Posted May 30, 2018, 3:13 pm CDT
Thursday, May 31, 2018
Forcibly separating families ‘violates basic standards of human decency,’ ABA president says
Immigration Law
Separating immigrant children from their parents at the southern border is "unnecessarily cruel" and the ABA "strongly opposes" the policy, ABA President Hilarie Bass said in a statement Wednesday. “Separating children from their parents not only violates due process, it is antithetical to the very human values on which this country was founded and sets a terrible example for the rest of the world,” the statement says. “It should be stopped immediately.”
Bass also notes that the policy has overwhelmed both the criminal justice system and the immigration courts. Children as young as toddlers are being forced to appear in immigration courts on their own, with no right to appointed counsel, Bass said. Children should stay with parents whenever possible and be kept in the least restrictive setting possible, the statement says.
Attorney General Jeff Sessions announced the policy May 7, implying that such parents would be treated as human traffickers.
“If you’re smuggling a child, then we’re going to prosecute you, and that child will be separated from you, probably, as required by law,” he said at a speech in Scottsdale, Arizona. As the ABA Journal reported at the time, his prepared remarks did not include the word “probably.”
In fact, the Washington Post reports, advocates for immigrants say many of these families are asylum seekers, whose treatment is governed by federal law and international treaty.
To apply for asylum in the United States, a person must be physically in the United States or its territories, so crossing the border is a prerequisite. Non-citizens may file for asylum within one year of arriving in the country. Such people, with or without children, are generally interviewed about conditions in their home countries and either released or kept in custody pending an immigration court hearing.
According to the New York Times, the family separation policy was started months before the May 7 announcement and has resulted in at least 700 children being taken from their parents since October. That includes more than 100 children under the age of four. The American Civil Liberties Union is currently suing the Trump administration over the practice. That case, Ms. L v. ICE, concerns an asylum-seeking mother from the Democratic Republic of the Congo who was separated from her 7-year-old daughter.
Lee Gelernt, deputy director of the ACLU’s National Immigrant Rights Project, echoed Bass’s condemnation in remarks to the ABA Journal.
“I have been doing immigration civil rights work for 25-plus years and this is the worst practice I’ve ever seen,” he says. “It is both illegal and inhumane to tear little children away from their parents. The children are literally screaming and begging not to be taken away.”
President Donald Trump tweeted last week that the family separation policy is a result of a “horrible law” passed by Democrats. In fact, as NBC reported, there is no such law and the policy is the work of Trump’s own administration. NBC says the family separation policy is a result of the Justice Department’s new policy of “zero tolerance” for immigrants who enter the United States without authorization, which is a misdemeanor on first offense.
Was law prof part of a lawsuit-plotting ‘cabal’? State ridicules ‘imagined conspiracy’
Posted May 30, 2018, 4:12 pm CDT
A cable provider sued by the state of New York for allegedly overpromising internet speeds has notified the judge that it intends to claim the state of New York conspired with a law professor and technology companies to bring the lawsuit. A Latham & Watkins lawyer representing Charter Communications, Christopher Clark, told the New York judge overseeing the case in a May 22 letter that Charter plans to present an unclean hands defense. The Hollywood Reporter has a story. Charter will allege that Columbia law professor Tim Wu worked with officials from private companies, including Google, to help New York’s attorney general investigate and sue. According to the letter, New York “delegated what should have been an objective law enforcement investigation to third parties whose pecuniary and political interests are adverse” to those of Charter Communications. The letter refers to an email sent to a colleague by a Google official that said she had spoken with Wu about the New York lawsuit. “This is all really confidential, obvs, but you’re in the cabal,” the email said. Charter is seeking a search of Wu’s personal emails related to the litigation and to unredacted witness interview notes about meetings of “cabal” members. “The importance of these notes has only increased as Charter has learned of the literal, self-described ‘cabal’ Mr. Wu formed” with individuals from Google, another company and a think tank, according to the letter. The New York Attorney General’s office responded in a May 29 letter that it has already produced or logged hundreds of relevant emails from Wu, and it has fulfilled its discovery obligations. It also provided interview notes for the court’s review. “OAG vehemently disputes Charter’s innuendo that the witness interviews could bear on an imagined conspiracy involving Professor Wu,” the Attorney General’s office said in its letter. A spokesperson for the New York Attorney General’s office told the Hollywood Reporter the claims by Charter officials are a “cute but desperate ploy to distract people from their yearslong fraud and deception.”Has pro bono work helped you professionally?
Question of the Week
Can pro bono pay off?
An article in the June ABA Journal magazine features three lawyers whose volunteer work—in aviation, employment and intellectual property law—has ended up sending paid work their way.
Lawyer Richard Roth says his pro bono copyright and trademark work for authors, lyricists and songwriters can really pay off if a client ends up making it big. “Some of them become successful and famous later, and they remember the work I did when they were struggling.”
This week, we’d like to ask you: Has your pro bono work helped you professionally? Did pro bono work ever lead to paid work? Did it give you valuable work experience you otherwise never would have had? Did it send you on a new career path? Answer in the comments.
Read the answers to last week’s question: Do you believe you are fairly compensated for your work?
Featured answer:
Posted by Fed JD: “A first-year associate at D.C. BigLaw makes $30K more than I do as a 15th-year fed with a JD/LLM and a tribal appellate judgeship. A Holland & Knight partner’s financial disclosure revealed he was making $830K prior to taking a federal political position as an attorney. No, I’m not fairly compensated for my work.”
Do you have an idea for a question of the week? If so, contact us.
Posted May 30, 2018, 1:53 pm CDT
hafakot / Shutterstock.com
https://www.forlawfirmsonly.com/has-pro-bono-work-helped-you-professionally/
Wednesday, May 30, 2018
Speculation swirls over Supreme Court retirements
Supreme Court Report
With about two months left in the U.S. Supreme Court’s current term, speculation about a retirement from the bench is shifting into overdrive—if it weren’t there already.
Justice Anthony M. Kennedy, who is 81 and marked 30 years on the high court in February, has been the main subject of the retirement rumors, which also were rampant a year ago in the first months of President Donald Trump’s administration. The rumors went unfulfilled as Kennedy decided to stay on at least one more term.
Justice Ruth Bader Ginsburg is older—she turned 85 on March 15—but is known for her antipathy toward Trump and has made it clear in multiple public appearances this year that she has no intention of retiring as long as she can perform the job of justice “full steam.” Justice Stephen G. Breyer turns 80 in August, but like Ginsburg was nominated by President Bill Clinton, a Democrat. As part of the court’s liberal bloc on many issues, he seems to be disinclined to retire imminently.
Kennedy, meanwhile, is known to have some desire to step down and enjoy some golden years, perhaps to devote to interests such as improving civics education in the schools. He was nominated by President Ronald Reagan in 1987 after the defeat of Robert H. Bork and the withdrawal of Douglas Ginsburg for the seat of Justice Lewis F. Powell Jr. Kennedy joined the high court on Feb. 18, 1988, an anniversary recently acknowledged from the bench by Chief Justice John G. Roberts Jr.
There is no shortage of settings in which the retirement question is being watched with keen interest—the White House, Senate and the chambers of the federal appeals court judges who make up most spots on the official and unofficial short lists for filling a high court vacancy.
Another place where Supreme Court retirements are being studied is in the ivory tower. The retirement decisions or nondecisions by the justices have been studied by a surprising number of political scientists and other researchers.
“It’s a subject of perpetual interest, and it will be as long as we have a powerful Supreme Court full of elderly justices,” says Ross M. Stolzenberg, a professor of sociology at the University of Chicago who has written or co-authored two studies about justices’ departures from the court. This includes not just by retirement but by death; Stolzenberg also has studied the justices’ mortality rates after retirement.
This article was published in the May 2018 issue of the ABA Journal with the title "Leaving the Bench: Speculation swirls regarding Supreme Court retirements."
Photo illustration by Sara Wadford/Shutterstock.
‘WISHFUL THINKING’
If Kennedy decides to retire under Trump, he would be following a long tradition of justices consciously leaving the court under a president of the same party who appointed them. A more complicated question is whether justices also seek to time their retirements with political or ideological goals in mind—and whether they have been successful. The conclusion of the most recent study is that justices have not been all that successful in bringing about an ideologically like-minded successor—a new member of the court who shares their judicial or political outlook. “Justices’ political retirement goals have often turned out to be wishful thinking,” wrote Christine Kexel Chabot, a scholar in residence at the Loyola University Chicago School of Law, in Do Justices Time Their Retirements Politically?—published in draft form in February. “Some justices found that they were relatively far removed from ideologies of party leaders (and potential successors) by the time they retired, and justices who timed their retirements politically had limited success in obtaining like-minded replacements.” Read more ...Correction
Print and initial online versions of "Leaving the Bench," May, should have stated that the Republican Party controlled the Senate during two years of Barack Obama's eight-year presidency. The Journal regrets the error.This article was published in the May 2018 issue of the ABA Journal with the title "Leaving the Bench: Speculation swirls regarding Supreme Court retirements."
https://www.forlawfirmsonly.com/speculation-swirls-over-supreme-court-retirements/
Book Review: ‘Tom & Lucky And George & Cokey Flo’
Law in Popular Culture
In time for the 80th anniversary of one of the most sensational trials in U.S. history, The People v. Charles Luciano, comes a novel so deeply rooted in fact its own present historical value is undeniable. Centered around the trial of New York mob boss Charles “Lucky” Luciano, the book tackles the perspectives of four major players in the case: Then-New York Attorney General Thomas Dewey, mob boss Lucky Luciano, defense attorney George Levy and the key witness in the trial, Chicago madam Florence “Cokey Flo” Brown.
Perhaps the best recent addition to the canon of English literature is the advent of historical fiction, and the diligence with which author C. Joseph Greaves delivers the historical background of each major character is just short of astounding—if only because it seems a requirement for the caliber of story he wants to tell.
In fact, Greaves’ single greatest accomplishment in the novel is inviting the reader inside each character’s head, for richer or for poorer, all while slowly weaving their paths together over the scope of more than 400 pages and 59 chapters.
Based on unique access to the actual case files of George Levy, each of those chapters is a tennis match of doubles, with one character serving what will become quite a volley back and forth. Players readily rush the net like a well-played match at Wimbledon. This book is therefore worth its salt merely to see how the volley plays out. Will the victor be the baby prosecutor, Thomas Dewey, and his star witness, Florence “Cokey Flo” Brown? Or left-fielder George Levy and his client, mobster in chief Charles “Lucky” Luciano? Even if you know your history on the subject, how the verdict is reached sheds real insight into the touch-and-go politics of Depression-era legal proceedings that one can only hope never again come into play.
Readers of this book will quickly discover a guilty pleasure in realizing from whom you’d rather hear more dialogue, whether it’s Tom, Lucky, George or Cokey Flo. But better than what each character says outwardly is how you’re convinced to feel their innermost thoughts before and after they speak. Midway into the novel, it becomes dauntingly apparent how much time author Greaves spent inside the head of each of his characters, from the four in the book’s title to the least influential. No sentiment or detail is spared. Initially, chapters jump abruptly from one character to the next with time flowing freely forward. Sometimes even years lapse until finally all the characters’ stories meld together and time slows down during the scant three weeks of the trial.
The three male characters’ points of view are shared in third-person narrative, but Greaves’ strongest character is that of grifting gun moll Cokey Flo. She speaks in the first person, and her lively persona really shines above the rest. In fact, she is such a rich character that it might have served the book better if it were almost entirely written from her and Lucky Luciano’s perspectives—the book then simply being named “Cokey Flo Gets Lucky.” Let’s just keep this in mind for the screenplay.
As it stands, Tom & Lucky (And George & Cokey Flo), is a wonderfully woven tale from the aforementioned four perspectives leading up to, during and after one of the first and most sensational trials in United States history. Be sure to read the ABA Journal’s factual coverage of the trial (which is also written by author C. Joseph Greaves) in the magazine as, ““Getting Lucky.”
Posted July 1, 2017, 10:33 am CDT
The UK version of Tom & Lucky, courtesy of C. Joseph Greaves
Charles “Lucky” Luciano is pictured against the skyline of 1930s Manhattan along with showgirl, Gay Orlova, his girlfriend at the time of his arrest. Photo illustration by Brenan Sharp and Stephen Webster.
https://www.forlawfirmsonly.com/book-review-tom-amp-lucky-and-george-amp-cokey-flo/
Tuesday, May 29, 2018
How can we fight to reduce bias? 6th Circuit judge shares her thoughts (podcast)
The Modern Law Library
Studies have shown that implicit bias is something that affects everyone to some degree. So what steps can legal professionals at all ranks take to make the justice system fairer and more equitable?
In this episode of the Modern Law Library, the ABA Journal’s Lee Rawles speaks with Judge Bernice Donald of the Cincinnati-based 6th U.S. Circuit Court of Appeals and professor Sarah E. Redfield of the University of New Hampshire School of Law about Enhancing Justice: Reducing Bias, a book published by the ABA.
Redfield edited the collection—which contains contributions by more than 30 leading social scientists, lawyers, academics, trainers and judges—and co-wrote a chapter with Donald. They discuss the latest research on bias and give concrete tips for how we should confront bias going forward.
Related Links:
• Project Implicit: Take implicit bias tests hosted through Harvard University
• Enhancing Justice: Reducing Bias: Learn more about the project developed by the ABA Section on Litigation, Judicial Division and Section on Criminal Justice
Posted May 10, 2018, 8:30 am CDT
In This Podcast:
Judge Bernice B. Donald
Sarah E. Redfield
Amazon’s Alexa can now track billable hours
Legal Technology
Corrected: As noted in its near-ubiquitous ad campaign, Amazon’s artificially intelligent virtual assistant, Alexa, can interact with users, give them important information like weather and traffic patterns, keep track of important events and play music.
Alexa can even keep track of an attorney’s billable hours.
According to a post on Tuesday by Robert Ambrogi, Thomson Reuters has unveiled a new tool for lawyers to do just that—all with just a simple vocal command to Alexa. Developed by Thomson Reuters Elite, Workspace Assistant can calculate time spent on specific matters while allowing users to input their own hours. Workspace Assistant, which is compatible with any Alexa-enabled device, including Amazon Echo, also can answer questions relating to billable hours.
As Ambrogi noted, Workspace Assistant only works for users who subscribe to Workspace, Thomson Reuters Elite’s business management tool.
A tool like this is sure to engender security and confidentiality concerns. As Ambrogi pointed out, prosecutors have already started issuing subpoenas for Alexa or Echo recordings. Eric Ruud, managing director of Thomson Reuters Legal Enterprise Solutions, said in a press release that Workspace Assistant is “hosted by Elite, so it’s just a low touch into the Amazon environment.” He added that: “Alexa listens and interacts with time entry and reporting, but always within the firm’s security walls.”
Workspace Assistant can be downloaded from the Amazon Alexa store.
Updated at 10:09 p.m. to correctly name the Workspace Assistant product.
Posted May 10, 2017, 9:29 am CDT
Amazon's Alexa
https://www.forlawfirmsonly.com/amazons-alexa-can-now-track-billable-hours/
Sunday, May 27, 2018
First female justice of the peace gets obit after 116 years
Legal History
The New York Times has published a belated obituary for a woman who became the country’s first female justice nearly 150 years ago.
The trailblazing woman, Esther Morris, died in 1902 at 87. The Times published her obituary as part of its Overlooked series that makes amends for a history of obituaries that favored white males.
The territory of Wyoming had appointed Morris to the job in February 1870, only a few months after it granted women the right to vote. She had moved to Wyoming from Illinois with her husband and children, and was 55 at the time of her appointment in South Pass City.
One newspaper wrote in 1870 that Morris was “the terror of all rogues” and had offered “infinite delight to all lovers of peace and virtue.” She tried about 30 civil actions during her 8½ months of service.
Posted May 24, 2018, 11:10 am CDT
Esther Morris/Library of Congress via Wikimedia Commons.
https://www.forlawfirmsonly.com/first-female-justice-of-the-peace-gets-obit-after-116-years/
US intends to call Akin Gump lawyer in Manafort trial; lawyers seek to block storage unit evidence
Trials & Litigation
Lawyers for Paul Manafort learned Wednesday that the government plans to call a partner at Akin Gump Strauss Hauer & Feld to testify in the trial of President Donald Trump’s former campaign chair.
The name of the partner, Melissa Laurenza, had been redacted in court documents, Law360 reports. She reportedly helped Manafort submit forms in which he registered as a foreign agent. Laurenza is not accused of any wrongdoing.
Government lawyers revealed the lawyer’s name during a federal court hearing in Washington, D.C. During the hearing, Manafort’s lawyers sought to exclude evidence seized from Manafort’s storage unit in Alexandria, Virginia. According to Courthouse News Service and Politico, Manafort’s lawyers faced “an uphill battle” as they pressed the argument during the hearing before U.S. District Judge Amy Berman Jackson.
The indictment against Manafort alleges a conspiracy to launder money derived from work for a former Ukrainian president, as well as a failure to report Ukrainian lobbying work.
A federal judge had ruled last year that a lawyer thought to be Laurenza could be compelled to testify to a grand jury under the crime-fraud exception to the attorney-client and work-product privileges. The indictment said Manafort and Gates had provided false information to lawyers and other professionals.
Manafort’s lawyers cited a recent Supreme Court decision on rental-car privacy rights to support their argument that Manafort had a right to privacy in the searched storage unit, even though one of his former employees had a key and signed the lease. The National Law Journal covered the argument.
The decision, Byrd v. United States, held that a rental car driver who isn’t listed on the rental agreement generally retains a reasonable expectation of privacy under the Fourth Amendment when police seek to search the car.
The former employee had allowed the government to access the storage unit a day before the FBI used a search warrant to search the unit for business records.
Corrects spelling of Manafort’s name in first paragraph at 1:10 p.m.
Posted May 24, 2018, 10:42 am CDT
Paul Manafort/Mark Reinstein (Shutterstock.com.)
Saturday, May 26, 2018
Trump pardons late boxer Jack Johnson, convicted for transporting white woman across state lines
Criminal Justice
President Donald Trump granted a rare posthumous pardon to the first black heavyweight boxing champion, Jack Johnson, in a case in which he was convicted of transporting a white woman across state lines more than 100 years ago.
Trump pardoned Johnson on Thursday, report the Associated Press, the New York Times, USA Today, Fox News and the Washington Post. Johnson died in 1946 at 68.
It is the third posthumous pardon ever granted, according to USA Today.
Johnson had been convicted in 1913 for violating a law that makes it illegal to transport women across state lines for prostitution, debauchery or other immoral purposes. The woman was white, as were the jurors who convicted Johnson. She had worked as a prostitute but was in a relationship with Johnson, according to the Times.
Among those joining Trump for the announcement were actor Sylvester Stallone and several heavyweight boxing champions. Trump had tweeted last month that he was considering the pardon after Stallone told him about the case.
Congressional leaders have also sought the pardon, including U.S. Sen. John McCain. R-Ariz.
Posted May 24, 2018, 12:39 pm CDT
Jack Johnson/Library of Congress via Wikimedia Commons.
Lawsuit claims Texas criminal appeals judge fired secretary for criticizing GOP on Facebook
First Amendment
A former secretary for a judge on the Texas Court of Criminal Appeals claims she was fired because of Facebook posts that criticized President Donald Trump as well as other Republican politicians.
Olga Zuniga claims her First Amendment rights were violated when she was fired by Judge Kevin Yeary, who was elected to the state’s top criminal court in 2014 as a Republican, report the Austin American-Statesman and the Texas Tribune. Zuniga says the posts were made as a private citizen and not as part of her job duties.
According to the May 22 suit, Yeary found Zuniga’s Facebook profile in 2016 and called her into his office to counsel her about the posts. He continued to review her posts the next year and expressed disapproval of posts related to political issues.
Last September, Yeary found Zuniga’s posts criticizing Texas politicians on immigration issues as well as Trump, the suit says. She was fired two weeks later.
Yeary had fought Zuniga’s application for unemployment benefits, the suit said. He allegedly submitted statements to the Texas Workforce Commission that said her Facebook posts used “vulgar” language and “had a distinct political edge” indicating political biases.
Zuniga had worked for the Texas Court of Criminal Appeals for 14 years. Her suit says she had “strong, positive feedback” on job performance before her firing.
Posted May 24, 2018, 12:00 pm CDT
NIP Photography/Shutterstock.com.
Friday, May 25, 2018
Trump questions need for immigration trials, says system is ‘corrupt’ and will be changed
Immigration Law
President Donald Trump said the immigration system is “corrupt” and questioned the need for trials.
In an interview with Fox News that aired Thursday,” Trump said the United States has “the worst immigration laws in the whole world” and he wanted to get rid of the system of “catch and release.” He also said the United States is essentially the only country with judges considering immigration cases.
Fox News and CNN have stories.
“Other countries have—it’s called security people, people that stand there and say you can’t come in,” Trump said. “We have thousands of judges and they need thousands of more judges. The whole system is corrupt. It’s horrible. So you need thousands of judges based on this crazy system. Whoever heard of a system where you put people through trials? Where do these judges come from? You know a judge is a very special person. How do you hire thousands of people to be a judge?
“So, it’s ridiculous. We’re going to change the system, we have no choice for the good of our country.”
According to the Washington Post, there were 334 immigration judges as of mid-April.
See also:
NBC News: “Fact Check: Trump’s misleading claims about ‘catch and release’ “
Posted May 24, 2018, 4:30 pm CDT
President Donald Trump/Frederic Legrand - COMEO (Shutterstock.com).
Arizona Summit sues ABA, 3rd for-profit InfiLaw school to do so
Law Schools
On Thursday, Arizona Summit Law School was the third InfiLaw school to sue the American Bar Association in a month, arguing that due process rights were violated before and after the 2017 decision to put the for-profit school on probation.
The lawsuit, filed in the Arizona U.S. District Court, asks the court to set aside the ABA’s adverse findings and specific remedial actions, declare that the decisions were arbitrary and capricious, and grant an injunction prohibiting the ABA from applying or enforcing various standards against the law school.
Barry Currier, managing director of ABA Accreditation and Legal Education, was not available for comment at press time. In a May 16 statement released after Florida Coastal School of Law and the now-defunct Charlotte School of Law filed similar lawsuits against the ABA, Currier wrote that the accreditation process provides “meaningful opportunities” for law schools to establish that they are in compliance with the standards.
“Courts have regularly upheld the ABA’s law school accreditation process. We will continue to follow our established procedures and expect to be successful in any future litigation challenging the actions of the council,” the statement read.
The council placed Arizona Summit on probation in March 2017. Among the standards Arizona Summit was found to be out of compliance with were:
Posted May 24, 2018, 5:17 pm CDT
-
- • 301(a), which states that law schools must have a rigorous program to prepare students to pass a bar exam and practice law.
https://www.forlawfirmsonly.com/arizona-summit-sues-aba-3rd-for-profit-infilaw-school-to-do-so/
Wednesday, May 23, 2018
Business partner of Michael Cohen reportedly agrees to cooperate with prosecutors
Criminal Justice
A business partner of Michael Cohen, President Donald Trump’s personal lawyer, has reportedly agreed to cooperate with the government.
The partner in Cohen’s taxi business, Evgeny Freidman, pleaded guilty Tuesday to evading $50,000 in taxes, though he was initially accused of failing to pay more than $5 million, the New York Times reports. The plea agreement calls for five years’ probation if he satisfies terms of the plea deal.
Freidman has been a longtime partner of Cohen’s. A person briefed on the matter told the Times that Freidman will assist prosecutors in state or federal investigations. According to the Times, the development “could be used as leverage to pressure Mr. Cohen to work with the special counsel examining Russian interference in the 2016 presidential election.”
Freidman was disbarred May 1, according to the Times.
A press release says Freidman will have to pay restitution of $500,000 within 30 days to the New York State Department of Taxation and Finance. He will have to pay another $500,000 when he is sentenced and will enter a confession of judgment in an amount not to exceed $4 million in favor of the state tax department.
Posted May 22, 2018, 5:44 pm CDT
Michael Cohen. Shutterstock
Average earnings for solo and small-firm lawyers was nearly $200K last year, report says
Lawyer Pay
Sixty-eight percent of solo and small-firm lawyers believe they are fairly compensated for their work, according to an online survey by the Martindale Legal Marketing Network.
Solo and small-firm lawyers made an average of $198,000 last year, while their median earnings were $140,000, according to a press release. More than 6,900 full-time lawyers participated in the survey.
Seventy-three percent of the solo and small-firm lawyers—defined as those with 21 or fewer lawyers—said that, if they had it to do it all over again, they would choose law as a career.
The highest earning lawyers identified intellectual property as their primary practice area. They made an average of $240,000 in 2017. They were followed by personal injury lawyers ($237,000); employment lawyers ($225,000); workers compensation lawyers ($219,000); and business lawyers ($217,000).
Lawyers who primarily provided legal services to businesses earned more money on average than lawyers who primarily provided legal services to consumers.
Twenty-seven percent of the responding lawyers said their earnings had increased by up to 10 percent over the prior year, while 18 percent said their earnings had increased by more than 10 percent.
The survey found that an earnings gender-gap still exists. Female lawyers received 38 percent less income in 2017 than male lawyers, though some of the disparity may have been due to fewer years of practice reported by female lawyers. Seventy percent of the male lawyers believed they were fairly compensated, while only 61 percent of the female lawyers felt that way.
Only 6 percent of the lawyers said compensation was the most rewarding part of their jobs. Thirty-four percent said the most rewarding aspect of their jobs was “gratitude/relationships with clients.” Thirty-three percent said the most rewarding part was being very good at resolving legal issues.
Adds information about lawyer numbers in third paragraph at 3:52 p.m.
Posted May 22, 2018, 3:17 pm CDT
Shutterstock.com.
Judge orders teen to pay nearly $37M in restitution for starting wildfire
Trials & Litigation
An Oregon judge has ordered a teen to pay $36.6 million in restitution for tossing fireworks in the Eagle Creek Canyon last September and sparking a wildfire that spread to more than 48,000 acres.
Judge John Olson ruled in an opinion released Monday, report the Oregonian, the Associated Press, the Washington Post and KOIN 5. The teen’s parents are not responsible for paying.
The youth, from Vancouver, Washington, was 15 at the time of the incident. He pleaded guilty in February to reckless burning of property, depositing burning material on forest land, second-degree criminal mischief and reckless endangerment.
He was sentenced in February to five years probation and 1,920 hours of community service. He was also ordered to write more than 150 apology letters.
Olson said the award is constitutional because it does not exceed the financial damages caused by the fire. The youth’s lawyer had contended the high amount was cruel and unusual punishment.
The local juvenile department will develop a payment plan. State law permits payments to end after 10 years if a juvenile defendant successfully completes probation.
Posted May 22, 2018, 11:55 am CDT
Shutterstock.com.
Tuesday, May 22, 2018
Apps used to stalk can endanger domestic violence victims, but be difficult for lawyers to uncover
Criminal Justice
There are hundreds of cell phone apps that can be used for stalking a current or former romantic partner—and they may be hard to access by attorneys who work with victims.
The New York Times reported Saturday on research that showed more than 200 apps available through Apple’s App Store and the Google Play Store for monitoring someone’s location and activities. Many are ostensibly for finding a lost phone or keeping tabs on a child, the Times says—but are marketed for catching a cheating partner.
The research the Times reported on, from NYU, Cornell, Hunter College and Technion, also found apps that are overtly marketed for spying on a partner. Researchers called nine companies and asked about using their apps to track a husband; only one—TeenSafe—turned them down.
Erica Olsen, director of the National Network to End Domestic Violence’s Safety Net project, says this is a known problem among advocates for abuse survivors—and that it sometimes gets dismissed as paranoia. In a situation where the stalker might be violent, she says, that’s a mistake.
“It’s really important to take this seriously because if someone is monitoring someone else’s phone like this, then they have access to ,” she says. “And that’s an immediate safety concern.”
The Times mentions the death of a Florida woman, Yessenia Suarez, whose husband murdered her and her two children after discovering through spyware that she was having an affair. In another case in Washington state, Brooks Laughlin is charged with stalking and harassment for using Apple’s Find My iPhone app to track and control her, the Times reports.
Evidence that a stalker or abuser has used apps like these can be useful for lawyers, Olsen says—if they have access to that evidence. But she says police departments, with which prosecutors would likely work in such a case, don’t necessarily have access to the expensive software necessary to find and document the spyware. Those who have access may not make it available to domestic violence investigators, especially since many domestic violence crimes are misdemeanors.
Olsen hasn’t heard of family lawyers—another group of attorneys that’s likely to work with domestic violence survivors—using this kind of forensic software. This may be because the software is expensive and requires special training.
And some of the app companies may purge their sales records so quickly that a warrant served months later may not be useful, Olsen says. The Times notes that some companies moved their servers overseas after the developer of a spyware app, StealthGenie, was prosecuted and shut down under federal wiretap laws.
Vivian Huelgo, chief counsel of the ABA Commission on Domestic and Sexual Violence, says lawyers have found “some really creative solutions” for admitting evidence into court when they do have it. But often, she says, it’s the first time the lawyer has tried to admit such evidence, as well as the first time the judge has dealt with the issue.
“So everyone is kind of fumbling in the dark, trying to figure out how to admit these pieces of evidence,” she says. “I would submit it’s happening more and more every day.”
The Commission offers training to lawyers on topics related to domestic and sexual violence, and has partnered with the NNEDV for years for training on abuse, stalking and technology.
The U.S. Supreme Court is considering Carpenter v. United States, a case about whether police officers themselves must get a warrant to track suspects’ locations through their phones.
Posted May 21, 2018, 2:40 pm CDT
Shutterstock.com.
North Carolina bar to propose mandatory technology CLE credit
Legal Technology
The updated Model Rules have been adopted by 28 U.S. jurisdictions, according to the ABA Center for Professional Responsibility’s Implementation Committee. However, only one state currently mandates any technology CLE programming.
In September 2016, the Florida Supreme Court adopted the amended Model Rule 1.1. At the same time, the Florida Bar became the first state bar association to require at least three hours of CLE training in a technology program over three years.
Adriana Linares, a technology consultant to the Florida Bar, told the ABA Legal Rebels podcast earlier this year that the bar wanted to use mandatory CLEs to signal that technology is important and worth paying attention to.
While cybersecurity is only one component of offered classes, Linares calls the response from members “overwhelmingly positive” over email.
Following Florida’s lead, the ABA Journal reported in April that the Pennsylvania Bar has also recommended that the state supreme court adopt a one-hour, every two-years technology CLE requirement.
Technology “is an important area for lawyers given our responsibilities,” Dan Harrington, chair of the legal ethics and professional responsibility committee for the Pennsylvania Bar said at the time. He says the adoption of this requirement would benefit lawyers and their clients.
Over email, Harrington says that the Pennsylvania state supreme court has not yet adopted the recommendation.
Posted May 21, 2018, 3:26 pm CDT
The North Carolina State Bar is joining a new but growing trend of state bar associations requiring technology CLEs by proposing that one out of 12 approved CLE hours must include technology training. Alice Neece Mine, assistant executive director of the North Carolina State Bar, told Bloomberg Law Big Law Business blog that the proposal defines technology broadly so that attorneys will be able to take classes on topics ranging from cybersecurity to social media. The recommended changes will be sent to the state supreme court for approval after the bar’s July quarterly meeting. Neece Mine said that they expect the change to go into effect for the 2019 CLE compliance year. “The change sends an important message: that lawyers need to understand how technology is affecting the delivery of legal services,” said Andrew Perlman, dean of Suffolk University School of Law in Boston and chair of the ABA’s Center for Innovation, to Bloomberg Law. “The requirement will help to spread valuable knowledge and skills that will accelerate changes that ultimately benefit the public,” he added. Representatives from the North Carolina State Bar were not available for comment. In 2012, Model Rule 1.1 of the ABA Model Rules of Professional Conduct , covering competence, was updated to include technology. Comment 6 to the rule now reads that “to maintain the requisite knowledge and skill, a lawyer should keep abreast of changes in the law and its practice, including the benefits and risks associated with relevant technology.”Andrew Perlman. ABA Journal file photo by Tony Avelar.
https://www.forlawfirmsonly.com/north-carolina-bar-to-propose-mandatory-technology-cle-credit/
San Francisco district attorney to use algorithm to aid marijuana expungements
Criminal Justice
The San Francisco district attorney’s office announced it will use an algorithm to help determine expungement eligibility for those with some marijuana convictions going back to the mid-1970s.
“When the government uses 20th-century tools to tackle 21st-century problems, it’s the public that pays the price,” says District Attorney George Gascón in a statement. “California has decriminalized recreational cannabis use, but a marijuana conviction continues to serve as a barrier to employment, housing, student loans and more.
“Lack of access to employment and housing are two primary drivers of recidivism, so until we clear these records it’s government that is effectively holding these people back and impeding public safety.”
The expungements were made possible by the 2016 passage of Proposition 64, which legalized marijuana for recreational use. The tool was built by Code for America, a San Francisco-based nonprofit.
“We believe government can work dramatically better than it does today, and the criminal justice system is one of the areas where we are most failing the American people,” Jennifer Pahlka, executive director of Code for America, says in the release. “By reimagining existing government systems through technology and user-centered design, we can help governments rethink incarceration, reduce recidivism, and restore opportunity.”
While the San Francisco DA’s office was already filing motions to expunge marijuana convictions, the release says that the process for eligible felonies is more labor intensive. So, they sought help to automate the process. The application developed with Code for America will search records to find eligible people and auto-populate relevant court documents.
As of May 14, there were 962 motions to dismiss misdemeanor marijuana convictions prepared and 428 granted, according to the district attorney’s office.
The new technology will be applied to 4,940 felony marijuana convictions dating back to 1975. This process requires no action from individuals having their record expunged. It was not clear if the people benefiting from this process will be notified, which runs the risk of people continuing to disclose a criminal record they no longer have.
Evonne Silva, senior program director, criminal justice and workforce development at Code for America, explains that the courts have historically given notice in these cases. She adds that criminal rap sheets, the information analyzed by Code for America’s algorithm, do not have up-to-date contact information and that her organization is not currently undertaking work to fill in that information gap.
Representatives from the district attorney’s office were not available for comment.
This move by Gascón follows two recent, but growing, national trends: local government attorneys implementing criminal justice reform through their offices and the use of technology in the expungement process.
Seattle City Attorney Pete Holmes and recently elected Philadelphia district attorney Larry Krasner have both moved to dismiss marijuana charges or expunge convictions.
Code for America’s technology development follows on work being done in Maryland and Pennsylvania by two ABA Legal Rebels. Michael Hollander, an attorney at Community Legal Services of Philadelphia, and Matthew Stubenberg, attorney and IT director at Maryland Volunteer Lawyer’s Service in Baltimore, created databases of criminal records and algorithms to find people eligible for expungement.
As the ABA Journal reported in 2015, Hollander’s work led to a notable increase in expungements filed in the First Judicial District of Philadelphia, according to Keith Smith, director of active criminal records for the criminal trial division at the court. Hollander’s project dates back to 2011.
A report on expungement technology published in 2016 by SIMLab, a technology nonprofit that closed at the end of last year, found that expungement tools like the ones developed by Code for America, Hollander and Stubenberg, when used by attorneys, showed an increase in expungement filings.
Covering all forms of expungement allowed in Maryland, Stubenberg’s creation, called MDExpungement, has created 33,000 such filings and generated enough filing fee waivers to save Marylanders $756,600 as of last September, he said.
“I think it’s fantastic that buy-in by state and local governments,“ says Stubenberg. “That’s usually very hard to do.”
However, he says “there are some limitations” to this type of work.
He says that those trying to get American citizenship or face deportation can be hampered by expungement.
The challenge is that federal authorities may have evidence that an arrest occurred, which could be material to a person’s citizenship or deportation hearing. However, if the record has been expunged, the person may not be able to show documentation that is certified to the degree that immigration authorities require, explains Stubenberg. Ultimately, this could jeopardize people’s immigration process.
“Right now, it’s just a lot of gray area to what will accept,” he says.
In responding to this issue, Silva at Code for America shared a document related to Prop 47, which allows for a person to expunge or reclassify certain nonviolent felonies to misdemeanors. While the document recommends everyone should seek expert advice regarding their immigration status, it also says “there is no downside to helping an immigrant get an expungement or reduce a felony to a 364-day misdemeanor.”
Restores dropped word in first paragraph at 3:25 p.m.
Posted May 21, 2018, 2:03 pm CDT
Shutterstock.com.
Shutterstock.com.
Monday, May 21, 2018
Mentoring in the legal profession has had to adapt to a changing world
Legal Technology
Ari Kaplan speaks with Ida Abbott, the president of Ida Abbott Consulting, which promotes and supports career development and advancement from the beginning of a lawyer's career through retirement.
Abbott is an elected fellow of the American Bar Foundation and the College of Law Practice Management, as well as the author of both Sponsoring Women What Men Need to Know and The Lawyer’s Guide to Mentoring.
This Q&A has been condensed.
Ari Kaplan: Tell us about your background and your practice.
Ida Abbott: I was a trial lawyer for 20 years and then around 1995 started a consulting practice on lawyer professional development. Now I am narrowing my focus to mentoring.
Ari Kaplan: How has mentoring changed since the publication of the first edition of The Lawyer’s Guide to Mentoring?
Ida Abbott: The first book came out in 2000, and lots of things have changed. The original focus was on lawyer attrition. There was a study about associate attrition in law firms published the late 1990s by NALP (the National Association of Law Placement) called “Keeping the Keepers.” It found that associates left firms in large part because they didn’t receive the training and mentoring that they needed and wanted. I wrote the book, in part, to address that concern. The basic principles of mentoring haven’t really changed as it remains a way for people to learn from each other and provides an opportunity for someone with more knowledge and experience to assist in the growth, development, and career of someone else. The world, however, has changed, and mentoring has had to adapt to an era that isn’t as long-term and is much more egalitarian. There is also much more diversity, and people are aware of the need for multiple mentors. Aside from the fact that all of these changes required a new look at the subject, it was also important to release a new edition to inform people about the changes and new models that are developing to address them.
Ari Kaplan: What are some challenges that the legal community is facing in providing high-quality mentoring for its new professionals?
Ida Abbott: We don’t really have time to form long-term relationships the way we used to. They are still important and immensely valuable, but realistically, people don’t stay at the same place for very long. There’s a lot of movement, and the emphasis on billable hours makes it hard to dedicate nonbillable time to mentoring. Traditional mentoring still exists, but many people are looking for more expedient ways to get the benefits without that full investment. Twenty years ago, mentoring was basically informal, but starting in the late 1990s, firms started to become far more diverse and hired larger incoming classes, so informal mentoring just didn’t reach the number of people who needed support. As a result, almost every major law firm and most smaller or midsize firms have some sort of mentoring initiative. The downside is that when matching 50, 100, or 1,000 people, not all of those relationships will be profound. Most of the time, they are only going to provide a limited benefit.
Ari Kaplan: Is mentoring limited to new lawyers?
Ida Abbott: No. Any time you are going through some sort of significant transition, where you’re assuming new responsibilities or entering a new role, including becoming partner or a senior manager, it’s important to speak with someone who has already been there and can give you insights or support. Much of the work that I’m doing now is focused on mentoring lawyers who are retiring. They’re entering into totally unchartered territory because when you’re in the throes of a career, it’s much easier to find mentors. When you are facing retirement, however, that transition involves a lot of loss because you’re giving up the career that has not only provided you with an income but has formed a significant part of your identity and your community for a very long time. Having a mentor who can actually start helping you focus on what you’re moving toward and find other ways of supporting that journey forward is really important.
Ari Kaplan: Has the increased use of technology within the legal profession impacted mentoring?
Ida Abbott: Yes. In fact, a lot of people engage in mentoring relationships online, by phone, or through almost any kind of electronic medium because as long as you can communicate, you can build trust and convey information. I just came across a website for a robotic coach that uses artificial intelligence to offer mentors to anybody anywhere in the world at any time. Technology facilitates the relationship but is just a tool. There are a lot of state bar-sponsored mentoring programs, but while many permit remote communication, they usually also ask participants to meet in person at least once or twice during the matching period to enhance the benefit of that relationship.
Ari Kaplan: What is the difference between sponsorship and mentorship?
Ida Abbott: Sponsorship is a term that was developed about four or five years ago based on research showing that while men and women were getting advice, men were also getting active support from their mentors. Sponsorship is a higher, more active form of mentorship. For example, a mentor would say: “Charlie is a very influential person, and you could benefit from getting to know him.” A sponsor, on the other hand, would say: “I’m having lunch with Charlie on Wednesday and I want you to come with me so that I can advise him that you’re the expert in this area. When the conversation focuses on that, I want you to do this.” Sponsorship is a much more active kind of support. People talk about sponsors advocating for you when you’re not in the room. They’re the ones who argue that you are prepared for and deserve a promotion, raise, or bonus. They also support your appointment to committees and other positions of leadership. Women and minorities don’t often receive that kind of support, so people are starting to emphasize the need to sponsor them more proactively.
Ari Kaplan: How can the profession leverage mentoring in its continued evolution?
Ida Abbott: In my book, I identify a few firms that are doing a really good job. Littler Mendelson is one, and Shook, Hardy & Bacon is another. They have not only invested the resources and personnel that it takes, but they have been building a foundation in their culture for many, many years. It is not just a program. Rather, it’s a commitment to support these changes and activities by the people involved.
Listen to the complete interview at Reinventing Professionals.
Ari Kaplan regularly interviews leaders in the legal industry and in the broader professional services community to share perspective, highlight transformative change, and introduce new technology at his blog and on iTunes.
Posted May 18, 2018, 7:05 am CDT
Ari Kaplan
Ida Abbott
Sunday, May 20, 2018
Judge tosses suits claiming Poland Spring misleads consumers about water source
Posted May 18, 2018, 12:18 pm CDT
A Connecticut federal judge has tossed four consolidated class action lawsuits that claimed Nestle’s Poland Spring bottled water is misleading consumers because its water doesn’t come from a naturally occurring spring. U.S. District Judge Jeffrey Alker Meyer ruled Thursday that the plaintiffs’ claims were pre-empted by federal law defining spring water. Law360 and MaineBiz covered the decision; a press release is here. The plaintiffs had alleged that Poland Spring draws its water from ordinary ground and surface water collected from artificial springs in Maine. By mislabeling the water as spring water, Nestle was able to charge a higher price, the suit had alleged. Meyer said the U.S. Food and Drug Administration has enacted detailed regulations defining spring water under authority granted by the Food, Drug and Cosmetics Act. The FDCA provides that only the federal government can enforce violations. The regulations and the bar on private enforcement together have “a broad pre-emptive effect” on state law claims, Meyer said. “It would not mean much for Congress to foreclose private enforcement of the FDCA if this meant that any plaintiff could end-run this restriction by suing to enforce the FDCA under the guise of a state law claim for relief,” he wrote. A lawyer for the plaintiffs, Steve Williams of Joseph Saveri Law Firm, told Law360 that the plaintiffs plan to amend their complaints. Charles Broll, Nestlé Waters executive vice president and general counsel, said in the press release that he was pleased with the dismissal of the “meritless lawsuit.” “Poland Spring is what we have always said it is—100 percent natural spring water, meeting all FDA regulations for spring water. Consumers can be confident in the honesty and accuracy of the labels on every bottle of Poland Spring.” Nestle pointed to the findings of a DLA Piper investigation that concluded Poland Spring satisfies the federal standard for spring water. “We are pleased—but not surprised—with their conclusion that validates that Poland Spring Brand spring water is appropriately labeled under the applicable legal and regulatory framework,” Broll said. The case is Patane v. Nestle Waters North America Inc.Sessions rules immigration judges have no authority to indefinitely suspend cases
Posted May 18, 2018, 11:10 am CDT
Attorney General Jeff Sessions ruled on Thursday that immigration judges and the Board of Immigration Appeals do not have the general authority to indefinitely suspend cases through administrative closures. Sessions issued the decision late Thursday, report the New York Times, the San Francisco Chronicle and NPR. He ruled in a case involving a boy who came to the United States in 2014 from Central America and then failed to show up at five immigration hearings. Immigration judges use administrative closures to indefinitely pause lower-level deportation cases. Sessions had directed the Board of Immigration Appeals in January to refer the case to him for review. Sessions asked the parties to address the immigration judges’ authority to issue such closure. The ABA filed a brief arguing immigration judges have the authority to administratively close cases, and they needed that authority to manage their high caseloads. In his Thursday opinion, Sessions said immigration judges could administratively close a case only where a previous regulation or a previous judicially approved settlement expressly authorizes such an action. Sessions said the practice of administrative closures has “grown dramatically” since 2012 when the Board of Immigration Appeals allowed such closures even when one party objects. “Cases that have been administratively closed absent a specific authorizing regulatory provision or judicially approved settlement shall be recalendared upon motion of either party,” Sessions wrote. “I overrule all board precedents inconsistent with this opinion.” Hat tip to the Marshall Project.Saturday, May 19, 2018
Alleged owners of Mugshots.com charged in extortion scheme, face extradition to California
Criminal Justice
The four alleged owners and operators of Mugshots.com have been arrested and are pending extradition to California.
The men face charges of extortion, money laundering and identity theft.
“This pay-for-removal scheme attempts to profit off of someone else’s humiliation,” said Attorney General Xavier Becerra in a statement. “Those who can’t afford to pay into this scheme to have their information removed pay the price when they look for a job, housing, or try to build relationships with others. This is exploitation, plain and simple.”
Sahar Sarid and Thomas Keesee were arrested in South Florida on Thursday, Ars Technica reported. Kishore Vidya Bhavnanie was arraigned Wednesday in Pennsylvania, while David Usdan was taken into custody in Connecticut. Bail was requested at $150,000 for Usdan and $1.86 million each for the other defendants.
Mugshots.com and other similarly situated websites, operate a “depublishing” scheme where they collect public mugshot and arrest records and publish them to their site. When someone asks for the photo to be taken down, the website demands a fee be paid. For many, paying one site leads to the mugshot appearing on a different website, according to the affidavit filed May 10.
The California Attorney General’s Office said in its release that over a three-year period, the defendants collected more than $64,000 in removal fees from approximately 175 individuals with California billing addresses; and during the same period collected more than $2 million in removal fees from approximately 5,703 individuals.
Sarid wrote on his website May 15 that his time working with Mugshots.com ended in 2013. However, in a motion to dismiss a civil case filed in Illinois in 2016 Sarid did not challenge the assertion that he was the owner of Mugshots.com, according to Ars Technica.
The website says that Sarid lives in Thailand and has never been paid by Mugshots.com. The affidavit alleges that Sarid’s sister, Shunit Sarid, mother, Aliza Sarid, and his business partner, Thomas Keesee, all tie him to a bank account associated with Mugshots.com that brought in an average of more than $27,000 a month.
At the time of publication, the Mugshots.com was still operating and continues to name people arrested in California.
An estimated 70 million Americans have a criminal record.
The individual struggle against these websites is well-documented, affecting employment, housing and potential relationships. Seventy-seven percent of employers Google and otherwise research job applicants, according to the job-posting website Monster.com. And it is an unanswered question as to whether turning down tenants based on their criminal records violates the Fair Housing Act. Google attempted to ameliorate the problem by deindexing mugshot websites from their search results in 2013 with limited results.
Earlier this year, the ABA Journal spoke with Julie Cantu, a Florida resident, who found her mugshot from a DUI arrest on Mugshots.com and other similar sites.
The whole experience left Cantu feeling paranoid. She says she worried that the photo was “going to be there the rest of my life.”
In the affidavit filed May 10, numerous personal stories like Cantu’s were shared by those who were arrested without charge, had convictions overturned or had served their time and attempted to have their information removed from the site through payments of usually $399 or by simply requesting they be removed.
In one example, Jesse T. (his last name is withheld in the filing) was arrested without charge in 2013. He spent one night detained in Sonoma County jail. Afterward, he applied to 100 jobs in the construction and labor fields and never received a single response. A year later, a friend pointed him to Mugshots.com, where he saw his mugshot and personal information posted.
He called the website’s 1-800 number and asked for the information to be taken down. When the man on the line told him it would cost $399 to take the photo down, Jesse T. informed the person that was illegal. The man laughed in response and hung up the phone.
Jesse T.’s back-and-forth with Mugshots.com went on for at least another two years without resolution, which he says left him humiliated and with a ruined reputation.
States, including California, have attempted to rein in these websites with dubious impact. According to the PEW Charitable Trusts, 18 states have passed laws to restrict mugshot websites. California passed a ban on charging money to take down photos in 2014. Others limited private=sector access to mugshots and require that mugshot sites are accurate and reflect official records.
However, when people take steps to expunge their criminal records, the websites have no interest in reflecting the updated and accurate records. As Mugshots.com states on its website: “As you may be aware, expungement and pardon only apply to certain government agencies’ databases, and not all of them. Certainly not to the private sector.”
Because of the industry’s response and lackluster action taken by law enforcement up until now, PEW points out that the success of these laws has been limited.
Anyone who had a mugshot taken in California that was posted to Mugshots.com or was in California when they paid Mugshots.com to depublish their photo can contact the California Attorney General’s eCrime Unit at eCrimeUnit@doj.ca.gov. Complaints generating from any other state can contact Internet Crime Complaint Center (IC3).
Adds Becerra’s first name in third paragraph at 4:05 p.m.
Posted May 18, 2018, 4:00 pm CDT
Thomas Keesee, Palm Beach County Sheriff's Office; Sahar Sahid, Broward County Sheriff's Office.
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