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ABA Center for Human Rights forwards law prof’s assessment of illegality of arms deal to Senate

Posted by on May 23, 2017 in Elder Care | Comments Off on ABA Center for Human Rights forwards law prof’s assessment of illegality of arms deal to Senate

International Law

ABA Center for Human Rights

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Further arms sales to Saudi Arabia would violate federal law, unless the country takes steps to comply with international humanitarian law, according to a law professor whose opinion was provided to the U.S. Senate by the ABA Center for Human Rights.

The center supplied the opinion by Vanderbilt University law professor Michael Newton after receiving requests for expert opinion on the subject, according to a letter sent to the Senate by Michael Pates, director of the ABA Center for Human Rights. The ABA has not adopted policy on the issues and the letter should not be construed as representing the association’s position, Pates cautioned.

President Donald Trump agreed to the $110 billion arms deal with Saudi Arabia on Saturday, despite concerns by some human rights groups about civilian casualties caused by the Saudi-led coalition fighting in Yemen, report Time, the Huffington Post and the Associated Press. Saudi Arabia is trying to drive out rebels who have seized large areas of Yemen.

The arms sales are banned by the Arms Export Control Act and the Foreign Assistance Act, according to Newton. “In the face of persistent reports of wrongdoing” in Yemen, he wrote, “Saudi Arabia has failed to rebut allegations or provide detailed evidence of compliance with binding obligations arising from international humanitarian law. “

The Foreign Assistance Act says that the United States may not provide security assistance to any country that “engages in a consistent pattern of gross violations of internationally recognized human rights.”

The Arms Export Control Act allows arms sales to a country for certain reasons, including legitimate self-defense. Saudi Arabia has justified its military action in Yemen on grounds of self-defense, but attacks on non-military targets don’t meet the requirements that self-defense be proportionate and necessary, Newton says.

The Obama administration had also sold arms to Saudi Arabia, but curtailed some of the sales after reports indicated that a Saudi-led attack on a funeral killed more than 140 people.


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Some Charlotte School of Law students receive federal loan money

Posted by on May 23, 2017 in Elder Care | Comments Off on Some Charlotte School of Law students receive federal loan money

Law Schools

Charlotte School of Law

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The U.S. Department of Education has released the second disbursement of direct loan funds to Charlotte School of Law.

The money was released May 5, a Department of Education spokesperson told the ABA Journal on Monday.

The department in December announced that it was pulling the Charlotte School of Law’s federal loan money, after the ABA placed the school on probation. According to the department, which was then led by an Obama administration appointee, Charlotte School of Law
made “substantial misrepresentations” to current and prospective students regarding its compliance with ABA accreditation standards.

A spokesperson for the law school did not respond to an ABA Journal interview request.

“I participated in the 2017 commencement, and it was a celebration for sure,” says R. Lee Robertson Jr., president of the Charlotte School of Law alumni association. He’s hopeful that the school will be allowed to remain open indefinitely.

“I’m hopeful that the Department of Education will restore federal funding to permit the Charlotte School of Law to continue providing an excellent legal education to students from around the world,” Robertson wrote in an email to the ABA Journal. “This entire situation has shifted the focus from the good work that our alumni are doing across the United States to serving the underserved, and making their communities better places to live. Mistakes in the administration of the law school were clearly made, but I am hopeful that a smaller, focused Charlotte School of Law will be able to continue providing legal training for years to come.”

Charlotte’s student aid disbursements are available based on when a student’s financial aid was packaged, according to Robertston. Matt Blevins, who graduated from the law school this month, says that the recently released federal loans are only available to individuals with fall-spring packages. Students like him, who attended summer school, reportedly are not eligible.

Blevins took an institutional loan from the law school to pay for the spring 2017 semester. It was one of three options, according to him, with the other two being paying tuition out-of-pocket, or withdrawing from classes by May 9. There’s zero interest on the institutional loans, according to an email the school sent students, and payments are deferred for 12 months after a recipient’s last day of law school attendance.

If he didn’t sign off on the institutional loan by May 17, Blevins says, his grades, transcripts and degree would have been withheld. It can’t be consolidated into federal loans, adds Blevins, who estimates that the development will raise his monthly student loan payment by more than 50 percent.

Out of the country’s six for-profit law schools that have ABA accreditation, three, including Charlotte, are part of the InfiLaw System, a consortium owned by the private-equity firm Sterling Partners. Arizona Summit School of Law, another InfiLaw school, was put on probation by the ABA in March. The third, Florida Coastal School of Law, is not on probation, but in January it was found to be out of compliance with the U.S. Department of Education’s debt-to-income ratio requirement placed on for-profit schools.

“I had nothing to do with the poor decisions the administration made over the course of several years that resulted in the school’s probation, or the resulting DOE’s suspension of funding,” Blevins wrote in an email to the ABA Journal. “However, I am being punished for these mistakes now, while InfiLaw and CSL get to continue profiting from me. That sounds unreasonably favorable to the parties who put students like me in this situation.”

When the Department of Education officially cut off Charlotte School of Law’s federal student aid in January, the school had said that it would continue to try and get the funds released once the Trump administration was in place. In April, Above the Law reported that the law school had paid the Podesta Group, a lobbying firm, $50,000 for its services. One of its lobbyists, Lauren Maddox, prepared U.S. Department of Education Secretary Betsy DeVos for her confirmation hearings, Law.com reports.

“The current appearance is that they got the deal they were hoping for and will now try to find some way to weasel their way back in [to the federal loan program]. Certainly there is a reason for Charlotte to be more optimistic than it was,” Ben Miller, a former senior policy adviser in the Department of Education who now works with the Center for American Progress, told Law.com.

Also, Charlotte School of Law faces a civil fraud investigation from the North Carolina attorney general’s office. The demand (PDF) seeks documents that address “alternative financing” for CSL students, as well as documents that explained any plan to credit the students for federal funds, including what the plan was if the school’s Title IV eligibility was not reinstated.

The state agency in April sent a letter (PDF) to DeVos, expressing concern about Charlotte School of Law and federal rules regarding deadlines for student loan discharge.

Chidi Ogene, president of Charlotte School of Law, in a response letter (PDF) to DeVos described the state attorney general’s actions as “premature and improper,” because the law school still has ABA accreditation and is serving 220 students. According to Ogene’s letter, Charlotte School of Law’s application for reinstatement of federal student aid was submitted March 29 at the suggestion of the department’s acting general counsel.


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Michael Flynn reportedly invokes Fifth Amendment in letter to Senate

Posted by on May 23, 2017 in Elder Care | Comments Off on Michael Flynn reportedly invokes Fifth Amendment in letter to Senate

Criminal Justice

Michael Flynn

Michael Flynn. Photo by JFK Jr. Forum, Photographer Kristyn Ulanday

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Updated: Former National Security Adviser Michael Flynn has reportedly invoked his Fifth Amendment right against self-incrimination in refusing to give the Senate Intelligence Committee records about his communications with Russian officials.

The Associated Press obtained a copy of the letter declining the subpoena request, while the New York Times obtained confirmation of Flynn’s decision from a person familiar with the decision. The Washington Post also has a story.

The letter, written by Flynn’s lawyers at Covington & Burling, says that producing the documents would be a testimonial act that is entitled to Fifth Amendment protection.

The letter says the current environment, along with the appointment of a special counsel, makes clear that Flynn “has more than a reasonable apprehension” that any material provided could be used against him.

“Multiple members of Congress have demanded that he be investigated and even prosecuted,” the letter says. “He is the target on nearly a daily basis of outrageous allegations, often attributed to anonymous sources in Congress or elsewhere in the United States Government, which, however fanciful on their face and unsubstantiated by evidence, feed the escalating public frenzy against him.”

The letter says Flynn is willing to give a full account of the facts if he receives “assurances against unfair prosecution,” a phrase the Washington Post translates as a reference to immunity from prosecution.

The Senate Intelligence Committee is investigating Russian attempts to influence the election.

A letter released Monday by the top Democrat on the House Oversight Committee accuses Flynn of misleading the Pentagon when he applied for a top-secret security clearance last year, the New York Times reports. The article points out that intentionally lying to federal investigators is a felony that could bring a five-year prison sentence.

The letter by U.S. Rep. Elijah Cummings, D-Md., said Flynn made misleading statements when he said that a trip to Russia was funded by U.S. companies and when he characterized his contacts with foreign nationals as insubstantial.

Updated at 4:30 p.m. to include information about Cummings’ letter.


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Supreme Court summarily upholds caps on contributions to political parties; Gorsuch would hear case

Posted by on May 23, 2017 in Elder Care | Comments Off on Supreme Court summarily upholds caps on contributions to political parties; Gorsuch would hear case

U.S. Supreme Court

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The U.S. Supreme Court on Monday summarily affirmed a decision upholding limits on direct contributions to political parties.

Justices Neil M. Gorsuch and Clarence Thomas indicated (PDF) they would have set the case for oral argument, rather than decide it summarily. The Los Angeles Times, Reuters, Courthouse News Service and the Election Law Blog have stories.

The summary affirmance upholds a decision by a special three-judge panel of the federal court in Washington, D.C.

According to the Los Angeles Times, Gorsuch’s announcement of his vote to hear the case “is his first and most significant decision since joining the court last month, and it puts him squarely on the side of conservatives and Republican lawyers who believe that limits on political money are unconstitutional.”

The court could have accepted the case and used it to further deregulate campaign financing, according to the Election Law Blog. The blog author, University of California at Irvine law professor Rick Hasen, says the justices may have declined to set the case for oral argument because they have no appetite to revisit the issue of campaign financing, and because they may “want to save their capital in ruling on other high profile cases coming down the line.”

Hasen sees Gorsuch’s announcement of his vote to hear the case as an indication that he could be as conservative as Thomas in political contribution cases. Thomas believes all campaign finance limits should be subject to strict scrutiny and are likely unconstitutional.

The Supreme Court struck down limits on independent campaign spending by corporations in Citizens United v. Federal Election Commission. In that decision, Justice Anthony M. Kennedy wrote that the restriction was different from limits on spending that directly supports candidates and parties.

Lawyer James Bopp Jr. had asked the U.S. Supreme Court to accept the new case and strike down limits on contributions to political parties. Arguing on behalf of the Republican Party of Louisiana, Bopp said it was “a grave inequity” to allow super PACs to accept large sums of independent contributions without limits, while political parties have to abide by limits on direct contributions.

The case is Republican Party of Louisiana v. FEC.

Hat tip to How Appealing.


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Want to expand your audience? Sign up for ABA’s Diverse Speakers Directory

Posted by on May 23, 2017 in Elder Care | Comments Off on Want to expand your audience? Sign up for ABA’s Diverse Speakers Directory

Diversity

Diversity

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Do you have expertise on a legal topic and belong to an underrepresented demographic? Then the American Bar Association may have speaker opportunities to send your way.

The ABA has recently launched a Diverse Speakers Directory. It is intended to help the organization meet Goal III of its mission and “promote full and equal participation in the legal profession by minorities, women, persons with disabilities, and persons of differing sexual orientations and gender identities.”

In June 2016, the ABA Board of Governors approved changes that require any ABA-sponsored CLE panel of three people or more to have at least one member who adds diversity by way of their race, ethnicity, gender, sexual orientation, gender identity or disability.

To help CLE event planners meet this standard, the ABA Office of Diversity and Inclusion created the directory. Both ABA and non-ABA members are invited to sign up and create a profile outlining their areas of legal expertise and diversity demographic. There is also the opportunity to add video or audio from any previous speaking engagements or CLE panels you have participated in.

Providing this information is voluntary, and only ABA staff members will have access to it. The ABA Privacy Policy considers demographic details to be sensitive personally identifiable information. The directory would be used by the more than 3,500 ABA entities looking for speakers at their events or experts in a subject matter.

Pedro Juan Windsor Jr., the managing director of the Office of Diversity and Inclusion, is available by phone at 312-988-5279 or by email to answer any questions or concerns you may have before joining the directory.


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Judge allows lawyer to sue Proskauer for alleged gender bias under pseudonym; law firm fires back

Posted by on May 20, 2017 in Elder Care | Comments Off on Judge allows lawyer to sue Proskauer for alleged gender bias under pseudonym; law firm fires back

Law Firms

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A federal judge in Washington, D.C., has allowed a partner suing Proskauer for alleged gender bias to remain anonymous, while the law firm is firing back with a new statement about the case.

U.S. District Judge Ketanji Brown Jackson signed an order on Wednesday allowing the anonymous partner to sue under a “Jane Doe” pseudonym, report Reuters and Law360 (sub. req.).

Then on Thursday, U.S. District Judge U.S. District Court Judge Amy Berman Jackson ordered preservation of notes of a mediation session where, the Jane Doe plaintiff alleges, a Proskauer partner threatened her with firing because of her complaints, Bloomberg Big Law Business reports.

The plaintiff had claimed in her $50 million suit that she was among the hardest working and most productive equity partners at Proskauer, yet she was paid millions of dollars less than male partners who were similarly or less productive. She is represented by lawyer David Sanford of Sanford Heisler Sharp, who has also sued Chadbourne & Parke and Sedgwick on behalf of female partners.

He is also pursuing bias claims against at least five other law firms that are not yet public, Law.com (sub. req.) reports.

In an initial statement, Proskauer called the suit “groundless” and the allegations an attempt “to squeeze a massive payout from our firm.” Now it is stepping up its defense in the media.

Proskauer commented on the plaintiff’s anonymity in an email to Reuters. We “want to note that anonymity allows her counsel to take free shots at us unencumbered by concern that the actual facts will be fully disclosed,” the firm said.

The law firm commented on the mediation order in a statement to Bloomberg. “Mr. Sanford knows that there is a mediation agreement in place signed by both parties that requires complete confidentiality,” the Proskauer spokesperson said. “We intend to abide by that agreement. We appreciate the media play he’s making here but it’s not likely to be upheld in court.”

The law firm also sent a “statement to correct the record” to the ABA Journal. “The facts show that the plaintiff has been richly rewarded at Proskauer for what she contributed and treated fairly at every turn,” the statement says.

The statement says Proskauer has an open and transparent compensation system in which all equity partners know the earnings of others.

“Our system has resulted in the median compensation of our male and female equity partners being identical and the averages being close to identical (94 percent) before considering other factors like specialty or experience,” the statement says. “Those facts demonstrate systemic parity and fairness.”

The firm does not have an ‘eat what you kill’ compensation system, and all lateral partners are informed of the system to ensure buy-in, the statement says. The system “is not for everyone, especially those concerned only with their own pay and short term performance and not a fair recognition of their colleagues’ work and the long term success of the firm,” the statement says.

“Even if Proskauer paid partners solely on the metrics, which it does not, the plaintiff fails to accurately represent her contributions,” the statement says. “She claims it is unfair that she was 18th in client originations among equity partners, yet only 32nd in compensation for 2014-2016. Here’s what she is not telling you—in that same three year period, she ranked 32nd in revenue generation and 134th in realization among all partners, which reflects the lower profitability of the revenue for which she claims credit. In 2016, she ranked 40th in revenue generation and 165th in realization. Despite those rankings, she fails to admit that she was still in the top 10% of her department (5th out of 49 partners) in pay.”


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Immigrant rights group wins temporary restraining order against DOJ in dispute over ethics rule

Posted by on May 20, 2017 in Elder Care | Comments Off on Immigrant rights group wins temporary restraining order against DOJ in dispute over ethics rule

Legal Ethics

Northwest Immigrant Rights Project

Photo from Northwest Immigrant Rights Project Facebook page.

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The Department of Justice has lost, at least temporarily, a bid to shut down legal services for immigrants that fall short of full representation, the Seattle Times reported Wednesday.

The ruling came in a lawsuit filed by the Northwest Immigrant Rights Project, a Seattle-based immigration legal services organization. It sued the Justice Department on May 8, as the Associated Press reported at the time, after the department ordered NWIRP to stop helping immigrants in a way that falls short of full representation. That kind of help, DOJ said in the letter, violates a 2008 rule forbidding immigration attorneys from representing clients without first filing the paperwork officially taking on the client.

Judge Richard Jones of the Western District of Washington granted a temporary restraining order to NWIRP, finding that the Justice Department’s position violates NWIRP’s First Amendment rights and harms its work. Jones applied his order to immigrant rights organizations nationwide, defying a request from the government to limit his ruling to just NWIRP.

The 2008 rule under dispute was aimed at fighting fraud by unlicensed attorneys, particularly notario fraud. But the DOJ’s cease-and-desist letter to NWIRP, sent in April, faulted the organization for helping self-represented immigrants prepare motions for their immigration cases without taking them on as clients. This is a common practice among legal services groups who handle immigration, in part because the need for legal assistance in immigration court far outstrips those groups’ capacity. There is no right to a public defender in immigration court because immigration law is civil, not criminal.

According to NWIRP’s complaint (PDF), a local immigration court administrator assured NWIRP after the rule was made that it would be sufficient for NWIRP to notify the court whenever it helped a pro se immigrant prepare paperwork. For nine years after that, the complaint says, no concerns about the practice were raised. But in April, the disciplinary counsel for the immigration court system, which is part of DOJ, told NWIRP that it must file a notice of entry of appearance for each client it represents.

In oral arguments, the judge stressed the nine-year gap between when the rule was made and when the letter arrived, the Seattle Times says. An attorney for the Justice Department said the government took action as soon as it learned of NWIRP’s improper representation. That attorney said NWIRP could still pursue most of its activities, including “know your rights” presentations, but was unable to provide bright-line guidance when pressed by the judge.

NWIRP executive director Jorge Barón told the Times that his organization has actively opposed President Donald Trump’s executive orders on immigration, and is concerned that the cease-and-desist letter “could be retaliation for those activities.”


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Correspondence shows attorney preferred that Trump not certify financial disclosure as true

Posted by on May 20, 2017 in Elder Care | Comments Off on Correspondence shows attorney preferred that Trump not certify financial disclosure as true

Legal Ethics

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A lawyer representing President Donald Trump initially resisted having him certify his 2016 personal financial disclosure as true, The Associated Press reported Friday.

The AP reported on correspondence between the Office of Government Ethics and Attorney Sheri Dillon of Morgan, Lewis & Bockius, and obtained through a Freedom of Information Act request. The correspondence shows Dillon initially asked the OGE not to require Trump to certify the disclosure as he did so voluntarily.

But Walter Shaub, director of the OGE, told her the office wouldn’t work with her unless “she agreed to follow the typical process of having Trump make the certification,” the AP reports. The president plans to file the disclosure by mid-June.

“This is not at all typical; in fact I’ve never heard of anyone trying this,” Marilyn Glynn, a former acting director of OGE, told the AP.

A personal financial disclosure includes information about an individual’s income, liabilities and assets. Signing certifies that the information is true to the best of the signer’s knowledge. If a signer knowingly included something incorrect, the AP says, the OGE can fine that person or refer the case to the Department of Justice.

The correspondence shows Shaub and Dillon discussed the importance of Trump providing accurate information and certifying it as such.

The OGE writes guidance on ethics rules for the executive branch and financial disclosure forms from senior officials, The Hill says. There are thousands of such forms each year, according to the AP. Presidents are not required to provide yearly financial disclosures, although past officeholders have filed them.

Earlier this week, the White House confirmed to the AP that it would file a disclosure “in due time,” according to The Hill.

Trump’s refusal to disclose his tax returns—a tradition, but not a legal requirement for presidential candidates—and refusal to set up a blind trust for his assets has attracted interest to his finances.


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Who asked Rosenstein to write the Comey memo? He reportedly says it’s part of special counsel probe

Posted by on May 20, 2017 in Elder Care | Comments Off on Who asked Rosenstein to write the Comey memo? He reportedly says it’s part of special counsel probe

Criminal Justice

Deputy Attorney General Rod Rosenstein

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Deputy Attorney General Rod Rosenstein reportedly deflected questions in an appearance before the U.S. House on Friday about who asked him to write the memo that was critical of now-former FBI Director James Comey.

Rosenstein said in prepared remarks that he stood by his memo, and revealed that that he had discussed with Jeff Sessions the need for new leadership at the FBI last winter, before the Republican senator from Alabama became attorney general, report Politico, U.S. News & World Report, Salon and the New York Times.

But Democrats complained that they learned nothing new in during the closed-door question-and-answer session that followed Rosenstein’s remarks, report the Washington Post and CNN.

U.S. Rep. Jim Himes, D-Conn., complained that Rosenstein did not directly indicate who asked him to write the memo. “That is Bob Mueller’s purview,” Rosenstein reportedly said, referring to the special counsel he appointed to investigate Russia’s attempts to influence the 2016 presidential election.

U.S. Rep. Rick Nolan, D-Minn., said Rosenstein was asked repeatedly about who asked him to write the memo. Rosenstein wouldn’t say, adding that it was part of the Mueller probe, according to Nolan.

Rosenstein signed the order appointing Mueller before informing Sessions or the White House, according to the New York Times. Sessions didn’t act because he had recused himself from matters arising from the presidential campaign.

In prepared remarks distributed after his closed-door appearance, Rosenstein described his discussions with Sessions.

“In one of my first meetings with then-Senator Jeff Sessions last winter, we discussed the need for new leadership at the FBI,” Rosenstein said in the prepared statement. “Among the concerns that I recall were to restore the credibility of the FBI, respect the established authority of the Department of Justice, limit public statements and eliminate leaks.”

Rosenstein told the U.S. Senate on Thursday that he knew President Donald Trump intended to fire Comey before he wrote the memo.

On Friday, Rosenstein said he stood by his memo. It didn’t amount to a finding of official misconduct by Comey, Rosenstein said, or a statement of reasons justifying a for-cause dismissal.

Rosenstein also said on Friday that he was not aware of any request by the FBI for more resources to investigate Russian interference in the election. Rosenstein said he consulted his staff as well as Acting FBI Director Andrew McCabe, and none of them recalled such a request.


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Congressional immunity grant could ‘muck up’ Mueller probe, says author of special counsel rules

Posted by on May 20, 2017 in Elder Care | Comments Off on Congressional immunity grant could ‘muck up’ Mueller probe, says author of special counsel rules

Criminal Justice

US Capitol Building

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Special counsel Robert Mueller’s probe of Russia’s attempts to influence the 2016 election could still be thwarted by President Donald Trump or congressional investigations, according to the lawyer who wrote the special counsel regulations.

The regulations are nonetheless “the best mechanism we have” to get to the truth when the Justice Department faces a conflict of interest or an appearance of impropriety, writes Neal Katyal in the Washington Post.

Katyal is a Hogan Lovells partner and former acting solicitor general who wrote the regulations in 1999 when he was a lawyer in the U.S. Justice Department. The special counsel regulations replaced the independent counsel law, which expired in 1999 amid criticism that it gave so much independence to prosecutors that they had no accountability.

The president has full prosecution power under Article II, Katyal says. Under the regulations, Trump could order Deputy Attorney General Rod Rosenstein to fire Mueller, or he could order the repeal of the special counsel regulations and fire Mueller himself.

Second, Katyal writes, “Congress could muck up Mueller’s investigation” through grants of immunity.

Immunity doesn’t prevent criminal charges, but prosecution could be difficult because of a 1990 ruling by the U.S Court of Appeals for the D.C. Circuit, Katyal says. The decision overturned the conviction of Oliver North in the Iran-Contra investigation because of a congressional immunity grant. The appeals court reasoned that the independent counsel may have benefited by the fruits of North’s immunized congressional testimony.

If a congressional committee were to give immunity to former National Security Adviser Michael Flynn, for example, his prosecution would be impossible, Katyal concludes.

“There is a possible silver lining in this scenario, though: If Flynn was given immunity, he would have to testify, including against higher-ups, as he would no longer have any rights to refuse to testify to protect himself against self-incrimination. So even if Mueller can’t get Flynn, he might be able to convict someone else, including potentially a bigger fish,” Katyal writes.


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