Category: News Feeds

* Britney Spears scored a small victory in her conservatorship battle with her father after a judge allowed her to hire her own counsel. Guess now “she is that innocent”… [Variety]

* President Trump has refused to say whether he will keep Attorney General Barr if Trump wins reelection. [CNBC]

* A medical device company will pay millions and submit to monitoring as a result of allegations that the company paid kickbacks to doctors. This would have been a boring ending to Love and Other Drugs… [Salt Lake Tribune]

* Bernard Cohen, the lawyer who argued Loving v. Virginia at the Supreme Court, and was instrumental in eliminating interracial marriage bans, has passed away at the age of 86. [U.S. News & World Report]

* A Texas attorney has been charged for allegedly using his smartphone to record a coworker in a bathroom. [New York Post]

* The Missouri lawyer couple in hot water for allegedly pointing guns at protesters is purportedly handing out autographs. Soon, we may see them on Cameo… [Yahoo News]

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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.

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

According to the Leopard Law Firm Index, presented by Leopard Solutions in partnership with Above the Law and Adam Smith, Esq., which Biglaw firm hired the most bankruptcy lateral partners over the last 12 months?

Hint: A total of 8 new bankruptcy partners were brought in over the past year at this firm.

See the answer on the next page.

Even without a historic pandemic unfolding around the world, the 2020 U.S. election was bound to be noteworthy. Issues around voting rights have been simmering at the local and national levels for years, and many attorneys are eager to sharpen their skills and expand their knowledge in order to help advocate for voters.

Ezra Rosenberg, Voting Rights Project Co-Director, Lawyers’ Committee for Civil Rights Under Law and Chair of PLI’s Voter Rights 2020 CLE program, available on-demand, commented about key issues and what attorneys can take away from the program.

Why offer a CLE about voting rights?

There are few, if any, legal topics that have so dominated the news as has voting rights in 2020. This is not only a consequence of this being a presidential election year, but the result of the perfect storm of that election and the pandemic.

On the one hand, the pandemic has created voting issues that have not been encountered before, such as how can we hold an election when people are rightly fearful of being in contact with others? On the other hand, these issues call us to draw upon the established fundamentals of voting rights law — of how we do that on a level playing field so that all eligible voters can be sure that their ballots will be counted. That’s why the voting rights program is particularly meaningful this year: it provides a needed perspective on the constitutional underpinning of voting rights law, along with a real-time, practical application of those laws, by some of the leading voting rights litigators in the country.

What can attorneys get out of PLI’s Voter Rights 2020 program?

We structured the program to provide, first, the constitutional and statutory foundation for modern voting rights litigation; and then, a soup-to-nuts demonstration of how that foundation interacts with every aspect of voting, from voter registration to voter purges to barriers to voting (in every aspect of voting, from absentee through voting in person), to how one’s vote is given weight in apportionment and redistricting decisions.

What are some of the key issues discussed in the program and why are they important?

The first thing we tried to do was to demonstrate the different ways in which the Constitution protects the right to vote. It does this either by way of specific amendment, such as the Fifteenth Amendment, or by way of application of judicial construction of the First and Fourteenth Amendments, which create different doctrines such as the right-to-vote test that balances burdens on voters with the interests of states, and the one-person/one-vote doctrine that insures that all persons’ votes are given equal weight in the drawing of legislative districts, and which led to the historic Voting Rights Act of 1965 that prohibits discrimination on account of a person’s race or ethnicity so as to deny or limit that person’s opportunity to participate equally in the political process.

We then spent two-thirds of the program giving real-life examples, many of them litigated by the panelists in areas including: voter ID, using the Texas Photo ID case that Myrna Pérez and I tried as a prime example; voter purge cases, such as the Hancock County case, where we succeeded in obtaining a consent decree that stopped a purge of Black voters in a small Georgia County; and the various COVID-19-related cases, where we and others, including panelist Sophia Lin Lakin, have sued jurisdictions to ensure that absentee ballot eligibility criteria and procedures do not unconstitutionally stop people from voting this year.

Why did you speak for PLI?

I’ve been practicing law for over 45 years, and I take real pleasure in sharing my knowledge and experience with others. I’ve been lucky, in my career, to always have had others who have done that for me — including in the past decade, when I began to work intensively in the voting rights arena. PLI provides a stellar vehicle for sharing knowledge.

Can you share some insights about what you think attorneys can do to protect voting rights, particularly when there are so many unusual challenges facing the electorate this season?

Attorneys should reach out to any of the many voting rights organizations and volunteer their services. And these services can include volunteering to work on hotlines, such as the Election Protection hotline 866-OURVOTE, which the Lawyers’ Committee helps coordinate.

To learn more and to register for the PLI CLE program Voter Rights 2020, available on-demand, visit PLI.edu.

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About PLI

Practising Law Institute is a nonprofit learning organization dedicated to keeping attorneys and other professionals at the forefront of knowledge and expertise. PLI is chartered by the Regents of the University of the State of New York and was founded in 1933 by Harold P. Seligson. The organization provides the highest quality, accredited, continuing legal and professional education programs in a variety of formats which are delivered by more than 4,000 volunteer faculty including prominent lawyers, judges, investment bankers, accountants, corporate counsel, and U.S. and international government regulators. PLI publishes a comprehensive library of Treatises, Course Handbooks, Answer Books and Journals also available through the PLI PLUS online platform. The essence of PLI’s mission is its commitment to the pro bono community. View PLI’s upcoming live webcasts here.

As many people within the legal profession understand from first-hand experience, lawyers and courts have been conducting operations remotely since the COVID-19 pandemic began. Judges and court attorneys are usually holding hearings and conferences through Zoom or other similar mediums these days in order to reduce the risk that attorneys and court staff will be exposed to the virus. In addition, many depositions have been held remotely so that parties do not need to be together in one room during the proceedings. However, I recently had my first in-person deposition since the pandemic began, and the experience has shown me that there is much that is lost by holding depositions through remote means.

Rapport Between Attorneys

Of course, the most important part of a deposition is to receive sworn testimony from a witness. However, there are a number of other reasons why in-person depositions can be important to a case. Perhaps one of the most important aspects of in-person depositions is that is gets all of the attorneys connected to a case in one room, which can be helpful in moving a case forward. At an in-person deposition, attorneys can casually talk about discovery disputes, settlement numbers, and numerous other issues while everyone is together for the purpose of taking a deposition. Moreover, attorneys can build rapport with one another at in-person depositions in ways not possible during virtual depositions. For instance, many attorneys eat lunch together during breaks in a deposition, and this can go a long way toward building connections with other attorneys on your case and even in your practice area. I have never heard of attorneys eating their lunches together through Zoom during virtual depositions, and this rapport-building is essentially lost during virtual depositions.

Efficiency

One of the biggest benefits that I missed about in-person depositions is that taking testimony live is far more efficient than using Zoom or other remote means. When parties use Zoom or other applications, there is always the risk that internet disruptions and other technical glitches will make it difficult to take testimony. At virtual depositions, it is also sometimes hard to hear people, and individuals are far more likely to talk over each other, which can be difficult on the deponent, the attorneys, and perhaps more importantly, the court reporter.

Moreover, many of the procedural parts of a deposition are nearly impossible when depositions are conducted through virtual means. For instance, it is much more difficult (or impossible) to show a witness an exhibit during a virtual deposition, have them read from a writing, and ask questions pertaining to documents and other tangible items. Any good deposition taker will tell you that using exhibits is an important part of directing a witness, and this component of depositions is really hard with virtual proceedings. Moreover, using translators is much easier in person than during virtual depositions. Translators can already add to the time and complexity of a deposition, and this is even more of a challenge at virtual depositions. All told, my recent experiences with in-person depositions and virtual proceedings have shown me that in-person questioning can save both time and effort.

Witness Reactions And Sidebars

Anyone who has participated in a deposition conducted over the phone or even by Zoom (or a similar app) knows that it is hard to discern witness reactions during virtual depositions. Being able to observe the reactions of a witness is extremely important to determining if a witness is telling the truth, is uncomfortable about certain topics, and other insights. The reactions can help inform an attorney’s perspective, and it is extremely difficult to get this understanding from virtual depositions.

In addition, virtual depositions make it much easier for attorneys to coach their client during a deposition. Some jurisdictions restrict the applicability of the attorney-client privilege during depositions because courts understand that it is important for witnesses to provide truthful and unguided testimony during depositions. However, it is much easier for attorneys to talk with clients without other counsel knowing about it when they are in a room together and everyone else is participating in a proceeding remotely. While I do not want to impugn anyone, everyone knows that coaching and other “funny business” often occurs at depositions, and this is much easier during virtual depositions.

Of course, I am not saying that virtual depositions shouldn’t take place during the pandemic, and lawyers — just like everyone else — need to follow the advice of medical professionals. It seems like virtual depositions will be a much bigger part of the legal profession for a long time, since health guidelines require social distancing and depositions usually bring people together. However, my recent experiences with both in-person and virtual depositions have shown me that virtual depositions should not be an ubiquitous and permanent fixture of the legal profession.

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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.

Leon Black is sorry. Sorry, we’re sure, about just how close a relationship he had with convicted and now dead pedophile Jeffrey Epstein. Sorry that he funneled his fellow “financier” as much as $75 million long after he officially became a registered sex offender. But mostly, if seems, sorry that other people keep taking notice of it, producing awkward questions on the part of clients and forcing him to do his least favorite thing: talk about Jeffery Epstein.

Wall Street tycoon and Apollo Global Management co-founder Leon Black expressed regret for his dealings with convicted sex offender Jeffrey Epstein in a letter to investors on Monday…. Black said in the letter that his relationship with Epstein spanned only professional services that included “estate planning, tax and philanthropic endeavors.” He also wrote that he occasionally met with Epstein at Epstein’s townhouse in New York to conduct business, as Epstein did not have a separate office. He also noted visiting Epstein’s private island for a “picnic lunch.” ​In the letter, Black said that members of his immediate family accompanied him.

“With the benefit of hindsight — and knowing everything that has come to light about Epstein’s despicable conduct more than fifteen years ago — I deeply regret having had any involvement with him,” Black stated in the letter.

Last week, a Ninth Circuit Court of Appeals panel issued a very short opinion in favor of the Dvash-Banks family. That’s great news! For now. The poor family has been put through the ringer by the government after a customs officer informed the new parents that only one of their infant twin boys would be recognized as a United States citizen. Since that time, the parents — along with the nonprofit firm Immigration Equality, and the very profitable firm Sullivan & Cromwell, as pro bono counsel — have been fighting for their other twin son to also be recognized as a U.S. citizen.

You may recall this case and similar ones like it. (Here is a podcast interview with the Mize-Gregg family — a married couple, both U.S. citizens, whose daughter was similarly denied citizenship.) The U.S. government has been insisting that children born of married U.S. citizens must also be biologically related to *both* parents, or else the children fall within the “unwed” parents section of the immigration code. That is, even if the parents are actually, you know, wed. Of course, asking parents who are applying for citizenship for their children whether both parents are genetically related to the child is discretionary, and the question tends to be asked of same-sex couples by default, and much less often or never, of heterosexual couples who may have conceived with the help of egg, sperm, or embryo donation.

The government has argued that inherent in the language “born of … parents” found in the immigration code is an implication that the child is biologically related to both parents. Since the technology is not there (yet!) for two men to both be genetically related to the same child, a married same-sex male couple could never satisfy the government’s overly restrictive interpretation. Luckily for these families, the government has been losing this argument over and over again. And over again. First, in the lower court with Dvash-Banks, then a federal court in Maryland with the Kiviti family, and again less than two months ago in federal court in Georgia in the Mize-Gregg case. While the government has not filed an appeal in the Mize-Gregg case, it is still within the 60-day window where the government may file an appeal, and based on Dvash-Banks and Kiviti, that appeal is coming.

It’s A Win, But It’s Not Over

In the Ninth Circuit decision last week, the court took all of one page — well, technically three pages with the case caption and judges’ signatures — the court noted it had no choice but to follow binding precedent. Two cases — called Scales and Solis-Espinoza — are directly on point and controlling. So the opinion, which included an appointee of President George W. Bush and an appointee of President Donald Trump, noted matter-of-factly that the government “concedes that Scales and Solis-Espinoza control this case and has appealed to preserve the argument that those cases were incorrectly decided. “As a three-judge panel, we are bound by Scales and Solis-Espinoza.”

So what’s next? While most of us would like to think the government would shake hands, say “good game,” admit defeat, and change its constitutionally questionable policy, that is probably not its next move. The government has two choices. First, it can request what’s called an en banc hearing by a larger panel of the Ninth Circuit. Instead of a three-judge panel, the case would be randomly assigned 10 judges from the Ninth Circuit’s roster of appellate judges. An en banc panel, unlike the three-judge panel, would not be required to follow the earlier panel precedents.

The other alternative is to request to go straight to the Supreme Court. The government can also pursue this option and request to be heard by the Supreme Court even if it seeks but loses an en banc appeal, if it went that route first.

While Amy Coney Barrett’s outlook on embryos and IVF may be grim, it is unclear how she — if confirmed as a Supreme Court Justice — would interpret the immigration code. In any event, I wouldn’t get my hopes up that she is a champion of same-sex parents under the Constitution. So while the latest decision should be an opportunity for the Dvash-Banks family to rejoice, they, and all similar situated families, are not out of the woods yet.

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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.

[S]o far as I know, that question has never been litigated. That question has never arisen. That question may or may not arise, but it’s one that calls for legal analysis of what the scope of the pardon power is, so because it would be opining on an open question when I haven’t gone through the judicial process to decide it, it’s not one on which I can offer a view.”

— Supreme Court nominee Judge Amy Coney Barrett, in response to a question posed by Sen. Patrick Leahy (VT-D) during her confirmation hearing, where he referenced President Donald Trump’s claim that he has “the absolute right” to pardon himself.

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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.

Were you wondering where Bill Barr has been this past week? Presumably hiding his face in shame over the ignominious state of the Justice Department, which just sued Melania Trump’s former buddy Stephanie Winston Wolkoff for writing a book about her, because that is somehow UNLEGAL.

Oh, that’s not a word? Well breach of fiduciary duty by a White House volunteer isn’t a cause of action either, but that didn’t stop the DOJ!

The complaint, filed yesterday in the U.S. District Court for D.C., begins by answering the burning question “What is First Lady?”

The spouse of the individual holding the Office of the President of the United States has historically filled the role of First Lady of the United States.

News you can use!

And because the First Lady receives Secret Service protection and helps out her husband, she has an implied right to muzzle everyone around her.

And it is particularly important that she be able to do so without fear that those providing assistance to her and to other members of the First Family—and, indirectly through them, to the President— will divulge information provided in confidence that, if divulged, could undermine those critical presidential functions. The traditional role of the First Lady in connection with the President and the Government would be impaired if a confidential advisor could wholly ignore her nondisclosure obligations, voluntarily undertaken.

Which is an interesting assertion of values, but is not, in fact, the law. Government employees with security clearances can be enjoined from publishing classified information, but regular folks have a First Amendment right to speak about their time in government.

The Trump administration seems to have tried to get around this by forcing White House employees to sign non-disclosure agreements, which are probably not worth the paper they’re written on, as NatSec lawyer Bradley Moss laid out in Lawfare back in 2018 when the White House was rattling its saber at Omarosa Manigault Newman.

But Manigault Newman was an actual government employee, as opposed to Winston Wolkoff, who was an uncompensated “trusted advisor” forced to sign a Gratuitous Services Agreement foregoing any right to speak or write about her time in the White House. It even purported to bar her from acknowledging the existence of said contract with the U.S. government.

As consideration the government offered the priceless privilege of basking in the royal presence. Which makes perfect sense if you’re a corporation licensing your name to a hotel chain, but less if you’re the U.S. government.

The GSA was supported by adequate consideration, including because (but not limited to the fact that) Ms. Wolkoff was “allowed access to The White House complex and equipment in connection with this Agreement.” Id. § X. Few individuals are permitted such access and for someone in Ms. Wolkoff’s position (a former director of special events at Vogue and producer of Met Galas), the ability to see firsthand the protocols and operations of the White House was a tremendous personal and professional opportunity of great value.

Having established that they’re now selling access to the White House, the DOJ turns to enforcing those dubious confidentiality provisions. By its own terms the contract ended on September 30, 2018, and was terminable at will by either party. The non-disclosure clauses contained no specific sunset, from which the White House infers that they bind Winston Wolkoff in perpetuity.

“The confidentiality obligations on Ms. Wolkoff survive the discontinuation or severance of the GSA,” they state as established fact.

But wait, there’s more!

What if the First Lady is actually covered by executive privilege?

Ms. Wolkoff also reveals deliberations about White House hiring decisions and her role in those decisions. See Melania & Me at 177-80. The President needs to be able to trust his advisors and have confidential information about them kept confidential. The President, the First Lady, and other advisors need to be able to freely deliberate about important decisions bearing on how the Executive Branch is constituted and operated.

That’s the DOJ trying to back into a deliberative process privilege claim without having to go through the embarrassment of saying it out loud. Because it would be extremely embarrassing.

But if the court doesn’t bite on that one, perhaps it will buy that Winston Wolkoff has a fiduciary obligation to the United States of America. You know, in her position as secret, unpaid, trusted advisor to the First Lady, who takes her responsibilities very seriously.

TRUMP: They say I’m complicit. I’m the same, like him, I support him, I don’t say enough, I don’t do enough, where I am. I’m working like a — my ass off Christmas stuff, that, you know, who gives a fuck about Christmas stuff and decoration? But I need to do it, right? Correct?

WOLKOFF: One hundred percent. You have no choice.

TRUMP: Okay, and then I do it. And I say that I’m working on Christmas planning for the Christmas. And they said, “Oh, what about the children that were separated?” Give me a fucking break. Where they were saying anything when Obama did that?

AHEM.

So, the government is suing Winston Wolkoff for breach of contract, unjust enrichment, and breach of fiduciary duty. It seeks to impound all her profits from the book in a constructive trust and even force her to pay the government’s legal fees. Because, sure, why not.

Your tax dollars at work! And also, for the lawyers, your profession thrown into further disrepute.

Complaint [United States v. Wolkoff (1:20-cv-02935)]

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Elizabeth Dye lives in Baltimore where she writes about law and politics.

State and local governments are facing a fiscal crisis because of the coronavirus. Due to shutdown orders, businesses have stalled or collapsed. As a result, sales tax revenue has decreased and income tax revenue is expected to be lower as well. On top of that, unemployment claims have increased, and some states are resorting to borrowing from the federal government to cover these costs. And states will need money to cover healthcare costs connected with controlling the spread of COVID-19.

In response, some states have called for increasing taxes on the wealthy. In New Jersey, the income tax rate on those earning more than $1 million will increase to 10.75%, from 8.97%. In New York, a “temporary” millionaire’s tax enacted in 2009 was extended last year until 2024. Legislators are now considering another millionaire’s tax to cover budget holes related to COVID-19. California, whose affluent residents already pay the highest marginal income tax rate in the country at 13.3%, is also considering another millionaire’s tax. In addition, there is a proposed tax increase on the November ballot by adjusting property taxes based on market value for properties worth more than $3 million. A total of nine states are considering some form of surtax on high-income residents.

Taxes are indeed the lifeblood of government, particularly during an economic crisis. But is it good policy to tax the rich during a recession? Here are a few reasons why some people think it is a good idea.

First, rich people are not likely to miss the extra money paid to the government. This is what economists call the diminishing marginal utility of money. It basically means the more wealth you have, the less likely you are to appreciate or need additional income. So if a rich person is not going to value additional income, why not give it to the government who will use it to benefit society?

This theory is somewhat flawed. Look at rappers flexing a lot of bling in their videos. Or people who live a supercharged paycheck-to-paycheck lifestyle because they have to use all of their money to maintain their luxury lifestyle. Or some people have so much high-interest debt that they cannot enjoy (or get utility from) their income for a long time. I’m not making a lifestyle judgment call, but for them it will take a lot more income before the usefulness of money starts to diminish.

And for some people who save money like Scrooge McDuck, they have the utility of more options. They can do more things and not have to worry about burning bridges or being cancel cultured. In my opinion, that kind of utility is immeasurable.

Another argument is that the economy does better when rich people paid high tax rates. The people who support that argument commonly cite to the 1950s when the top tax rate was at 91%. Also, the economy boomed when the top tax rates went to 39% during the Clinton and Obama administrations.

The truth is that only a few people paid those extremely high tax rates back in those days. And even those subject to that high tax bracket rarely paid it due to deductions and other loopholes. It has also resulted in many taking advantage of tax avoidance strategies.

Some have argued that rich people should be taxed more because it is very likely that somewhere along the line, they must have done something (or many things) wrong to get to where they are financially. As we live in a competitive society, these people cheated to get an edge. They might have been dishonest. They might have stolen from people. They might have taken advantage of someone or ruined someone’s career. On that assumption, they should pay more in taxes as penance.

I find this argument generally ridiculous. Now I wouldn’t be surprised if every Fortune 500 company has some skeletons in their corporate closet that they are loathe to discuss at their annual shareholders meeting. But people should be punished individually for whatever they did wrong and should compensate the person who was wronged. The government should not benefit from someone’s wrongdoing to another individual.

Finally, taxing the rich is the easiest solution for politicians. It’s easier than cutting social welfare programs or laying people off. Rich people are easy targets politically since they are a small fraction of the voting population and people don’t mind voting for a tax that they don’t have to pay. It’s easier for politicians to placate their constituents by blaming rich people for not paying their “fair share,” whatever that means. They and their media friends say that the money is needed for schools and road maintenance. And as mentioned above, so-called “temporary” taxes end up being extended again and again.

The rich complain and threaten to move to a state with lower taxes. Governments of popular cities and states know that while the wealthy will talk a big game about moving elsewhere, few will do it. They know the rich won’t leave sunny California to a state with a lot of humidity and yearly hurricanes. Sure, New York City or Los Angeles is expensive, but will they really move to some quiet suburb with lower taxes, less traffic, and funded police who will be more than happy to put violent rioters in their place?

These days, the threat of moving is getting serious. With more people working virtually, they do not need to live in an expensive area to be close to work. Others have to move because of unemployment or other misfortune. Rent prices in high cost of living cities like San Francisco have dropped significantly. Some people, like Gov. Cuomo of New York know this which is why he does not support a new millionaire’s tax.

With government funds running low, it is tempting to tax millionaires because supposedly they are not paying their fair share. But once someone gets into these top tax brackets and see close to half their income go toward taxes, they will want to know the value they are getting for their money. If they are not happy with the answer, or are sick of hearing “schools and roads” they will either move to a low-tax jurisdiction or engage in tax avoidance strategies.

Or they might just pass on the tax to the little people.

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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.