Lawyers are not supposed to make things worse for their clients and we definitely are not supposed to wager our law licenses on a particular outcome.  Yet, in the Paul Manafort legal melodrama, that seems to be exactly what has occurred. Paul Manafort entered into a plea bargain agreement with the Special Prosecutor, Robert Mueller. Yet, at the same time, his lawyers also talked with the Trump legal team. Rudy Giuliani said the Manafort lawyers discussed the Mueller probe with Trump’s lawyers. They gained valuable insights, added the former New York City mayor. That is a remarkable admission.

Mr. Giuliani said the Trump lawyers “grilled” Kevin Downing, lawyer for Mr. Manafort, about whether the President knew about the 2016 meeting with the Russians at Trump Tower. See Axios report. And, in fact, that was one of the areas of questions posed to the President by the Mueller team.

Mr. Manafort’s lawyers engaged in those discussions with persons who could grant Manafort a pardon. That suggests the Manafort lawyers were motivated by a desire for a pardon. That suggests the President and his legal team may have suborned perjury. Suborning perjury means to bribe or somehow induce a person to commit perjury. It is a crime. Legal experts have expressed surprise that the lawyers for Manaofort and Mueller would put their law licenses at risk that way. See The Hill news report.

And, of course, at about the same time as all this information emerges, Pres. Trump said he would not rule out granting Manafort a pardon, making it clear a pardon was possible. The president has in effect dangled a dog bone of a pardon before the panting Manafort. Yet, Pres. Trump’s lawyers must realize how that looks. A good prosecutor, even one without the competence of Bob Mueller, would almost certainly look into what was said between the Manafort and Trump legal team. As a class, us lawyers hate to become witnesses. As a witness, we become burdened with a conflict of interest and must withdraw from the legal matter. The lawyers for Pres. Trump have remarkably exposed themselves to legal liability on so many levels. They have likely made themselves witnesses to possible perjury.

Regardless of what was actually discussed, these developments have opened the door to deeper, more extensive investigation. Like doctors, lawyers are expected to if nothing else, do no harm to your client (or to your law license). Yet, these lawyers appear to have done exactly that, harm to the President’s case and to their own law licenses. This is a bizarre turn of events.

 

There are some fundamental requirements in United States jurisprudence. There are some things we just do not do as a matter of fundamental due process. One of those things we do not do is ask minors to make important legal decisions. Yet, that is exactly the slippery slope upon which the Trump administration has embarked. A five year old Honduran who as seeking asylum was separated from her grandmother. She was then asked to sign away her right to a bond hearing. The ABA Bar Journal is relying on a New Yorker magazine article for the story.

Helen arrived in Texas with her grandmother, Noehmi and her teenage uncle, Christian in July. The Trump administration had supposedly ended the practice of separating children from their families weeks before Helen arrived. Yet, Helen was separated from her family.

All immigrants have the right to a hearing to determine whether they are entitled to bond. If the court finds they are likely to appear for their hearing, then the court allows them to post bond and go free until his/her hearing. Little Helen checked the box indicating she wanted a bond hearing. Later, someone handed her a form, with adult language and in English, asking if she wanted to waive her right to a bond hearing. The form was checked that she wished to withdraw her request for a bond hearing. Her signature appeared in typical kindergarten scrawl, just one word, “Helen.” There was no last name.

In Texas, the age at which one may enter into a contract is 18. But, in reality, many businesses require an older age, 21. My son cannot rent a car in his own name until he turns 21. Five years old is definitely below the minimum.

The age of consent affects countless areas of law, everything from marriage, to a driver’s license to voting. It is, or was, a fundamental precept of American law. See the ABA Bar Journal report here.

Later, Noehmi and Christian were re-united. But, at the hearing, the immigration judge and the Department of Homeland Defense lawyer did not appear to realize Helen existed. The lawyer for Noehmi and Christian tracked down Helen and found her. Helen was returned to her family on Sept. 10, 2018. But, now, she is afraid to go to sleep at night for fear her family will leave her in the night.

In your average lawsuit, this is not supposed to happen. Key witnesses are not supposed to suddenly recall something they have previously denied. Yet, that is what happened in the 2020 Census lawsuit. Wilbur Ross, the head of the Commerce department, now suddenly does recall conversations with then advisor Steve Bannon and Attorney General Jeff Sessions about the citizenship question. The Commerce department is responsible for the census in 2020. Secretary Ross added a question asking whether each person is a U.S. citizen. The plaintiffs in the lawsuit contend the question is designed to intimidate persons into not completing the census.

Earlier, when he testified before Congress, Secretary Ross denied any such conversation. The Department of Justice said it could neither confirm or deny involvement by AG Sessions. But, now he remembers. Secretary Ross says he recalls a phone call from Steve Bannon in March, 2017 asking him to speak with Kris Kobach, the Secretary of State of Kansas, and immigration hard-liner. Mr. Ross also now remembers speaking with AG Sessions in the Spring of 2017 and later. See Politico news report here.

The Secretary has been resisting attempts to take his deposition. This latest court pleading apparently seeks to prevent the depositions by admitting to some things the plaintiffs might ask. We can see why he would prefer not to remember these discussions with Mr. Bannon and Mr. Kobach. If this decision to ask about citizenship was based solely on best practices, why would he need to discuss the question with a political advisor like Steve Bannon?

Now, suddenly he remembers things he did not recall months ago. Typically, the memory works in just the opposite way. Usually, we recall things better when asked closer to the event. But, in Mr. Ross’ case, he remembers things better the further away he gets from the event. Uh huh. That’s the ticket…….

That was an unwise decision by the U.S. Supreme Court a few weeks ago. In the case of Janus v. American Federation of State and County Municipal Employees, No. 16-1466 (6/27/2018), the court ruled that employees who are not members of a union cannot be compelled to pay reduced dues, even though they accept the benefits of the union bargaining. See the Janus decision here. It was a legal theory that had kicked around for decades. If a non-member is compelled to pay dues at a reduced rate, is the non-member being forced to support activity for which s/he does not believe? Over time, unions dealt with that concern by reducing the dues for non-members and by ensuring the money devoted to political advocacy came from a different pot of money. Even so, the U.S. Supreme Court ruled in Janus that compelling dues violated the First Amendment.

I say the decision was unwise, because that same reasoning has permeated groups and associations for decades. The U.S. Supreme Court did not just overturn decades of precedent, but it also unsettled accepted norms. Now, just a few weeks later, two members of the Oregon Bar Association have filed suit arguing that being forced to pay dues to a state bar association violates their First Amendment rights, as well. The bar association, the plaintiffs say, advocates for political and ideological speech with which they disagree. There is probably some truth to that argument. Every state bar association advocates for some political goals, even if the goals are generally accepted. They advocate for goals like maintaining a bar association, for preventing unlawful practice of law, and more. While most of us see the benefit of preventing non-licensed persons practicing law, some may not. Yet, every state requires bar membership. The plaintiffs point out in their lawsuit, however, that while state licensing is necessary, state bar membership need not be necessary. See ABA BarJournal report about the Oregon lawsuit here.

And, of course, a few months ago, the Oregon Bar Association published a statement accusing Pres. Trump of catering to white nationalists and a second statement which condemned white nationalism. The bar association refunded the dues for members who requested a refund. One of the plaintiffs in this lawsuit did receive a refund, while the other did not seek a refund. But, even apart from those political statements, every bar association engages in some small measure of political advocacy. What happens when some members disagree? When a boy joins the boy scouts, is he required to agree with every political view taken by the Boy Scouts of America?

The Supreme Court may have opened a Pandora’s box. We will see how this evolves.

Within just a few days, Admiral William McRaven accused Pres. Trump of engaging in Joe McCarthy tactics and the President accused the Mueller investigation of engaging in Joe McCarthy tactics. They are referring to former Sen. Joe McCarthy who conducted anti-Communist hearings in the Senate. Let us look back for a moment at that disgraceful episode in U.S. history

Senator McCarthy was a bully. In his zeal to uproot all vestiges of Communism or Communist sympathizers, he bullied, scared and threatened his way across Washington, D.C. Everyone was afraid of Joe McCarthy, because they feared being branded as “soft” on Communism. Like Donald Trump, Joe McCarthy shot from the hip. For example, he stated flatly, like he knew and only he knew, that there were dozens of Communists in the federal government. He claimed in one speech to have a list in his hands of 205 known Communists in the State Department. Later, in the Senate, he said the number was actually 57. Still later, he claimed it was 81. That alleged list led to Senate hearings looking for Commies anywhere in the federal government. Overnight, Joe McCarthy became a household name. He became an albatross for the Republicans. Gen. Eisenhower, while campaigning, said he supported Mr. McCarthy’s goals, but not his methods. According to some accounts, in actuality, the President had planned a sharper attack on Sen. McCarthy, but backed down at the last minute.

When the Senator ran his own committee, he destroyed people, based on little more than suspicion. His browbeating tactics in Senate hearings offended his colleagues. But, afraid of what he would do or say, the other Senators said nothing.

In looking into the U.S. Army, he could find no evidence of subversion after weeks of investigation. But, he was convinced the Army had been “soft” on Communists. Frustrated, he started focusing on the case of Irving Peress, a New York dentist. Mr. Peress had been drafted in 1952. In his papers, he had disclosed a former membership in the American Labor Party, a leftist organization. When asked about his political affiliations, he had left that portion blank.

Capt. Peress was promoted to Major in 1953. Sen. McCarthy started a campaign  to find out who had promoted Maj. Peress. The question, “Who promoted Peress?” became a conservative rallying cry. All this time, Sen. McCarthy knew that the major had been promoted automatically by the provisions of the Draft Doctor’s Act, a recently passed law which Sen. McCarthy had supported.

When called before the committee, Capt. Peress invoked the 5th Amendment numerous times. He insisted that citing the 5th Amendment did not amount to guilt. Later, Sen. McCarthy demanded that the Army court-martial Capt. Peress. The pressure eventually forced Capt. Peress to request a discharge. He was discharged honorably with a promotion to major.

The committee then called on his commander, Brigadier-General Wicker to explain how he was promoted and discharged without a court-martial. BG Wicker, a West Point graduate, had been at Normandy. He had led an Infantry battalion at the key Battle of Brest. He was a hero. He was asked about his approval of the discharge orders for Maj. Peress. Based on advice from the Army counsel, he refused to answer certain questions. The Senator badgered him, and accused him of perjury. He said the general was not fit to wear the uniform.

“Tail-Gunner” Joe had been an enlisted man in the Army during WW II. His abuse of BG Wicker caused many people to turn against Sen. McCarthy. All the general did was approve discharge for an officer who had committed no transgression while in service. As BG Wicker said many years later, he was initially not unsympathetic to Sen. McCarthy. But, as soon as the hearing began, he quickly became disillusioned. Sen. McCarthy, said the general, was an opportunist. The Senator’s abuse postponed Zwicker’s promotion to Major General.

The debacle with BG Wicker lead to the Army hearings. Sen. McCarthy would hold hearings on live television, the new medium, digging deeper into so-called Army tolerance of Communism. Millions watched as he browbeat and interrogated various Army officials. In one such hearing, the chief legal representative for the Army, Joseph N. Welch pressed the committee about some supposed 130 persons who worked in defense plants and supported the Communist party. Sen. McCarthy jumped into the conversation. He insisted Mr. Welch explain the case of Fred Fisher, a young lawyer who worked in Mr. Welch’s law firm. Mr. Fisher, insisted the Senator, had once belonged to the National Lawyer’s Guild, the “mouthpiece” of the Communist party.

The National lawyers Guild is still around. It is indeed liberal leaning, but it is also independent of any political affiliation. Sen. McCarthy had to know this.

Joseph Welch accused the senator of cruelty. The Senator persisted, demanding to know about Mr. Fisher’s former membership. Mr. Welch famously replied, “Senator, may we not drop this? We know he belonged to the National Lawyer’s Guild. Let us not assassinate this lad further, Senator. You’ve done enough. Have you no sense of decency, sir, at long last? Have you no sense of decency??” When Sen. McCarthy persisted, Mr. Welch cut him off. He reminded him that he could have asked about Fred Fisher any time that day. He sat within six feet of Mr. Welch. He told the chairman of the committee to call the next witness. The gallery then erupted in applause and a recess was called. Sen. McCarthy’s decline began soon after.

Fred Fisher did indeed once belong to the NLG during law school. But, as Mr. Welch pointed out, this was needless trashing of a man at a time when membership in liberal organizations could ruin a man’s career. This line of inquiry served no purpose, other than advancing Sen. McCarthy’s political goals. It was cold-blooded political opportunism and Mr. Welch called it.

So, when persons accuse another of McCarthyism, that is indeed a deep insult. Sixty years ago, the end for “Tail-Gunner” Joe started with one decent man, representing the U.S. Army.

The question arrises in many discrimination cases how far back can the plaintiff go in presenting relevant evidence? Title VII itself provides that a complainant must file his/her complaint within 300 days of the act of discrimination. Can the plaintiff present evidence of harassing conduct before that 300 days started? Yes, of course. The theory of “continuing violation” has been around a long time.In Heath v. Board of Supervisors for Southern University, 850 F.3d 731 (5th Cir. 2017), Prof. Heath was a professor at Southern University. In her lawsuit, she alleged a male supervisor had harassed her for ten years before she field her complaint. in her lawsuit, the district court refused to allow evidence of harassment older than 300 days.

The court noted that in cases alleging hostile work environment, a plaintiff can generally present evidence of harassment older than 300 days, so long as one act of harassment does fall within the 300 day window. But, the lower court refused to treat Prof. Heath’s situation as continuing. Prof. Heath left the school on a sabbatical. So, said the lower court, harassment prior to the sabbatical could not be included in her lawsuit.

In looking at continuing violation, the lower court applied a three part test: 1) whether the alleged acts involve the same type of discrimination, tending to connect them in a continuing violation; 2) whether the alleged acts are recurring or more in the nature of an isolated work assignment or incident; and 3) whether the act has the degree of permanence which should trigger an employee’s awareness of and duty to assert his or her rights. The district court focused on the third factor when it granted the defendant’s motion for summary judgment.

But, this test was used by Fifth Circuit decisions prior to the decision in National R.R. Corp. v. Morgan, 536 U.S. 101, 117, 122 S.Ct. 2061, 153 L.Ed.2d 106 (2002). Pre-Morgan caselaw noted that the third factor was the most important. The Morgan case make an important distinction. It distinguishes discrete acts of traditional discrimination from hostile work environment claims. The human dynamics of harassment by a co-worker are different from those of a supervisor. Claims based on traditional discrete acts of discrimination are not subject to the continuing violation theory. Claims based on hostile work environment are.

As the Heath court noted, a hostile work environment claim is one based on death by a thousand cuts, not by one discrete act. In a hostile work environment, no one act can be pointed to as the one “unlawful employment practice.”

More importantly, the decision in Morgan rejected the view of circuits like the Fifth Circuit that formerly held that “the plaintiff may not base a suit on individual acts that occurred outside the statute of limitations unless it would have been unreasonable to expect the plaintiff to sue before the statute ran on such conduct.” So, the Fifth Circuit recognized that the Fifth Circuit’s pre-Morgan test for the continuing violation doctrine was implicitly overruled to the extent prior cases held that the continuing violation doctrine does not apply when an employee was or should have been aware earlier of a duty to assert her rights. That the employee was on notice or not that an act of harassment gave rise to a valid claim is not relevant.

See the Fifth Circuit decision here.

Incredibly, it appears the settlements concerning Bill O’Reilly and his sexual harassment required his victims to lie about the evidence. According to a CNN report, a settlement agreement with Andrea Mackris, a former Fox News producer, required her to lie even under oath by referring to the allegations as “counterfeit” or as “forgeries.” According to this same CNN report, the lawyer who claimed to represent Ms. Mackris switched sides in the midst of the negotiations for the settlement agreement and then represented Bill O’Reilly.

As Ms. Mackris’ current lawyer mentions, if true, that is a profoundly unethical step for any lawyer in any state. There is no situation in which it would be proper for a lawyer to switch sides during a lawsuit or during a negotiation. The ethical rules emphasize the appearance of impropriety. Even if the lawyer, Benedict Morelli, could offer some explanation for switching sides, changing sides would simply look improper.

These are serious legal allegations, the kind any lawyer would lose his license for. I am sure all these legal problems helped persuade the judge to allow three of Mr. O”Reilly’s settlement agreements to become public. Mr. O’Reilly asked the judge to seal the settlement agreements. But, the federal judge denied his motion. See CNN news report.

I wrote about this McDonald’s lawsuit a couple of years ago. See my prior post here. The lawsuit represented a new approach to franchisees. For years, even decades, persons suing franchisees could not also sue the parent company. A person could sue the local McDonald’s, but not the parent company. The theory was that the parent corporation sells work systems, but does not otherwise exert control over the franchisee. That theory started to change in 2015 when the National Labor Relations Board found that a company that hired a management company could indeed be liable in those rare situations when the first company retained some minimal management control. The first company and the new company would be a joint employers, said the NLRB.

In 2016, some McDonald’s workers walked off the job to call for higher wages. They suffered retaliation and then filed complaints with the NLRB. As I mentioned in my 2016 post, a simple franchisee agreement does not normally provide enough indicia of control to justify a joint employer relationship. McDonald’s settled the investigation with the NLRB. See Reuter’s report here. McDonald’s agreed to pay $3.75 million to settle the back wage claims. See Fortune report. According to the Fortune report, a judge ruled in 2017 that McDonald’s could not be liable as a joint employer, but said the company could be found liable if the employees believed the parent company was their employer.

Jon Hyman, an employer side blogger, seems to believe the matter settled in terms favorable to the McDonald’s parent company. See his post here. Regardless, it is likely that the joint employer theory has legs and will not go away soon.

 

In Office of the Attorney General v. Rodriguez, a supervisor reported possible insurance fraud to her supervisor at the Office of the Attorney General of Texas. Laura Rodriguez believed she had a duty to report fraud, waste or abuse. She reported possible fraud concerning her her long-time friend and administrative assistant, Debbie Galindo. Ms. Rodriguez reported the apparent fraud in January, 2009 to her supervisor. The employer investigated and found her suspicions to be correct, that the co-worker had tried to commit insurance fraud in listing a non-relative on her insurance plan. The supervisor, Charles Smith, later started an investigation of Ms. Roidriguez based on an old complaint about her and based on a newer complaint.

As part of the investigation into Ms. Rodriguez, her complaint about Ms. Galindo came up. The investigators reported to Mr. Smith that Ms. Rodriguez had shown bad judgment as a supervisor. They claimed she had become “irrational” when they asked her about renting a home to Ms. Galindo’s family. In actuality, Ms. Rodriguez did break down and cry when asked about the rental and told that rental to Galindo was not appropriate. Later, Ms. Rodriguez wanted to discipline one of her subordinates. Mr. Smith thought the manner of the discipline was improper and again showed poor judgment on the part of Ms. Rodriguez. In September, 2009, Mr. Smith drafted his first termination memo regarding Ms. Rodriguez. Jo Kirk, an attorney in the HR section at OAG advised Smith to make it a demotion, based on similar discipline of another supervisor at the OAG.

So, when Ms. Galindo was placed on suspension for her insurance fraud, Ms. Rodriguez was herself demoted later that same day in September, 2009. The next day, Mr. Smith issued a written warning to Ms. Rodriguez for the complaint about her by a subordinate, and for her renting a house to Ms. Galindo’s family members. When she was demoted, Ms. Rodriguez had to perform evaluations for all her former employees. Due to that requirement, she fell behind quickly in her new job.

In her evaluation in December, 2009, Mr. Smith gave her high marks, but in the area of ethics, she was rated very low for an alleged business relationship with one of her employees. Mr. Smith said that her business relationship “cast doubt” on her initial complaint about possible insurance fraud.

Ms. Rodriguez then submitted a claim of retaliation, saying that Mr, Smith had included false statements on her evaluation. A few months later, her new supervisor terminated Ms. Rodriguez. Ms. Rodriguez filed suit regarding her termination. The jury found the whistle blower complaint was part of her termination and award her $260,000 in lost pay, compensatory (emotional suffering) damages of $100,000, and lost future pay in the amount of $275,000.

On appeal, the OAG argued the evidence did not support the finding that her whistle blowing was part of her termination and that the evidence did not support the award of lost future pay, or “front pay.” The El Paso Court of Appeals did not agree wit the Office of the Attorney General. The court found that management conduct during the whole process supported the finding. Her supervisor thought it “odd” that Ms. Rodriguez took her concerns to a higher level, instead of disciplining the subordinate herself. The court noted that the employer wanted her to violate its own policy in requiring her to confront Ms. Galindo directly. Ms. Rodriguez wanted to keep her complaint anonymous, as OAG policy allowed. In pressing her to confront Ms. Galindo, the OAG was violating its own policy. Violating an employer’s own policy does help show illicit motive.

Too, the court of appeals found that a comparable employee was indeed comparable because they were accused of similar infractions, even if they had different supervisors. So, it was relevant that the comparable employee was not disciplined as severely as Ms. Rodriguez. Ms. Rodriguez’ replacement as Office Manager suffered from the same degree of backlogs as she did. Yet, her replacement was not fired or disciplined. And, noted the court, the fact that Mr. Smith included false statements in his evaluation of Mr. Rodriguez helps show illicit intent on his part.

Regarding lost future pay, or “front pay,” the court found that Ms. Rodriguez accepted a lower paying job that was not comparable to her last job as Office Manage – only after a fruitless search that lasted 18 months. If the employer believes Ms. Rodriguez could have found a job sooner than 18 months, it has the burden to show that. But, the OAG offered no such evidence.

See the decision here.

I go to Starbucks sometimes. In my experience, they always fill my coffee cup with too much coffee. It is hard to add cream., because there is so much coffee. But, I choose to live with it. Some folks have chosen not to live with it. Drinkers of lattes objected because Starbucks under-filled their cups. The latte drinkers filed suit. They argued Starbucks under-filled the cup by filling the top 1/4 inch with foam. Foam is not part of the drink, they argued.

The court disagreed. A federal judge in California dismissed the lawsuit. The plaintiffs essentially conceded that milk foam is indeed part of the drink. No reasonable consumer, wrote Judge Yvonne Gonzalez Rogers, would be deceived into thinking the foam was not part of the drink. Too, Starbucks pointed out their cups are slightly bigger than advertised to make up for that 1/4 inch of foam. See ABA Bar Journal report.

Yes, justice lives…….