a gun, go to prison” slogan so popular for many years. Two attorneys in Texas are accused of a murder for hire. They were willing to pay the huge sum (cue the sarcasm) of $300 for an undercover agent (whoops) to buy a gun to kill the former husband, also a lawyer, of one of the attorneys. Any relation to the gang that couldn’t shoot straight?  Murder for hire is apparently cheap in Texas, at least in this case.

Of course, lawyers are disputatious, that’s how we make our living. A disbarred Florida lawyer has filed a pro se lawsuit, claiming that the Florida governor lacked the authority to order the state’s lockdown. The former attorney filed a quo warranto lawsuit, so it goes directly to Florida’s Supreme Court. Of course, no one knows how many more Floridians would have died without the lockdown. At last count, the death toll there was more than 2,250, but who is counting, beside me?

Then there’s the disbarred Rhode Island lawyer, guilty of theft and two counts of mail fraud, sentenced to the clink for a year and a day for stealing his dead client’s pension. The theft totaled almost $250,000. The sentence is less than the two years the government sought, but the attorney’s age and susceptibility to COVID-19 cut him some sentencing slack from the court. So, can you now use COVID-19 for a reduced sentence or to even get out of prison early? (See Paul Manafort and Michael Cohen.)

Two New York City attorneys, including one former Biglaw associate, have been charged with throwing a Molotov cocktail into an empty NYPD police cruiser. The Biglaw attorney was furloughed from his job in April. More collateral damage from COVID-19? Will the fallout from the virus ever end? And what purpose does it serve if they lose their licenses to practice? What’s the point? Surely, there are other ways that lawyers can work for social and racial justice.

Of course, this roundup would not be complete without at least one story about inappropriate touching. The Indiana attorney general has had his license lifted for 30 days. Indiana’s Supreme Court determined that he had groped several women at a party celebrating the end of the legislative session. I think it was way back in kindergarten that we were taught to keep our hands to ourselves. Remember? Some elementary lessons are better learned than others.

A Biglaw partner represented Chevron in an employment mediation. Opposing counsel claimed that the Biglaw partner had shaken his butt at counsel at mediation. The court denied plaintiff’s counsel’s motion for sanctions, ruling that the $10,000 request for attorney’s fees was excessive. The court said that the hit to the partner’s reputation and his lost ability to generate business (the incident went viral) were sanctions enough. True. The partner is no longer at the Biglaw firm.  Just as you should keep your hands to yourself, don’t shake your butt at opposing counsel. No ifs, ands, or buts about that. (Sorry, I couldn’t resist.)

Hooray for the New Jersey Supreme Court that removed a judge who had asked a sexual assault victim if she had tried to close her legs to prevent the assault. I know. You can read that sentence several times if you like. What term would you use to describe this judge? I can think of several unprintables that don’t belong even on this legal website, but do you think “moron” might work? Apparently, this was not the judge’s first misconduct rodeo.

I wonder if the judge has ever had any women working with him or for him, whether he’s married to a woman, and whether he has any daughters. Unless he was hatched, he surely has or had a mother. This case is a primer of what not to ask, and how not to act, for those interested in ever being appointed to the bench. How hard is it to stifle yourself, even if you are a judge?

And then here in California, vastly different facts but the same result. The Commission on Judicial Performance has issued an order removing appellate justice Jeffrey Johnson for 18 acts of prejudicial misconduct comprising more than 40 proven allegations. The Commission found that the justice’s lack of candor aggravated the misconduct. Here’s the Commission’s opinion.

After all that has happened in the past eight days, starting with the murder of George Floyd, read the words of the poet Langston Hughes. His poem “Harlem” starts with a simple question: “What happens to a dream deferred?” The poem is very brief. My answer? Deferred dreams cannot be deferred forever.

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.

The COVID-19 pandemic has forced many law firms to close their offices in order to promote social distancing and slow the spread of the virus. In order to maintain operations remotely, numerous lawyers and administrators at many law firms have adapted to conduct legal tasks from home. As most states begin to reopen their economies and relax restrictions related to COVID-19, law firms may wish to reopen their offices as soon as they are legally allowed to do so. However, even if firms are permitted to open their offices, it might be wiser for lawyers and staff to continue working remotely. In fact, many tech companies have already announced that work-from-home plans will continue at least until the end of the year for health reasons. Based on my own past experiences at several law firms, however, it seems likely that some shops will move to reopen their offices too soon, even though this may pose health risks and practical concerns.

Law firms may wish to reopen their offices as soon as possible for many reasons. Numerous law firms have seen a precipitous decrease in billing as a result of the COVID-19 pandemic, which may be partially due to stress and inefficiencies associated with working from home. Law firm managers might think that bringing attorneys and staff back to the office may increase efficiency, which might accordingly lead to an increase in revenue produced by a shop. In addition, some old school managers may think that bringing people back to the office is important for the morale and the culture of a firm. Also, it must be maddening for many law firm managers to pay substantial sums of money on rent even though only a small amount of essential employees have been in the office lately. Moreover, some law firm managers may think they are even doing employees a favor by reopening their offices and making it easier for many to do their jobs.

Employees at numerous law firms can likely use past experiences to guess whether their bosses will force them to come back to work while the pandemic is ongoing or whether workers will be permitted to work from home for the foreseeable future. For instance, in the New York and New Jersey area, how a firm acted during Superstorm Sandy may be a good predictor of whether bosses will force people to return to the office during the COVID-19 pandemic. During Superstorm Sandy, I fortunately worked at a firm that had excellent remote work systems and compassionate leaders who did not want to risk anyone’s health or safety by forcing people to return to the office too soon. It was a struggle for us to conduct work from home during this time, but the firm let everyone work from home for weeks after Superstorm Sandy. By the time the office was reopened, mass transit had been restored, and life had largely returned to normal.

However, I know some attorneys who worked at firms that were not compassionate during Superstorm Sandy. Some attorneys needed to find creative ways to trek to work during this time because they were forced to show up at the office, and public transit options were knocked out for weeks after Superstorm Sandy. I even heard of a few firms that forced employees to return to work after Superstorm Sandy even though their offices did not have heat! Associates and staff were told to just bring extra layers of clothing and space heaters if they were cold, and had to muscle through the discomfort. I am willing to bet that the same firms that forced people to return to work despite transportation difficulties and heating issues after Superstorm Sandy will also force workers to return to work while the pandemic is ongoing.

Moreover, I am sure that all of us have worked at firms that have had different policies abut office closures when there is inclement weather. For instance, I once worked at a firm that had a “one-snowflake rule,” meaning that the firm would close its offices whenever there was even the slightest amount of snow. The boss really cared about his employees, and he had to drive a decent distance to get home, so the office was always closed when there was snowy weather or even the threat of inclement weather.

However, I have also worked at firms that almost never closed their offices during inclement weather. Presumably, these managers knew how revenue could drop if offices were closed, and they forced everyone to brave dangerous conditions to make it home. I remember one time, a few staffers had to stay at the office well into the night before heading out because they were not allowed to travel home when the inclement weather began. I am willing to bet the same firms that refuse to close their offices because of stormy weather will also resist efforts to keep offices closed because of COVID-19.

In any case, law firms should seriously consider closing their offices well past when safer-at-home orders are eased, or at least give employees the legitimate option to stay at home if they wish. If firms have not implemented systems that allow employees to be just as efficient at home as they are in the office, that is usually a problem with how the firm is managed, and this can be fixed in many situations. In addition, it is possible that firms which reopen their offices soon after natural disasters or refuse to close during inclement weather are going to be the same shops that reopen their offices too soon during the COVID-19 pandemic.

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.

Donald Trump is mighty peeved that North Carolina isn’t going to let him run the GOP Convention in the state unless he scales it back and complies with a litany of COVID-inspired safety protocols. The state doesn’t want some kind of deadly outbreak just because they pack a couple thousand elderly Republicans into a convention hall. Because that really would be a shame.

This concern about large, in-person gatherings over the summer appears limited to the RNC however, with the state forging ahead with its July bar exam and joining Mississippi in asking applicants to kick off the most stressful exam they’ll ever take by waiving their right to recovery if North Carolina’s stubborn insistence on holding this exam lands them in the hospital or the morgue.

Unlike Mississippi, North Carolina isn’t asking applicants to affirmatively waive their rights, so much as posting a notice that anyone taking the test has already done so. There’s good reason to believe that this is just the first issue-spotter of the exam, and applicants will be tested on their ability to point out that this is complete legal gibberish:

Some contracts and civil law professors, however, are scratching their heads. “I don’t think it’s enforceable or material,” says David Hoffman, a professor at the University of Pennsylvania Carey Law School. “This is not an agreement; it’s a posted sign.

Putting aside the attempted waiver, North Carolina is also taking the macabre step of preparing for some gunner to show up for the test as a walking “COVID Casey” and put together a coronavirus romper room for anyone exhibiting symptoms during the test:

Potential life lesson: if you feel the need to spell out your plans for a severe pathogen outbreak during your exam… maybe don’t hold the exam. Perfect safety is never guaranteed, but no one feels the need to share the plan in case of a fire at the test site. The fact that this is spelled out in the materials is indicative that the examiners know that they need to provide assurances for applicants to feel safe which is a pretty damn good reason not to go forward with the test when we have so many other options from delays to online exams to variations of diploma privilege.

But let’s just screw it and put some “NO COVID ALLOWED” signs up and call it a day.

Earlier: Bar Exam Applicants Forced To Sign COVID Waiver In Case In-Person Exam Ends Up Killing Them

Joe Patrice is a senior editor at Above the Law and co-host of Thinking Like A Lawyer. Feel free to email any tips, questions, or comments. Follow him on Twitter if you’re interested in law, politics, and a healthy dose of college sports news. Joe also serves as a Managing Director at RPN Executive Search.

The last week has been tough. That video of George Floyd’s final moments is tough to watch.

There is obviously a lot going on in this country right now. And as a white guy living in the Midwest, it’s probably not my voice; that anyone is really all that interested in hearing on most of it. But I do think the events since May 25 have provided some illumination about what presently seems like a bit of a background issue: Joe Biden’s pick for vice president.

A lot of polling has been conducted about voters’ preferred VP pick. It’s probably not a big surprise to anyone that Elizabeth Warren has generally been coming out on top among Democratic-leaning voters. She ran a good primary campaign and came to the table with the big, ambitious policy proposals craved by the politically engaged.

What has been more of a surprise, to some, is that minority voters tend to prefer Warren over several women of color who are also in consideration for the second spot on the ticket. A poll of registered voters from Morning Consult/Politico conducted May 22-26 found that picking Kamala Harris as VP would make black voters a net 19 percent more likely to vote for Joe Biden (the net percentage is the share of voters who said a particular VP pick would make them more likely to vote for Biden minus the share who said that particular candidate would make them less likely to vote for Biden). Harris on the ticket was also found to make Hispanic voters more likely to turn out for Biden by a net 13 percent. But, the net gains in likely Biden support were far higher among minority voters for a Warren pick. A net 24 percent of black voters were more likely to vote for Biden if Warren is rounding out the ticket, along with a whopping net 28 percent of Hispanic voters.

Now, some of that difference might be based on name recognition. But it’s a little hard to argue that Warren has a name ID advantage over Harris. Both are sitting senators (although the state Harris represents is more than five times larger than the one Warren represents), and both campaigned hard in the Democratic presidential primary. Perhaps more tellingly, in the Morning Consult/Politico survey, Stacey Abrams, another woman of color being considered as a VP pick, represented a net plus for Biden of 17 percent among black voters, very close to that of Harris considering the poll’s margin of error of plus or minus two percentage points. Abrams, though potentially a strong VP pick in her own right, almost certainly has nowhere near the name recognition of Harris. Abrams did not participate in the Democratic presidential primary, and does not currently hold public office. With someone who likely has far less name recognition polling similarly to Harris among black voters, maybe it’s something about the candidate herself that is dampening enthusiasm as compared to Warren.

And that makes sense when you consider that Harris worked as a prosecutor for more than a 15 years before she became Attorney General of California. She probably did it with integrity, by all accounts she helped make what reforms she could at the level she was at, but the fact remains that Harris spent a sizable portion of her life as a cog in the criminal justice machine that has a well-documented, centuries-long history of disparately impacting people of color.

Warren, on the other hand, does not have that baggage, and she has a slew of well-developed policies to boot. Warren’s Medicare for All plan would help reduce racially disparate outcomes in the health care system, her super-millionaire wealth tax would help stymie the gaping racial wealth divide, and her criminal justice reform plan would, well, reform criminal justice, to the particular advantage of minority communities disproportionately harmed by the current system. Warren’s policy proposals to fix the things that are broken in America are almost all particularly good for people of color because people of color are bearing more than their share of the burden for everything that’s broken in America.

In the wake of George Floyd’s death, much of the media coverage about Biden’s VP pick has focused around how recent events might take Amy Klobuchar out of the running due to her prosecutorial record (why Klobuchar was ever in the mix in the first place remains a mystery). But it shouldn’t be lost that minority communities, right now at least, seem to prefer Warren to Harris. Maybe being a lawyer-cop is just less of a good look at this point in history compared to relentlessly promoting policy that would make the country a more just, more equal place. Maybe minority voters prefer a policy proponent as opposed to a candidate who shares their racial demographics but has not been so vocal in the name of progress. Someone really should ask them.

Jonathan Wolf is a litigation associate at a midsize, full-service Minnesota firm. He also teaches as an adjunct writing professor at Mitchell Hamline School of Law, has written for a wide variety of publications, and makes it both his business and his pleasure to be financially and scientifically literate. Any views he expresses are probably pure gold, but are nonetheless solely his own and should not be attributed to any organization with which he is affiliated. He wouldn’t want to share the credit anyway. He can be reached at jon_wolf@hotmail.com.

While a pandemic is a major crisis whenever it occurs, it has been exacerbated because it came during a U.S. presidential election year. And there will be some people will want to take advantage of this crisis for their own political benefit. But will people follow the prior voting patterns based on current economic conditions?

For the Democrats, removing President Donald Trump was going to be an uphill battle regardless of the constant negative news about him. The Mueller Report, the Ukraine investigation, the Stormy Daniels scandal, the impeachment, and covfefe did little to affect Trump’s approval ratings. By the end of 2019, some predicted that he had a decent shot at re-election. This was mainly due to the healthy economy during his term, and the Democrats were hoping for something that would trigger a recession. But when the coronavirus affected China and later spread to South Korea, Japan, Italy, Iran, and eventually the United States and the rest of the world, that was the black swan that started the economic downturn. Soon after, the resulting business shutdown and stay-at-home orders has resulted in record levels of unemployment not seen since the Great Depression.

This was the opportunity that the Democrats have been waiting for. The mainstream media, or as Trump calls them, the “enemy of the people,” devoted almost round-the-clock coverage to the coronavirus. Endless editorials blamed Trump for his incompetent handling of the coronavirus pandemic.

So the economy is tanking, and it will not recover completely. Does that mean Trump’s re-election chances are doomed? Maybe. While it is possible, I just don’t think it will be the slam dunk his opponents anticipate it will be.

I don’t think that most Trump supporters will change their vote because of the coronavirus and its effect on the economy. They correctly believe that Trump did not cause the virus nor was he responsible for bringing the virus to the United States. And most of them believe that he did everything he could to contain the virus. If anything, they will blame the Democrats since the shutdown orders that caused the massive unemployment mostly started in cities and states with Democrat mayors and governors. To them, his only mistake was not banning all incoming travel from China as soon as the seriousness of the coronavirus was understood.

Also, if the economy is an issue, then this may favor Trump as the economy is showing signs of recovery now that the states are slowly reopening. The combination of numerous loans and grants as well as stimulus payments and increased unemployment compensation provided some financial assistance, although it was not enough to quell the toilet paper line.

Lastly, protests are condemning police brutality in many parts of the country as well as looters who are taking advantage of the civil unrest to engage in violent mischief. While this issue deserves its own column, I’ll say this for now. Most people mourn the unnecessary death of George Floyd and want to see the police officers brought to justice. But they also don’t want looters taking control of the streets. And I certainly don’t want to hear justification for the looters’ actions, especially from my local leaders. The large number of protestors and looters did not follow social distancing rules, and the only reason they wore masks was to hide their identities. So a new wave of coronavirus cases is likely in the future. Soon, the local leaders will have to take the streets back, or they risk putting people in danger from both the virus and violence. If they don’t, they will look weak and spineless, and voters will choose someone (even if they live far away) who will put the looters in their place.

But no matter who wins the election, the approach to handling the coronavirus pandemic will be much different than what is being done now. If Trump is re-elected, it may be a signal from the majority of voters that they are not in favor of lockdowns. Red states will not issue another lockdown order, or such orders will be issued with many exceptions. Blue states are more likely to enact lockdown orders but will probably be targeted in certain high-risk areas as opposed to a statewide order.

If Biden wins, he brings his previous experience coordinating the management of the Swine Flu virus and the Ebola virus while he was vice president. The media coverage of the coronavirus will change. There will be less editorials and more focus on vaccine discoveries and basically living with the virus.

Both candidates will likely consider reopening the country completely while taking steps to protect people who are most vulnerable to COVID-19, such as the elderly and those with weakened immune systems. Future stay-at-home orders will mostly apply to them.

And regardless of who gets elected, there will probably be another economic downturn due to the second wave of the virus. Any changes made to businesses will likely be permanent at this stage. As a result, some people will not get their jobs back or will have to work at reduced pay. This time, banks and legislatures will be reluctant to issue another round of rent or mortgage payment forbearances as those can result in higher interest rates and more difficulty in getting loans.

The 2020 presidential election will be just as fierce as years past. This will likely result in the spread of various strains of misinformation about the coronavirus. And this can be just as dangerous as the virus itself. But when we vote, it is up to us to be our own arbiters of truth and not let a government or a third party do it for us. But no matter who gets elected in November, I am certain that the new government will take a different approach to dealing with the coronavirus. In a country as large, diverse, and influential as the United States, not everyone will be happy with the difficult choices that must be made.

Next week, I will write my final thoughts on the coronavirus. Can we beat it? Or do we live with it?

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.

Ed. note: This post is by Will Meyerhofer, a former Sullivan & Cromwell attorney turned psychotherapist. He holds degrees from Harvard, NYU Law, and The Hunter College School of Social Work, and he blogs at The People’s Therapist. His books — Still Way Worse Than Being A Dentist, Bad Therapist: A Romance, Way Worse Than Being A Dentist, and Life is a Brief Opportunity for Joy (affiliate links) — are available on Amazon.

I suspect I’m dating myself, but does anyone else remember the Peanuts cartoons?  Specifically, that endlessly repeated gag (more like heart-wrenching tragedy) of Lucy offering to hold the football for poor, hapless Charlie Brown so he can kick it?  Of course, she winds up pulling it away just in time for him to miss the kick and fly through the air screaming, then land in a heap, bruised and miserable, furious at himself for placing his trust once again in a faithless so-called friend.

Law firms do that.  I mean, they do the Lucy bit, with the football.

“So… when you say he promised you’d be elevated to partner,” I asked one client just the other day, “do you mean, as in, he actually promise promised to make you partner… or just sort of implied strongly it would happen?”

My client’s response was unequivocal:  “He promised.”

I fumbled for wiggle room. “But can he do that?  How much capital does this guy have at the firm to burn on elevating one of his own?”

My client wasn’t taking wiggle for an answer:  “He’s the managing partner of a smallish firm.  He can elevate whomever he wants.”

Wait.  Hang on… one more question:  “Did he specify when he’d make you partner?”

Now I had him.  Because the unfailing law firm answer to any question regarding something good that’s going to happen to you (i.e., not to them) is:  Not now… but soon.

Promising stuff to you (not now, but soon) is actually a key law firm technique for getting what they want from you (immediately).

The looming temporal gulf between what they offer to you and what they demand from you is acute.  It is stark.  It is striking.

Compare and contrast:

The stuff they offer to you will arrive whenever they please, which seldom means anytime remotely contemporaneous with the current era.  (And, no, don’t bother them about it, or they might change their minds.)

The stuff they require from you, on the other hand, will happen immediately.  This very minute.  As in, I’m aware it’s Saturday night, and no, I don’t care.  I’m not asking — that’s me being polite.  I’ll have it Monday morning or you’re fired.

That kind of right now.  Law firm right now.

Returning for a moment to those lovely, tasty things that they’re promising to you…  It’s worth asking just how long a period of time not now, but soon can be drawn out to occupy, at least in the minds of those who run law firms.

Continue reading over at The People’s Therapist…