You Can't Cheat an Honest Man

Hilarious story in the New York Times about a "mysterious man" who showed up claiming to have a library of sex videos and financial records from Jeffrey Epstein's alleged "blackmail empire." With this story, he thoroughly conned David Boies and John Stanley Pottinger, baiting them into character-revealing conversations about how they could use these incriminating materials to shake down wealthy men.  Boies, who had already lost a considerable portion of his wokieness points for his role in the Harvey Weinstein/Rose McGowan debacle, now looks to be on the precipice of forfeiting the remainder. Will ABA now be forced to revoke the "prestigious ABA Medal" (its "highest award") which it bestowed upon Boies in 2011? Time will tell, but it certainly appears as of the present moment that the morons on the ABA Board of Governors were as taken in by Boies as was Boies by the mysterious "Kessler."

https://www.msn.com/en-us/news/crime/jeffrey-epstein-blackmail-and-a-lucrative-hot-list/ar-BBXxX5f

Happy Tanks Gibbon

I want to wish all of the members of the Commentariat a very happy Tanks Gibbon.  I hope that none of you have to travel during the upcoming snowpocalypse and I hope that your relatives annoy the fuck out of you during dinner.

Feral Hog Attack Makes the National Press

When first I saw the headlines, I assumed this all happened in Chicago or somewhere like that, in consequence of some hapless woman carrying pies where she ought not have. But no, it was actually in Texas, and likely just came of a lady being unaware these ponderous porkers were nearby.

For those who don't know, regular old, domestic, barnyard hogs are plenty mean enough, and you don't send anyone near them who isn't fairly spry. When they go feral, and get onto traveling in packs, they are basically the wild boars of Merrye Olde. If they're in the area, folks need to watch out. In this case, this lady, a mere 59 years of age, had just stepped out of a house where she was caring for the elderly residents, and the hogs pulled her down and ripped her apart before she could make the short distance to her car. It can happen just that fast.

Hogs are smarter than you might think, and where there is a structure they can't penetrate, they will set up and lay in wait, preparing to take their shot when any vulnerable person or pet leaves that secure environment, whether in transit to a means of conveyance or (often) a secondary structure such as a corn crib or outhouse. I can recall countless times in my youth when folks asking after some local person missing for a period of time would be told by a knowledgeable neighbor, "He went to shit and the hogs ate him." Personally, whenever I had to go to the outhouse, particularly at night, I would spend a good five minutes at the window first, scoping out everything within fifty yards of that two-holer, just to make sure there wasn't some old, feral hog or hogs out there, fixing to pull me down for an easy dinner. Even when I would go out, I would take the old 1917 Colt Army Model with me, just in case. Big as they might be, a round or two from that .45 could pretty well be counted on to stun a hog or at least slow it down enough for me to get a good chance at outrunning it.

Sadly, it appears the lady in the story who got caught by the hogs wasn't packing, or at least wasn't packing anything with enough muzzle velocity and round mass. Your candy-ass little 270s or .38 Lady Smiths are not what you want to have along when you are trying to stand off one or more feral hogs. You need something with some outright, come-to-Jesus stopping power. The same is true if you're going to go out actively hunting the beasts (or "piggin'" as we say), and I hope some folks will go out after the herd that did this. They shouldn't be hard to run down, on account of they leave deep, obvious tracks. A half-dozen folks with .303 or .306 long arms should be able to get the job done, and if they are quick about it, the whole town can have pork roast for Thanksgiving.

https://www.washingtonpost.com/nation/2019/11/26/feral-hogs-kill-woman-texas/
   

Thoughts and Prayers

https://www.nytimes.com/2019/11/23/us/justice-ruth-bader-ginsburg-hospitalized.html

Have you ever lost a case to a pro se litigant?

Just one in four civil defendants has a lawyer, down from nearly all of them in 1992, according to a 2015 study, its most recent, by the National Center for State Courts.

Some are saying that pro se litigation is the new normal.

The pro se litigant, the bane of every litigation attorney's existence.

I have never gone up against a pro se litigant, but I have opposed plenty of lawyers who were basically operating on a pro se level, particularly in the Ok, Boomer "olden days".

But how about you? Have you ever suffered the ultimate humiliation for any lawyer, losing to a pro se?

What other pro se horror stories do you have?

Secondarily, I have long advocated that outside of small claims court a plaintiff should be required to appear through a licensed attorney. What say you?

What's in a (law school) name?

Here in Dallas, we're witnessing a fascinating experiment:  take a really shitty law school, give it a more respectable name and see what happens. 

Texas A&M University had been trying to open or acquire a law school for years.  Back in 1998 they tried to buy the South Texas College of Law, but the Texas Higher Education killed the deal.  In 2013 they inked a deal to acquire the Texas Wesleyan School of Law.  For those of you who are not familiar with Texas law schools, Texas Wesleyan was arguably the worst law school in Texas and easily the second worst.  The school was rank not published, and a low RNP at that.  It was an absolutely terrible law school with a horrible reputation.  Texas Wesleyan became the Texas A&M University School of Law in 2015.  In the last five years, the change in raking for Texas A&M law has been huuuuge!

2015--Rank Not Published.

2016--149

2017--111

2018--92

2019--80

This rise in rank illustrates how ridiculous the US News rankings are.  Nothing at this law school changed except the name.  What a joke.

The Matrix Has Become Self Aware

Excuse me while I check... the news

https://nypost.com/2019/11/14/chinese-internet-users-flock-to-pornhub-to-slam-hong-kong-protesters/amp/

Faking Ivy Credentials Frowned Upon

Even if you are an attractive woman.  So is photoshopping a Time cover apparently.

https://amp.theguardian.com/us-news/2019/nov/12/trump-official-mina-chang-fake-time-magazine-nbc

OK, Boomer

So this is actually related to the practice of law, so it may be of no interest to anyone here.  Nevertheless, I know some folks (like CalJur) have been through this recently, so I thought I would ask.

I am up for (non-equity) partnership at my mid-size NYC firm.  I’ve been there for about eight years (so the majority of my career).  I progressed through the ranks, from 2nd year associate, to Counsel, and now this.  Although the next step is non-equity, it still comes with some changes.  Among them:

1. K-1 vs. W-2
2. Picking up the employer portion of my medical (I am told the firm bumps the salary enough to cover this)
3. No longer qualifying for bonuses based on hours
4. Regular blowjobs in the cafeteria
5. Bigger expense account

Some are good.  Some are bad.  But my real question is this - how has the transition been for those who have gone through it?  What were the best (and worst) parts?  Overall did you think it was worth it?  Was it easier to generate business once you were a “partner” (I am fairly active in origination activities, but its usually hard to tell what is related to what).

Diqus.

Good news (ish) for lawyer hopefuls attending TTTTT schools that may or may not shutter soon - the Department of Education has allowed student loans to be cancelled for students who attended now defunct schools "Art Institute of Colorado" and "Illinois Institute of Art."  The facts differ in some key ways from our failing law schools that we love to hate, but it may be a glimmer of hope for the otherwise hopeless (hapless?) students at those flailing law schools.

https://www.denverpost.com/2019/11/08/art-institute-colorado-cancel-loan-debt/

Never Have I Ever; Turley's Torrid Tale

There are times when a story truly cries out to be narrated by Partner Emeritus, who could call the play-by-play on this one far better than your humble author. Though he had somehow managed to attain his sixty-first birthday, our San Diego colleague, William David Turley, proved himself at once ill-suited both to practice law or to patronize the sex trades.

Using the website, sugardaddymeet.com, Turley hooked up with a willing, independent adult sex worker (per the DOJ, his adult "victim") who was willing to fly from California to Las Vegas to meet with him. Because, apparently, he somehow could not find a willing sex worker in Las Vegas, Nevada. Turley arranged and paid for his sugar baby's travel, and also dropped $1,500 to $1,800 on her for the sexual interlude. Bam! Who wouldn't know better? Had Turley flown to California for the hookup, with all other facts the same, there would have been no basis for a federal charge (this is where Partner Emeritus would colorfully go on at length).

But of course, a lot of uninformed, horny and non-peer individuals (including at least one former state governor) order-in their sex workers from out of state on a regular basis. I certainly haven't ever, and I can't condone it (because it tics off all the elements of a federal crime, to wit, enticing an individual to travel in interstate commerce for purposes of engaging in prostitution, in violation of 18 U.S.C. § 2422(a)). Yes, as most of us know, the statute provides that this conduct can get you 20 years in La Casa Grande Federale, and a $250,000 fine. However, U.S. Attorneys usually don't charge these cases, because, if they filed one every time they could, they would never get anything else done. (Also, "victim" terminology aside, this lady wasn't being hustled, and she got on the plane of her own volition to go claw a bit of scratch away from the Vegas pros).

This brings me to the second "never have I ever" facet of Turley's incompetence.  A mere nine (9) days after spending enough for a European cruise on his adult, California sugar baby, Turley was back online. This time, he found himself a nice, high school girl, who was complaining that her parents had taken away her cellphone. But, hey, she SAID she was eighteen, right? And how was Turley, a mere, sixty-one-year-old, practicing attorney to know that she was actually underage? If only he could have accessed some publicly available data, on, say, the Internet, or made any minimal effort to verify her claim, given the circumstances that: 1) she was in high school; and 2) her cellphone access was subject to her parents' whims, and 3) he had already checked off all the elements for a federal crime with an adult sex worker nine (9) days before. But no.

Instead, Turley met his high school sugar baby (who was actually 16) for tea one fine day, after school. Evidently, he was suitably impressed, because the next day, he drove her to a shop where he purchased a cellphone for her, then parked the car while he "engaged in a sex act" with her. Clearly inexperienced, and not even close to a sexually-skilled pro, Turley's high school sugar baby told him she wanted to stop, and needed to get home. Turley (who must physically resemble Calibos from the old Greek theatre) honored her request and also gave her $300 for showing up and trying (at least he seems to be a kind man, if extremely incompetent, naive, and a moron).

When the feds came for him, the plea Turley entered was for the "enticement" of his adult "victim," yet the plea agreement contained numerous references to, and admissions of "sexual contact" with, Turley's sixteen-year-old, high school sugar baby (federally, his "minor victim"). As the linked article reflects, all parties anticipate that the federal charges relative to the minor victim will be dismissed at the sentencing, and part of the plea deal is that Turley will not have to register as a sex offender.

So, the between-the-lines story here is that the feds know they have a swing, and a miss, on the minor miss. But, they also have the icking fudiot dead to rights for flying his adult sugar baby over a state line to pay her for sex. Here we see the ruin of a man not competent to advise even himself, for not learning the most basic rules before he tried to play the game. Either mistake in isolation might have been survivable, but combine them, and his life is down the tucking foilet.

Partner Emeritus, where are you? Non-peer colleagues desperately need your guidance!

https://www.sandiegouniontribune.com/news/courts/story/2019-11-01/san-diego-attorney-61-pleads-to-federal-prostitution-charge-linked-to-sugar-daddy-dating-site

The DOE Negotiation With InfiLaw

The downside of Freedom of Information Act requests is that they move glacially. The advantage is that you often get more depth to a story than you can by pinging a couple of off-the-record staff sources.

Hopefully, all ten pages of the disclosed correspondence will load and attach in JPG format, and this narrative will just touch upon a few of the high points.

In a June 18, 2019 letter to then-dean Scott DeVito, the first page mentions InfiLaw's ill financial straits, and the fact that it has a "going concern note" in its audited financial statements. This is the auditor's standard tool for alerting the reader of the financial statements that there is material doubt as to the audited entity's ability to continue as a going concern.

The main substance of the communication is that InfiLaw Holdings has two choices if it wants any loan funds released for students at Florida Coastal. Either it can pony up an irrevocable letter of credit for $11,362,511 (in which case, it will meet financial responsibility requirements) or it can put up an irrevocable letter of credit for $5,681,255 and agree to abide by all of the restrictions and criteria for "Provisional Certification." If it opts for the "Provisional Certification" option, it is not really in compliance with financial responsibility requirements, but will be allowed to operate provisionally for up to three years while it continues to meet all of the applicable regulatory restrictions and criteria for the Provisional Certification status. These requirements are then detailed in the next few following pages of the letter.

The July 12, 2019 letter is addressed to Chidi Ogene (of failed Charlotte School of Law fame), showing that he is still trying to negotiate for InfiLaw behind the scenes. Mainly, he is trying to get DOE to reduce the amount required for the letter of credit. The necessary surety must be available for draws as to loan discharge liabilities from all three InfiLaw schools, and the second page of this letter notes that Charlotte and Arizona Summit already had over $5.2 Million in closed school loan discharges as of that date. The letter also again mentions InfiLaw's financial problems and "going concern" note, and reaffirms that DOE will not go below $5,681,255 for the required surety (sorry, Chidi).

The July 26, 2019 letter sees discussions now elevated to the President of InfiLaw Holdings. The surety for "Provisional Certification" is still going to need to be $5,681,255. It is obvious that InfiLaw is having a lot of trouble coming up with it (because they would need to find a reputable bank with the requisite rating and credit quality willing to essentially grant InfiLaw credit in this amount). In this letter, DOE offers two additional options. One is that they will let InfiLaw phase the letter of credit in pieces. The other is that they will withhold a portion of each Heightened Cash Monitoring 2 Payment Method request each month for nine months to essentially fund a cash escrow with $5,681,255. Whatever InfiLaw elects as among any of the options for the $5,681,255 surety, it has to comply with all of the additional restrictions and criteria for "Provisional Certification."

There are other minor points of interest, but it is evident overall that the Trump Administration has not been significantly kinder or gentler with InfiLaw than the Obama Administration. DOE is not buying any pie-in-the-sky scenarios from these guys, but is looking hard at keeping its exposure for loan discharges covered.

Senator Mike Lee: ABA's "Ongoing Fraud Must Stop"

In the wake of the backlash from ABA's fanatical attack on Ninth Circuit nominee Lawrence VanDyke, ABA has lost additional members, and Senator Mike Lee of Utah has called for revocation of ABA's role in judicial confirmation proceedings. As Senator Lee points out, ABA's overt display of bias in its rating process over a period of years belies its pretensions of neutrality, and the level of bias made manifest in its political smear of Lawrence VanDyke shows ABA's abuse of the special access it has been afforded.

Senator Lee has also asked ABA members to cut off their dues support or press internal demands for reform of ABA's abusive processes. This actually suggests that he is somewhat unaware of the last few decades of ABA's history, during which, it has become clear that the only option for dissenting members is to leave the ever-more-fanatical organization.

Also, Senator Lee does not seem to be aware of the numerical case for ABA's lack of legitimacy, given that it is now only supported by 12% to 13% of the nation's lawyers, with the bulk of its claimed "membership" consisting of students with "free memberships."  However, public awareness of this point is clearly on the rise. Someone has now added information on ABA membership decline at the very start of the ABA Wikipedia page, and although the numbers are dated (from a few years ago, when ABA still had around 14.4% support), the message and trend are clear. ABA does not speak for, and cannot legitimately speak for, the legal profession in this country. More than 85% (currently 87% to 88%) of licensed attorneys have voted with their dues, and the vote is clearly one of no confidence in the failing ABA.

It seemed to me that a Senator on the Judiciary Committee issuing the kind of public statement that Senator Lee posted should be of significance to ABA. However, when I sent a link to the below story to Debra Cassens Weiss at ABA Journal, it apparently turned out not to be "newsworthy." Well, maybe the Journal thinks so, but I don't think they are going to be able to silence Senator Mike Lee, no matter how they try to sit on this embarrassing story.

https://www.lee.senate.gov/public/index.cfm/2019/11/no-more-unearned-privilege-for-the-american-bar-association

Hapless New Editor and Publisher at ABA Journal

John O'Brien has landed at ABA Journal as the new Editor and Publisher, filling the vacancy left by Molly McDonough (whom I always predicted would find a way to avoid going down with the ship).

Looking around, O'Brien must wonder why there are nine "editors" and only four writers.  Is he through the looking glass?  Also, with limited web activity and the paper magazine coming out only half as often now, O'Brien must be wondering what all these editors are actually doing every day (if anything).

For a few days this week, a new issue appeared to be accessible on the ABA Journal website, denominated the "Winter 2019-2020 Issue," with a cover story about "The Coming Storm." Now the September issue is back on the site as the "most current issue," suggesting that the "Winter 2019-2020 Issue" was either pulled or is now behind the ABA paywall.

While it was accessible, I scrolled through a few of the stories and articles.  One was a proposal for a new Rule 8.5, that would provide lawyers should spend 20 hours a year on various pro-diversity activities.  Another was a piece by Liane Jackson, with a photo and quotation from former ABA President Paulette Brown, concerning "Inclusion Illusion." There was an apology underneath, saying the Journal staff had inadvertently published an unfinished draft in the paper version of the magazine and regretted the error.

Correction

An unfinalized draft of “Inclusion Illusion” inadvertently ran in the print version of the ABA Journal.

The Journal regrets the oversight.

I took this as an indication the paper version had in fact gone out, and of course I laughed at the utter level of incompetence suggested by that apology.  Perhaps some of you who may still know a colleague or two with an ABA membership can shed some light on what is going on with the "Winter 2019-2020 Issue."

I suppose the silver lining for O'Brien is that he did not hire, and does not know, any of these people.  He is in a position to objectively determine what needs to be done to get the top-heavy playhouse back in line, and can swing the ax as necessary to cull useless deadwood from the payroll. Still, I don't envy him one bit.  Pulling this thing out of its death spiral is going to be a daunting task, and likely, impossible in the end.  We should probably open a pool on how many weeks, months or years he manages to last.

LGBTQ "Activists" Lose Kentucky T-Shirt Case

This case was part of the LGBTQ bow-to-the-hat-on-the-pole campaign by which LGBTQ "activists" attempt to force people who don't agree with them to provide goods and services advancing LGBTQ messages. By and large, this obnoxious campaign has earned the "activists" roughly the same degree of respect from mainstream citizenry as was accorded their counterparts, the Westboro Baptists.  Six of one, half a dozen of the other.

In any event, Kentucky's highest court wasn't ready to play along with this effort, in which the LGBTQ "activists" sought to apply a Lexington municipal ordinance to punish a t-shirt company for declining to produce shirts for their "gay pride" event.

Although this was a major setback to the bow-to-the-hat-on-the-pole campaign, which ABA has previously backed with such efforts as its campaign for proposed Model Rule 8.4(g), the story was not "newsworthy" at ABA Journal.  Hence, we must rely on relatively conservative NBC for the linked account.

https://www.nbcnews.com/feature/nbc-out/kentucky-supreme-court-dismisses-gay-pride-t-shirt-case-n1075051

Deadspin, and Why a "Job" is a "Job"

There was a notable Internet tempest this week with the implosion of the blogsite "Deadspin," which some number of people evidently had heard of.  Basically, the slackoisie kids who were the "staff" of Deadspin, and apparently always thought of it as their personal, "creative" playhouse, resigned in mass rather than follow the editorial direction from the company that had purchased their operation and signed their paychecks.  The notion that they were being paid to perhaps actually follow the directions of their employer was seemingly never a part of their world.

(Imagine, if you will, the travail that would follow if someone bought Glawker, and ordered the staff to "focus on law.")

Of course, at the moment, there are hundreds of unemployed former blogsite "writers" wandering the hinterlands.  Some of them will at least be able to fake "sports," even if they have to research and write their posts via the Shannon Technique.  The Deadspin management team need only take some sandwiches and coffee down to the bus station, and they will be back in business by Monday. Meanwhile, the child-like "writers" at various proprietary blogsites can take this as their wakeup call that capitalism still rules in business, and media organizations, generally, still eat their own young.  Perhaps this lesson will serve the former Deadspin "writers" well at their next job, if there is one.

https://www.nytimes.com/2019/10/31/business/media/deadspin-was-a-good-website.html

Baghdadi Bobe, In the News

No, history is not trying to repeati itselfi.  This story has nothing to do with Muhammad Saeed Al-Sahhaf, a/k/a "Comical Ali," who continued to broadcast his tale of sweeping Iraqi victories even as Coalition armored units overran the Iraqi capitol.

This is the tail of an unfortunate puppy, now known as Bobe (pronounced "Bobby") who was tragically unable to flea the bombing attack on the Al Baghdadi compound.  Found by the side of his deceased birth mother, covered in dust from the explosions, Baghdadi Bobe was rescued by a journalist, and taken for a checkup by the Aleppo Cat Man (who evidently treats dogs as well). So, things appear to be looking up for Bobe, although his new journalist sidekick has mentioned that he could do with a few extra Qirsh to help pay for Bobe's food and care.  It will not be surprising if this gives rise to a few "Go Fund Me" campaigns, or whatever the Syrian analog may be.

There is, as yet, no indication whether Bobe can expect to face any infringement campaigns.  Muhammad Saeed Al-Sahhaf, following his release by Coalition forces, is thought to have retired from public life and to be living quietly in the United Arab Emirates, where he has reportedly gone years since his last Ba'ath. Still, he does not seem to be the sort to ignore interference with his brand, should Baghdadi Bobe t-shirts, coffee mugs and Internet merchandise become a major financial success.

https://www.cnn.com/2019/11/01/world/bobe-dog-syria-baghdadi-raid-trnd/index.html

Federal Circuit Says PTAB Judges Are Not Constitutionally Appointed

A decision by the Federal Circuit yesterday provided some brief, but intense, excitement amongst the patent nerds in our audience. 

Over the past 10 years, the Patent Office has more than quadrupled the size of it's internal appeals board, the Patent Trial and Appeal Board, staffing it with "Judges" that have the power to invalidate patents at the request of any member of the public (willing to shell out $250k+ for the proceeding and, mostly, attorney fees).  Because it is a much cheaper option than litigation, or a cheap add-on to pending litigation, the PTAB has been popular for those wanting to invalidate patents for various reasons.

The short version of the decision is that the constitutionality of these "Judges" at the USPTO was challenged successfully by showing that the nature of their position makes them superior officers which require Executive appointment, which did not happen, because they are hired pretty much like any other employee at the USPTO.  The solution was to sever a portion of the law that gave them employment protections, so that on the balance, they appeared more like inferior officers, which do not require an Executive appointment.

So, other than a small handful of appeals that preserved the Appointments issue on appeal, the decision will likely have essentially zero practical effect.  A bit anti-climactic for those of us hoping for more.

To make this a bit more applicable to the rest of the commenters, should patent practitioners be concerned about potential malpractice liability for failing to bring up a constitutional challenge to the appointment of the patent Judges in every one of their appeals?  Or for failing to consult with the client about whether to include a constitutional challenge in their appeals?  I don't do this particular kind of patent work, but feel like it would be a reasonable approach to NOT include a constitutional challenge to the appointment of the Judge in every one of my appeals, but maybe I'm off here.


Here's the non-paywall version:
https://www.ipwatchdog.com/2019/10/31/federal-circuit-says-ptab-judges-not-constitutionally-appointed/id=115556/

Also available on Law360 for those with a subscription:
https://www.law360.com/ip/articles/1215822/fed-circ-rules-ptab-judge-appointments-unconstitutional