August 7, 2010
Deliberately Bad Press Photos and the Unknown Bush-Harvard Fiasco
Posted by Alan Childress
More about journalism ethics than legal ones, or just weekend musings of the sort we occasionally do here, but when did it become acceptable for the AP and others to pick a frame of a series of photos taken that displays someone in their worst light, or most stereotypical? I am not just talking about the fact that most neighborhoods in New Orleans during Mardi Gras parades are sedate and fully clothed, and full of families on picnic blankets. I get that the travel channel, the national news, and Girls Gone Wild are not going to show that. But btw you can bring your family to Mardi Gras and it is a very family-friendly event with just a little inside knowledge. If anyone wants to write a guide to the family friendliness of Mardi Gras, I will publish it. My point being that of course there are moments and events where you show the funniest, wildest eye-catching aspect of it, and that is cool and has been since at least 1898.
But political figures, and really all people truly in the news, are different. Why show the one frame where they look stupid or exaggerated, and not the next one where they look stately? Where Arnold looks like he is demonstrating what he would do to the neck of someone who disagrees with his view about gay marriage? Where they make him like like a terminator rather than an elected governor? By the AP? (Used without its permission but fair use since I am commenting on it as a political matter and about its presentation itself rather than just using it to illustrate my story. From this story, though they may have changed the photo since.) I would think that you could politically decide to put him into a bobblehead figure toting a gun and sell it, sure, that itself is fair use of his image, so I am not suggesting Arnold has some cause of action here against the AP (especially now--he is a public official after all not just an actor); I am just suggesting that this is not right and they need to voluntarily return to the day of picking normal and not weird photos.
To answer my question, I think it began with W. I saw increasing numbers of abnormal, silly-posed pictures of him as his administration became more disfavored. I think it became cool to make him look like a fool, in the words of Nipsey Russell (not his actual words, but again fair use of his name). I am not the hugest fan of the man or his administration, not at all, but I really do not believe he always had a smirk that looked like mommy was going to buy him ice cream, or that other smirk that looked like he was at a solemn
ceremony but sort of secretly knew, but could not hide, the fact that he and four frat boys had dumped manure next to the statue of John Harvard before he was later a Harvard student and supporter. OK, I admit I also assume they found the wrong statue and just dumped it next to some generic horserider in Cambridge, but still. Why not show the president as looking like...a president? Or a governor. I know the press can do it, since they seem to have no trouble doing it with President Obama. I am not saying that is inappropriate to Obama, just that it should be objectively offered to all who are in the public eye in serious journalism.
Would you have shown Margaret Thatcher blowing her nose? Reagan in the middle of saying eee--eewww or some such odd face that we all make thousands of time a day without freeze frame? Or Clinton pointing his finger looking like he is about to say something obfuscating? OK, I will give you that one.
Anyway, I did not like this picture,above right, of Arnold that the AP and Yahoo! News used from his press conference. The picture is ridiculous. We should not go out of our way to make people look ridiculous on pages that are not about that.
Bill Gallagher, you still owe me the bobblehead of you. I have a place for it on my shelf at school, next to a photo of Justice Scalia looking silly (but he was trying to, for me, at our summer school) and a sign from Greece that says Thank You for Smoking and shows a smoking butt. But people should know that Lawyer Bill is the only law prof with an official bobblehead of his image. Bobblehead case result here. So cool, Bill. Update: I cannot get over how similar the AP's weird pose of Arnold is to the Bobblehead pose, and facial expression.
Judge Suspended For Misconduct Toward Court Employees
The Kansas Supreme Court has suspended a judge pro tem for one year who engaged in sex-related misconduct toward court personnel. The misconduct involved inappropriate remarks and notes ("I want to lick your butt"and "You're hot"), exposing his genitals to one employee and rubbing them in front of another, and sending a digital photograph of his penis from his mobile phone to still another court employee.
Five employees were victims of the behavior. One reported to another judge that the respondent had assisted her with a ticket and asked her what she could do in return. The respondent self-reported to disciplinary counsel shortly before the other judge did so.
The court considered evidence regarding the respondent's mental state and expressed the view that his course of treatment for major depression would be pertinent to his reinstatement. (Mike Frisch)
August 6, 2010
Follow up on Lisa Webley on Adversarialism Among Divorce Solicitors and Mediators in UK, and Other Paperbacks
Posted by Alan Childress
Two weeks ago, I posted that Lisa Webley had published to Kindle and Smashwords, via the "Publish Your Dissertation as a Digital Ebook" project, her book on the professional styles and differences among divorce lawyers in the UK and various professional mediator groups, Adversarialism and Consensus? That came out in multiple ebook formats, ePub for Nook, PDF, and online viewing through those sites. It should be on Barnes & Noble for Nook in two or three weeks. (Today, it is a Kindle book on the new Amazon UK.) The big follow-up is that it's available this afternoon (or tonight) as a paperback of some 230 pages, including many tables and charts that we spent weeks on to present the very best we could (thanks, Lisa). It came out really nice. Eventually it will be sold on Amazon and B&N in print, likely in September, but for now its best spot is this webpage for ordering (I think Amazon is the seller/shipper). Anyway, it is a very good dissertation and we hope it is useful for people's research or their interest in the professions and the literature she analyzes in this context.
Also soon out in paperback, and on legal ethics, is my students' collection, benefiting Tulane PILF: Hot Topics in the Legal Profession ~ 2010. Many great topics are explored, including ads and friending judges, and it benefits a great cause.
Of all the project's other titles already sold as Kindle books or for its apps, or in other formats on Smashwords [or on B&N and Sony, but you have to search individually], the following have current paperbacks available or very soon. (And coming Aug. 24 is Cardozo's The Nature of the Judicial Process, with new Foreword by Andrew Kaufman, professor of law at Harvard and the premier Cardozo biographer; more later). Paperbacks include:
Kadish & Kadish's classic Discretion to Disobey; Kitty Calavita's Inside the State: The Bracero Program, Immigration and the INS; and Jerold Auerbach's Jacob's Voices: Reflections of a Wandering American Jew. The latter tells his very personal story of struggling with assimilation in the U.S. and academia (and baseball!).
Also in the series with Cardozo, see Holmes, The Common Law (a very-affordable-but-hyperaccurate edition with my Foreword); and The Annotated Common Law, with the Foreword and accuracy, plus some 200 textual asides to decode his legal terms, old phrases, Latin and Greek, and all those writs. Turns out it helps that my old Southern relatives used expressions and speech patterns just like him (which is ironic since some of their kin may of shot him). And Warren & Brandeis, The Right to Privacy. Some nice new ones are on the way, including several classics, several new manuscripts (turns out some established authors were happy to eschew traditional publishing houses), and of course more on the legal profession and legal ethics. ...Wish I was publishing Jeff's new book on getting into law teaching, but congrats!
August 5, 2010
A statement made in response to a bar complaint filed by an opposing party against counsel is absolutely privileged, according to a decision of the New York Appellate Division for the Second Judicial Department affirming the dismissal of a defamation claim:
Here, the allegedly defamatory statements contained in a letter to the Grievance Committee written in response to a letter submitted by the plaintiff were made in the course of a quasi-judicial proceeding and, as a matter of law, were material and pertinent to the issue to be resolved therein. Thus, the Supreme Court correctly concluded that those statements were absolutely privileged. Therefore, the Supreme Court properly granted the motion of the defendants Law Office...to dismiss the complaint insofar as asserted against them. (citations omitted)
After The Flood
The New York Appellate Division for the Second Judicial Department has suspended an attorney for two years for failure to properly maintain his escrow account and lack of candor with disciplinary counsel. The court was not persuaded that the mitigation was sufficient to warrant any lesser sanction:
In determining an appropriate measure of discipline to impose, the respondent asks the Court to consider his unblemished reputation and the fact that a public sanction would ruin his livelihood of representing lenders, including many mainstream banks. He accepts responsibility for what he terms two human errors. In addition to the testimony of his paralegal/secretary with respect to the devastating effects of the January 2007 flood in the respondent's law office, as well as her affidavit of good character, the respondent submitted character affidavits from his rabbi and two fellow attorneys.
Notwithstanding the respondent's efforts to minimize his record-keeping deficiencies and his attempt to shift the burden to the Grievance Committee to establish some linkage between his two accounts, it bears noting that the respondent's escrow accounts had deviations well before his purported mistakes and the devastating flood. His use of funds on deposit in a second escrow account to pay off liabilities from the IOLA account constituted an invasion of clients' funds and a clear failure to preserve funds entrusted to him. Moreover, the respondent initially was less than candid in his explanation to the Grievance Committee.
The respondent's failure to abide by the rules governing fiduciary responsibilities and the proper maintenance of escrow accounts, coupled with his lack of candor, warrants his suspension from the practice of law for a period of two years.
The Special Referee had found that the escrow violations were technical in nature and involved "sloppy bookkeeping" without venal intent. (Mike Frisch)
August 4, 2010
DA Suspended, Placed On Probation, For Practicing While Suspended
A disciplinary summary from the August 2010 online edition of the California Bar Journal:
[An attorney] was suspended for one year, stayed, placed on one year of probation with a 30-day actual suspension and was ordered to take the MPRE within one year. The order took effect Nov. 13, 2009.
[The attorney] was suspended in 2005 for not completing her MCLE requirements, and although she received notices from the State Bar, she did not check her mailbox. As a deputy district attorney for Imperial County, she made numerous court appearances while suspended.
In mitigation, as soon as she became aware of her status, she took corrective action and she advised her superiors of the situation. She cooperated with the bar’s investigation and she submitted character references establishing her good character.
This should serve as a reminder that its bar dues time. If you don't get the bill, its not because the bar decided to waive the payment. (Mike Frisch)
August 3, 2010
Party Leads To Proposed Suspensions
Two friends whose weekend party at a family summer home led to criminal convictions are the subject of an Illinois hearing board's recommendation for a 30 day suspension for one friend and a 60 day suspension for the other. The facts:
Sometime prior to August 5, 2005, Respondent A organized a weekend reunion at [his] family summer house in Green Lake, Wisconsin. On Friday, August 5, 2005, in preparation for the trip, Respondent A and Respondent B, picked up supplies to bring to the house, including alcoholic beverages such as beer, vodka, whiskey and spirits.
On the afternoon of August 5, 2005, and during the day-time hours of August 6, 2005, Respondent A and his friends spent their time socializing and drinking alcohol. On August 6, 2005, at around 11:00 p.m. Respondent A and his friends went to the Goose Blind, a tavern located in Green Lake, Wisconsin. There they consumed additional alcoholic beverages. At around 1:00a.m., on the morning of August 7, 2005, Respondent A and his friends arrived at another tavern, Berts, in Ripon, Wisconsin. There they consumed additional alcoholic beverages.
Shortly, before Berts closed, around 2:00 a.m., Respondent A met a woman, Dawn P, on the dance floor. After Berts closed, Respondents and P. were standing and talking outside the bar. P agreed to drive Respondents to Respondent A’s family summer house in Green Lake. At some point during the evening, while discussing their respective employment, Respondent B. told P that he and Respondent A were lawyers and handed P his attorney-at-law business card.
Respondents and P drove out of Ripon, heading toward Green Lake. P.was driving her car, Respondent A was in the front seat, passenger side, and Respondent Butler was in the back seat behind P. A few blocks from Respondent A’s Green Lake residence, P pulled her car into the boat landing and put her car in park.
On August 7, 2005, Respondent, while intoxicated, engaged in sexual activity with P while on the hood of a motor vehicle that was parked on a public boat ramp in Green Lake, Wisconsin. P later complained to police authorities. Respondent responded to the complaint by giving a full statement to the police without any legal counsel present.
A was convicted of felony endangerment and misdemeanor sexual gratification in public, B of the felony endangerment. The hearing board proposes the 60 days for A and the 30 for B.
The hearing board characterized the misconduct as isolated acts of poor judgment.
No Facebook For Judicial Candidates
A candidate for judicial office may not personally host a website or Facebook page seeking donations to the judge's re-election campaign, according to a recent ethics opinion from Florida's Judicial Ethics Advisory Committee. The committee opined that a judge may be thanked on air for a donation to public broadcasting.
The committee reasoned:
In Fla. JEAC Op. 91-06, the Committee addressed the issue of whether a judge could participate in a fund raising scheme whereby the judge's name and donation would be advertised as a lure for matching funds from other donors. The Committee concluded that the judge could contribute so long as the judge's name and contribution was not a part of the program to lure matching contributions from other donors.
The current inquiry states that the judge's name will be announced by the public broadcasting station, thanking the judge for the contribution. The Committee believes that a judge may make a contribution to a station which will thereafter thank the judge on the air by name, provided the judge makes reasonable efforts to communicate to the television station the intent and desire that the station not use the judge's contribution as a lure for contributions by other donors.
The Committee recognizes that, unlike the judge's staff and court officials referenced in the commentary to Canon 5C(3)(b), the public broadcast station is not under the control of the judge and the judge cannot therefore ensure that a request concerning the use of the judge's name will be complied with. However, the Committee suggests that the judge communicate the request contained in this opinion.
Two members of the Committee believe that the judge should not permit the station to use the title "judge" when announcing the name of the contributor on the air. The members base this position on the proposition that there is no justification for allowing the judge's title to be mentioned other than to bring inappropriate attention on the judge and the contribution.
With regard to the second question, Canon 7C(1), provides that a candidate or judge may not personally solicit campaign funds, but may establish committees of responsible persons to raise funds and to obtain public statements of support for the judge's campaign. Websites and Facebook pages promoting the candidacy of a judge or judicial candidates should be established and maintained by these committees, and not by the judge or judicial candidate personally. Fla. JEAC Op. 2008-11.
Default Revocation Not Vacated
The Michigan Attorney Discipline Board affirmed a panel order of revocation in a case that involved an attorney's conviction for driving while suspended an forgery of license documents/plates. The attorney defaulted on those charges as well as a separate matter involving dishonesty in filing five affidavits in a civil matter. The board found that the panel had properly exercised its discretion to deny the attorney's motion to vacate the default.
As to sanction:
Upon review of the nature of the charged misconduct, it appears fairly obvious that
revocation was the appropriate level of discipline. Respondent testified that, while his license was suspended, he received in the mail the license tabs belonging to the previous owner of his home. He intentionally placed the license plate tabs on his motor vehicle, drove on a suspended license,and then misrepresented his identity to the traffic officer who pulled him over. Respondent candidly admitted that he gave the officer a false name in an effort to avoid detection. As the panel found:Here, respondent has violated duties owed to the public by committing criminal acts reflecting adversely on his honesty, trustworthiness or fitness as a lawyer, and for engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation by submitting false affidavits to the trial and appellate courts. See ABA Standard 5.1. Notably, with respect to respondent's criminal acts, there is no question and/or dispute that respondent acted intentionally and knowingly when he placed false license plate tabs on his motor vehicle and proceeded to drive on a suspended driver's license. Indeed, and most disconcerting, respondent admitted that he placed the false tabs on his motor vehicle "because [he] didn't think [he] was going to get caught."
A concurring opinion expressed concern about the default but agreed that the record failed to establish a meritorious defense to the majority of the charges. (Mike Frisch)
August 2, 2010
Ohio Changes Unauthorized Practice Rules
The Ohio Supreme Court has announced changes in its enforcement regime for unauthorized practice:
Under changes to the Supreme Court of Ohio Rule governing the Unauthorized Practice of Law (UPL), the Ohio Attorney General will be authorized to investigate and prosecute UPL cases starting Sept. 1. Justices concurred 7-0 in adopting the amendments.
The revisions to Section 4 of Rule VII of the Rules for the Government of the Bar of Ohio will provide caseload assistance for the volunteer attorneys who investigate and prosecute UPL cases on behalf of bar associations, according to Michelle Hall, Attorney Services Counsel at the Supreme Court. She anticipates that the Attorney General’s Office will prosecute one or two complex UPL cases annually. The current rule only authorized Disciplinary Counsel and bar associations with UPL committees to initiate UPL cases.
Other changes to Rule VII include:
- Revising the definition of UPL.
- Adding a second non-attorney commissioner to the UPL board.
- Authorizing the annual election of a chair and vice chair of the UPL board.
- Refining the procedure for requesting a consent decree or settlement agreement.
- Making non-substantive changes to conform with the Court’s Rule Drafting Manual.
The amendments also call for one change to Gov. Bar R. VI (Registration of Attorneys) since the revised definition of UPL would identify the Board of Commissioners on Grievances & Discipline as the proper venue for UPL complaints against suspended attorneys. (Gov. Bar R. VI currently says an attorney suspended for failure to meet registration requirements may be referred for investigation to the UPL board.)
The announcement is linked here. (Mike Frisch)
Title Company Not Liable For Attorney Theft
The New Jersey Supreme Court has held that a title insurance company is not liable for an attorney's theft of funds involved in the real estate transaction. The attorney had already stolen the entrusted funds when the transaction was completed. The court found that there was no agency relationship between the title insurer and the attorney.
The clients had filed a complaint against both the attorney and the title insurance company with the Lawyers' Fund for Client Protection. The fund sought to enforce the award that it had made to the clients, but the claim was dismissed by the trial court as to the company. The Appellate Division reversed the trial court on agency grounds.
Here, the court held that the evidence did not establish liability on the company's part. (Mike Frisch)
Multiple Murderer Disbarred
The Pennsylvania Supreme Court has disbarred an attorney suspended on an interim basis in 2000 who had shot and killed five people and wounded another with a .357 caliber magnum revolver in Allegheny and Beaver counties. The former attorney is subject to five death warrants as well as a sentence of 112 1/2 to 225 years in prison. He was convicted of an array of criminal offenses arising out of the shooting spree.He had practiced immigration law.
According to this post in www.PittsburghChannel.com, the victims were black, Jewish, Indian, Vietnamese and Chinese.
The Disciplinary Board, in recommending disbarment, concluded that the crimes were "so reprehensible and outside of societal norms" as to merit that sanction.
This wikipedia entry provides additional details about his background and the crimes. (Mike Frisch)