Understand Your Rights. Solve Your Legal Problems
When did you know law was the career for you?
When I started university, I had in fact planned to go into business management. I was doing a conjoint degree in commerce and law (B.Com/LLB) majoring in finance and economics and had a keen interest in global commerce. About three years into my studies, I was getting increasingly absorbed in my law papers. At this point, I took some time out to do something very different, driving snow-groomers on the 1998 Winter Olympic ski fields in Nagano, Japan. I arrived in Tokyo in 1991, when the economy was at its giddy heights and was there as the bubble burst. It was fascinating, and sobering, to watch first-hand as such a dramatic part of recent economic history unfolded. While enjoying the (at that time) undiscovered and untracked powder snow heaven of the Japanese Alps, I reflected on where I wanted to be later in life and what I valued in a career. It was then I decided I wanted to go into law.
I also had a strong interest in innovation and what drives entrepreneurs, because ultimately it is the spirit of invention and entrepreneurship that has lifted humanity out of living in caves, launched us into space and much more that would have been unimaginable to times gone by.
How did you decide that Antitrust and Competition law was what you would specialise in?
From the time I was in high school, I had been fascinated by political economy. In university, I discarded the prescribed textbooks in favour of reading the seminal works of leading philosophers, political economists and jurists. I soon discovered that a textbook summary, however well written, cannot match the richness of the actual words of the great thinkers in history. Conscious of the need to pass my exams, but keen to exploit this discovery, I took elective papers in economic history, legal history, and comparative law.
While in Japan, I also started studying the history of the zaibatsu (now keiretsu), the famous Japanese conglomerates, and how they grew to have such an important role in the economy likewise, the history of the hongs and other conglomerates that underpin the success of Hong Kong. I also had a strong interest in innovation and what drives entrepreneurs, because ultimately it is the spirit of invention and entrepreneurship that has lifted humanity out of living in caves, launched us into space and much more that would have been unimaginable to times gone by.
I became absorbed in the trade war at the time between the United States and Japan and the question of whether there should be heavier antitrust enforcement against the keiretsu. Linked to that, I also started providing input to the Pacific Economic Cooperation Council's project to develop a Competition Principles document for adoption by APEC. I found this work fascinating because it allowed me to consider competition policy across the APAC region.
I saw antitrust enforcement sometimes colliding with economic theory.
Adam Smith has always had a strong influence but so have authors like Israel Kirzner, who, in my view, deserves a Nobel prize for his work on competition, entrepreneurship and the price system. Kirzner raised fundamental questions about the role of prices in conveying critical information and acting as a signal to market participants, allowing markets to properly coordinate. This area deserves more study as we see competition regulators expanding information exchange prosecutions into complex trading markets. I was also influenced by writers like Bruno Leoni, who gave a unique perspective to the intersection of law and economics.
Understanding the legal and economic issues that are at play gives a deeper perspective to fundamental debates in competition enforcement. Is it right to compel a company to grant a competitor access to its facilities (or, more recently, data)? Is there a sound basis for trying to intervene in modern technology markets, which are driven by extremely high levels of innovation, if economic theory has limited power to model what is going on in those markets?
I saw antitrust enforcement sometimes colliding with economic theory. It is this inherent tension, and the sometimes ill-informed prosecution of entrepreneurs, that led me to get into competition law.
I was then lucky in my earlier career to be involved in some of the larger competition law access cases in New Zealand flowing from the privatization of key infrastructures such as the air and sea ports. From there, I moved to Australia, where I was fortunate to have a leading role in what remains to this day the largest competition trial to go through the Australian courts. When I moved to Hong Kong, cross-sector competition law was still not on the horizon. But I was again lucky to have a role that allowed me to work across the region, on everything from the then nascent China merger control through to abuse of dominance cases in Indonesia and the numerous telecoms and broadcasting competition cases under Hong Kong's then sectoral competition laws.
Teamwork is critical. But I have come to appreciate that, ultimately, achieving things of consequence requires the acceptance of personal responsibility.
Can you share your journey into making partner? What challenges came your way?
Everyone has a different journey. For me, I changed jurisdictions three times; this made it a long road. But I made decisions along the way that reflected what I was most interested in and where I wanted to be in the long term, in the heart of Asia, in one of the most dynamic cities in the world.
I would say to others that it is important not to focus on partnership in itself as some kind of abstract end-point. Think about what you want, what motivates you and what will give you lasting fulfilment.
What mottos have you learnt and lived by during your legal career?
Teamwork is critical. But I have come to appreciate that, ultimately, achieving things of consequence requires the acceptance of personal responsibility.
Since I was young, I have been mountaineering, extreme skiing, and, a bit later in life, big-wall rock climbing on multi-pitch faces. Hobbies like this require you to think about how you make decisions and assess your abilities. If you misjudge, the consequence is often fatal. I have been in situations where I say 'no, this is not for me', and I have seen the consequences when others make a wrong decision. At the same time, I have taken lines that others would never dare to take, because I knew I could do it. This teaches a crucial skill in making decisions in a risk environment, which is essential in the legal environment.
In leadership, you have to take responsibility for what happens. Good or bad, it happened on your watch. To me, leadership is about having the personal strength to realise that, to face up to the most challenging situations and to find a way through.
I have always wanted to be on the most complex cases, to be trying to solve what looked like impossible problems for clients.
Asia is enormously diverse. We have a mixture of common law, civil law, free market, mixed market and centrally planned economies and numerous ethnic, religious and political diversities within that.
I get very personally invested in cases, because I believe that lawyers, as fiduciaries, owe particular obligations to their clients (and to the broader institution of the law). When people place their trust in you, you need to deliver, not just go through the motions.
But more than that, I passionately believe in the rule of law. I see it as the most essential cornerstone of our society.
What do you value most about becoming the Chair of Baker McKenzie's Asia-Pacific Antitrust & Competition Group?
For me, it is a real privilege to have been trusted with this role. It is a unique team. We have the largest geographic footprint in Asia with a team spread across Australia, China Mainland, Hong Kong, Indonesia, Japan, Malaysia, Myanmar, Singapore, Taiwan, Thailand and Vietnam. The firm culture has, since the firm was founded in 1949, been firmly rooted in friendship, collaboration and diversity. These are the factors that define my role and which also make it so enjoyable. One of the highlights of the job is talking with our teams around Asia about their competition policy, the legal framework and how competition law is being enforced on the ground in their local jurisdiction.
I have also been in a privileged position to meet and work with the antitrust practitioners across the region and to support and provide guidance to the excellent young talent we have across the Asia Pacific - helping them develop in their careers and providing them with opportunities to profile themselves both in their markets and more widely across borders.
What challenges does this role present and how do you overcome them? What aspects of this role took you by surprise?
Asia is enormously diverse. We have a mixture of common law, civil law, free market, mixed market and centrally planned economies and numerous ethnic, religious and political diversities within that. Not surprisingly, the competition law frameworks across the region are equally diverse, presenting a rich tapestry of approaches and influences.
Engaging at a legal and policy level requires an appreciation of the diversity and sensitivity to local market circumstances. The Asian competition law landscape requires adaptability and a preparedness to look at the same issue from numerous different angles. Thankfully, I am supported by a fantastic team of antitrust practitioners across the region who have grown up in, and have an intimate understanding of, the policy and legal environment in which we operate. This allows us to successfully navigate the most complex competition law challenges on the ground across the region.
Most importantly, if you start in the law and give it a fair shot, then realise it is not for you, do something else.
Can you share some tips for aspiring legal students on how best to work up the legal ladder?
Don't pre-judge - the hardest thing for me coming out of university was to understand what it would really be like in a law firm, an accounting firm or other industries that I looked at, like oil & gas, telecoms and the military.
In antitrust, I get the opportunity to work with a broad range of industries. From merger clearances through to compliance, we get to go behind the scenes and see so much of how the business works and how products and services are brought to market.
This has allowed me to reflect on some of the misconceptions I had. Jobs and areas of law I thought would be mundane actually turned out to be extremely interesting, but I was also able to put my own job in perspective and realised it is what I love doing.
Most importantly, if you start in the law and give it a fair shot, then realise it is not for you, do something else. Find something you are passionate about. Conversely for those who come into the legal profession and enjoy it, follow your passion, persevere. Things that are worth doing in life are not usually an easy road. A challenging career comes with roadblocks and what sometimes look like insurmountable challenges. You need to enjoy the job if you want to overcome these and to succeed.
Being chair does not give the power to direct and command outcomes, only the opportunity to have a potentially broader view of the practice and provide directional influence.
I also frequently remind myself of the advice I received from the senior partner when I joined a law firm many years ago. Keep a strong moral compass. Law is a difficult profession. It throws up many personal and professional challenges, personal sacrifices, complex conflicts and difficult judgment calls.
Finally, what are your three top tips on becoming Chairperson?
It usually happens before you feel ready.
Embrace the challenge.
Being chair does not give the power to direct and command outcomes, only the opportunity to have a potentially broader view of the practice and provide directional influence. In a firm as diverse as ours, that is fun, teaches one a lot about different cultures and ways of approaching a situation and is immensely personally rewarding because it allows a better sense of the wonderful people who make our team what it is.
Stephen Crosswell
Head, Antitrust & Competition Practice
Asia Pacific
Stephen.Crosswell@bakermckenzie.com
+852 2846 2599
Highly acclaimed and Band 1 ranked Leading Antitrust Lawyer, Stephen Crosswell is the current Chair of Baker McKenzie's Asia-Pacific Antitrust & Competition Group.
Clients praise Stephen for his "years of experience working on competition matters". He is described as a "vital resource for clients seeking to navigate the nuances not only of the new local competition law regime in Hong Kong but also across other Asian jurisdictions – including China".
Pam also discusses the challenges COVID-19 presents for government contractors and changes we should be on the lookout for.
Why should a business consider doing business with the government?
The U.S. federal government is the number one purchaser in the world, purchasing all sorts of supplies and services, so providing products or services to government agencies is worth billions in sales to businesses each year. Many contracts issued by the federal government are multi-year contracts, some as long as 10 years so they can provide a steady stream of revenue to a business. Whether you’re an IT service provider or a medical device company, a government contract offers an additional revenue stream that can either supplement or replace your commercial business revenues. Other reasons a commercial business might consider doing business with the federal government are below:
What are some of the roadblocks to being a government contractor?
Conducting business with the government comes with its own unique challenges. While the payoffs can be great, contracting with the government is not for the timid. Consider the following potential pitfalls:Government contracts are heavily regulated by the Federal Acquisition Regulations (FAR) and special regulations promulgated by the individual agencies. Failure to know and follow these regulations can cost a contractor money, result in a contract being terminated or, under extreme circumstances, a suspension or debarment from doing further business with the government. Knowing how to traverse this maze of regulatory requirements is paramount to success and it is wise to seek the advice and counsel of government contracts specialists for your legal, accounting and banking needs.
What further pressing challenges has COVID-19 presented for government contractors? Does this differ from commercial businesses?
A major challenge for contractors is their potential inability to execute or complete a contract in the midst of a pandemic. This challenge could lead to performance issues and ultimately hinder payment on the contract. Section 3610 of the CARES Act, entitled “Federal Contractor Authority”, specifically states that Contracting Officers have authority to continue paying contractors in order to maintain employment for contractor personnel, even if the contract is subject to a stop work order or other delays. Again, this is true even if no work is being performed on the contract.
Due to the unprecedented economic disruption caused by COVID-19, the CARES Act was signed into law to provide billions of dollars in relief for businesses.
Another pressing concern for government contractors is how to obtain upward equitable adjustments for increased operating costs due to the crisis. These costs could include more janitorial services, reconfiguring and/or refurnishing workspaces, changing processes and/or systems, overcoming supply chain fluctuations, enabling more remote work, compartmentalising workgroups, implementing shift work, allotting administrative time for health checks, giving more transportation and parking benefits, providing Personal Protective Equipment, adding headcount made necessary by changes, as well as recouping the costs for any lost efficiencies due to the foregoing.
Finally, like so many other businesses, government contractors are slowly beginning the reopening process and preparing their facilities for a returning workforce. Undoubtedly, with the COVID-19 pandemic still ongoing, a return to work certainly will not mean a return to how things used to be and companies will need to implement new processes and procedures to adequately prepare employees and comply with state and local requirements.
What assistance is available to help businesses deal with the pandemic? How have these impacted businesses?
The crisis has highlighted the U.S. government’s dependency on Chinese manufacturing and the risks to our supply chain and national security.
Due to the unprecedented economic disruption caused by COVID-19, the CARES Act was signed into law to provide billions of dollars in relief for businesses. Employers have the Economic Injury Disaster Loan and the Paycheck Protection Program (PPP), which offer loan and debt relief options to help businesses survive the challenges related to the pandemic. The recently passed Paycheck Protection Program Flexibility Act, in particular, provides businesses with the following:
Do you think there will be any changes in the long run?
As a result of the pandemic, listed below are four long-term changes we expect to see. Some impact government contractors and others will impact all commercial businesses.
Pamela J. Mazza
Managing Partner
Washington, DC
Pamela Mazza, Managing Partner of PilieroMazza PLLC, is nationally recognized for her over 30 years of work with small to mid-sized government contractors. Her practice includes all aspects of government contracts, including federal procurement programs for small businesses, audits, and investigations. Pam is also responsible for the firm’s government relations practice, which represents corporations and trade associations before Congress and the Administration. As managing partner, Pam has overall responsibility for the firm’s practice groups, the operational infrastructure, and strategic planning and implementation.
PilieroMazza—a business law firm—serves as a strategic partner to government contractors and commercial businesses from across the United States. We deliver results for our clients by implementing legal and business solutions that take into consideration the client’s best interests. With attorneys from a cross-section of the firm’s core practice areas––including Government Contracts, Business & Corporate/Mergers & Acquisitions, Labor & Employment, and Litigation & Dispute Resolution––working seamlessly as a team to support our clients, we offer thoughtful and thorough solutions to protecting their business interests. Furthermore, our knowledge on how laws are administered, productive relationships with decision-makers at various government agencies, and “boutique” business model, make PilieroMazza uniquely qualified to provide clients with highly valuable and exceptionally skilled representation.
The COVID-19 pandemic created an unprecedented challenge which has been the catalyst for the development of new modalities of delivering healthcare in order to maintain social distancing and minimising the potential spread of infection, especially in high risk specialities such as ophthalmology where there is close contact when the patient is examined. The Royal College of Ophthalmologists, following advice from Public Health England, recommended that all non-urgent face-to-face clinical work should be postponed. This includes medico-legal reports.
If a face-to-face consultation cannot take place, what are other options are available for experts?
Prior to undertaking any consultation for all medicolegal reports, it is my practice to thoroughly review the letter of instruction, any witness statements and the medical records - from general practice and hospital; the optician’s records are invaluable as they will detail the ‘pre-event’ visual status and more recent observations. Further, many opticians now perform retinal photography and sometimes OCT scans. Ideally, this should be supplied electronically as image quality is superior and to prevent contamination, which can occur in the postal system.
The recent meeting of G7 leaders regarding COVID-19 was successfully held virtually and virtual court hearings have been satisfactorily conducted.
This represents the knowledge base for all consultations and will enable both the expert and the patient to engage with each other on all occasions whilst staying safe. An introductory telephone call is favoured because this will be a familiar modality for all patients; consider a future video consultation, discussing informed consent regarding confidentiality and GDPR. This might be sufficient for the expert report to be drafted without the need for a face-to-face consultation.
How effective are virtual consultations? How much can you rely on video calls to achieve objective results?
The recent meeting of G7 leaders regarding COVID-19 was successfully held virtually and virtual court hearings have been satisfactorily conducted. The General Medical Council’s guidance is that telemedicine (remote consultations via a telephone or video link) can improve patient access. Both telephone and video consultations have been increasingly conducted in routine clinical practice in the COVID-19 pandemic and have been widely accepted by patients. A video link further facilitates the verification of the patient’s identity by showing photographic ID to the camera. The patient’s location should be confirmed which should be with no other person present, in private, and not in their lawyer’s office.
There is a need to balance the risks associated with the patient travelling against the benefits of undergoing the face-to-face examination or postponing it to a later date.
The history will be taken as in a face-to-face consultation together with the interpretation of the patient’s body language, facial expressions and tonal changes, as well as how the patient responds to visual prompts. A full ophthalmological examination cannot be performed virtually.
The patient’s visual acuity can be determined with a ‘sight test chart’ downloaded and printed from the internet, as discussed at the initial telephone consultation, and attached to a wall at a prescribed distance which can be verified during the video consultation. This recreates the scenario with which the patient will be accustomed when they are asked to read the lowest line that can be seen.
The patient can be asked to make directed eye movements and facial movements which can be directly observed. The expert has the facility to enlarge the images of the external eye on the video image, but the examination of the inner eye can only be practically performed at a face-to-face examination if this is possible and the patient is not ‘shielding’. Although, the expert will have reviewed the images in the disclosed medical records which may be adequate. Because a full history will have been taken during the virtual consultation, the time required for the face-to-face examination will be reduced which will increase the safety for both the expert and the patient. Other factors, such as reducing the number of patients seen and of the time spent in the clinic environment and exposure to other potentially sick patients, will also play a part here. The client should also wear a face covering and the expert PPE for this examination. There is a need to balance the risks associated with the patient travelling against the benefits of undergoing the face-to-face examination or postponing it to a later date.
The expert’s review of the medical records bundle affords a good approximation to the anticipated findings during a face-to-face or virtual consultation
What could be the impact if the assessment is not as accurate? How can experts mitigate this risk?
The expert should specifically state in their report the modality in which the consultation was conducted and if investigations, such as retinal photographs or visual field plots, in the clinical records are interpreted by the expert, the date of the investigation and where it was performed should also be stated. If the expert considers that more up-to-date investigations are required, a provisional report could be drafted with the recommendation that a final report would be produced when the investigation(s) has been performed, when possible, according to Public Health England’s guidelines.
The expert’s review of the medical records bundle affords a good approximation to the anticipated findings during a face-to-face or virtual consultation; if there is a discrepancy, then this is an indication for further assessment, but if the patient complains of a significant change in their clinical status, they should be referred via their GP to the ophthalmology department for management, because the role of the expert is to prepare the report for the court and not to manage the patient’s condition. A provisional report should be drafted in such circumstances.
Will these methods change the way you assess clients post-pandemic?
Challenges drive innovation and virtual consultations have rapidly developed in clinical ophthalmology because of the constraints of COVID-19. This modality will become the norm in the future, but there will still be the need for investigations and clinical examination which can only be performed during a face-to-face appointment. The initial virtual consultation, as described between the expert and their patient will streamline their interaction and a face-to-face appointment will only be made if indicated. This will also facilitate the assessment of those clients who have difficulties in attending a consultation in person because of health issues, the distance involved, or the availability of transport; the performance of a virtual consultation will be beneficial to such cases, as well as optimising the expert’s time management.
Peter Gray
petergrayfrcs@doctors.net.uk
Mr Peter Gray, MA, LLM, FRCS, FRCOphth, MFFLM, DMCC is a respected and experienced ophthalmologist who, having worked in many prestigious centres of excellence in the United Kingdom, is proficient in all aspects of ophthalmology, especially in relation to ocular chemical injuries and has particular expertise in the ocular damage caused by the CS incapacitant spray deployed by the British Police. He has a Master’s Degree in Law in the “Legal Aspects of Medical Practice” and has worked as a medico-legal adviser to the Defence Medical Services. He is a Director of Eye Law Chambers®
In 2016, Dr Hsiu-Ying Tseng was convicted of second-degree murder for three patient drug overdose deaths, making Tseng the first doctor to be convicted of murder in the United States for overprescribing drugs.[1] In a study conducted by the National Attorneys General Training and Research Institute (NAGTRI), the researchers gathered information regarding the 378 cases against doctors who had been charged and whose cases were resolved and/or sentences rendered by 31 December 2016, among which 249 are federal prosecutions and 131 are state cases.[2]
Legal Standard for Criminal Liability
While the federal prosecutors pursue those cases under 21 U.S.C. § 841 of the Controlled Substance Act (CSA), the same federal law to prosecute street drugs, it is critical to first answer the following question - when would doctors become drug pushers in the eyes of the law?
Registered "practitioners”, such as physicians and pharmacists as defined in 21 U.S.C. §§ 821-23, are exempt from said prohibition.
Section 841(a)(1) of the CSA states that “it shall be unlawful for any person knowingly or intentionally to manufacture, distribute, or dispense, or possess with intent to manufacture, distribute, or dispense, a controlled substance.” Registered "practitioners”, such as physicians and pharmacists as defined in 21 U.S.C. §§ 821-23, are exempt from said prohibition. However, the Supreme Court held that a medical professional is not immune from criminal liability for drug trafficking "when their activities fall outside the usual course of professional practice." United States v. Moore, 423 U.S. 122, 124, 96 S.Ct. 335, 46 L.Ed.2d 333 (1975). 21 C.F.R. § 1306.04(a) further provides that a practitioner "shall be subject to the penalties. . . relating to controlled substances" unless the prescriptions they write for a controlled substance are "issued for a legitimate medical purpose . . . [and they are] acting in the usual course of his professional practice." See also United States v. Ignasiak, 667 F.3d 1217 (11th Cir. 2012)(“To convict [a DEA-licensed physician under § 841], it [is] incumbent upon the government to prove that he dispensed controlled substances for other than legitimate medical purposes in the usual course of professional practice and that he did so knowingly and intentionally.”)
Given the ambiguity about the standard for the criminal liability, it is important to look into the “red flags” identified by federal courts
Then, the relevant inquires become (1) whether a prescription for a controlled substance was issued “for a legitimate medical purpose”, and, (2) whether the medical practitioner was “acting in the usual course of his professional practice” when issuing the prescription. Unfortunately, the CSA does not define those two terms. As noted by the Sixth Circuit Court of Appeals, “[t]here are no specific guidelines concerning what is required to support a conclusion that an accused acted outside the usual course of professional practice.” United States v. August, 984 F.2d 705, 713 (6th Cir. 1992) (per curiam). The Eleventh Circuit’s opinion in United States v. Tobin, 676 F.3d 1264 (11th Cir. 2012) provides some guidance in answering these questions: the absence of a uniform, national standard in this regard, “the CSA incorporates the applicable state standard of professional practice, and thus it holds practitioners to standards to which they are already bound.” Id. at n. 10. But this method does not resolve the issue here because, while “medical malpractice law is built on such an idea, . . . [the] focus [of criminal liability] is more basic - we are asking what defines or delineates the practice of medicine, rather than the instances of the practice of medicine do it so poorly as to be considered incompetent.”[3]
Identified “Red Flags”
Given the ambiguity about the standard for the criminal liability, it is important to look into the “red flags” identified by federal courts, which are held to suggest that a medical practitioner distributed controlled substances without a legitimate medical purpose and outside the usual course of professional practice.
Penalties for violations of Section 841(a) are outlined in subsection(b), including imprisonment and monetary penalties.
In United States v. Joseph, 709 F. 3d 1082 (11th Cir. 2013), the Eleventh Circuit summarised the “red flags” to include "[a]n inordinately large quantity of controlled substances was prescribed[,] ... [l]arge numbers of prescriptions were issued[,] ... [n]o physical examination was given[,] ... [t]he physician issued prescriptions to a patient known to be delivering the drugs to others[,]... [and] [t]here was no logical relationship between the drugs prescribed and treatment of the condition allegedly existing."
In United States v. Katz, 445 F.3d 1023 (8th Cir. 2006), the Eighth Circuit listed the following “warning signs and red flags”: the physician “sought no patient medical history and never ordered diagnostic or laboratory tests for any of the patients … [and] provided patients access to controlled substances by routinely refilling 30–day prescriptions when only two weeks had expired.” Id. at 1031.
Penalties
Proper record keeping and patient screening could help establish those defences.
Penalties for violations of Section 841(a) are outlined in subsection(b), including imprisonment and monetary penalties. Notably, Section 841(b) provides for an enhanced penalty for cases where a violation of section 841(a) results in death or serious bodily injury. Thus, when a case involves patient overdose deaths, the statutory minimum sentence is twenty years. In Burrage v. United States, 134 S. Ct. 881 (2014) the Supreme Court held that, for the penalty enhancement set forth in Section 841(b) to apply, the use of the prescribed controlled substance must be a “but-for” cause of the death or injury.
Defences
In United States v. Hurwitz, 459 F.3d 463 (4th Cir. 2006), the Fourth Circuit recognised that “good faith” is a defence to criminal charges against medical practitioners under Section 841(a), and concluded that “the inquiry must be an objective one . . .” Thus, there is a defence where a physician acted with an objective good faith belief when issuing the prescription.
The physician could also show that he prescribed with a legitimate medical purpose and/or that his practice met the accepted state standard of care. Proper record keeping and patient screening could help establish those defences.
Bingzi Hu
Bingzi Hu obtained her Juris Doctor’s degree from Georgia State University College of Law. After that, she pursued further studies in Federal Criminal Defense and Practices and obtained an LL.M. degree from Mercer University’s Walter F. George School of Law.
Bingzi is a member of the Georgia Bar Association. In addition, she has been admitted to the Northern District of Georgia Federal Court, the Middle District of Georgia Federal Court, the Eleventh Circuit Court of Appeals, the Georgia Court of Appeals, and the Supreme Court of Georgia. She engages in a variety of criminal cases at both state and federal levels, including “pill mill” cases, securities fraud, bank fraud, bankruptcy fraud, money laundering, etc. She also specializes in appeal and other post conviction relief.
[1] Scott Glover, Southern California doctor sentenced in overdose deaths of 3 patients, CNN, February 5, 2016. Available at https://www.cnn.com/2016/02/05/health/california-overdose-doctor-murder-sentencing/index.html. Visited June 25, 2020.
[2] Judy McKee, "First, Do No Harm": Criminal Prosecutions of Doctors for Distributing Controlled Substances Outside of Legitimate Medical Need, NAGTRI Journal, Volume 2, Number 2, May 2017.
[3] Deborah Hellman, Pushing Drugs or Pushing the Envelope: The Prosecution of Doctors in Connection with Over-Prescribing of Opium-Based Drugs, Philosophy & Public Policy Quarterly, VOL. 28, NO. 1/2 (WINTER/SPRING 2008).
A new report published on Tuesday by Her Majesty’s Crown Prosecution Service Inspectorate (HMCPSI) has found that a backlog of criminal cases being handled by the Crown Prosecution Service is increasing at an alarming rate, owing to the challenges of maintaining social distancing and maintaining a safe court environment.
The report estimated that trial backlogs in magistrates’ courts increased by 43% between the beginning of March and the end of May, while the backlog in crown courts increased by 53% in the same time period.
HMCPS chief inspector Kevin McGinty warned that the case count will continue to grow under current operating conditions: “Court sittings and courtroom capacity with social distancing requirements will not allow for reduction of the existing backlog,” he wrote in the report.
“Some estimates show that the current scale of increase in the backlog would take 10 years to clear at pre-pandemic rates. Any major increase in the time taken to hear cases is likely to be highly detrimental to justice.”
The release of the report comes as the justice secretary, Robert Buckland, has announced that he is drafting emergency legislation to enable some trials to be held temporarily without juries in order to reduce the complications of social distancing in courtrooms. Earlier this month, the Ministry of Justice also announced its intent to establish emergency “Nightingale Courts” in alternative venues in order to decrease the mounting case backlog.
“These would use public spaces, such as civic centres or university moot courts, to allow traditional court buildings to manage more work while maintaining social distancing,” Ministry of Justice leaders said in the joint announcement.
Depending on their clients’ public perception, lawyers may face ridicule for their role in defending them – though they just as often go on to find work with equally prominent employers. Below, we look at the lawyers who represented three high-profile figures, and how their careers developed as a result.
Billed “The Trial of the Century”, People of the State of California v. Orenthal James Simpson captivated national attention not only due to the defendant’s celebrity status, but also the role played by Simpson’s lavishly paid “Dream Team” of attorneys. Tasked with convincing a jury that there was reason to doubt that Simpson had murdered his ex-wife Nicole Brown Simpson and her friend Ronald Goldman, the assembled attorneys were each well-known as professionals prior to the case and became household names as the trial was broadcast to over 95 million people.
The team was led first by Robert Shapiro, then by the flamboyant Johnnie L. Cochran, whose refrain: “If it doesn’t fit, you must acquit” – arguing that bloody gloves found on Simpson’s property were invalid as evidence due to their size – endured long after Simpson’s acquittal. Cochran earned up to $5 million for his work on the Simpson case, expanded his law firm to fifteen states and made regular talk show appearances.
The remainder of the Dream Team went on to achieve varying levels of success. Robert Kardashian, who had been Simpson’s personal friend and reactivated his license to practise law specifically to represent him, did not take on other clients and became largely eclipsed by the reality TV success of his ex-wife Kris and their children. DNA specialists Barry Scheck and Peter Neufeld co-founded The Innocence Project, which has used DNA evidence to overturn hundreds of wrongful convictions.
[ymal]
One of the few surviving members of the team is F. Lee Bailey, famed for his cross-examination of LAPD investigator Mark Fuhrman. In the early 2000s, Bailey was disbarred in Florida and Massachusetts for alleged misconduct in handling a client’s case, and eventually filed for bankruptcy. He has referred to himself as a victim of “the O.J. curse”, believing that his role in the case played a part in his subsequent shunning by several state bar associations.
Jon Venables and his co-defendant Robert Thompson, both aged 10, were tried in 1993 for the murder of 2-year-old James Bulger in Liverpool. Both the brutality of the killing and the age of the then-unnamed suspects caused outcry in the UK, as it emerged that Thompson and Venables had left school, lured Bulger away from his mother and tortured him before leaving his body on a railway.
Laurence Lee received the call to represent Venables after his arrest on 18 February, initially believing it to be a case of simple truancy. Though he soon became convinced of the boys’ guilt, Lee represented Jon Venables in court and pushed for a “not guilty” plea when the prosecution would not accept a charge of manslaughter alleging Thompson as the prime mover. Lee described the case as “a living nightmare” but did not regret taking it on. “A criminal lawyer who refuses a murder case, no matter how gruesome, shouldn't be practising law. Simple as that,” he told The Guardian. “And if you’ve got ambition, of course you’ll take it on.”
Venables and Thompson were both found guilty of killing Bulger, becoming the UK’s youngest convicted murderers, and were issued with new identities. Lee initially faced difficulty continuing his work after the trial’s conclusion. “For a long time after the case, I never went to work,” he said. “No case could tempt me back into court – until the bank manager phoned up and said ‘You’d better do some work’.” Lee continues to practise law, helming his own Liverpool-based firm. In 2018, when it emerged that Venables had again been arrested for downloading and distributing child pornography, Lee made headlines by coming out in support of waiving Venables’ anonymity.
“A criminal lawyer who refuses a murder case, no matter how gruesome, shouldn't be practising law. Simple as that.”
Ken Starr and Alan Dershowitz had both achieved notoriety in their careers before their work for Jeffrey Epstein. Starr was known as the independent counsel who compiled the Starr Report, which publicized the graphic details of President Clinton’s affair with a White House intern and formed the crux of impeachment proceedings against him. Meanwhile, Dershowitz had been a member of O.J. Simpson’s famed Dream Team and had built a reputation as a lawyer who would doggedly represent powerful men accused of sexual misconduct, once infamously describing a woman raped by Mike Tyson as “hardly the naïve virgin she pretended to be.”
The two men came together in 2008 as part of the defence team for Epstein, who was accused of the statutory rape of numerous girls. Though the charges arrayed against him might have resulted in a life sentence, Epstein was ultimately offered a non-prosecution agreement that Starr and Dershowitz helped to negotiate. Pleading guilty to one charge of solicitation of prostitution, Epstein was sentenced to eighteen months in a county jail and released after thirteen.
Starr and Dershowitz’s fortunes dipped somewhat following the case. Though Starr became president and chancellor of Baylor University in 2010, he was fired six years later as a report found that the school had not done enough to address serious rape allegations against athletes, which had involved at least seventeen women. Dershowitz was accused by one of Epstein’s victims as having participated in her abuse and, though the case never went to trial, resulted in a diminished media profile for some years. Following the 2016 election, however, Starr and Dershowitz made regular appearances on Fox News – reportedly winning the favour of President Trump, who then hired them both for his impeachment defence team.
In this article, member firms of Ius Laboris, the world’s largest HR and employment law firm alliance, provide suggestions on actions employers should consider in the light of recent events.
The global response to George Floyd’s tragic and shocking death and other recent acts of injustice, including those involving Ahmaud Arbery, Christian Cooper, Breonna Taylor, and Nina Pop, among others, and ensuing protests and riots, amid the economic crisis of Covid-19, has impacted businesses indirectly or directly. As these current events continue throughout the country, employers may be faced with a plethora of issues that surface in the workplace and should be proactively prepared for a response. Just as the #MeToo movement raised awareness of the prevalence of sexual harassment and gender discrimination in the workplace, the recent events should be the catalyst for a renewed emphasis on preventing racism and discrimination and offer employers an opportunity to show all employees they are respected and supported in the workplace.
Caution and consistency are key.
In addition, employers may face a myriad of challenges in handling internal complaints and external conduct by their employees. Often, what an employer can, should or cannot do is not always clear. While employees are legally protected from being fired based on discrimination, employers are now grappling with broader issues. Can I terminate an employee based on statements made on social media? Can I discipline an employee for attending a rally? Can I demote a manager because of his or her actions outside the workplace? These are all difficult questions. Often the response will depend on an employer’s policies, consistency in discipline and the facts of each situation.
A growing number of employers are taking action against employees whose conduct outside of work violates their policies or adversely impacts their business. Examples include:
In the United States, while some states (California, Colorado, Louisiana, New York, North Dakota, and the District of Columbia, among others) limit employment actions against employees for engaging in legal activities outside of work, discipline or discharge may still be warranted where the action conflicts with the employer’s policies or business. Caution and consistency are key.
Actions employers should consider in light of recent events:
A statement from a high-level officer denouncing the recent acts of racism, urging that all employees be treated with dignity and respect, and reminding employees to report any conduct that violates the employer’s anti-discrimination/harassment policy or code of conduct to the company’s Human Resources department.
Include a clearly written statement that employees who violate the company’s anti-discrimination/harassment policy will be subject to discipline, up to and including termination.
Revisit the wording and content of the company’s anti-discrimination/harassment policy and procedure.
Ensure that the company’s prohibition of racial harassment and discrimination is emphasised. The policy can include specific examples of actions that could be considered racial harassment in the workplace, including brandishing Confederate flags and symbols, swastikas, nooses (yes, there have been cases in this century where nooses were left at the work stations of African American employees), and ‘friendly banter that could be perceived as having racial undertones.
Outline the company’s recognition of employees’ rights to discuss workplace issues, while underscoring the fact that discussions regarding non-workplace issues such as politics, religion or current events are not productive workplace time, can lead to unnecessary disagreements that impact productivity and morale, and are discouraged.
Include a clearly written statement that employees who violate the company’s anti-discrimination/harassment policy will be subject to discipline, up to and including termination.
Provide diversity training to employees, particularly managers, to help them understand and celebrate the differences that make your organisation successful.
Reiterate the company’s anti-discrimination/harassment policy and require all employees to acknowledge their understanding and agreement to abide by the terms included therein.
If the company has not recently provided anti-discrimination/harassment training or its training has focused almost exclusively on sexual harassment, conduct in-person (and/or Zoom or equivalent) training that focuses on preventing all forms of discrimination or harassment.
Appoint a diversity officer/committee who will address issues of diversity and make recommendations to management on race and gender issues, and to whom employees can address complaints in addition to Human Resources. Consider implementing a hotline to enable employees to make a complaint anonymously if they choose.
Provide diversity training to employees, particularly managers, to help them understand and celebrate the differences that make your organisation successful.
Respond to complaints (internal or external) by immediately investigating and taking appropriate action. In dealing with outside of work statements/actions, consider the following:
Prior to taking any action, partnering with an employment lawyer experienced in diversity and inclusion is key to navigating these troubling waters successfully.
The actions taken by employers during these critical times can define your business to employees, vendors, customers and the public. Positive actions affirming your company’s commitment to workplace diversity can not only increase employee morale and productivity but may also assist in defending any claims filed alleging race discrimination or harassment. Employers may expect to see an increase in the number of employment claims in light of the renewed emphasis on racial equality. Care needs to be taken to evaluate each employment decision independently and objectively based on the facts presented and the employer’s business needs. Prior to taking any action, partnering with an employment lawyer experienced in diversity and inclusion is key to navigating these troubling waters successfully.
Many UK employers are issuing statements on their own response to the BLM movement.
Employers are encouraged to thoroughly investigate any allegations employees raise regarding discriminatory behaviour. In some cases, employees’ behaviour outside of work or on social media can be a fair reason for disciplinary action and even dismissal.
Employers to are encouraged to review their policies, including those on equal opportunities, social media and disciplinary processes. A robust anti-discrimination policy is a must-have.
The UK government is also considering introducing mandatory ethnicity pay gap reporting, which may require employers to publish pay data about their employees by race and an 'action plan’.
While there are no riots in Germany about George Floyd’s dramatic death, it is worth pointing out that there have recently been countrywide demonstrations with more than 15,000 participants in Berlin alone to protest against racism. Companies should consider reviewing their anti-discrimination policies on a regular basis and training staff, which is also legally required under German law. The idea of appointing a Diversity Officer is also something to consider.
In the past few years, employers in Denmark have increasingly had a focus on reducing the risk of being associated with employees’ offensive behaviour or statements outside the workplace, for example on social media. Generally, private-sector employers are relatively free to implement policies that define what kind of off-duty conduct will be deemed contrary to the employer’s business interests. And at the moment, we are seeing an increasing number of employees being disciplined or dismissed for engaging in legal off-duty activities that are considered to conflict with the employer’s business interests (e.g. activities considered to be discriminatory/offensive in regard to a specific group of people). Such a dismissal will only be considered unfair if the employer’s policy is unclear if the behaviour in question is considered below the threshold of what could potentially harm the employer’s business, or if the conduct in question has not been sanctioned consistently by the employer. It is also important to note that disciplinary action or dismissal may be discriminatory if the employer chooses to sanction behaviour relating to a protected criterion such as religion or political opinion. From a legal perspective, sanctioning public sector employees for (legal) off-duty conduct is more complex in Denmark given ‘public sector employees’ statutory freedom of speech’.
Under Greek legislation, any discrimination on the grounds of race, colour, national or ethnic origin and genetic origin among others regarding the terms of access to work (including selection criteria, terms of service and professional development and the terms and conditions of employment) is prohibited. Usually, employers have specific policies or codes of ethics or internal regulations that provide guidelines for employers when having to deal with an employee's discriminatory conduct. Some also include a provision that employees should, in all circumstances, behave in a manner that will not damage the company's public image or values in the terms of employment. For public servants, such behaviour, even outside the workplace, is a disciplinary offence, as it is also in certain professions.
The French Labour Code prohibits all forms of discrimination in labour relations (Article L. 1132-1). No employee may be excluded from a recruitment procedure, sanctioned, dismissed or be the subject of a discriminatory measure (in particular with regard to remuneration, promotion, transfer, etc.) based on his or her origin, membership or non-membership of an ethnic group, nation or alleged race, physical appearance, surname or place of residence.
In civil matters, any discriminatory measure may be ruled void by a judge. In addition, discriminatory acts attract severe criminal penalties (three years' imprisonment and a fine of EUR 45,000).
The Italian Constitution recognises full and equal rights for all citizens regardless of any ethnic or racial difference. Since the Workers’ Statute of 1970, it has been the law that any act based on discrimination in the workplace (i.e. disciplinary actions, transfers, reallocation of workers, etc.) should be considered null and void. Furthermore, a discriminatory dismissal is null and void and the employee concerned is entitled to full reinstatement and indemnity for damages. Implementation of EU directives on discrimination law has widened the possibility of access to the courts, including collective action by organisations.
Racial discrimination is specifically referred to in article 14 of the Spanish Constitution as well as in the Workers´ Statute and Equality Organic Law 3/2007. The wave of protests against recent acts of racism should encourage employers to adopt actions to review their stance, specifically by means of the organisation’s anti-discrimination/harassment policy, the code of conduct or the social media policy, among others.
In addition, a written statement released by an organisation may provide a definitive endorsement of the official stand reminding that any discriminatory comment by employees, whether during working time or otherwise, is strictly forbidden and will be subject to disciplinary action.
Contributing authors include Dawn Siler-Nixon, Wesley C. Redmond, Jeffrey Douglas of US law firm, Ford Harrison, Anna Bond of UK law firm, Lewis Silkin, Jessica Jacobi of German law firm, KLIEMT.HR, Yvonne Frederiksen of Danish law firm, Norrbom Vinding, Evaggelia Patsialou, Korina Paschaliori and Fani Batsila of Greek law firm, Kremalis, Arnaud Teissier of French law firm, Capstan Avocats, Lea Rossi of Italian law firm, Toffoletto de Luca Tamajo e Soci, José Miguel Mestre Vázquez of Spanish law firm, Sagardoy Abogados.
It has been three years since David Lammy published his Review indicating that the Criminal Justice System (CJS) is lagging behind other institutions in its duty to tackle systemic racism.
There have been several enquiries, working parties and commissions tasked with identifying the issues around racial disparity and producing detailed and evidence-based recommendations for reform. For example, the 2017 Lammy Review, the Angiolini Review into deaths in police custody, JUSTICE’s 2017 report ‘Increasing Judicial Diversity’, the Young Review and the 1999 Macpherson Inquiry.
In the wake of the government’s announcement that it intends to set up a Commission on Race and Ethnic Disparities, commentators and stakeholders have protested that the time for discussion is over. The recommendations have been made. Now the government must take action to implement them.
The CJS must ensure fairness and must be seen to be fair. A diverse judiciary speaks to both prerogatives. A representative judiciary is vital to the fairness of the justice system and its legitimacy in the eyes of minority groups.
Racial disparity in the CJS is a persistent and multi-faceted issue. Of particular concern is the lack of diversity amongst the judiciary/magistracy and the disproportionate treatment of BAME, mainly black, children in the Youth Justice System (YJS), and the lack of an effective system of ethnicity data collection and interrogation.
The lack of diversity amongst the judiciary is an enduring problem, despite recommendations for addressing this from, amongst others, JUSTICE and Lammy (both 2017). Whilst some of JUSTICE’s minor recommendations have been adopted, the key structural recommendations in both reports have not, including that diversity targets be set and met. In fact, the current justice secretary Robert Buckland believes targets are unhelpful. Since 2017, the appointment of BAME judges has “stagnated”. An increase in applications has not translated into an increase in appointments.
The CJS must ensure fairness and must be seen to be fair. A diverse judiciary speaks to both prerogatives. A representative judiciary is vital to the fairness of the justice system and its legitimacy in the eyes of minority groups.
The Magistracy also suffers from a lack of diversity. This is particularly concerning given the Magistracy plays a pivotal role in the YJS. The Magistrates Association produced a comprehensive report on steps they can take to tackle disproportionality. One key aspect identified is the need for better training. Lack of quality training and an inadequate appraisal system has been consistently reiterated, including in the recent House of Commons Justice Committee Report on The Role of the Magistracy.
Deficiencies in magisterial diversity and training provide the backdrop to the continuing over-representation of BAME children in the YJS. The proportion of BAME children in custody is higher than when Lammy produced his report in 2017. Whilst there have been “encouraging“ improvements in some areas, these have clearly not impacted on the over-representation of BAME children in the CJS. Many of Lammy’s recommendations remain unimplemented. Some, such as Youth Offender Panels, have only been implemented in part. Only in 2020 did the Youth Justice Board begin to consider research into the YJS – despite Lammy’s recommendation that further research be undertaken.
Whilst the government has insisted it is taking steps to tackle racial disparity in the CJS, such statistical data as is available suggests that there has been little improvement and, in some respects, racial disparity has increased.
The Lammy Report highlighted the lack of statistical data on ethnicity and the CJS, and recommended a cross-CJS data strategy, accompanied by rigorous standards for analysis. This is essential because, as Lammy points out, “scrutiny is the best route to fair treatment”.
HMCTS’ 2015 Reform Programme, aimed at improving accessibility to the court system, acknowledged that a “robust strategy for data collection, analysis and sharing” was fundamental to its remit. The Programme offers an ideal opportunity to integrate such a strategy into the courts system. Yet, five years later, despite detailed proposals for collecting ethnicity and other equalities data on court cases, nothing has yet been implemented.
Whilst the government has insisted it is taking steps to tackle racial disparity in the CJS, such statistical data as is available suggests that there has been little improvement and, in some respects, racial disparity has increased. Why, as some commentators have observed, is the government choosing to procrastinate rather than take action? No doubt the complexity and cost of implementation must be a factor – particularly when it comes to the CJS, which the government has repeatedly demonstrated is not a priority. But if the government wishes to seriously tackle this issue, it must commit to considering and implementing the gamut of recommendations at its fingertips.
Francesca Kirby defends and prosecutes a broad range of offences in the Crown and Magistrates Court. This has included appearing in cases involving violence, sexual offences, drugs, dishonesty and confiscation proceedings.
Zoe Chapman has experience defending and prosecuting cases involving dishonesty offences, drugs, RTA, violence and sexual offences, as well as confiscation and forfeiture proceedings.
Both are Criminal Barristers practising from Red Lion Chambers. For more info: www.redlionchambers.co.uk
However, progress has not been equal in all areas, and the field of intellectual property law has been one of the slowest to come to embrace diversity and recognise the need for inclusion. There are several reasons for this (here, and in the rest of these remarks, opinions expressed are entirely mine, based on discussions with people working in IP). First, the IP sector has always been quite conservative (surpassed perhaps only by sectors of the Bar). Secondly, patent attorneys must be recruited from the STEM field, which has its own ongoing and well-documented issues with diversity and inclusion. Thirdly, most IP specialist firms are quite small, making large scale initiatives quite difficult to implement, and have partnership structures that tend to embed the status quo.
IP Inclusive (the network that was set up to make the IP community more inclusive, diverse, open and fair) was only established in 2015, and under its auspices, the IP Out community, the network for LGBTQ+ people working within IP (irrespective of their role), had its first meeting in 2016. For the first time now, there is a forum in which LGBTQ+ people can easily access and network with others in their field, providing role models, support, and mentoring. However, many members of the IP profession, often those with considerable influence and decision-making authority, remain unengaged with IP Inclusive in general, and it feels as though it is often the same faces in the room all the time, while the rest of the profession carries on regardless.
From my discussions with other members of IP Out, it appears that many LGBTQ+ people working within IP are comfortable being out in the workplace, although not all have chosen to be. Nevertheless, many IP Out members report limits to this, for example, being told or implicitly understanding the need to be “discreet” in front of clients, especially abroad where attitudes to sexuality and gender identity are different from those in the UK. Also, we remain affected by the other issues which prevail within the IP sector – the tendency for a divide between those working in legally-qualified roles and those working in other roles, as well as the lack of diversity in other areas, including disproportionately low numbers of women and people of colour.
I think the point about allyship is extremely important.
It is clear that we cannot hope to address these problems just by ourselves. There are several areas in which we pool resource and expertise in order to drive more effective change:
We are starting much later than other areas of the legal profession, and there remains a long way to go.
I think the point about allyship is extremely important. Even within the LGBTQ+ community, intolerant attitudes towards other members of the community, such as misogyny, biphobia and transphobia, are still extremely common, and we need to work on educating ourselves to eliminate these prejudices if we are to progress. Many IP Out events are educational with a view to achieving this. We have had past events exploring transgender identity and bisexuality, and this year we will be holding further events to learn about non-binary and asexual/aromantic identities. We are also committed to working with the other communities within IP Inclusive – Women in IP, IP & ME (the BAME community), IP Ability (the community for disabled people and carers) and IP Futures (the early career community) – with the aim of a truly intersectional diversity and inclusion effort.
We are starting much later than other areas of the legal profession, and there remains a long way to go. However, in a short time, we have achieved significant advances in allowing LGBTQ+ people to feel welcome and included in the IP community.
In a 5-4 ruling on Monday, the Supreme Court of the United States ruled that a Louisiana law restricting access to abortions as unconstitutional, delivering a blow to anti-abortion groups.
The law required that doctors who performed abortions in the state to “admitting privileges” – written agreements with local hospitals to transfer patients – with hospitals “not further than 30 miles from the location at which the abortion is performed or induced”.
While the state said that this requirement was necessary for protecting the health of patients, abortion advocates said that abortion patients rarely require a hospital transfer and that many of hospitals in the state did not allow abortions to take place on their premises, leaving abortion clinics unable to operate.
By thus restricting access to abortions, advocates claimed, the law acted against women’s constitutional right to an abortion as found in the landmark 1973 case Roe v. Wade.
Chief Justice John Roberts joined liberal justices in delivering the 5-4 ruling, and in his written opinion referenced a similar law in Texas that was deemed unconstitutional in 2016, establishing precedent for the Court’s decision on Monday.
“The Louisiana law imposes a burden on access to abortion just as severe as that imposed by the Texas law, for the same reasons. Therefore Louisiana’s law cannot stand under our precedents,” he wrote.
