A Great Day for Criminal Defendants!

Just in one day it was a pretty impressive haul:

Supreme Court overturns ‘Bridgegate’ convictions as Christie slams ‘political crusade’, is Politico’s take on Kelly v. U.S. (S.Ct. 5/7/20), which it is important to note was a unanimous decision.

And Attorney General Barr’s Department of Justice undercuts the Mueller investigation again, Justice Dept. Drops Case Against Michael Flynn Although Flynn actually pleaded guilty to lying to the FBI, the DOJ now concludes that the interview in which the lying occurred did not meet the legal standard that the lies be “materially” relevant to the investigation. Although no contest that he lied about his discussions with the Russian Ambassador, the DOJ now says it didn’t matter. Here’s the rationale explained in their court filing. Just like with the Roger Stone case, it took a new DOJ attorney, Timothy Shea, to make that argument as the lead prosecutor withdrew.

And closer to home, after Governor Abbott changed his Executive Order, the Texas Supreme Court freed someone who specifically told a state district judge she would not do what he ordered. See Salon owner released on orders of Texas Supreme Court after Gov. Greg Abbott forbids putting coronavirus scofflaws in jail, for the Dallas Morning News story on the matter. And also note that not only did she get out of jail, but the Lt. Governor has at least offered to pay her fine. Sweet!

All I can say is that I can’t wait for the Republican campaign this fall about the need to put in some law and order folks who will get this pandering to the criminal element under control. Oh, wait a minute …

A Request for Judge Amy Berman Jackson in the Roger Stone/DOJ fiasco

Although it is still early minutes, the sentencing of Roger Stone has just become Exhibit A in what can only be considered a real tragedy for the reputation of the Department of Justice under Attorney General William Barr and a real threat to the rule of law in the United States. That is about a monumental statement as I can make.

Just briefly to recap what has happened so far:

  • This morning a “senior Department of Justice official,” is quoted by the Washington Post as saying: ” That recommendation is not what had been briefed to the department,” … speaking on the condition of anonymity to discuss a sensitive case. “The department finds the recommendation extreme and excessive and disproportionate to Stone’s offenses. The department will clarify its position later today.” Later a named spokesperson, Kerri Kupec, said “the White House did not communicate with the agency on Monday or Tuesday, and that the decision to reverse course was made before Trump’s tweet.” See, Washington Post, Prosecutors quit amid escalating Justice Dept. fight over Roger Stone’s prison term.
  • Later, the DOJ followed through filing its “Supplemental and Amended recommendation. Instead of being signed by the four attorneys who signed off on the recommendation filed yesterday, this was signed by John Crabb, Jr., Assistant United States Attorney and Acting Chief, Criminal Division. On the website of the D.C. U.S. Attorneys office, T. Patrick Martin was listed as the Chief and Crabb, the Deputy, and at this point, what has happened to Mr. Martin is not known.
  • The four original attorneys have asked to resign from the case, and at least one of them has resigned his job with the Justice Department. Politico, All 4 prosecutors quit Roger Stone case after DOJ shifts to urge lighter sentence.

Now for the request to Judge Jackson. Obviously, this is unusual, and that is a huge understatement.

Already, the House Judiciary Committee Chairman, Rep. Jerry Nadler and Majority Leader in the Senate Chuck Schumer have raised questions and indicated that they will seek investigation. NPR, DOJ Asks Court For ‘Far Less’ Prison Time For Roger Stone After Trump Tweet But we have a recent example of how easily that can be derailed.

But Judge Jackson can short cut it. Certainly all four prosecutors, who still have to have judicial permission to withdraw, Mr. Crabb, and the U.S. Attorney for the D.C. Office, Timothy J. Shea, whose name is on both pleadings, should provide the Court complete details of how this change in position came to happen. And if that does not leave matters completely clear, a similar request to Attorney General Barr himself should be issued.

What happens to Roger Stone is important, but in the longer term, far less important than what happened here.

Fortunately, we have another opportunity to see whether one of the three co-equal branches of government can indeed be a check and balance on another. Help us all if it doesn’t.

Our Medical Health Care System

This is not my take on Medicare for All, or Medicare for All Who Want It, although kudos to Mayor Pete for a good turn of the phrase (and good luck in the Iowa caucus this evening), but rather my anecdotal experience with the system we depend on to keep us healthy, just this morning.

First, last week I scheduled an appointment, on line, with the Baylor, Scott & White Downtown Clinic for this Wednesday, February 5th, 11:40 am. It’s basically a check up, a couple of shots I need to get and a couple of questions, since it’s been more than a year since I last saw my primary care doctor. (Who is now gone, so this is a new doctor, but that’s another story).

The two options to choose from were ‘new patient visit’ or ‘office visit/established patient’. I had some question, since it is a new doctor, would that count as a new patient of his? Didn’t actually make sense, but since I was not talking with anyone, thought I would check it and see what happened. What happened was a note that I couldn’t do that, not enough time for my chosen time of 11:40 a.m. (Why, since I had checked ‘new patient visit’ it had given me an option for a time that would not work seems like a design flaw, but that’s another story.)

So, I opted for office visit/established patient, and it worked, at the time I wanted to schedule it. Success! Afterwards, on January 28, I first got a text that I had a message in the BS&W portal, and then when I opened the portal, the message confirmed my appointment for February 5th at 11:40 am. Friday, January 31st, I got a voice mail, confirming my appointment, with an arrival time of 11:25. (What’s up with having an appointment time AND an arrival time? Seems a bit weird, but that’s probably another story.) So far, so good. Reminders are a helpful thing.

Then this morning at 7:18 a.m, yet another message in the portal, preceded by a text telling me that there is a message in the portal, confirming my appointment for February 5th at 11:40 a.m., with that 11:25 a.m. arrival time. Ok, I am officially reminded.

But just getting started. Next voice mail this morning at 8:43 a.m. A call from O__ from BS&W, has a question about my appointment on the 5th, could I please call back and leaving what (turns out) is the main number for BS&W downtown clinic.

After getting back from the gym, I call BS&W and go through the inevitable phone tree. My option is #4, which is designed to get me to a person, although it doesn’t immediately, but after about 10 minutes (ok it was probably 1 or 2 minutes, but it always feels like 10 minutes, something that proponents of automated phone systems should keep in mind, but then that’s another story) and I finally got a person.

I explained that I had just had a voice mail from O_ who asked me to call about my appointment on Wednesday. I gave my date of birth. Slight pause. Then I gave my address, although I forgot to say that I was in Austin, two blocks away from the clinic I am hoping to visit on Wednesday, but did state it, when I was asked, “what city.” Then I was asked why I was calling. I explained again, I had a phone call from O_, and I wasn’t sure what she wanted, but since I had received numerous prior communications reminding me about the appointment, I thought it was probably something else.

I was then asked if I knew who O_ worked for? I didn’t think she meant BS&W, I thought that would be obvious, so I said I didn’t know and she said well, she didn’t have the names of the people who worked on the staff. Now it’s not a huge clinic, but it could be her first day or maybe O_’s first day, but that seemed a bit strange. Then she said, does she work for Dr. G_ (the person I am trying to schedule an appointment with or Dr. C_ (my former doctor who is no longer there, remember, the first other story). I replied I didn’t know, but I didn’t think it was Dr. C_ as I didn’t think she still worked there.

She said well there’s nothing in the system. So, I once again offered, that I didn’t know, but O_ had called, just this morning, and left a voice mail, and I thought it was not just another reminder. That prompted the idea that maybe she should see if she should get “them” on the line, and even without knowing exactly who “them” was, I was in total agreement.

Another period of time on hold, until I was finally connected to D_, who after a much quicker period of birth date and other info confirmation, informed me the the problem was I had scheduled a ‘physical’ and there was not enough time for that in my scheduled and much confirmed 11:40 a.m. appointment on Wednesday. . Rather than inquire how I could have scheduled a ‘physical’ when there were only ‘new patient visit’ and ‘office visit/established patient’ options, I chose to defer to her suggestion that she look at times when we could do it. (One of the luxuries of being retired, a much more flexible calendar.) Happily, time for physical, meant only a wait of 90 minutes, so I am now scheduled to see Dr. G_ for a ‘physical’ at 1:20 p.m. this Wednesday, February 5th.

While I have not yet been officially reminded, nor do I know my “arrival time” the 1:20 pm appointment does show up in my portal under appointments. Fingers crossed till Wednesday.

Second, last week, out of the blue, I got a text from Optum Rx, the online pharmacy that my medicare Rx insurance company recommends. After resisting prior encouragement to use them, I finally agreed and it is much easier to get a 90 day supply of the pills I take on a recurring basis than having to trek over monthly to the downtown pharmacy I had been using. I do lose the walk, which is one of the benefits of living downtown, more walking, healthier lifestyle, but that’s another story. Actually, the NYT Ellen Gabler already wrote the story, which makes it clear notwithstanding losing the walk I may be better off not using one of the large retail drug chains.

Optum Rx, in their text had helpfully listed four prescriptions that could be refilled, and all I needed to do was text Yes, which I did.

Then this morning, when checking the BS&W voice mails from this morning and last Friday, I realized there was also a voice mail from Optum Rx last Thursday. My order had been placed on hold and I needed to call (24/7) to avoid any further delay.

So, after recovering from my BS&W call, I took on Optum Rx. After going through birth date/address confirmation, I explained why I was calling. The first report was good. It did not appear that there was any problem with anything. I pushed a bit, to see if I could find out what prompted the initial voice mail. That took a little more looking, but the report was it appeared that there had been an issue with a co-pay, but it had been resolved, and there was no balance on the account, so everything was good.

But then a bit more pushing, just to confirm that what I thought had happened, that I had ordered refills of four prescriptions was actually in place and on track. A bit more research. Well, no. Nothing was in process. Apparently, there had been a problem, it had been resolved, but also the order had been canceled.

So, could we get back to where we thought I was, which was having ordered four refills by texting back “Yes”? Of course, what prescriptions do you want to refill? I know, I should know the medications (all but one generic of course) by heart, but somehow Amlodipine Besylate and Lisinopril-HCTZ, not even to mention the correct milligrams, are just not in the memory banks.

But good no problem, we go through a list of prescriptions that are ready for refill, and knowing that all on the list are ones I take on a recurring basis and will need, I just say yes to any that are available for refill.

There will be co-pays of course, and we discuss that. Do I want to pay using my credit card which is on file? Yes, thank you, and then the words I had been waiting to hear, my order was processed successfully and should be delivered. It did cross my mind to raise the question, if in fact there is a valid credit card on file, why there would have been a question about the co-pay that started us down this particular track, but that would probably have resulted in another story.

I have spent way more time writing up the two incidents than I actually spent on them (according to my phone, 11 minutes each). Still, I think the calls are symbolic of our healthcare system where way too much time is spent on the red tape of health care rather than the care itself. And in each administrative interaction lurks the possibility of action or inaction which could actually be harmful to one’s health.

I know health care delivery is a big and complex matter, with no easy solutions. But today, I am reminded of a comment made by a visiting professor when I was at UT Law School. Walter Steele, now a Professor Emeritus at SMU School of Law, was teaching me and 110 others criminal law, in the mid-afternoon of a spring semester. To say that our class participation was less than stellar would be an understatement. (As I recall Edith Jones, now the Honorable Edith Jones of the 5th Circuit, was an exception.) Which caused Professor Steele, to pause one day and say something along the lines of, “You know up at SMU, all we ever hear is how you UT law students are so damn smart. Well, I’ve got to tell you, so far, I’m not a damn bit impressed.”

After this morning, me neither,

Blow up the Astros!

For many years now my teams have been:

  • in the NFL, the Dallas Cowboys
  • in the NBA, the San Antonio Spurs,
  • in MLB, the Houston Astros
  • for college sports, the University of Texas.

As you can see, except for the Houston Astros, it has been a pretty disappointing several years. And now of course, all the glory and success from 2017 through last season’s loss in their second World Series in three years, is under the dark cloud of the sign stealing scandal.

A true body blow.

My guess is that over time, more details will emerge of other teams who were involved in similar schemes, some of the shock will wear away and a consensus may emerge, that as ill advised and improper as such actions were, they probably didn’t make a true difference. Just as an example, the year for which they were found most at fault, 2017, the general view of that Astros team was that it played much better on the road than it did at home. Of course, the sign stealing scheme was only implemented at home.

But regardless, there is no doubt that the Astros that we knew and truly came to love, are tarnished.

Although I am sure others have suggested it, I am a bit surprised that there has not been more of a public argument and debate about what seems to me to be the most obvious solution for moving forward: blow the team up.

Under the penalties which the club has accepted, they will not get their two top draft picks for the next two years. The Astros farm system, just a few years ago the cream of the crop, has been much reduced in quality. That’s a necessary result of important trades that helped the team, Verlander and Cole for sure, Greinke, maybe not as much as hoped, and the fact that higher finishes means you don’t get a shot at drafting the next Correas and Bregmans, when you are drafting much lower in the order.

Although the nucleus of the team remains intact, the Astros did nothing to improve over the off season, and is going to have a hard time attracting free agent talent as long as the cloud remains. Everyone else in the American League did. So the future looks like Houston is headed for a depressing spiral down. Although theoretically, the current line up and pitching staff, should compete, under the circumstances, it’s not very realistic that they are going to have a long play off run, and I doubt many would be surprised if they didn’t even make them.

Also every position player who remains on the team from the 2017 club is stigmatized and having a large group of them still together, removes almost any chance to have that stigma diluted and their individual play become the focal point. Instead all anyone will see is their part in a collective guilt.

But there is no question that there is real value in each of the individual parts. How many good, young talented prospects would Jose Altuve, Alex Bregman or Carlos Correa bring? Even older veterans, Verlander, Guriel and Greinke could bring attractive position players and arms.

Starting over with young, new untainted talent, pairing them with Yordon Alvarez, Kyle Tucker and others, seems to me to be an idea worth considering.

It would have the additional benefit of being better in the long run for the Astros who would be dealt. I am sure that Bregman, Altuve and Correa like being in Houston and would prefer, if all were equal, to stay there. But all is not equal. think that they are much more likely to fare better as baseball players if they are in a new environment.

It may be that the new General Manager, whenever that position is filled, might contemplate exactly such an approach. If I were the owner, I would at least want this option considered. Evaluating prospective talent and the ability to trade for it would be skills I would be prioritizing in my search.

Back, After All These Years

Nearly three years ago, I made my last blog post, almost 15 years after my initial one. As the months passed, from all outward appearances, the first labor and employment blog, had gone the way of so many blogs, both silent and forgotten. Still in the back of my mind, as I was wending my way through my last year as an active practicing lawyer, and now two full years of retirement, it remained alive, just dormant.

In the time since the very first post in the summer of 2002, the world of blogging has changed substantially. Blogs are now more ubiquitous, more commercial than personal, and on occasion have created riches or at least some degree of fame.

But oddly enough, the reasons I made that very first post, a curiosity about the technology and a desire to put down on ‘paper’ thoughts I had about the world of labor and employment law, with the added ‘benefit’ that others could view (and judge) them, are the reason I have decided to begin posting again, except my focus is now much broader than just labor and employment law.

In 2002, I chose the easiest platform to get me up and running, Blogger. And stayed with it. Although it probably wasn’t the slickest format, it worked and I was far more interested in having a place to say what I wanted than how it looked or even functioned. That effort, the original Jottings By an Employer’s Lawyer, remains, and there seems no reason to do anything with or to it.

But in the ensuing years, WordPress has taken over the world. I must admit that I was drawn in by all the talk of how easy it was to start a WordPress blog, and so sometime last year, I went through the steps of acquiring a hosting site and attempted to create a blog. I soon found it was for more difficult than I had thought.

My first attempt, which even involved use of a WordPress expert, was a blog dedicated to the impeachment proceeding of President Trump. But that soon proved to be an effort never meant to see the light of day. Partially it was the difficulty of the technology. More importantly, it just wasn’t a well conceived project. Although the subject was of interest, I never found the right handle to approach it. Probably a good thing as I am not sure that I would have had the interest or discipline to really maintain it, as I can only stand to watch the current proceedings in small dosages.

But at the same time I started the impeachment blog project, I took advantage of a feature of SiteGround (my host) to import the prior posts from the original Jottings By an Employer’s Lawyer. Because of the size and probably some other technical reasons that I have no clue about, it only was able to retrieve as far as the last post in February, 2008. But that still meant a large body of posts came across.

Now with a slight addendum to the original title, adding “Now Retired,” I am back to see if there is another run of posting in me.

The retired status means a much broader scope of posting will be in order. The “world of work” as I often referred to labor and employment law, will still get some attention, probably more as reflections of what I think I learned in the 40+ active years of practice than current topics, but my guess is that it will by no means be the dominant theme.

As one of my favorite current pundits, Fareed Zakaria says on his Sunday show, the Global Public Square, “let’s get started.”

After 42 Years, It’s Nice to Know That I Might Be Qualified for Something

In this morning’s mail box …


BCG Attorney Search noticed that the following job might suit your qualifications and experience. We are pleased to provide you with the latest jobs from your preferred geographic location and practice area as and when they become available.

If you are interested in applying for this position, please fill out our sign-up form here: www.bcgsearchemail.com/
. Our expert recruiters will get in touch with you to evaluate your career options and advise you accordingly. This account will also allow you to view new jobs that match your search settings, submit your resume, and take advantage of a host of other useful features.

Please be informed that BCG Attorney Search is extremely selective and works only with the best attorneys and the most exclusive law firms in the world. For more information, please contact BCG Attorney Search by email or phone, Monday through Friday, 9:00 am to 5:00 pm, PST.

Title: Entry-level Employment Law Attorney with labor experience
Location:Texas – Houston
Practice Area:Employment

Houston office of our client seeks entry-level employment law attorney with 1 year of experience. The candidate must have excellent legal research and writing skills. Should be presently licensed to practice law in Texas. Knowledge of general princip…Click here

If we are currently working with you as one of our candidates and you are interested in any of these new positions, please contact your recruiter immediately so that we can discuss these openings with you. 

The Concept of Fallow Ground and Other Musings

More than one year has passed since my last post, and the two or three years before were little more productive. Still for some reason, hopefully more noble than ego, I have chosen not to kill off this spot on the internet.

Like the biblical admonition and agricultural practice of letting farm land rest for a period of time so it might be more fertile, the hope is this prolonged period away from posting will allow me to return to it with an even more helpful perspective on the world of work, from my vantage point as one who has represented employers for an extended period of time. 

It also marks a time of change in my professional life. After 42 years as a labor and employment lawyer, I am transitioning to a more reduced role in the active practice of law. While still an equity shareholder in Ogletree Deakins, I am spending less time this year and looking forward to an even more reduced role in a different capacity in following years. 

Regarding this space, my goal is to share, at least in some small way, some of the things I have learned or at least think I have.  I have been fortunate to have a ring side seat to the development of employment law almost from its inception. Only the happenstance of the timing of my birth and education made that possible, so it seems a shame to not at least attempt in some small way to share, even pay back, for the luck of the draw that has been my good fortune. 

But as with all things, as reflected by the ancient adage which became popular in my formative years of the ’50’s, the proof will be in the pudding.

An Unusual Condition of Employment – You Must Be Armed

A basic tenet of American employment law is that employment is at will, meaning that the employer can set the conditions of employment as long as it is not otherwise illegal.

A Georgia businessman who provides aviation insurance has a new one: all employees must carry weapons.  Local station WSB-TV in Atlanta has an interview: Business owner requiring all employees to be armed.

And the station’s non-scientific twitter poll follow up: 60% think it is a good idea.


Mandatory Arbitration and the Supreme Court – The First of Potentially Many New Days

As Justice Scalia”s body lies in state in the Great Hall of the Supreme Court this morning, my eye was caught by the first headline in today’s Employment Law 360.

The headline and lead:

The Fifth Circuit on Thursday issued its judgment based on its October opinion that mostly reversed a National Labor Relations Board ruling that had found Murphy Oil arbitration agreements barring workers from pursuing class or collective actions as unlawful, setting the stage for a potential NLRB appeal.

The case of course deals with whether a mandatory arbitration provision violates the National Relations Act.  That has been the position of the NLRB for some time now, notwithstanding almost universal rejection by the courts.  The first time its view was subjected to judicial review, the 5th Circuit rejected the position in a 2-1 decision, D.R. Horton, Inc. v. NLRB (5th Cir. 2013). Notwithstanding the split decision, the Board passed on seeking review by the Supreme Court.

With yesterday’s issue of a judgment by the 5th Circuit in another rebuff to the NLRB, it now has a second chance.  Last October the Court noting that the Board’s request for an en banc review of its D.R. Horton decision having failed, the Board would not be surprised that the Court “would adhere, as we must, to our prior ruling,” holding that Murphy Oil “did not commit unfair labor practices by requiring employees to sign its arbitration agreement or seeking to enforce that agreement in federal district court.”  Murphy Oil, Inc. v. NLRB, (5th Cir. 2015).

However, because of some other issues it was the Court’s judgment issued yesterday which started the clock running for appeal to the Supreme Court.  And of course between the ruling on October 15th and yesterday’s judgment, the legal world has changed.

Under the Court as it existed both at the time of the D.R. Horton decision or even in October when Murphy Oil  was decided, employers would not have been terribly concerned if the NLRB had appealed.

Today? At least for me, this is the first of what I am sure will be many times as the political process which will produce the next Justice of the Supreme Court grinds slowly that the question will be a much more serious one as to what the world could look like than it was this time last week.

40 Years at the Bar

I can’t honestly say what I anticipated 40 years ago today when I came to Austin to be sworn in as a member of the Texas state bar. But it is unlikely that I could have anticipated all the twists and turns, both professionally and personally, that have occurred since that October day 40 years ago.

Although I am sure I did not think in these terms at the time, my legal career was beginning when employment law as a discipline was truly in its infancy. Watching how it has changed over the years has and continues to be a fascinating experience and on-going intellectual challenge.

In fact a lot of things have changed since then. As an example, my starting salary, the one being paid by the largest law firms in Texas at the time was the grand sum of $15,600 a year.