In March 2023, at the American Bar Association’s White Collar Crime Institute in Miami, Gary S. Lincenberg moderated a panel of general counsels. The panel covered a range of different issues; this post focuses on the discussion about changing approaches to confidentiality and privilege in the context of internal investigations. 

The Justice Department’s invited amicus curiae brief in Blassingame v. Trump¹ exposes another anomaly in treating the President’s scope of employment as a question of state tort law for purposes of the Westfall Act. In considering whether the President is a federal employee for purposes of the Westfall Act in the Carroll v. Trump matter, why didn’t the district court and the Second Circuit majority address the doctrine of presidential immunity? 

What’s in a name?  If it’s in a warrant and you’re in the Eleventh Circuit, enough to arrest and jail you for three days even if you don’t match the description of the wanted person, the warrant was issued 26 years earlier from another state, and the same law enforcement agency mistakenly arrested you on the same warrant four years earlier.  Sometimes a court issues a decision that, while a plausible consequence of prior holdings, is so wrong-headed that it requires a re-examination of the false doctrinal steps that led to it.  The en banc Eleventh Circuit’s recent decision in Sosa v. Martin County (Fl.) Sheriff,¹ is an example.

On January 11, the full complement of active judges of the District of Columbia’s highest court spent more than two and a half hours hearing oral argument about the District’s respondeat superior liability standard in Trump v. Carroll. The U.S. Court of Appeals for the Second Circuit certified to the DC Court of Appeals the question whether former President Trump was acting within the scope of his employment under District law when he made allegedly defamatory statements after E. Jean Carroll accused him in a magazine article of having sexually assaulted her decades earlier. It is understandable that none of the judges asked why District law should control, given that all parties to the case agreed that the District’s standard should determine whether the former president has immunity to Ms. Carroll’s suit.

Update January 23, 2023: The Court today dismissed the writ of certiorari as improvidently granted. 

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The Supreme Court’s first oral argument of 2023 involved a grand jury subpoena to a law firm for records related to tax preparation and advice given to a client who wanted to expatriate and was therefore subject to an “exit tax” for departing citizens. The firm refused to produce certain documents, even with statements of legal advice redacted. The district court held the firm in civil contempt, and the firm appealed the contempt order. The Ninth Circuit, in an opinion by Judge Lee, joined by Judges Murgia and Bade, upheld the order, rejecting the law firm’s arguments that the documents were subject to the attorney-client privilege because obtaining or providing legal advice was a significant purpose of the communications.¹

Originally published on Law.com’s Corporate Counsel, Zuckerman Spaeder partner Sara Alpert Lawson shares her reflection on generational diversity in the workplace—in the legal industry and beyond. She discusses the effects of technological changes, the value of mentoring and supporting the younger generation of lawyers, and overall, the importance of taking time to understand the shift toward inclusivity and generational differences.

Read the full article here.

In 2010, Congress amended the Anti-Kickback Statute (the “AKS”) to provide that “a claim that includes items or services resulting from a violation of [the AKS] constitutes a false or fraudulent claim” for purposes of the False Claims Act (the “FCA”). 42 U.S.C. § 1320a-7b(g) (emphasis added). Since that amendment, courts have wrestled with the statute’s “resulting from” requirement, and FCA plaintiffs and defendants alike have attempted to interpret the language to their advantage. Recently, the Eighth Circuit weighed in and determined that FCA claims premised on violations of the AKS require relators and the government to show “but-for” causation between alleged kickbacks and submitted claims. 

Experts are a key part of any complex litigation. Being part of an expert team as an associate can mean taking charge of all the little (but still important) things: shuttling relevant documents to the expert, keeping track of what gets sent so that you have an accurate materials considered list, proofreading and cite checking the expert report, and putting together the final expert package for service. But there are opportunities for associates to make significant substantive contributions when working with experts as well. Below are three ways associates can do that.

Remote depositions were once thought to be a short-term solution to one of the many challenges of practicing law in a global pandemic. But considering the efficiencies in time and cost when taking a remote deposition, and attorneys’ increasing comfort with this format, it’s now safe to say that they are here to stay. After more than two years of taking, defending, and facilitating remote depositions, here are five tips for ensuring a smooth experience in the virtual deposition room. 

• Virtual Depositions

Anyone who lives or works in Baltimore, Maryland is familiar with the “squeegee kids.” When stopped at a red light downtown, it’s not uncommon for someone—usually a teenage boy of color—to approach your car with an offer to clean your windshield for money. Most of these interactions are, in my experience, unremarkable. But some find them irritating, and many lament that the squeegee workers’ business model, which involves weaving between cars at busy intersections, is dangerous. Even worse, on rare occasions, hostilities erupt between the squeegee workers and the drivers they encounter. One such encounter earlier this year had tragic and fatal consequences.¹