Category: News Feeds

First published by ISS Today

Zimbabwe’s recent Supreme Court ruling that effectively stripped opposition leader Nelson Chamisa of his claim over the main faction of the Movement for Democratic Change (MDC) is bringing the party closer to the brink of implosion. The decision has grave implications for the opposition and for potential political dialogue in Zimbabwe.

In a country where national institutions – including the judiciary – are perceived to be conflated with ruling party interests, many in the opposition’s rank and file see the Zimbabwe African National Union – Patriotic Front (Zanu-PF) as being behind this ruling, which pulls the rug out from beneath Chamisa’s feet.

With a limping Chamisa, there is effectively no opposition to talk about as most other candidates who contested the 2018 elections have been co-opted into the Political Actors Dialogue. This platform was created by President Emmerson Mnangagwa, but rejected by Chamisa.

The Supreme Court issued a ruling on 31 March 2020 – a day after the 21-day national lockdown to slow the spread of Covid-19 began. The decision went the way of former MDC deputy president Thokozani Khupe. Chamisa led the MDC-Alliance, a grouping of opposition factions, in the 2018 elections and was beaten by Mnangagwa who escaped a run-off by a whisker. Khupe led a smaller faction and got just over 45,500 votes.

The ruling has further fractured the opposition, casting doubt over its credibility as an alternative to Zanu-PF. It is unfathomable that Khupe, who couldn’t garner even 50,000 votes in the 2018 elections, has any political clout and can rally Zimbabweans against Zanu-PF. Meanwhile, the MDC-Alliance maintains it is unmoved by the court ruling and Chamisa has so far been conspicuous by his silence.

The wrangling over who should lead the party ensued after MDC founder Morgan Tsvangirai died in February 2018. Just before his death, Tsvangirai controversially appointed two vice presidents, Chamisa and Elias Mudzuri, in addition to Khupe who was elected to this position during the party’s 2014 congress.

The move was viewed as political exigency to balance out factional succession fights within the MDC-T, the main MDC grouping led by Tsvangirai at the time. It also sowed the seeds of the party’s split. Even the most loyal MDC-T supporters have been at pains to explain the constitutionality of Tsvangirai’s last-minute decision to appoint Chamisa and Madzuri.

The political imperatives for the move were clear, however. In his 2018 New Year’s address to the nation, Tsvangirai revealed his desire to have the party’s young people take up more positions of responsibility and define the course of the party.

This was a strategic move to counter Zanu-PF, which is perceived to be a party of the old with nothing to offer the youth. Khupe, while seen as hardworking and politically mature, lacked the charisma required to give the MDC a chance in presidential elections. It’s a pity Tsvangirai didn’t trust his party’s democratic processes to make the right choice.

With Tsvangirai’s death, all three vice presidents wasted no time trying to secure the prime position, with Chamisa emerging ahead of the pack. In March 2018, the party split again and the MDC, then under Chamisa, merged with other formations to form the MDC-Alliance. Khupe kept the MDC-T label and contested the presidential elections.

Succession in politics is often less about legalities than political strategy. Tsvangirai’s death robbed the opposition of its best asset. In his absence, the party and the alliance had to be strategic regarding who leads the opposition’s charge forward.

The mood in the country was not only for leadership renewal but generational change, and Chamisa, 42, now represented that youthful front. Even the creation of the G40, a group of emerging young leaders in Zanu-PF in Robert Mugabe’s last few years, speaks to this growing appetite. Without Tsvangirai at the helm, the trump card from a strategic point of view became the generational consensus against the seemingly renewed Zanu-PF.

One of the MDC’s main weaknesses has been its eclectic nature. There are clearly limits to how long people will stay in an opposition party that is a conglomeration of diverse interests, and maintain a cohesive hold over its affairs in the face of repression.

The conflict between Chamisa and Khupe has played out more in the realms of ambition, entitlement and populism than the greater national good and the MDC-T’s founding values. The two protagonists find themselves trapped in their own realities.

Khupe felt constitutionally entitled and as such could not be convinced to be politically pragmatic. Chamisa was emboldened by the surge in the generational consensus drive and the perception of being anointed by the late Tsvangirai. Thus there were no strong incentives on either side to find common ground and focus on the electorate.

While Khupe celebrates the court victory, she has lost in the political game of numbers. The ruling is unlikely to give her any political mileage. At the same time, Chamisa and the main opposition have been exposed to be hypocrites paying lip service to democracy and constitutionalism while disregarding their own constitution and using Zanu-PF tactics in succession.

Chamisa’s comeback has to be strategic, and he must rebrand himself. He need not feel tied to the MDC, but should rather proffer a real alternative to the controversy and murkiness of MDC politics.

In all this, the struggling Zimbabwean is the clear loser. The electorate is left with no viable alternative that can be trusted to walk the talk when it comes to principles, constitutionalism and rule of law.

Covid-19 restrictions, including an extended lockdown, have robbed the opposition of any chance of staging a mass response through demonstrations or marches in solidarity with their leader. And Chamisa’s silence on the court ruling so far has left his followers in disarray. DM

Post published in: Featured

Ed. note: Welcome to our daily Trivia Question of the Day feature.

Which president of the United States is the only one to serve at least a full term and never appointed a justice to the Supreme Court?

Hint: Two of his Court of Appeals nominees eventually went on to serve on the Supreme Court.

See the answer on the next page.

On the heels of Massachusetts declaring that they’ll write their own test if they have to in order to offer students an online option, the California Supreme Court issued a letter outlining its thoughts on the licensing process for this cycle and also expressed its interest in an online option.

Technically, California committed to “work with the National Conference of Bar Examiners to facilitate the online administration of the September 2020 Multistate Bar Examination (MBE), or some variation thereof,” meaning it didn’t go as far as Massachusetts and declare that it would go rogue and compose its own test. But the statement can only be read as a shot across the NCBE’s bow, with the testing organization consistently downplaying even the possibility of an online exam.

Of all the states pushed into the traffic of the crossroads of reform by recent events, California is the most intriguing. While all states are now taking a look at their licensing regimes, California’s mess was already the subject of mounting criticism before a virus rendered status quo testing an impossibility. The cut score is far too high for the stated goal of protecting the public and functions primarily to serve a guild system controlling the flow of new entrants, it’s contributed to a massive access to justice issue, and simultaneously discriminates along racial lines and exacerbates the harm to minority candidates by accrediting sub-par law schools that primarily suck tuition dollars from minority students without affording a viable path to license.

If any state needs the diploma privilege knock-on effect of forcing a crackdown on law schools that don’t produce students capable of meeting minimum subject matter proficiency standards, it’s California.

And while it doesn’t appear as though the state is ready to fully lean into the opportunity presented by this crisis, at least it’s pushing the NCBE on the online option which is the bare minimum that any jurisdiction can offer right now. It’s not something the NCBE necessarily wants because few entities have as much wrapped up in keeping everything exactly as it is right now, they may want to consider loosening their stranglehold on how this test is administered because states like Massachusetts and California have no problem going their own way if they don’t get what they want.

California Supreme Court Orders Bar Exam Delayed, Administered Online [California Courts Newsroom]

Earlier: With NCBE Quibbling Over Online Bar Exams, Massachusetts Says They’ll Just Write Their Own
Who’s To Blame For School’s ‘Horrific’ Bar Results? Maybe The California Bar Examiners.

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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.

Who would have guessed that a crime about school-budget fraud in Roslyn, Long Island, could make a compelling movie subject, but it does in Bad Education, a movie released online last weekend. (Spoilers ahead.)

With great acting, slow buildup, real-to-life characters (it’s based on a true story) and a comeuppance for all at the end, it’s a slow-burn crime drama well worth watching.

The story intertwines white-collar crime, schoolboard politics, a can-do school superintendent, and a budding high school journalist to create a fascinating look at how huge amounts of taxpayer money were stolen and kept secret for a decade.

And we’re not talking about chump change gambled away at a Las Vegas teacher’s conference, but over $11 million.

First, there’s the walk-on-water school superintendent, Frank Tassone, played masterfully by Hugh Jackman (once you get used to his only partially successful Long Island accent). He’s handsome, smooth, and charismatic in an understated way.  He speaks to parents, co-workers, and teachers with deference and appears to really be listening. In reality, he’s leading a double (even triple) life.

Behind his Mr. Rogers friend-to-all persona, Tassone is diverting taxpayer money to underwrite, among other things, an Upper East Side apartment for him and his male lover, a house in Arizona for a different boyfriend, trips with his partner on the Concorde to conferences in London, the purchase of fancy suits, and his own plastic surgery.

Next, there’s his enabling assistant, Pamela Gluckin, the assistant superintendent of business affairs who cooks the books with such finesse that it’s not until an ambitious reporter from the high school paper starts digging that the scandal comes to light. Gluckin, played by Alison Janney (who also struggles with a Long Island accent), is less sympathetic. In her unthrottled greed, she bought herself and her family luxury cars, a beach home in Westhampton, and condos in Florida. Scriptwriters don’t give her as much back story as Tassone ,who rationalizes his theft as payoff for the frustrations for having been a good teacher, overlooked and underpaid.

Tassone convinces the school board that Gluckin’s fraud amounts only to $250,000. Hardly worth bringing down the school’s much vaunted reputation and the high property values that followed. “Harvard will just turn around and reject the students they’ve already accepted if we make this public,” Tassone says.

A coverup ensues with the board announcing Gluckin’s resignation due to a serious illness. Life goes on as normal until an article runs in the school paper drawing not only media attention but indictments against all the major players.

Hugh Jackman does a great job as the aging, vain, former teacher, now superintendent, who justifies what he did in the name of providing the best education he could for his district. His mixture of charm and hustle is so compelling, you’re left thinking he really believed his own bullshit.

In one particularly poignant scene, as investigators pour through boxes in the office next to his to make their case, Tassone is confronted by a mom insistent that her son get into an accelerated class. His world is imploding, yet he struggles to remain calm until he no longer can. It’s a funny, horrible scene that plays off the kid’s inability to pronounce the word “accelerate.” Tassone launches into a biting harangue about teaching children everything, giving it your all, being undervalued, unappreciated, and ultimately forgotten as parents and students move on with their lives. “But we never forget you,” he says.

None of it justifies the crime committed, but the viewer leaves understanding how the well-intentioned former teacher rationalized his misdeeds and kept them under the radar for so long by producing quality education, the reward of students getting into Ivy League schools, and higher property values.

In a sense, everyone who knew the high budgets that were being approved and saw the still-dripping ceilings in the hallways should have suspected fraud. Nobody wanted to look too closely.

Catch the movie not only for the satisfaction of watching what happens to the greedy but seeing how easy it is to become complicit in crime when nobody’s looking and everybody’s benefiting.

According to the New York State comptroller, Roslyn goes down as “the largest, most remarkable, most extraordinary theft” from a school “in American history.”

Ultimately, it prompted then-Governor George Pataki to impose new oversights on how all school budgets statewide are handled.

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Toni Messina has tried over 100 cases and has been practicing criminal law and immigration since 1990. You can follow her on Twitter: @tonitamess.

Business and law — it’s a marriage that has been in counseling for … well, forever. In the end, they will always stay together. Business and law are so intertwined that separating them is like decoupling french fries and ketchup or soap and water. Because there’s no one without the other, modern general counsels who can balance both business and legal issues have plenty of opportunities to shine.

Sarah Feingold, a co-founder of The Fourth Floor and former General Counsel of Etsy, correctly points out that business issues become abundant in transitions. For example, a striking difference between practicing at a law firm and in-house is how much more rooted in business each decision is. This, of course, makes sense — after all, in-house, you are so much closer to a business.

Feingold further points out that business issues are abundant at start-ups. When you navigate novel issues without a blueprint, business realities are a good place to start. They can certainly frame the challenges and define successes.

Similarly, conflict management often requires navigating and understanding business realities and priorities. Managing yourself, your responses, and timing often makes the difference between managed and mismanaged conflict. As Feingold pointed out, you can always dial up the intensity when you start from a nice and civil place. However, it is very hard to go the other way around.

Of course, crises and sudden changes to the status quo also provide opportunities for a business/law marriage to thrive. As in-house counsel, you can have an unparalleled impact on your legal department, your company, and ultimately the world if you can master navigating the business and law worlds simultaneously.

For example, numerous legal leaders are coaching and supporting members of their departments to serve their clients without interruptions and in considering the “new normal.” After all, how does one assess various business and legal risks when only uncertainty is certain?

As companies rethink the value of safety, predictability, and business continuity, in-house counsel will see opportunities to participate in the reconstruction efforts. To be clear, I am deliberately not using the word “recovery” because the COVID-19 experience has fundamentally shaken our assumptions and beliefs. Any sense of “recovery” and “back to normal” will be impossible for affected nations, companies, and individuals; instead, there will be a period of “reconstruction,” “redesign,” and “rebuilding.” During this period, savvy, modern general counsels, and in-house counsels who can seamlessly navigate business and legal issues will see plenty of opportunities to shine.

This opportunity to “reconstruct,” “redesign,” and “rebuild” is a rare one, and we all should make the most of it. Ultimately, many in-house lawyers are either decision-makers or influencers. As such, you will have an opportunity not only to ask what’s good for me, for my department, and my company, you will also have an opportunity to ask: What is good for the world? What is good for all of us? What is sustainable? What is the right thing to do? How can I make things better? Ultimately, how can I make a positive impact.

The COVID-19 crisis has rocked our world to its core. The suffering, fear, and uncertainty so many of us are feeling have made clear that things will never be the same, and certain underlying vulnerabilities must be addressed. However, it’s still too early to know what those changes look like. Different sectors will have different ideas. It will be up to forward-thinking general counsels to listen to those conversations and bring different sectors — most importantly, businesses and law — into the conversation. They will be the ones to chart the road ahead.

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Olga V. Mack is the CEO of Parley Pro, a next-generation contract management company that has pioneered online negotiation technology. Olga embraces legal innovation and had dedicated her career to improving and shaping the future of law. She is convinced that the legal profession will emerge even stronger, more resilient, and more inclusive than before by embracing technology. Olga is also an award-winning general counsel, operations professional, startup advisor, public speaker, adjunct professor, and entrepreneur. She founded the Women Serve on Boards movement that advocates for women to participate on corporate boards of Fortune 500 companies. She authored Get on Board: Earning Your Ticket to a Corporate Board Seat and Fundamentals of Smart Contract Security. You can follow Olga on Twitter @olgavmack.

Law firms realize the problem mental health issues present, and are making progress towards tackling the consequences, but are completely failing to take preventative action to stop the issues arising in the first place. [Biglaw] firms will continue happily running associates into the ground, and then offering them therapy.

— an anonymous respondent to ALM’s Mental Health and Substance Abuse Survey, offering insight on exactly where law firm mental health programs are going wrong. Respondents criticized billable hours requirements and unrealistic deadlines as some sources of the legal sector’s mental health meltdown.

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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.

Deutsche Bank is not a significant repository of expectations, either its own or others’, these days, as over the last several years it has led the financial services industry in dashing them. Hopes? Sure. Those spring eternal, and Deutsche Bank has plenty of them: to finish its firings, continue doing business in London (for some reason), to not get fined on an hourly basis, to find a not-necessarily-wealthy suitor to sweep it off its feet, to not see police cruisers en masse coming to a stop on the Taunusanlage, that none of its current clients will be revealed to be notorious sex criminals, that it will eventually figure out how to not launder money, that someone young and cool and with other prospects might one day deign to work for it, to be anything other than what it currently is, to live to see another day.

Life comes at you fast. And if you thought that was true in ordinary times, that’s been supercharged in a COVID-19 world. Just a few weeks ago, Am Law 100 firm Sheppard Mullin (ranked 54th on the most recent Am Law 100) announced they were furloughing a small number of staff members. Now the firm has made what is hopefully the last austerity measure they’ll need during the global pandemic, salary cuts.

In a statement from the firm (available in full on the next page), Sheppard Mullin Chair Guy Halgren had this to say about the most recent cost-cutting measures:

“The adjustments we are making today are fair and equitable and will help secure our strength through this challenging time. We reiterate our intent to not RIF or furlough our associates, special counsel and staff attorneys; not RIF or further furlough our staff; and commit that the partners will shoulder a meaningfully larger percentage compensation reduction than associates, special counsel, staff attorneys and staff.”

So what is going on at the firm? First are foremost, they’re furloughing an additional 17 staff members (in addition to the 33 previously furloughed). Plus there are salary cuts, because, of course there are salary cuts. Here’re the deets:

The salaries of associates, special counsel and staff attorneys will be reduced by 12% through the end of the calendar year. Given that the reduction is for two-thirds of the year, that calculates to an annualized reduction of 8%. The firm will conduct a special look-back at the end of the Measuring Year to recognize busy associates. The 2020 associate bonus program will more take into account non-billable activities and will include more focus on the discretionary component. Promotions in class at the end of 2020 will take into account that not all associates could effectively Work From Home.

Staff members making between $70,000 and $90,000 will have their salaries reduced by 5%/3.33% annualized (not to be reduced below $70,000) and those making more than $90,000, by 10%/6.67% annualized, through the end of the calendar year. We are not decreasing the salaries of any staff members making less than $70,000.

The firm will also institute a Workshare program for staff members without a full-time load of work available. This will allow the firm to cut the hours/compensation of those staff members by 20 percent (those employees would also be eligible for unemployment and other federal benefits).

Partners are also having their salary cut. Though there aren’t specific percentages provided, the firm says the partner cuts will be at a “meaningfully greater percentage.”

If your firm or organization is slashing salaries, closing its doors, or reducing the ranks of its lawyers or staff, whether through open layoffs, stealth layoffs, or voluntary buyouts, please don’t hesitate to let us know. Our vast network of tipsters is part of what makes Above the Law thrive. You can email us or text us (646-820-8477).

If you’d like to sign up for ATL’s Layoff Alerts, please scroll down and enter your email address in the box below this post. If you previously signed up for the layoff alerts, you don’t need to do anything. You’ll receive an email notification within minutes of each layoff, salary cut, or furlough announcement that we publish.

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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).