Category: News Feeds

As law firms struggle to demonstrate to clients and their own attorneys that they take societal ills seriously, Kathryn’s starting to notice some patterns in the statements getting released. Meanwhile, Joe is covering the state bar exams, where many are continuing to insist on shoving hundreds of people into small rooms in July and making applicants sign away their rights for the privilege of exposing themselves to disease.

Thanks to Logikcull for sponsoring.

And be sure to check out our Special Reports podcast, the ATL COVID Cast, discussing the unexpected ways that the outbreak will change the legal landscape.

Michael Avenatti is out of jail right now due to the outbreak of COVID-19, but that doesn’t mean he’s out of the woods. The attorney who dominated the news in 2018 is now facing a slew of federal charges related to alleged embezzling and he’s already been convicted on extortion charges and things may have just gotten worse for him because federal prosecutors in the case proceeding against him in California have informed the judge that they think Avenatti violated the terms of his release and they want some answers.

The terms of his release barred Avenatti from having any access to the internet, presumably to prevent him from being able to get into any mischief online. But that’s just a useful canard — he can’t use the internet because he couldn’t use it in jail and in facing the unprecedented challenges of the pandemic, prosecutors are hoping to replicate captivity in any way possible. That includes holding Avenatti without access to the 21st century.

But he’s got his own defense to look after so there’s a carve-out in his original terms:

Although defendant may not possess, use, or access any internet-enabled digital devices, this Order does not preclude defendant’s legal counsel from emailing legal documents to defendant’s third-party custodian, Jay Manheimer, so that defendant’s third-party custodian can print them for defendant to review. Defendant may also access and use an internet-enabled digital device while in the presence of defendant’s legal counsel, solely for the purpose of preparing his defense in this case and in the two pending prosecutions in the Southern District of New York (“SDNY”), United States v. Avenatti, No. 1:19-cr-373-PGG (SDNY), and United States v. Avenatti, No. 1:19-cr-374-JMF (SDNY).

Prosecutors cry foul that the metadata of a number of recent filings in the case show Jay Manheimer as the author, suggesting Avenatti has been writing documents in his own defense. They even point to a recent conference where Avenatti knew what the filings said as proof that he couldn’t possibly have just read them.

The horror!

This all assumes his counsel wasn’t present while Avenatti and he worked on these documents in compliance with the agreement. If counsel wasn’t present, using a computer that one assumes could reach the internet is certainly a violation of the terms of the release, but if the purpose of this provision was to limit Avenatti’s access to the internet, typing up his own defense filings doesn’t seem to implicate the purpose of the restriction.

Given that the biggest complaint prosecutors have in the case is Avenatti dragging down discovery and blaming it on lack of access to the materials due to the terms of his release. Just give him a computer and let him get on with his defense. If he can draft his filings faster with a computer that would seem to be in everyone’s interests.

A day after prosecutors filed 33 pages describing in pearl-clutching detail their concern that Avenatti may have touched a keyboard to write something on a local drive and demanding an inquiry, Judge James Selna nipped this whole thing in the bud with a straightforward set of amended conditions:

To ensure that defendant is able to review the discovery in this matter and the other pending prosecutions involving defendant in the Southern District of New York, defendant may use and possess a computer so long as the computer’s ability to access the internet has been disabled and remains disabled.

Software will be applied to ensure that the computer doesn’t reach the outside world.

Judge Selna refrained from writing in bold, “see how easy that was, now shut up,” and we all appreciate the restraint that must have taken.

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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.

[A]s I look at the quickly changing opinions, I can’t help but wonder whether the General Counsels of America’s top companies, Black and white, are listening. Do they finally get the necessity for big change in the legal profession to calibrate the scales? Will they finally step up to the plate and aggressively address the inequalities or will they refrain to the convenient, easy and usual by endorsing another letter fecklessly decrying the lack of diversity on their matters, without more.

Will these self-described supporters of diversity and opportunity in the profession finally step-up and engage in meaningful efforts to address the lack of accessibility to meaningful work, business and opportunities for Black and other minority lawyers? Or will they simply fall back on the same old explanation that they are expecting the law firms that they use to self-regulate and do more to diversify and provide professional opportunities to Black people; notwithstanding the absurdity of that proposition. Will they again provide my people of color scraps and meaningless amounts of work or will they step up and offer real and lasting change?

— Donald Prophete, a partner at Constangy, Brooks, Smith & Prophete, in a moving essay published at Corporate Counsel, where he calls for general counsels to stop relying on law firms to moove the needle on diversity and do some of the work themselves by offering meaningful work to people of color. “[I]t’s true that no Black lawyer has ever died from asphyxiation from a literal knee on his neck in one of the law firms’ ivory towers. At least not to my knowledge,” he writes. “However, I can provide a list a mile long of able lawyers whose careers have been asphyxiated by the knee on the neck of lack of opportunity to good work, good files, objective measurement and access to the same business opportunities as their white counterparts.”

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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.

Imagine sitting down to take your crim law final, and about halfway through you find out the professor gave the wrong exam. That finals nightmare scenario is all too real for some law students.

As reported by Legal Cheek, that’s exactly what happened to final-year law students at the University of Oxford. What takes it to next level f-up is that halfway through that the exam they were told it was the wrong one, as students have complained:

“Not only that the faculty could be so monumentally stupid as to have given us the wrong paper in the first place, but also to send us an incoherent email about it halfway through the exam, and fail to apologise for the mistake”.

And it isn’t the first law exam mistake this term at Oxford. During the land law final there was a problem with the instructions. Before the test began, they were told to answer four questions including at least one problem question. But when they got the exam it said to answer two problem questions. Oh, and only some of the students were even notified about the snafu, as students in the class have complained:

“It’s disappointing but not unprecedented that an exam should contain a typo. What is shocking is that the fact of the mistake wasn’t immediately communicated to everyone taking the exam and clear instructions given about whether to follow the conventions or the exam. That is what would have been done in an in-person, invigilated exam.”

Another noted:

“It is even more surprising that only some candidates were told that there would be no penalty for breaching the exam rubric. Forcing students to work out, in the middle of an exam, whether they should ‘break’ the rules to perform best, while only some are told that there will be no consequences for doing so, ironically raises some interesting jurisprudential questions about obedience to law. I would have preferred to deal with those in the jurisprudence paper, rather than in the land paper.”

In both instances, students impacted were told to fill out a self-assessment of mitigating circumstances form. A spokesperson for the University of Oxford said:

“We will not comment on individual papers while the exam process is ongoing. However, the University has always had process in place so errors can be flagged in the conduct of exams. This process has been adjusted for this year’s open-book exams and communicated to all students sitting these exams. Exam boards will take any errors into consideration when finalising marks.

Definitely a bad sign for remote exams.

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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).

We invite you to join this free webinar on the emerging role of product counsel on June 18th, at 1 p.m ET / 10 a.m. PT.

The product counsel serves to bridge the gap between companies’ business, technological, and legal stakeholders. However, the role is not limited to those with deep technical expertise; attorneys with a wide range of backgrounds and experience provide value to their organizations in the Product Counsel role.

Our expert panel will tackle such topics as:

• Defining the role of product counsel
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• Transitioning from commercial to product counsel

By submitting the form below, you are opting in to receive communication from Above the Law and its partners.

BREAKING! ANTIFA supersoldiers slash tires at Minnesota protest in frightening display of lawle—

Whoops, sorry! It was the police jamming knives into the tires of parked cars in Minneapolis during protests on May 30 and May 31.

Mother Jones was first to report that unidentified law enforcement officials had systematically slashed the tires of dozens of vehicles parked in a K-Mart lot, leaving multiple journalists and medics stranded after police used teargas and rubber bullets to force protestors off the streets. New Yorker reporter Luke Mogelson appears to have been specifically targeted because he was a journalist.

As the protest on Sunday evening turned hairy, with law enforcement tear-gassing peaceful groups soon after curfew, Mogelson went to check on his car, showing his press pass to officers along the way. (Media were exempt from the curfew.) One officer took a picture of his press pass and said he would “radio it up the chain so everyone knew that car belonged to the press,” said Mogelson. When he came back later that evening to retrieve his car, officers informed him that the tires were punctured. “They were laughing,” Mogelson recalled. “They had grins on their faces.”

MoJo couldn’t get comment from local law enforcement, but the hometown press at the Minnesota Star Tribune were able to get confirmation from Department of Public Safety spokesman Bruce Gordon that police had cut tires in “a number of locations.”

“State Patrol troopers strategically deflated tires … in order to stop behaviors such as vehicles driving dangerously and at high speeds in and around protesters and law enforcement,” he told the Star Tribune.

“While not a typical tactic, vehicles were being used as dangerous weapons and inhibited our ability to clear areas and keep areas safe where violent protests were occurring,” Gordon continued. “As in all operations of this size, there will be a review about how these decisions were made.”

If mistakes were made — IF! — there will be a very thorough review, so don’t you worry about it.

Gordon failed to explain why all four tires had to be flattened to inhibit “vehicles driving dangerously and at high speeds,” nor did he explain how trapping reporters with no means of egress contributed to the police’s “ability to clear areas.” He did, however, insist that police only targeted cars “that contained items used to cause harm during violent protests.”

Which was apparently every car in the lot, several of which belonged to reporters.

Why would reporters leave “items used to cause harm” visible in their parked cars? And how did trapping them there with said dangerous items and no means of escape promote public safety? Mr. Gordon was silent on this as well.

And why should he say any more, right? Bill Barr has abandoned whatever minimal oversight the DOJ ever undertook, refusing to launch “pattern and practice” investigations of violent police departments, while simultaneously seeking to unwind consent decrees that forced law enforcement agencies to commit to reform. Meanwhile, if police lawyers can stand up in court and claim with a straight face that the officer had no idea that he was violating the law when he destroyed a house with smoke bombs instead of using the key, or tased a pregnant woman at a traffic stop, or shot a sleeping woman in a botched no-knock raid, then the courts will bless it under the doctrine of qualified immunity and deny plaintiffs recovery.

Why did the cops slash those tires? Because they knew they could get away with it. And as long we let them, they’re going to keep right on doing it.

Videos Show Cops Slashing Car Tires at Protests in Minneapolis [Mother Jones]
Officers slashed tires on vehicles parked amid Minneapolis protests, unrest [Minnesota Star Tribune]

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

If Roy Pearson wanted to keep his pants he should have taken a belt and suspenders approach. To that end, the DC Court of Appeals has 90 days’ worth of suspension right here.

It’s rare that a court case that fails to touch upon core constitutional principles manages to get its own Wikipedia page. But Pearson v. Chung is one of those exceptions. Pearson, a former administrative law judge, sued his dry cleaners for losing a pair of his pants that he claimed were worth over $1,000. Over time, his demands ballooned, peaking at a $67 million claim before retreating to a more restrained $54 million.

After failing to prevail on his claims, and consistently losing disciplinary proceedings against him, the Court of Appeals has weighed in and outlined some issues with Pearson’s damage figures:

We agree with the Board that this is one such case. The total damages figure is shocking in itself; simply put, Pearson asked the trial court to award him $67,292,000 because of his dissatisfaction with defendants’ dry cleaning services. But the constituent parts of that $67,292,000 total are equally troubling. Pearson asked for $90,000 to rent a car, a facially disproportionate request in response to the alleged need to patronize another dry cleaner. He claimed that his emotional distress over a few common and innocuous signs and a lost pair of pants was so severe that he was entitled to $3,000,000 in damages. Perhaps most remarkable was his request for a judgment obligating the Chungs to provide him with ongoing services and to pay him $10,000 immediately based on nothing more than his own request, a demand that the Hearing Committee called “patently non-cognizable,” was made after the defendants had already taken down the signs at the heart of the controversy, was tethered to no statutory basis, and was completely out of proportion to any likely shortcoming in dry cleaning service. These damages theories were utterly frivolous, implausible to the point of having “not even a faint hope of success,” and they violated Rule 3.1.

Now, 15 years after Pearson lost his pants and 11 years after the underlying case concluded, the ordeal is finally over, with the Court of Appeals affirming the Board on Professional Responsibility decision suspending Pearson’s license for 90 days based upon findings of misconduct in both motion and discovery practice and seriously interfered with the administration of justice.

Sitting around for 90 days can be tough but with a little patience, Pearson can be back to the profession soon enough. So our message to him is… wait for it…

Just keep your pants on.

Pants Judge Suspended [Legal Profession Blog]

Earlier: Judge Who Sued Dry Cleaners Over Missing Pants Facing Ethics Charges
Judge Who Sued Dry Cleaner For $54 Million Over Missing Pants About To Get Wedgie From Disciplinary Committee

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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.

Back during the August 2009 OCI season, amid the wreckage of the Great Recession, a UT-Austin 2L named Mike Whelan sent in a tip to ATL. Mike wanted to share some obnoxious and insensitive remarks he overheard from visiting law firm interviewers. Appended to his account, he included a few “Notes,” including, “Note to self: start a law firm, and do it better than these guys.” Indeed, he went on to start a successful solo practice, while simultaneously managing to become a sought-after speaker, writer, and consultant.

Early on, Mike saw there was something amiss with the current practice model and the culture it fosters. Not only is it destructive to lawyers, but it is also, at best, unsatisfactory for the clients it means to serve. Mike is on a mission to find another path for the profession, and we are thrilled to add his Lawyer Forward to our growing family of ATL podcasts.

Lawyer Forward is a unique entry into the exploding legal industry podcast landscape. The format is narrative — stories that illustrate principles explored in Mike’s highly regarded book of the same name. Lawyer Forward will bring to bear (to quote Nicole Abboud) Mike’s “unique ability to distill and explain oft-confusing concepts” to “lay out a roadmap for lawyers to carve out their own space in the future of the legal profession.”

In his first episode, Mike explores the loneliness and isolation many lawyers feel right now. He gives surprising advice on how to tackle that isolation — including purposefully building social silos — and how doing that work makes for better lawyers and happier clients.

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.

One year ago, the team I was a part of was handed a resounding defeat by the Supreme Court in a so-called “contempt of cop” case. As I wrote at the time, I felt the ruling would further add to an already dangerous level of erosion in public trust of law enforcement. Unfortunately, this concern has been validated just a year later with not only national, but global protests of police abuse.

Of course, given all that has happened before and since, the continued loss of public trust in law enforcement was easily predictable. But the most astounding development to me in the past few years is that one can find increasing agreement from all political sides that major problems with police accountability exist. Take for example, Leon Wolf and Elie Mystal. These are two individuals who operate at dramatically different ends of the political spectrum. Wolf is a staunch conservative, the former editor at large at RedState and the current editor at the Glenn Beck-founded publication The Blaze. Mystal was a liberal firebrand here at Above The Law for many years and is now The Nation’s justice correspondent. Yet I urge you all to read the similarities given by both Wolf and Mystal in response to violent reactions against police abuse.

Both implore readers to try to understand the viewpoint of Americans who have long suffered most under a system that does not hold bad-acting cops accountable. Both agree the problem has continued for this long because a segment of America “does not really give a damn what cops do” because they know it will never happen to them. Most importantly, both agree that increased accountability of police is the most straightforward solution, and for good reason.

In his highly influential work, Donald Black argued that most of what we define as criminal acts are in reality a form of self-help, done often as a response to the conduct of someone else and in the absence of legitimate intervention by the state. In other words, most crimes are moralistic in nature, whereby people take the law into their own hands and act as judge, jury, and executioner of perceived wrongs done to them. Building off of Black’s work, Mark Cooney would show that many within the United States, such as in minority communities, are operating in a stateless environment where attempts to invoke legitimate enforcement by the state is generally met with either “indifference” or “hostility.” The result is that many have become understandably antagonistic to the law, and therefore tend to rely on the older system of self-help. Put simply, the rule of law still exists in a precarious state in this country, and it is the hostile or indifferent treatment by those who enforce the law that is a major contributing factor for this reality.

In no way do I mean to suggest all officers are bad people or do a dishonest job. But I agree with the opinions of both Wolf and Mystal “that excessive police force is punished way less often than it actually happens” and that “[i]t takes incredible strength to practice nonviolence in the face of murder and oppression.” Despite the gross flaws that still exist, however, I have made the point of stressing that over that past two decades things have gotten measurably, and in many ways, remarkably better. Of course, that does not mean excusing any of the existing harms. In fact, I would argue that social (but also peaceful) outrage is one of the best tools available in effectuating change.

From a purely legal standpoint, any day now the Supreme Court will decide whether to take on a number of cases regarding the atextual, ahistorical immunity the Court has unilaterally manufactured that shields law enforcement from accountability. One hopes that current outrage will cause the Court to reconsider this immunity, but there is also no reason to suspect it will change course. Until and unless legal accountability becomes more readily available, however, we can expect the rule of law to continue operating in a perilous state.

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Tyler Broker’s work has been published in the Gonzaga Law Review, the Albany Law Review, and is forthcoming in the University of Memphis Law Review. Feel free to email him or follow him on Twitter to discuss his column.