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Infertility is an incredibly difficult road. And IVF is no picnic. It involves spending thousands of dollars, countless shots and medications, a deeply emotional rollercoaster, and at the end, the hopeful parent or parents-to-be are holding their breath that the odds will be in their favor and their dream of a child will be fulfilled.

A New York couple — known as A.P. and Y.Z in their recently filed federal suit in the Eastern District of New York — have one of the most painful and heart-wrenching stories I’ve heard yet. The couple, like many, were unable to conceive naturally, and suffered failed IUI fertility treatments. So they looked for other solutions. The plaintiffs found the website and other promotional materials of CHA Fertility Center Los Angeles, and they were persuaded to sign up for treatment. CHA claims to be “known as the ‘mecca of reproductive medicine’ with world-class treatments for infertility” and states that they “ensure each [patient] receives the most appropriate and advanced treatment necessary.” Sounds like CHA takes a lot of pride in their work, right?  Hold on.

According to the complaint, the plaintiffs traveled to California to undergo fertility treatment with CHA Fertility. Embryos were formed from the plaintiffs’ eggs and sperm. After genetic testing was completed, Plaintiffs received the good news that they had five normal embryos — four female, and one male. I promise there won’t be much math in the rest of the column, but the genders of the embryos does matter.  The couple went through one failed transfer. On the second transfer, they opted to transfer two female embryos to Plaintiff A.P. The plaintiffs were ecstatic to learn soon after that the transfer worked and they were carrying twins. But that’s actually where the nightmare began.

As the pregnancy progressed, A.P. went in for regular obstetrical care, including the ultrasound where doctors can tell you the sex of the baby. The obstetrician reported that based on the ultrasound, both babies were … boys. Naturally, plaintiffs were confused. They only had one male embryo, and it had not, to their understanding, been transferred. Plaintiffs called CHA Fertility. The clinic reassured them that ultrasound tests were not always accurate. And in fact, the doctor explained that his own wife had been told based on a sonogram that they were having a boy, but in fact had a girl. The doctor assured plaintiffs that “they were having girls and nothing was wrong.” Oh. OK. Sorry to bother you, doctor.

But despite the doctor’s own personal experience, he was quite wrong about the ultrasound, which had been read accurately. So when A.P. gave birth at the end of March 2019, plaintiffs were shocked that their babies were in fact both boys. It gets worse though. Neither of the babies appeared to be the same race as the plaintiffs. Representatives of CHA Fertility flew out to New York to conduct genetic testing of the babies. Sure enough, neither of the babies were genetically related to the plaintiffs. Instead, they were related to other patients of CHA. To make matters even worse, the twins weren’t even genetically related to each other! The “testing revealed that Baby A was genetically matched to Couple A, and Baby B was genetically matched to Couple B.” Wow. How does that even happen? That’s not just two families’ embryos being switched, that’s three families have mixed-up embryos in one transfer. It’s almost impressively incompetent.

The complaint explains that as a result of the DNA tests, “Plaintiffs were required to relinquish custody of Baby A and Baby B, thus suffering the loss of two children.” That must have been traumatic. I am traumatized just thinking about those moments in the hospital. To make matters worse, the clinic won’t say where the plaintiffs’ own embryos are!

A.P. essentially unknowingly and unwillingly acted as a gestational surrogate for two other families. So what is the legal theory for the plaintiffs to recover? All of them, you may say. Actually, plaintiffs list 16 counts, including: medical malpractice, negligence, negligent infliction of emotional distress, intentional infliction of emotional distress, reckless and wanton misconduct, battery, and multiple breaches of duty. Honestly, it’s amazing that CHA didn’t offer plaintiffs millions of dollars in recompense before they filed their complaint, just to avoid what may be company-ending bad publicity.

In any event, if the allegations are true, and the world is a just place, plaintiffs no doubt should be entitled to a substantial recovery. Unfortunately, the law continues to be ill-fitted to address reproductive negligence claims and their unique aspects. In the meantime, we await the verdict as well as the premier of the horror movie based on these events.

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.

We fail to see how staring at a court employee for 45 minutes while tapping a pencil and making cat noises constitutes the maintenance of high standards of personal conduct or promotes the integrity of the judiciary.

— an excerpt from a judicial disciplinary opinion of the Wisconsin Supreme Court, where Len Kachinsky, who served as lawyer for Making a Murderer’s Brendan Dassey, was suspended from working as a reserve municipal judge for a three-year period (retroactive to July 2018) thanks to his incredibly strange interactions with a court manager who accused him of harassment.

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.

Everyone has probably heard the expression “the customer is always right” at one point of another.  In essence, the saying means that people selling goods or services should assume that the customer is always correct and do everything in their power to please their customers.  Although there are many attorneys who apply this expression to legal services, it is often true that the client is not always right.  Most clients are not lawyers, and they may not have enough experience to make informed decisions about legal matters.  As a result, clients can realize a number of benefits if lawyers do not assume that the client is always right and attorneys have the freedom to tell their clients that they are incorrect about an issue or strategy.

It is easy to understand why attorneys would take the position that the client is always right, and follow the wishes of their clients without protest.  The marketplace for legal services is extremely competitive, and attorneys are constantly fighting to find and retain clients.  No one likes being told that they are wrong, even if they don’t have expertise in a given field.  As a result, attorneys may not want to “rock the boat” with clients for fear that their clients will jump ship and search for another law firm.

I have seen attorneys at many of the firms at which I worked pursue misguided strategies because it fulfilled the wishes of clients.  Indeed, I have worked at firms in which attorneys focused on arguments that had almost no chance of success just because a client told them to make certain points.  In addition, I have seen attorneys file unnecessary motions or complete other unneeded tasks just because a client told them to follow a certain strategy.  Of course, if a tactic will not materially impact a client’s position, or put an attorney in ethical jeopardy, there is usually no problem with following a client’s advice.

However, most clients are not attorneys, and as such, they likely do not have much familiarity with legal issues.  In addition, even if clients are lawyers, they might not have experience with the legal issues that are at the heart of a matter.  Moreover, in-house attorneys who work for corporate clients might have bureaucratic or other reasons for recommending a certain strategy, even if it might impact a client’s likelihood of success.

Attorneys do their clients a huge disservice if they blindly acquiesce to the proposed tactics of a client without providing clients the benefit of the attorney’s experience.  Of course, ethics rules provide that a client has the exclusive right to decide on objectives of a given representation, and the goals of legal services should be decided by clients alone after consultation with a lawyer.  However, ethics rules usually leave the strategies used to pursue those objectives in the hands of the attorney, so long as lawyers consult their clients about proposed strategies.  As a result, attorneys should feel empowered to confront their clients when their clients favor strategies that the attorney thinks are flawed.

Over the course of my career, I have confronted clients on several occasions when I felt my clients were misguided about proposed strategies.  Of course, as the proprietor of a new law firm, I want to make my clients as happy as possible.  However, this is not at the expense of doing everything that I can to ensure that my clients have the best chance at achieving their objectives.

For instance, earlier in my career, I had a client who was adamant about not giving our adversary additional time to file their answer.  The client had an extremely bad relationship with our adversary, and the client did not want to do the adversary any favors.  In addition, the client did not trust our adversary, and thought that he would just delay the proceedings as long as possible in order to make it harder for us to reach a resolution.

I told my client that it would look bad if we didn’t give our adversary additional time to answer the complaint, and that if we ever needed an extension of our own, we might not be able to receive it if we pursued this strategy.  In addition, if we tried to settle the case before the case went into discovery, our adversary would be more willing to resolve the matter if they did not need to spend money on legal fees by filing an answer or a motion to dismiss.  Furthermore, I told my client that I did not want to practice law by refusing to extend courtesies, and that we would lose almost nothing by allowing our adversary a few more weeks to file an answer.  We ended up resolving the case on positive terms before an answer was filed, and even though I created some friction with my client, the client ended up benefiting from having a frank conversation about the pitfalls of the client’s strategy.

In the end, the legal industry is similar to a number of other fields. and lawyers oftentimes need to compete against each other for business.  As a result, many lawyers follow the strategies proposed by clients without discussing their own opinions.  Nevertheless, attorneys do clients a huge disservice if they do not confront their clients about flaws in how clients wish to proceed in a given legal matter.

Jordan Rothman is the Managing Attorney of The Rothman Law Firm, a New Jersey and New York litigation boutique. 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 jrothman@rothmanlawyer.com.

* Remember how AG Bill Barr announced that lawyers would be getting swapped out on the census citizenship case? This federal judge has rejected the change because the DOJ “provide[d] no reasons, let alone ‘satisfactory reasons,’ for the substitution of counsel.” [New York Law Journal]

* After two hours of oral argument, judges on the Fifth Circuit seemed unsure of whether the Affordable Care Act would live to see another day. This case is likely headed to the Supreme Court no matter what, as health insurance for 20 million people protections for pre-existing conditions are in the crossfire. [POLITICO]

* Daniel Bress of Kirkland & Ellis was confirmed to the Ninth Circuit (or the “9th Circus,” as President Trump once referred to the appellate court) in a party-line vote. He’ll replace the disgraced Alex Kozinski, who resigned in 2017 amid allegations of sexual misconduct. [Washington Post]

* Chief Justice Leo Strine of the Delaware Supreme Court will be retiring at the end of October, leaving time for Governor John Carney to select a replacement for the man who shaped the law on takeovers. [Reuters]

* Jeffrey McIntyre, a partner at Husch Blackwell, left the firm after he was reprimanded by the Wisconsin Supreme Court for punching a bar manager in the face and driving while intoxicated, both of which he was charged for and submitted guilty pleas. [Wisconsin State Journal; ABA Journal]

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.

The United Nations in Zimbabwe convened 45 representatives of the Ministry of Information, Publicity and Broadcasting Services; United Nations Communications Group; Embassy of Sweden including 24 representatives of various media platforms, editors and senior journalists from 7 to 10 July 2019 in Masvingo.

The objective of the three-day meeting, including visits to UN supported development and humanitarian projects, was to enhance media understanding of Government and UN engagement in Zimbabwe on development and humanitarian issues and increased media coverage of development and humanitarian issues.

The workshop participants underlined the need for Government, UN, Development Partners and the Media to work together to:

• advance good governance and human rights by intensifying coverage of anticorruption cases and topics of transparency, accountability and quality of public services
• climate action to enhance disaster risk reduction to address recurrent natural disasters such as drought, floods, cyclones, outbreaks
• promote gender equality particularly by combating gender-based violence, child marriages, and teenage pregnancy.

The United Nations recognizes the critical role of the media and freedom of information in advancing development. In this regard, the three-day UN-media workshop highlighted the need for media in Zimbabwe to be capacitated to report on good governance, human rights, climate action and gender equality. It was agreed that media houses and journalists as information gatekeepers will follow up on SDGs progress in Zimbabwe, national policies and their implementation, enhancing accountability, transparency and delivery of public service.

Addressing the workshop participants, UN Resident Coordinator Mr Bishow Parajuli stressed the need to pull together to advance the inherent goodness of human values as Zimbabwe strives to turn around the socio-economic challenges, climate action, drought and achievement of the Sustainable Development Goals (SDGs). “Engaging with the media is fundamental and partnership with the media is crucial to achieve development.  The UN remains open to dialogue with the media and to feedback on the UN’s delivery and performance.”

The role of development assistance is critical, necessary but not sufficient for the achievement of the SDGs. There is a strong need and a case for the private sector and business to play a significant role, and the media has a big role in sending positive and hopeful messages outlining a positive narrative of Zimbabwe as an investment and tourism destination.

Dr Mutambudzi, Director of Media Services in the Ministry of Information, Media and Broadcasting Services speaking on behalf of the Permanent Secretary, Mr Nick Mangwana, in his opening remarks, highlighted the importance of the partnership between the UN and government of Zimbabwe towards the development of the country. He commended development partners for their work in disaster situations particularly during the national crisis caused by Cyclone Idai.

Noting Government’s efforts, Dr. Mutambudzi said, “the Access to Information and Protection of Privacy Act (AIPPA) will be replaced by three progressive Acts, which are the Freedom of Information Bill, the Zimbabwe Media Commission Bill and the Protection of Personal Information/Data Protection Bill. For the first time, Zimbabwe will also have a Media and Film Policy to guide its operations.” He also said, reviewing the country’s media laws and policies is a way to create an enabling environment for the media as it creates laws which are aligned to the Constitution that govern and help the sector to attain international best practices.

Appreciating the role of media for being at the forefront of sharing information, breaking news and being the voice of the voiceless by putting their lives in danger, Ms Angelica Broman First Secretary at the Embassy of Sweden said, “to enhance economic growth in Zimbabwe more efforts have to be put into ensuring gender equality and to eliminate gender-based violence.  The financial cost to the nation of gender-based violence is immense and should not be underestimated.” Ms Broman also emphasised the need to not confuse gender with women issues, gender alerts to equality of both men and women ensuring that they have the same rights, respect and access to resources.

To combat the effects of drought in affected communities, World Food Programme (WFP), is running a community project titled The Garden and Fishponds turning aid into sustainable solutions. Through the project the community has managed to establish a 2Ha garden, orchard, tree nurseries, indigenous poultry, pigeons, apiculture and 2 times 1000m² fishponds, which are benefiting 93 households.

“From a small community-based initiative, with the right support, the Chebvute site has grown into an example for all of Zimbabwe. This project is proof of the humanitarian-development nexus at work: present-day assistance can help families build resilience to feed, water, educate and support their communities for years to come,” said Mr. Eddie Rowe, WFP Zimbabwe Country Representative and Director.

The Food and Agriculture Organisation (FAO) small irrigation programme in Stanmore B in Masvingo District is providing sustainable agriculture production in the area. The project has improved food security and household socio-economic status in the area. Beneficiary farmers have drilled boreholes for clean drinking water, paid off school fees for their dependents and others have bought vehicles using proceeds from the irrigation scheme.

Noting the successful rehabilitation of Stanmore irrigation scheme in Masvingo District with support from Food and Agriculture Organisation (FAO), Swiss Development Cooperation and the European Union, Dr. Alian Onibon FAO Sub-Regional Coordinator for Southern Africa and Representative to Zimbabwe said, “the irrigation scheme is testimony that communities can turn around a drought prone area into an oasis and profitable irrigation venture, harvesting cash-crops and staple crops (maize and sugar beans) throughout the year, as such there is need to scale up climate smart agriculture and irrigation schemes to address the recurrent drought and effects of climate change.”

The UN, through 2016-2020 Zimbabwe United Nations Development Assistance Framework, also supports development programmes in health, education, water and sanitation, food and nutrition, gender equality, HIV and AIDS, poverty reduction and resilience building delivering USD 400 million in various development projects towards inclusive growth and sustainable development.

Post published in: Business

Now, a decade after some momentous and even wrenching political and economic changes, the Zimbabwean dollar is making a comeback.

The problem is that most Zimbabweans expect the new currency to tank, and an increasing number of people are showing a distinct disinclination to have anything to do with it. The currency’s unsteady launch, international economic analysts say, is a sign that the economic dysfunction that plagued this country under longtime President Robert Mugabe hasn’t gone away with his ouster.

“I must have foreign currency to import my leather products,” said Crispen Dembedza, 51, who runs a leather clothing shop in Harare’s central business district. “Without foreign currency, I won’t be able to remain in business. I can’t find any local suppliers [of my products], and if they were any they would not be able to meet demand.”

Late last month, the government surprised the population by reviving the reviled Zimbabwean dollar and abruptly banning all transactions paid with the U.S. dollar, the euro, the pound and the South African rand, which has been in use since the collapse of the national currency.

Finance Minister Mthuli Ncube told Parliament last week that the move was meant to instill discipline on the nation’s financial services sector and help the poor, who lack access to foreign currency.

Post published in: Business

Don’t you just love it when two of your interests overlap? The Venn diagram of Ninth Circuit watchers and folks disappointed by the final season of the HBO hit Game of Thrones got a shout out in a recent decision.

The case was Banks v. Northern Trust Company, which is about the interpretation of the Securities Litigation Uniform Standards Act of 1998. But really the substance of the case is besides the point. Suffice it to say the defendants wanted the court to read a case without looking to a case in the same line that amended the interpretation provided in the original case.

The Ninth Circuit shut that down right quick:

Northern would like us to read Dabit [Merrill Lynch, Pierce, Fenner & Smith Inc. v. Dabit] without considering its clarification in Troice [Chadbourne & Parke LLP v. Troice]. But we will not render Troice meaningless the way that Game of Thrones rendered the entire Night King storyline meaningless in its final season.

Though it seems not everyone was thrilled about slipping pop culture into opinions:

The opinion was written by Judge John Owens, because of course it was. This isn’t the first time he’s used pop culture to make a point in an opinion. Hell, he’s even gone to the Game of Thrones well before, but it’s always fun to see a cultural touchstone referenced in a case. And that it throws shade at such a highly anticipated, but ultimately disappointing final season of TV, so much the better.

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).

Yes, California is still here, shaken, not stirred, as James Bond would say about his martinis. Whether we’re been sufficiently stirred to get ready for the Big One is unlikely. Meanwhile, Las Vegas may well someday be the future site of Pacific Ocean beachfront.

People do freak out about earthquakes and justifiably so; there is no early warning system, no chance to evacuate beforehand as in tornados and hurricanes. It’s literally a matter of rolling with the punches (pun intended). However, having grown up in tornado country, I’ll take my chances here. And as one seismologist noted dryly, “Why pack a go-to bag, where are you going to go?” Exactly.

How big a jolt you feel in any earthquake is directly related to how close you are to the epicenter, which in the case of the two quakes this past holiday weekend, was approximately 150 miles northeast of Los Angeles. So, we felt it, but not anything like at the epicenters in Ridgecrest and Trona in what we call the high desert.

To me, it was nothing like the 1994 Northridge quake, which was centered in Northridge, about 20 miles northwest of here. (Dozens of people died, massive (read billions) amounts of damage, and part of the Santa Monica freeway connecting downtown with Santa Monica came crashing down.) Hurricanes are given names, earthquakes are named by location and/or fault line.  Caltech (just down the road from me) seismologists are warning, once again, that the Big One is overdue, but as one reporter noted, we suffer from earthquake amnesia.

There are earthquakes of all different kinds, not just the geological variety. If you look at how the profession is changing, the earth is shifting underneath our feet (just like a real earthquake). Steven Chung’s ATL column last week discussed that the State Bar of California is considering substantive and substantial changes to the practice of law in this state, including allowing non-lawyers to practice law, non-lawyers to have an ownership interest in law firms, and technology-driven legal providers to provide legal advice.

What’s the definition of “earthquake” in its non-seismic sense? How about “a sense of upheaval?” That fits.

These proposals, as Steven points out, are not necessarily going to improve “access to justice.” They’re upheavals, but not necessarily in a good way. In fact, it may just be the opposite. Read the recent warning on the State Bar website about the plethora of notarios, unlicensed attorneys, who are engaging in the unauthorized practice of law, taking money from those who can least afford it while promising to avoid deportations.

Another upheaval: the American Bar Association is molting, changing how it serves a lawyer population less interested in membership by, among other things, simplifying its dues structure. Good idea, but long overdue. We, as a profession, do not seem to have any sense of urgency.

That prompts another question: are local bar associations still necessary? They are undergoing their own upheavals. Are they still desirable? Useful? Or are networking groups and bar associations centered around practice areas better for business development in these days of specialization? Way back when, local voluntary bar associations were not just seen as vehicles for business development, but for leadership opportunities, CLE, and pro bono. We all know “bar junkies,” or even might be one.

How about this for yet another upheaval for us? Dinosaurs will remember, with varying degrees of fondness, our mandate to “look it up” when we had a question or didn’t know the answer. So, off we trudged to the law library to “look it up.” Remember law libraries? Those cost-sucking, space-sucking repositories of legal knowledge?

There’s a new company called Hotshot which is setting out to change how junior lawyers learn. Instead of “look it up” in the traditional sense, it’s watch a video about the subject matter. Watching a video does make sense since the world, especially the younger members, are so screen oriented. Bill Henderson wrote about this company in his most recent blog.

Is this the best way for newbies to both learn and retain what they’re learning? It’s “just in time learning.” Dinosaurs may remember that Dell Computers, when it first produced laptops in the long-ago 1990s, touted itself as the company that would make what was needed “just in time,” so there was no need for inventory.  But inventory is different from knowledge.

So now, “just in time learning” is coming to the profession. But what happens when a court asks a question and the attorney who learned whatever she needed to learn “just in time,” can’t answer the court’s question without reference to the video? I understand that the purpose of Hotshot is to help to learn substantive law on a particular topic, but is that enough?

This earthquake in legal education, so to speak, is, as one law professor noted in Henderson’s blog, based on the failure of legal educators to do what they are paid to do: educate. The ground is shaking under their feet along with ours too. In the past, we felt that the earth underneath our professional feet was secure. Now we know better. Is the Big One for the profession yet to come?

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.