Monday, November 13, 2017

Thirty Years And Going Strong

I am both pleased and proud to announce that the Georgetown Journal of Legal Ethics has just issued its 30th Anniversary Commemorative Issue.

The issue features the work of David Luban & Bradley Wendel, Laurel S. Terry, Carrie Menkel-Meadow, Mitt Regan, Ann Southworth, William H. Simon, Bruce A. Green and Deborah H. Rohde & Scott Cummings.

Tanina Rostain debates whether robots can be lawyers with Dana Remus & Frank Levy.

This truly all-star lineup is in itself a wonderful tribute to founder Robert F. Drinan.

Kudos to all who contributed, led by last years first - rate EIC John Secaras and his highly capable staff. (Mike Frisch)

November 13, 2017 in Current Affairs | Permalink | Comments (0)

Monday, October 30, 2017

No Care For The Dead

The Tennessee Court of Appeals held that the state health care liability statute did not apply to the alleged mishandling of a dead body

On July 29, 2014, Charles Ray Phillips (“Deceased”) was killed in a motor vehicle accident in Loudon County, Tennessee. Deceased suffered severe, extensive burns in the accident. Authorities at the accident site placed a call to Loudon County ambulance service and a Rural Metro ambulance responded. After arriving at the scene of the accident and seeing the condition of Deceased’s body, the ambulance employees refused to transport Deceased’s remains to a hospital. Allegedly, one of the ambulance employees stated he did not want Deceased to “stink up the ambulance.” Deceased’s body remained by the roadside until an out-of-county ambulance could be summoned to transport Deceased’s body. Local media reported the story including the comment about stinking up the ambulance.

Deceased’s parents, Cindy Phillips and Hobart Phillips (“Plaintiffs”), sued Rural Metro of Tennessee, L.P.; Rural Metro Corporation; and R/M of Tennessee G.P., Inc. (collectively “Rural Metro”), Johnathan Moore (“Moore”), and John Doe I & II alleging intentional infliction of emotional distress. In their Complaint, Plaintiffs allege: “The conduct of the defendants in this cause of action greatly magnified their grief and distress in a manner that is nearly incomprehensible. In addition to the loss of a child, they were reminded regularly in the news that [Deceased] was left by the roadway so as to not ‘stink up the ambulance.’”

Rural Metro and Moore filed motions to dismiss alleging, among other things, that this suit was one for health care liability and that the failure to file a pre-suit notice and a certificate of good faith pursuant to Tenn. Code Ann. §§ 29-26-121 and -122 was fatal to the action. The Trial Court denied the motion finding, in part, that this is not a health care liability action.


 We agree with the position that a dead body cannot be a patient to whom health care services can be rendered. By their very nature, health care services are designed to prolong, continue, or enhance life, and a dead body is, obviously, not alive. As such, a body simply cannot be a patient after death has occurred. Therefore, actions taken or refused with regard to a dead body cannot constitute rendering or failing to render health care services to a person for purposes of the Tennessee Health Care Liability Act. Given all this, we affirm that portion of the Trial Court’s judgment holding that the allegations set forth in the Complaint filed in this case do not make this suit a health care liability action as defined by the Tennessee Health Care Liability Act.

(Mike Frisch) 

October 30, 2017 in Current Affairs | Permalink | Comments (0)

Ethics Of Paying Fact Witness At Issue In Florida

From sunEthics

Under Rule 4-3.4(b), fact witnesses may be paid “reasonable compensation” for “preparing for, attending, and testifying at proceedings,” including assistance with case and discovery preparation. [Added 10/30/17]

Antaramian entered into a “Consulting Agreement” with Trial Practices, Inc. (“TPI”) under which TPI was to provide “various trial support services” for Antaramian in his suit against a third party.  Per the Agreement TPI was to receive 5% of any gross recovery that Antaramian obtained through verdict or settlement.  Antaramian and the third party settled, with each party dropping its claims.  Antaramian refused to pay TPI, asserting that he owed TPI nothing since he did not obtain a gross recovery.  TPI sued Antaramian for breach of contract.

The jury found for Antaramian, who then sought prevailing party fees pursuant to a clause in the Consulting Agreement which provided in part:  “[The] prevailing party in any action arising from or relating to this agreement will be entitled to recover all expenses of any nature incurred in any way in connection with the matter, whether incurred before litigation, during litigation, in an appeal, . . . or in connection with enforcement of a judgment, including, but not limited to, attorneys' and experts’ fees.” 

The court awarded prevailing party fees to the Hahn law firm, which was substituted for Antaramian at his death.  The award included fees for litigating the amount of fees to which Hahn was entitled.  TPI appealed.

The Second DCA affirmed.  “Both the Florida Supreme Court and this court have recognized that when parties are seeking attorneys’ fees pursuant to a statute, the parties are not necessarily entitled to recover attorneys’ fees for litigating the amount of fees.  . . .  However, in this case, the attorneys’ fees and costs were not awarded pursuant to a statute but were instead awarded pursuant to the fee-shifting provision in the Consulting Agreement.”  The fee provision “was broad enough to encompass the award of fees and costs for litigating the amount of attorneys’ fees.”  The appeals court declined to rewrite the contract to relieve TPI of its obligation.

The court also rejected TPI’s argument that Hahn was not entitled to prevailing party fees “because Antaramian improperly paid expert witness fees to fact witnesses.”  Antaramian paid more than the statutory $5 per day to fact witnesses.  Rule 4-3.4(b) does not make it “unethical or illegal for a party to pay fact witnesses reasonable compensation for their preparation for, attendance at, or testimony at trial.”  The Rule does not conflict with F.S. 92.142, regarding the state’s payment to witnesses.  “The statute restricts payments to witnesses for their attendance and thus presumably their actual testimony at trial.  But the rule addresses payments for entirely different and compensable items: witnesses’ expenses incurred in connection with their attendance and testimony at trial and reasonable compensation for the time spent by the witnesses in preparing for, attending, and testifying at trial so long as the payments are not conditioned on the content of the witnesses’ testimony.  Thus we interpret the rule to mean that witnesses may be compensated not only for travel related expenses, such as airfare, car rentals, and hotel expenses, but also for a witness's time spent in responding to discovery and appearing at depositions.”  (Footnote omitted.)

The court certified the following question to the Florida Supreme Court as one of great public importance:  “Does Rule 4-.34(b) of the Rules Regulating The Florida Bar permit a party to pay a fact witness for the witness’s assistance with case and discovery preparation?”   Trial Practices, Inc. v. Hahn Loeser & Parks, LLP, __ So.3d __ (Fla. 2d DCA, Nos. 2D13-6051, 2D14-86, 10/25/2017) (on clarification), 2017 WL 479894

Hat tip! (Mike Frisch)

October 30, 2017 in Current Affairs, Ethics, Interviewing, Law & Society | Permalink | Comments (0)

Friday, October 27, 2017

The Sleeping Jurors

The Massachusetts Supreme Judicial Court held that a defendant met his burden of showing that the judge's response to reports of sleeping jurors was arbitrary or unreasonable

Villalobos has met his burden. Indeed, this case is much like McGhee, in which we determined that the judge's failure to intervene gave rise to "serious doubt that the defendant received the fair trial to which he [was] constitutionally entitled." McGhee, 470 Mass. at 645, quoting Commonwealth v. Braun, 74 Mass. App. Ct. 904, 906 (2009). As the Appeals Court explained, during Villalobos's trial, the prosecutor reported one day that one juror "had fallen asleep 'several times' during the testimony," and the next day, that a different juror "was sound asleep during the cross-examinations." Villalobos, 89 Mass. App. Ct. 435-436. The judge, who did not have the benefit of McGhee, did not give any indication that he doubted the reliability of the prosecutor's reports, yet he did not question the jurors to determine whether they had in fact fallen asleep and, if so, what portions of the evidence they might have missed. Instead, the judge simply observed each juror for the rest of the day. Id. Similarly, in McGhee, supra at 642-645, one juror reported that another juror had fallen "sound asleep" and was even snoring, but the trial judge declined to take action.

Moreover, like in McGhee, the trial judge appears to have been under the mistaken impression that he could not intervene unless he personally observed a juror sleeping...

The Commonwealth argues that the sleeping jurors missed minimal and relatively inconsequential portions of the testimony. Based on only the record before us, however, we cannot be sure that this is true. The purpose of a voir dire is to investigate the report that one or more jurors were sleeping and to determine what, if anything, the sleeping jurors missed. Because the judge did not conduct a voir dire, we do not have these essential findings.

The conviction was for a lesser charged offense of involuntary manslaughter. (Mike Frisch)

October 27, 2017 in Current Affairs | Permalink | Comments (0)

Friday, October 20, 2017

Public Business, Private Accounts

The Vermont Supreme Court reversed a decision and concluded that the Office of the Attorney General must conduct a search of employee's private accounts where public business is involved. 

The undisputed facts are as follows. On May 12, 2015, plaintiff Brady Toensing submitted a PRA request to then-Attorney General William Sorrell. Among other things, plaintiff requested responsive records from “January 1, 2012 to present” from eleven employees and officials in the Office of the Attorney General (AGO). In particular, he asked for: “[a]ny and all communications with or documents related to” forty-four individuals and entities and “communications received from or sent to” any email addresses with one of four domain names. Plaintiff’s request stated that “[t]hese requests include, but are not limited to, communications  received or sent on a private email account . . . or private text messaging account.” Plaintiff submitted a revised request on December 11, 2015, that requested records from “January 1, 2011 to present” from nine state employees and officials and asked for “[a]ny and all communications with and documents related to” twenty-seven individuals and three domain names.

The court

We find the reasoning of the California and Washington Supreme Courts persuasive. We conclude that the critical question in this case is whether the AGO conducted a search that was reasonably calculated to uncover all relevant public records. We need not decide whether to formally adopt the burden-shifting advocated by the AGO because we conclude that even with a burden-shifting framework, the AGO’s search for responsive public records must be adequate in the first instance. We decline to adopt a legal presumption that, in the absence of specific evidence provided by the requester, no state business has been conducted through private accounts. Instead, we conclude that in this case the AGO’s search will be adequate if the specified officials and employees are trained to properly distinguish public and nonpublic records, the agency asks them to in good faith provide any responsive public records from their personal accounts, and they respond in a manner that provides reasonable assurance of an adequate search. This might be as simple as an affirmation that the employee, without exception, has not produced or acquired any records in personal accounts in the course of agency business, or that the employee has identified all potentially responsive records through a specified word search, and has segregated and disclosed all records produced or acquired in the course of agency business as opposed to communications of an exclusively personal nature...

Accordingly, if, in addition to searching the AGO’s own records as it has done, the AGO has policies in place to minimize the use of personal accounts to conduct agency business, provides the specified employees and officials adequate guidance or training as to the distinction between public and nonpublic records, asks them to provide to the AGO any responsive public records in their custody or control, receives a response and brief explanation of their manner of searching and segregating public and nonpublic records, and discloses any nonexempt public records provided, its search will be adequate. This approach strikes a balance between protecting the privacy of state workers and ensuring the disclosure of those public records necessary to hold agencies accountable.

In light of the above analysis, we direct the AGO to complete an adequate search in response to plaintiff’s records requests consistent with our analysis, and remand this case to the trial court for completion of the AGO’s response as well as consideration of attorney’s fees.

(Mike Frisch)

October 20, 2017 in Current Affairs | Permalink | Comments (0)

Wednesday, October 18, 2017

Access To Justice In Ohio: Self- Help Clinic Meets Ethics Standards

From the web page of the Ohio Supreme Court

The Board of Professional Conduct today issued an advisory opinion concerning court- established, self-help legal clinics.

In Advisory Opinion 2017-7 the Board concludes that a court-operated, self-help legal clinic is both permissible and envisioned under the Ohio Rules of Professional Conduct and the Code of Judicial Conduct.

A self-help clinic provides short-term assistance to people of limited means who otherwise would be unrepresented. These clinics, staffed by lawyers appointed and compensated by a court, assist litigants to ensure they file the correct court forms, while explaining process issues and court procedures. The lawyers do not represent litigants before the court or sign any court filings on their behalf.

Given the short-term and limited nature of the legal assistance in the clinic, the Board determined that a clinic lawyer is permissibly providing limited-scope representation to the litigant that creates a limited client-lawyer relationship. A limited-scope representation requires the lawyer to still adhere to his or her ethical obligations, including providing competent and diligent legal services, maintaining client confidences, considering known conflicts, and giving notice to the client of a lack of malpractice insurance. The Board recommends that a clinic lawyer obtain the client’s written consent and acknowledgment to the limited-scope representation.

The opinion also addresses the ethical issues under the Code of Judicial Conduct that may implicate the impartiality and independence of a court when establishing a self-help clinic. A court should take steps to ensure the clinic is viewed, to the extent possible, as an independent function of the court, including the physical location of the clinic in the courthouse. In addition, the court’s involvement should be limited to the funding and the appointment of lawyers, but not the day-to-day operation of the clinic. Lastly, the same ethical boundaries observed by the court with lawyers appointed for indigent clients also should be maintained for self-help clinic lawyers.

(Mike Frisch)

October 18, 2017 in Current Affairs | Permalink | Comments (0)

Tuesday, October 17, 2017

Dakota Pipeline Protesters May Still Receive Representation From Non-North Dakota Attorneys

The North Dakota Supreme Court denied a petition from district judges to terminate a prior court order

On December 14, 2016, a petition was filed seeking an order allowing non-North Dakota licensed lawyers to represent criminal defendants who were criminally charged as a result of protest activities connected to the Dakota Access Pipeline.

On January 18, 2017, this Court issued an order granting the Petition to Permit Temporary Provision of Legal Services by Qualified Attorneys From Outside North Dakota, subject to certain conditions. Included in those conditions is that found in paragraph 12 (9) that a lawyer admitted pro hac vice under the Order must verify in writing to the North Dakota State Board of Law Examiners no later than January 5, 2018, their licensure status and provide a listing of pending cases for which they are acting under the January 18, 2017 Order.

On September 11, 2017, the Judges of the South Central Judicial District filed a petition requesting termination of our January 18, 2017 Order Permitting Temporary Provision of Legal Services.

The court noted comments to the proposed order and concluded

 Based on the foregoing, and in consideration of the record in this matter, we conclude termination of our prior Order would be premature. We deny the Petition to Terminate the Special Provision of Legal Services by Qualified Attorneys From Outside North Dakota.

(Mike Frisch)

October 17, 2017 in Current Affairs | Permalink | Comments (0)

Thursday, September 28, 2017

Belief In Systemic Bias Does Not Disqualify Juror

The District of Columbia Court of Appeals reversed a tampering conviction because of the exclusion of a potential juror who had expressed concern about the treatment of black men in the criminal justice system

During jury selection, the trial court asked the potential jurors if they, their immediate family, or their close friends had been arrested for, charged with, or convicted of a crime within the past ten years. Juror 7575-B was among the potential jurors who answered in the affirmative. During follow-up questioning, she explained that her half-brother had been jailed for assault in Texas, and her family suspected that racial profiling had been involved. She also said that her brother had been “treated unfairly” by the justice system as “a black man in Texas.” When asked if her views about her brother would affect her ability to be impartial in this case, she responded:

 I mean I think I can be impartial. I mean I think it‟s shaped my view of the world. But I don‟t know the details of this case. I don‟t think I would see my brother in it. His situation is different. But I definitely, that‟s my experience with the system.

The prosecutor then asked Juror 7575-B if she thought that “black men in DC are treated fairly or unfairly by the criminal justice system,” and she responded that she thought they were treated unfairly and that “things are tilted in the wrong direction.”

The prosecutor's motion to strike the juror was granted.

Key language

Under these principles, we hold that the exclusion for cause of Juror 7575-B was erroneous. The trial court disqualified Juror 7575-B because Juror 7575-B believed that the criminal-justice system reflects a systemic bias against black men. According to statistics cited by Mr. Mason, that belief is far from uncommon: research conducted in 2013 indicated that 35% of all adults and 68% of blacks believed that blacks are treated less fairly than whites in the courts...

Standing alone, the belief that the criminal-justice system is systemically unfair to blacks is not a basis to disqualify a juror. Rather, that belief is neither uncommon nor irrational. Moreover, there is no basis for an inference that potential jurors holding that belief are necessarily unable to be impartial. To the contrary, potential jurors who hold that belief might well be particularly attentive to making sure that they perform their function impartially. The United States does not cite, and we have not found, any case upholding a trial court‟s removal of a potential juror for cause based solely on the potential juror‟s belief that the criminal-justice system was unfair to blacks...

Turning back to the present case, the erroneous disqualification of Juror 7575-B is of particular concern for several reasons: (1) the disqualification rested on Juror 7575-B‟s beliefs about the criminal-justice system and race, which are important matters of legitimate public debate; (2) Juror 7575-B‟s beliefs are neither uncommon nor irrational; (3) Juror 7575-B‟s beliefs also might have a beneficial effect on Juror 7575-B‟s performance of her duties as a juror; (4) Juror 7575-B‟s beliefs would naturally make her an appropriately desirable juror for a criminal defendant; and (5) because black potential jurors are more likely to doubt the racial fairness of the criminal-justice system, exclusion of potential jurors holding such beliefs would have a disparate impact on black potential jurors.

The court (Associate Judge McLeese joined by Associate Judge Glickman and Senior Judges Ruiz) found sufficient evidence of the crime to permit a new trial. (Mike Frisch)

September 28, 2017 in Current Affairs | Permalink | Comments (0)

Wednesday, September 20, 2017

Breach Of "Shiduch" Lawsuit Sees A New Year

The New York Appellate Division for the Second Judicial Department agreed with the trial court's denial of a motion to dismiss a civil action 

The plaintiff commenced this action to recover damages for breach of contract and fraud, alleging that she made several payments to the defendants totaling $214,000 for the purchase of three torah books, and for the defendants to find her a husband pursuant to the Jewish custom of “shiduch.” The plaintiff alleged that the defendants made false statements to induce her to make the payments, and had not performed pursuant to their agreement. The defendants Rabbi Haim Yosef Sharabi and Michal Hadad (hereinafter together the defendants) moved pursuant to CPLR 3211(a)(2) to dismiss the complaint insofar as asserted against them for lack of subject matter jurisdiction, arguing, inter alia, that courts are prohibited from resolving controversies that require consideration of religious doctrine. The Supreme Court denied the motion, and we affirm.

“The First Amendment forbids civil courts from interfering in or determining religious disputes, because there is substantial danger that the state will become entangled in essentially religious controversies or intervene on behalf of groups espousing particular doctrines or beliefs” (Matter of Congregation Yetev Lev D’Satmar, Inc. v Kahana, 9 NY3d 282, 286; see Serbian Eastern Orthodox Diocese for United States and Canada v Milivojevich, 426 US 696). However, “[c]ivil disputes involving religious parties or institutions may be adjudicated without offending the First Amendment as long as neutral principles of law are the basis for their resolution” (Matter of Congregation Yetev Lev D’Satmar, Inc. v Kahana, 9 NY3d at 286;see Hafif v Rabbinical Council of Syrian & Near E. Jewish Communities in Am., 140 AD3d 1017, 1017; Drake v Moulton Mem. Baptist Church of Newburgh, 93 AD3d 685, 686; Merkos L’Inyonei Chinuch, Inc. v Sharf, 59 AD3d 403, 406).

Here, the defendants failed to demonstrate that the plaintiff’s causes of action cannot be determined solely upon the application of neutral principles of law, without reference to religious principles (cf. Hafif v Rabbinical Council of Syrian & Near E. Jewish Communities in Am., 140 AD3d at 1017). Accordingly, the Supreme Court properly denied the defendants’ motion to dismiss the complaint insofar as asserted against them.

The New York Post had a story about the case.

A lonely Brooklyn woman got her heartstrings played by a grifting Jewish mystic, who promised to find her a husband and three lucky magic Torahs for a payment of $214,000, a new lawsuit claims.

Cecilia Lifschitz says she handed over the huge sum to controversial Borough Park mystic Rabbi Chaim Sharabi in a desperate bid to find a life mate — but the hustling holy man never came through with what he promised.

“Plaintiff was an easy target for defendants and defendants were aware of this,” her suit says.

The woman claims that Sharabi and two collaborators — his daughter-in-law, Michal Hadad, and Alon Jacobi — promised they would quickly find her a husband in exchange for the money.

“Defendants had every reason to know Plaintiff would do anything, including paying a large sum of money, to get married,” the suit states.

Sharabi apparently told the woman he’d secure the lucky holy texts for the woman, and that they would be housed in synagogues in Israel and Brooklyn.

“Plaintiffs made these knowingly false statements about her finding a husband and the existence of the Torah books when she paid them $214,000,” the suit says, adding: “Purchasing a Torah book is considered a very significant good deed in the Jewish religion, one which brings a person good luck.”

Lifschitz noted that parties are typically held after someone buys a new handwritten Torah and that the purchaser is invited to attend. But she never got any proof that he bought the books.

Sharabi, however, disputed the woman’s claims — saying he really did set up Lifschitz with a man, named Alon. They even went on a trip to Brazil, he said.

“When things didn’t work out with her and Alon, she got upset,” he told The Post on Tuesday.

Sharabi also claimed he got the Torahs for her. He showed The Post a Torah that he said had her name written in it in Hebrew. He said it cost $42,000 and that the other two were in Israel.

“Sometimes you don’t get what you want and you have to say thank you to God because he knows best,” he told The Post. “I love her, I want to help her, she’s a good person.”

According to published reports, Sharabi has successfully styled himself as a clairvoyant in the Borough Park community, selling everything from promises of wealth and marriage to lucky amulets.

A 2009 story in The Forward reported that Sharabi received clients in the back of a Borough Park optician and occasionally kept people waiting for six hours to bask in his wisdom.

Lifschitz and her attorney declined to comment on the case.

(Mike Frisch)

September 20, 2017 in Current Affairs | Permalink | Comments (0)

Thursday, August 31, 2017

Wrongful Death Case Filed For Late Spouse Not Null And Void As Unauthorized Practice

A decision summarized on the web page of the Tennessee Supreme Court

The Tennessee Supreme Court has rejected a defendant hospital’s argument that a wrongful death lawsuit filed by a surviving spouse was null and void because the spouse was not represented by a lawyer when the lawsuit was filed.   

In September 2004, Ruth Hartley was admitted to Trinity Hospital in Erin, Houston County, Tennessee, for elective colon surgery.  She developed complications from the surgery and died.  After her death, Mrs. Hartley’s husband, Denver Hartley, filed a wrongful death lawsuit against several defendants, including Trinity Hospital, claiming that their negligent treatment caused Mrs. Hartley’s death.  Mr. Hartley was not represented by a lawyer when he filed the lawsuit.

The defendants filed motions to dismiss Mr. Hartley’s lawsuit.  They argued that, although a person can represent himself in his own lawsuit, no one can file a lawsuit on behalf of another person unless they have a law license.  The defendants claimed that, in filing the wrongful death lawsuit, Mr. Hartley was representing either Mrs. Hartley or their adult children, so he was practicing law without a license. For that reason, they argued, Mr. Hartley’s lawsuit must be dismissed.

Mr. Hartley soon hired an attorney, and he amended his lawsuit to show that he was represented by a lawyer.  By that time, though, the statute of limitations for the wrongful death claim had run.  The defendants argued that the first complaint was null and void because Mr. Hartley was not represented by a lawyer, and the legal time limit had passed by the time Mr. Hartley hired a lawyer and filed an amended complaint, so his lawsuit had to be dismissed.

The trial court held that the fact that Mr. Hartley was not represented by a lawyer when he filed the lawsuit did not make it null and void, so it refused to dismiss the lawsuit.  While the lawsuit was pending, Mr. Hartley died, and his daughter, Linda Beard, was substituted in his place as the plaintiff. The case went to trial, and the jury awarded damages to Ms. Beard. 

The hospital appealed, and the Court of Appeals reversed.  It held that the claim belonged to the decedent, Mrs. Hartley, and that Mr. Hartley could not file a lawsuit on behalf of his deceased wife without a lawyer.  The Court of Appeals held that the first wrongful death complaint was null and void, and Mr. Hartley hired a lawyer after the statute of limitations had run, so it dismissed the case.  The Tennessee Supreme Court granted Ms. Beard permission to appeal.

The Supreme Court reversed the Court of Appeals.  It held that the wrongful death claim did not actually belong to the decedent; under Tennessee law, upon Mrs. Hartley’s death, the claim passed to her surviving spouse, Mr. Hartley.  Because Mr. Hartley had the right to represent himself in his own lawsuit, the Court held, the original complaint, filed without a lawyer, was at least partially proper.  The Supreme Court agreed with the trial court that the lawsuit was timely, so it reversed the Court of Appeals’ dismissal of the lawsuit.     

To read the unanimous opinion in Linda Beard v. James William Branson and Trinity Hospital, L.L.C., authored by Justice Holly Kirby, go to the opinions section of

(Mike Frisch)

August 31, 2017 in Clients, Current Affairs | Permalink | Comments (0)

Wednesday, August 30, 2017

A Crowded And Complex Relationship

In an 117-page opinion (with dissent) the Maryland Court of Appeals reversed a custody award to the child's paternal grandparents.

Not your average family situation per the majority

Natasha Burak (“Petitioner”) and Mark Burak (“Father”) were married in October 2006, and had a child (“the Child”) two years later. From early 2009 until December 2012, Petitioner, Father, and another woman – “M” – engaged in a polyamorous relationship and illicit drug use. The parties scheduled their activities on a calendar kept by Petitioner and, prior to engaging in any illicit activity, the parties would take the Child to his paternal grandparents’ house. In 2011, Petitioner and Father purchased a marital home in Silver Spring, Maryland with funds provided by Father’s parents – Gary and Martha Burak (“the Grandparents”) – and sometime in 2012, M moved into the basement of the marital home.

Beginning in September 2012 and continuing until February 2013, the triad attended couples counseling because Petitioner no longer wanted to engage in sexual relations with M and she wanted M to leave the marital home. In December 2012, the sexual relationship between Petitioner and M ended, but the two continued to have a non-sexual relationship that included cooking together and sleeping in the same bed. On May 31, 2013, in response to two violent incidents that occurred earlier in May 2013, Petitioner filed for and received a Temporary Restraining Order (“TRO”) against Father. Father subsequently moved out of the marital home and Petitioner filed a complaint for absolute divorce on July 11, 2013.

The court sets out at length the history of the failed marriage and the grandparents' primary role with the child

On May 24, 2013, Father, Petitioner and M went to King’s Dominion. Near the end of the day, an argument ensued between Petitioner and Father that involved screaming, and devolved into violent actions taken by both parties.

That altercation and a subsequent one resulted in a TRO against the father.

Father conceded that the two got into an “ugly and vicious[]” argument that morning [of the second incident] , but testified that “[i]t was no different from 10,000 other fights we’d had before[]” and he stated that he never threatened to kill Petitioner.

The court noted

At the time the polyamorous relationship began, Petitioner informed M that she had dissociative identity disorder (“DID”) and that, in addition to her main identity, she also exhibited three alternate personalities named Morgan, Adrianna, and Lisa.

And footnoted

At the custody hearing, an email was produced that was sent from Petitioner to M with Father cc’ed on February 4, 2013. The email detailed the dates and times for introductory courses on bondage discipline submission and masochism (“BDSM”). Father testified that he, Petitioner, and M attended one of the introductory classes together and that he and M attended a separate class with just the two of them. M stated that Petitioner and Father were not really involved in BDSM activities together.

And the child had issues as well

Beginning in May 2014, at the end of the Child’s kindergarten year, the Child began exhibiting negative and disruptive behavior in class. The bad behavior continued through the summer and into the start of the Child’s first grade year, when the Child began to leave class without permission and exhibit bouts of anger. On September 4, 2014, the Child kicked the assistant school principal and threatened to blow up the school. The school contacted Petitioner and provided a referral to the Montgomery County Crisis Center (“Crisis Center”). The Child was subsequently allowed to return to school after the referral was completed.

The court here held that the grandparents could intervene in the custody case but overturned the finding of the mother's parental unfitness

We conclude that because the hearing judge’s factual findings in this case did not support his conclusions that Petitioner was unfit and that exceptional circumstances existed, the hearing judge, thereby, also abused his discretion in granting custody of the Child to the Grandparents because the presumption favoring Petitioner retaining custody of the Child was not rebutted by the facts in this case.

Because we hold that the circuit court abused its discretion in granting custody of the Child to the Grandparents, we also conclude that the circuit court erred in ordering Petitioner to pay child support to the Grandparents.

Judge Getty dissents  and would hold the unfitness issue unpreserved. 

Finally, even if the Majority is correct to consider the merits of the trial court’s rulings instead of simply vacating the decision and remanding for the trial court to apply its new standards, I disagree with its conclusions that the trial court abused its discretion in finding that Ms. Burak was unfit and that exceptional circumstances merited granting custody to the Grandparents. The Majority correctly recognizes that in a child custody case a trial court’s factual findings are scrutinized under the clearly erroneous standard, and its ultimate conclusions reached by applying the law to those factual findings are reviewed under an abuse of discretion standard. Majority Slip Op. at 45-46 (citing In re Yve S., 373 Md. 551, 585-86 (2003)). However, the Majority misapplies these standards, and has failed to afford proper deference to the decisions of the trial court.

He quotes the Court of Special Appeals

On the actual record that was developed, the court acted well within its discretion when it found the parents unfit. The record supports the court’s finding that Wife still takes or is ready to take drugs and that she has struggled with parenting and properly caring for Child. The court heard and considered testimony regarding Wife’s inability and uneasiness in caring for Child, and that her difficulties often resulted in her and Husband placing Child in the Grandparents’ care. And the record revealed real questions about Wife’s compliance with the parties’ agreed drug testing regiment. She failed to comply with the Child’s Best Interest Attorney’s (“BIA”) request for a random drug test on July 14, 2014. And although she eventually sent the results of a test the BIA requested about a month before the custody merits hearing, she refused to sign the release that would allow her results to be sent directly to the BIA. This meant that Wife received and could review her results before the BIA got them, which undermined the credibility of any negative results. Wife obviously disputes these findings and the factual premises underlying them, but the record contained ample evidence that could support the court’s finding that she and Husband (who doesn’t contest the finding) were unfit parents.

Judge McDonald joined the dissent.

The oral argument is linked here. (Mike Frisch)

August 30, 2017 in Current Affairs | Permalink | Comments (0)

Tuesday, August 22, 2017

Yoga Instructor Fired For Being "Too Cute" May Sue

Jealousy leading to termination is actionable under circumstances identified by the New York Appellate Division for the First Judicial Department.

Defendant Charles V. Nicolai is married to defendant Stephanie Adams. Nicolai and Adams are co-owners of Wall Street Chiropractic and Wellness (WSCW). Nicolai is the head chiropractor and oversees the medical operations, while Adams is the chief operating officer. In April of 2012, Nicolai hired plaintiff, Dilek Edwards, as a yoga and massage therapist, and thereafter was her direct supervisor.

The complaint alleges that the relationship between Nicolai and plaintiff was "purely professional" and that Nicolai "regularly praised Plaintiff's work performance throughout her period of employment." In June 2013, however, Nicolai allegedly "informed Plaintiff that his wife might become jealous of Plaintiff, because Plaintiff was too cute.'" Approximately four months later, on October 29, 2013, at 1:31 a.m., Adams sent Edwards a text message stating, "You are NOT welcome any longer at Wall Street Chiropractic, DO NOT ever step foot in there again, and stay the [expletive] away from my husband and family!!!!!!! And remember I warned you." A few hours later, at 8:53 a.m., plaintiff allegedly received an email from Nicolai stating, " You are fired and no longer welcome in our office. If you call or try to come back, we will call the police.'" The complaint further alleges that, on October 30, 2013, Adams filed a complaint with the New York City Police Department (NYPD) alleging - falsely - that Adams had received "threatening" phone calls from plaintiff that so frightened her as to cause her to change the locks at her home and business.

As noted, plaintiff alleges that her relationship with Nicolai was strictly professional and that she "has no idea what sparked . . . Adams' [sic] . . . suspicions" to the contrary. Plaintiff further alleges that Adams's complaint to the NYPD was false and was made for the purpose of harming her.

Based on the foregoing factual allegations, the amended complaint asserts a cause of action for gender discrimination in violation of the NYSHRL, a cause of action for gender discrimination in violation of the NYCHRL, and a cause of action for defamation. In lieu of answering, defendants moved to dismiss under CPLR 3016(a) and CPLR 3211(a)(7). Supreme Court granted the motion to the extent of dismissing the two gender discrimination claims, but sustained the defamation claims. Both sides have appealed.


[The] Supreme Court correctly determined that the complaint states a cause of action for defamation by alleging facts from which malice can be inferred and that would overcome the qualified privilege attaching to statements to the police (see Present v Avon Prods., 253 AD2d 183 [1st Dept 1999], lv dismissed 93 NY2d 1032 [1999]). The court erred, however, in dismissing the causes of action for gender discrimination under the NYSHRL and the NYCHRL. It is well established that adverse employment actions motivated by sexual attraction are gender-based and, therefore, constitute unlawful gender discrimination (see e.g. Williams v New York City Hous. Auth., 61 AD3d 62, 75 [1st Dept 2009], lv denied 13 NY3d 702 [2009] [sexual harassment is "one species of sex- or gender- based discrimination"]; see also Oncale v Sundowner Offshore Servs., Inc., 523 US 75, 80 [1998]; King v Board of Regents of Univ. of Wis. Sys., 898 F2d 533, 539 [7th Cir 1990]). Here, while plaintiff does not allege that she was ever subjected to sexual harassment at WSCW, she alleges facts from which it can be inferred that Nicolai was motivated to discharge her by his desire to appease his wife's unjustified jealousy, and that Adams was motivated to discharge plaintiff by that same jealousy. Thus, each defendant's motivation to terminate plaintiff's employment was sexual in nature.

Defendants' reliance on certain cases in the "spousal jealousy" context is misplaced. Because these cases involve admitted consensual sexual affairs between the employer and the employee, they are distinguishable (see Rainer N. Mittl, Ophthalmologist, P.C. v New York State Div. of Human Rights, 100 NY2d 326, 332 [2003]; see also Mauro v Orville, 259 AD2d 89, 92-93 [3d Dept 1999], lv denied 94 NY2d 759 [2000]; Tenge v Phillips Modern Ag Co., 446 F3d 903, 910 [8th Cir 2006])In such cases, it was the employee's behavior - not merely the employer's attraction to the employee or the perception of such an attraction by the employer's spouse - that prompted the termination. Here, assuming the truth of the allegations of the amended complaint, as we are required to do upon a motion to dismiss, plaintiff had always behaved appropriately in interacting with Nicolai, and was fired for no reason other than Adams's belief that Nicolai was sexually attracted to plaintiff. This states a cause of action for gender discrimination under the NYSHRL and the NYCHRL.

The Daily News has details.

The News reports that Ms. Adams was a Playboy Playmate.

More here on the lower court action from the New York Post with the money quote

When the suit was filed, Adams — the first openly lesbian woman to be a Playmate — told The Post she didn’t view Edwards as competition.

“No disrespect to anyone — but I’m a centerfold,” Miss November 1992 boasted.

(Mike Frisch)

August 22, 2017 in Current Affairs | Permalink | Comments (0)

Tuesday, August 8, 2017

Maryland Holds Battered Spouse Defense May Be Pursued Where Defendant Hired Third Party To Kill Spouse

The Maryland Court of Appeals has held that a battered spouse defense may be pursued where the defendant hired a thi,rd party to kill her husband

Battered spouse syndrome is a form of posttraumatic stress disorder that develops in victims of intimate partner violence. Maryland law allows a woman on trial for harming her abuser to present evidence explaining battered spouse syndrome and its psychological effects regardless of whether she was the first aggressor, used excessive force, or failed to retreat. Md. Code (1991, 2013 Repl. Vol.), § 10-916(b) of the Courts and Judicial Proceedings Article (“CJP”).  This case asks us to analyze how Maryland’s battered spouse syndrome statute interacts with the elements of imperfect self-defense. It presents the question of whether a defendant who contracted with a third-party to kill her abusive husband can present sufficient evidence that she felt as though she was in imminent danger to be entitled to an imperfect self-defense jury instruction.


We hold that [defendant] Porter presented sufficient evidence that she feared imminent harm to be entitled to an imperfect self-defense jury instruction. Additionally, we hold that the substantive error in the delivered instruction was not harmless and infected the verdict as to each of the charges against her. Thus, we remand for a new trial on all counts.

The evidence

After they were married in 1986, Ray began physically and verbally abusing Porter. At trial, Porter testified to numerous instances of violent abuse throughout their 24-year marriage, including that her husband had: beaten her with a belt; hit her with a wooden board; pushed her head into her mother’s headstone and told her that she “should be with [her] dead mother”; stabbed a drill into her stomach, leaving a large scar; hit her with a rake; smeared dog excrement across her back; hit her with a toolbox; kicked her in the side; shoved her head into leaking sewage; and given her a black eye. She also testified that on multiple occasions he had: told her that she was “worthless” and “should die”; threatened to kill her; and forced her to drink water until she urinated on herself. Porter testified that she did not call the police or leave Ray after any of these instances of abuse because she was afraid he would retaliate. When asked why she did not move out of their home, she testified, “I knew he would follow me. I knew that there was no getting away.”

...Beginning in mid-2009, Porter approached multiple people about killing her husband. That summer, she gave her daughter’s boyfriend, Daniel Blackwell, $1,000 to “take care of” her husband. The week before Christmas, she asked one of Ray’s coworkers, Tony Fails, to kill him. When asked why she solicited Fails to kill Ray, Porter testified, “It was getting so bad that I knew that Ray was going to kill me and I just wanted to kill him first.” Neither Blackwell nor Fails took any action against Ray. In January 2010, Porter asked an acquaintance, Paige Huemann, if she knew where she could get some potassium cyanide to poison Ray. Eventually, Porter’s nephew, Seamus Coyle, put her in touch with Walter Bishop, who agreed to kill her husband in exchange for $400. As to her mental state on the day her husband was shot, Porter testified, “In my mind, I knew he was going to kill me at any point.”

Bishop committed the murder.

On the morning of Ray’s death, March 1, 2010, Porter told him that the alarm had gone off at the gas station that they owned. Ray went to the station, and around 6:30 a.m., Bishop came in and shot Ray twice. Immediately afterwards, Porter called 911 and told the police that the gas station had been robbed and that the thief had shot her husband.

Porter was arrested a week later and admitted that she had paid Bishop to beat up Ray. 

The jury found Porter guilty of first-degree murder, conspiracy to commit first degree murder, three counts of solicitation to commit first-degree murder, and use of a handgun in commission of a crime of violence. She was sentenced to life plus 40 years in prison. Porter filed a motion for a new trial, arguing that the jury was not properly instructed “as to the definition of battered spouse syndrome and how to consider this type of evidence in the context of imperfect self[-]defense.” The court denied the motion, and Porter appealed.

Judge Greene dissented

I would adopt the reasoning of the Court of Special Appeals and hold that Ms. Porter was not entitled to an imperfect self-defense instruction and, therefore, the trial court’s error in issuing an improper imperfect self-defense instruction was harmless. The Majority opinion takes an unprecedented pivot in the area of imperfect self-defense by relaxing the requirement of an imminent and immediate threat for a battered spouse. And, a defendant who hires a third party to murder her spouse, even if she is suffering from battered spouse syndrome, should not be entitled to a perfect or imperfect self-defense instruction. This is so because a contract killing by its nature is more consistent with an act of retaliation for past abuse. Thus, respectfully, I dissent.

Two colleagues joined the dissent.

ABC News covered the arrest. WBLT TV reported on  the sentencing. (Mike Frisch)

August 8, 2017 in Current Affairs | Permalink | Comments (0)

Friday, August 4, 2017

Blackwater Decision Out: Sentences Cruel And Unusual (With Dissent)

The United States Court of Appeals for the District of Columbia Circuit has decided the criminal case involving Blackwater employees involved in the 2007 shootings in Baghdad

Nicholas Slatten, Paul Slough, Evan Liberty and Dustin Heard (“defendants”) were contractors with Blackwater Worldwide Security (ABlackwater@), which in 2007  was providing security services to the United States State Department in Iraq. As a result of Baghdad shootings that injured or killed at least 31 Iraqi civilians, Slough, Liberty and Heard were convicted by a jury of voluntary manslaughter, attempted manslaughter and using and discharging a firearm in relation to a crime of violence (or aiding-and-abetting the commission of those crimes); Slatten was convicted of first degree murder. They now challenge their convictions on jurisdictional, procedural and several substantive grounds.

For the following reasons, we hold that the Court has jurisdiction pursuant to the Military Extraterritorial Jurisdiction Act (“MEJA”), 18 U.S.C. §§ 3261 et seq., and that venue in the District of Columbia was proper. We further hold that the district court did not abuse its discretion in denying the defendants= motion for a new trial based on post-trial statements of a government witness. Regarding the challenges to the sufficiency of the evidence, we hold that the evidence was sufficient as to all except one of Liberty’s attempted manslaughter convictions, and that the evidence was sufficient as to Slatten. We further hold that Slatten's indictment charging first-degree murder did not constitute vindictive prosecution.

The Court concludes, however, that statements made by a co-defendant shortly following the attack, statements asserting that he—not Slatten—fired the first shots on the day in
question, were admissible. Accordingly, the Court concludes that the district court abused its discretion in denying Slatten’s motion to sever his trial from that of his co-defendants and therefore vacates his conviction and remands for a new trial. Moreover, the Court concludes that imposition of the mandatory thirty-year minimum under 18 U.S.C. § 924(c), as applied here, violates the Eighth Amendment prohibition against cruel and unusual punishment, a holding from which Judge Rogers dissents. The Court therefore remands for the resentencing of Slough, Liberty and Heard.

On the Eighth Amendment issue

 The sentences are cruel in that they impose a 30-year sentence based on the fact that private security contractors in a war zone were armed with government-issued automatic rifles and explosives. They are unusual because they apply Section 924(c) in a manner it has never been applied before to a situation which Congress never contemplated. We again emphasize these defendants can and should be held accountable for the death and destruction they unleashed on the innocent Iraqi civilians who were harmed by their actions. But instead of using the sledgehammer of a mandatory 30-year sentence, the sentencing court should instead use more nuanced tools to impose sentences proportionally tailored to the culpability of each defendant. 

Circuit Judge Rogers concurred and dissented

First, in accordance with the Supreme Court’s instruction, portions of a co-defendant’s statements to investigators should have been admitted in Slatten’s defense,  but not as a result of unduly expanding a narrow residual hearsay exception when the statements are covered by an established exception. Second, defendants’ Eighth Amendment challenge lacks any merit whatsoever, especially in view of the district court judge’s express assessment, which my colleagues ignore, that the sentences were an appropriate response to the human carnage for which these defendants were convicted by a jury...

Paul Slough was convicted by a jury of killing thirteen (13) people and attempting to kill seventeen (17) others. Evan Liberty was convicted by a jury of killing eight (8) people and attempting to kill twelve (12) others. Dustin Heard was convicted by a jury of killing six (6) people and attempting to kill eleven (11) others.

Circuit Judge Brown concurred and dissented on other grounds

The question of how our criminal justice system should treat private contractors who commit crimes overseas in war time is a difficult one. However, Congress has made the determination that such individuals should be held responsible for their actions in federal courts if they either work for the military or commit a crime during the performance of a task related to supporting the military, such as the atrocities committed at Abu Ghraib. Today’s opinion expands MEJA beyond the limits defined by this history and clearly laid out  in the text. Because it is not possible to conclude, beyond a reasonable doubt, that the erroneous instruction did not improperly influence the ultimate outcome of the case, I respectfully dissent from this portion of the Court’s decision.

(Mike Frisch)

August 4, 2017 in Current Affairs | Permalink | Comments (0)

Thursday, August 3, 2017

A Bridgegate Too Far

The New Jersey Appellate Division reversed a decision denying access to records involving the so-called Bridgegate affair

In these consolidated appeals arising out of two complaints seeking production of public records under the Open Public Records Act (OPRA), N.J.S.A. 47:1A-1 to -13, and the common law right of access to public records, we consider whether the Superior Court has the authority under N.J.S.A. 47:1A-11 to impose civil penalties for knowing and willful violations of OPRA, and whether the court erred in denying plaintiff's request for relief in aid of litigants' rights under Rule 1:10-3. We conclude the court erred in finding it lacked the authority to impose civil penalties under N.J.S.A. 47:1A-11, and that plaintiff was entitled to relief in aid of litigants' rights. We reverse and remand for further proceedings.

North Jersey Media Group had sought the records

The lawsuits arose from plaintiff's requests that defendant State of New Jersey Office of the Governor produce records concerning the Port Authority of New York and New Jersey's September 9 to 13, 2013 closures of local traffic lanes from Fort Lee to the George Washington Bridge. The closures caused significant traffic delays in Fort Lee, and led to an investigation by the New Jersey Legislature, and criminal prosecutions of Port Authority employees William Baroni and David Wildstein, and Governor Chris Christie's deputy chief of staff Bridget Kelly.

Key conclusion

Because we are convinced the court could not properly rely on Southwell's certification to support its conclusion defendant's search was compliant with OPRA and the common law, there was insufficient credible evidence supporting the court's finding that defendant's search for records was reasonable. We therefore vacate the order dismissing plaintiff's complaint in the May action, and remand for further proceedings based on competent evidence.

The Southwell certification came from a partner in the law firm that represented the defendants in the action.

As to civil penalties

N.J.S.A. 47:1A-11 provides a valuable means to compel compliance with OPRA by public officials, officers, employees and records custodians who might otherwise flout OPRA's requirements and willfully and knowingly deprive the public of access to government records. The civil penalties permitted under N.J.S.A. 47:1A-11 help ensure that records at all levels of government, including the highest levels of our State government, are not willfully and knowingly withheld in an effort to shroud possible wrongdoing from the public's view or deny access to government records to which every citizen is entitled. It is inconsistent with the plain language of N.J.S.A. 47:1A-11 and OPRA's purpose to shield the recalcitrance and obfuscation of public officials, officers, custodians and employees from the imposition of a civil penalty simply because a requester opted to seek redress in a court of law rather than with the GRC. We are convinced the motion court erred by concluding otherwise, and by dismissing plaintiff's claims for the imposition of a civil penalty in the February and May actions.

(Mike Frisch)

August 3, 2017 in Current Affairs | Permalink | Comments (0)

Saturday, July 22, 2017

Up In Not Smoking

A divided United States Court of Appeals for the District of Columbia Circuit upheld an interpretation of the airplane smoking ban prohibiting inflight use of electronic cigarettes. 

Underlying petitioners’ arguments and those of the dissent is the point that e-cigarettes did not exist in 1987 when Congress first made it unlawful “to smoke” on certain flights under two hours, nor did e-cigarettes exist in 2000 when Congress extended the prohibition. Although this means the legislators did not have e-cigarettes in mind when passing those statutes, that does not resolve the interpretive question. The text itself, rather than the subjective intentions of legislators, governs our review. See Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 79 (1998). We must ask whether the term “smoking” in a statute enacted before modern e-cigarettes existed covers these devices.

Petitioners maintain that “smoking” in § 41706 requires lighting or burning and does not encompass the heating that occurs with e-cigarettes. The statutory text alone offers no support for that position.

The majority delves into what "smoking" means

So here is where we are. Although the statute does not define “smoke,” some dictionary definitions, some state laws, and some characterizations of smoking by the e-cigarette industry itself support the Department. But other dictionary definitions and other state laws support petitioners. We therefore cannot say that Congress spoke to the precise question at issue.

The application of the ban was not arbitrary.

Circuit Judge Kavanaugh concurred

I join the majority opinion and add these brief comments. Even without affording Chevron deference to the Department’s interpretation of the statute, I would still reach the same result in this case. In my view, although it is a close call, the better interpretation of the term “smoking” in this statute covers ecigarettes as well as conventional tobacco cigarettes. Judge Ginsburg’s fine dissent rests in part on the notion that those who drafted or read the statute in 1987 would not have understood the term “smoking” to encompass e-cigarettes because e-cigarettes did not exist at that time. I am not convinced by that line of analysis, for reasons that the majority opinion persuasively explains.

Senior Circuit Judge Ginsberg in dissent

Today this Court departs from this principle to redefine “smoking” from conventional tobacco consumption, as it was commonly understood in 1987, to prohibit the use of electronic cigarettes, a new technology with a substantially different nicotine delivery process and likely different secondhand effects as well. Just as some people will, no doubt, “find ambiguity even in a ‘No Smoking’ sign,” Int’l Union v. Gen. Dynamics Land Sys. Div., 815 F.2d 1570, 1575 (D.C. Cir. 1987), the Court manufactures ambiguity from the lack of a statutory definition and some abstract dictionary definitions of “smoking” even though the Congress that adopted the statute and the public it represented would have found the term unambiguous when relating to passenger aviation...

I cannot accept the Court’s ahistorical reinterpretation of a purportedly ambiguous statutory term that was well-understood when enacted in 1987.

The challenge was brought by The Competitive Enterprise Institute, the Consumer Advocates for Smoke-Free Alternatives Association, and Gordon Cummings. (Mike Frisch)

July 22, 2017 in Current Affairs | Permalink | Comments (0)

Friday, July 21, 2017

Is Accepting A Pardon A Confession Of Guilt?

Well, it would appear that the nature and extent of the Presidential power to pardon has become somewhat newsworthy.

I had the opportunity to delve into the issue when President George H.W. Bush pardoned Elliott Abrams a few days after a disciplinary hearing that I prosecuted was held based upon his guilty plea to charges brought by Independent Counsel Lawrence Walsh. 

A divided District of Columbia Court of Appeals held that the pardon did not preclude professional discipline for the underlying conduct, although a bar prosecutor may no longer rely on the fact of the conviction itself.

Mr. Abrams (through his counsel Charles Cooper) sought certiorari review and did not garner a single vote.

One of the cases I came across was a 1915 Supreme Court decision in United States v. Burdick, where the court stated

Indeed, the grace of a pardon, though good its intention, may be only in pretense or seeming; in pretense, as having purpose not moving from the individual to whom it is offered; in seeming, as involving consequences of even greater disgrace than those from which it purports to relieve. Circumstances may be made to bring innocence under the penalties of the law. If so brought, escape by confession of guilt implied in the acceptance of a pardon may be rejected, preferring to be the victim of the law rather than its acknowledged transgressor, preferring death even to such certain infamy.

Acceptance of a pardon thus would appear to at least "imply" a confession of guilt. (Mike Frisch)

July 21, 2017 in Current Affairs | Permalink | Comments (1)

Wednesday, July 19, 2017

Quicken Loans Not Engaging In Unauthorized South Carolina Practice

The South Carolina Supreme Court absolved Quicken Loan on civil allegations of unauthorized law practice

We accepted this declaratory judgment matter in our original jurisdiction to determine if Respondents/Petitioners Quicken Loans, Inc. (Quicken Loans) and Title Source, Inc. (Title Source) have engaged in the unauthorized practice of law (UPL). In their complaint, Petitioners/Respondents Vance L. and Thelma Boone, Travis G. and Theresa S. Messex, and Brian and Kelli Johnson (collectively "Homeowners"), alleged the residential mortgage refinancing model implemented by Quicken Loans and Title Source in refinancing the Homeowners' mortgage loans constitutes UPL. In addition to seeking declaratory relief, Homeowners' complaint also sought class certification and requested class relief.

We referred this matter to a Special Referee to take evidence and issue a report containing proposed findings of fact and recommendations to the Court regarding the UPL issue, as well as on the issues of class certification and class relief. Following an evidentiary proceeding during which the parties submitted extensive testimony and documentary evidence, the Special Referee issued a report proposing various factual findings and recommending this Court declare that Quicken Loans and Title Source engaged in UPL but opining that neither class certification nor class relief were appropriate under the circumstances. Quicken Loans and Title Source took exception to the Special Referee's proposed findings of fact and UPL recommendation. Homeowners took exception to Special Referee's recommendation that class certification and class relief were unwarranted under the circumstances.


We find the record in this case shows licensed South Carolina attorneys were involved at every critical step of these refinancing transactions, as required by our precedents. We also find that requiring more attorney involvement would not effectively further our stated goal of protecting the public from the dangers of UPL. We therefore respectfully reject the Special Referee's conclusion that Quicken Loans and Title Source committed UPL. Because we reject the finding of UPL, we need not address the parties' ,remaining exceptions, including Homeowners' request that we declare their mortgages void and certify this case as a class action.

...we believe requiring more attorney involvement in cases such as this would belie the Court's oft-stated assertion that UPL rules exist to protect the public, not lawyers...we do not believe requiring more attorney involvement would appreciably benefit the public or justify the concomitant increase in costs and reduction in consumer choice or access to affordable legal services. Cf. In re Unauthorized Practice of Law Rules, 309 S.C. at 306, 422 S.E.2d at 124–25 (recognizing the strict licensing requirements for becoming a Certified Public Accountant (CPA) and holding "that allowing CPAs to practice in their areas of expertise, subject to their own professional regulation, will best serve to both
protect and promote the public interest").

(Mike Frisch)

July 19, 2017 in Bar Discipline & Process, Current Affairs | Permalink | Comments (0)

Federal Appeals Court Holds "Significant Romantic Relationship" Unduly Vague; Overturns Penile Test As Release Condition

The United States Court of Appeals for the District of Columbia Circuit has held that certain conditions cannot be imposed on a released convicted sex offender.

The opinion was authored by Senior Circuit Judge Sentelle

Appellant Brandon Rock was sentenced to 172 months’ imprisonment and 10 years of supervised release after pleading guilty to distribution of child pornography. He appeals the length of his sentence and the conditions of his supervised release. For the reasons stated below, we affirm his sentence length but vacate two of the release conditions.

Prior to June 2011, appellant Brandon Rock was involved in a romantic relationship with a woman who had an 11-year-old daughter. Rock installed a hidden camera in the child’s bedroom at the woman’s house. Over the course of six months, Rock captured numerous video segments of the child in her bedroom, some of which showed the child completely naked from the front and back. From these videos Rock made still pornographic images. Subsequently, Rock entered an internet chat room where, unbeknownst to him, he began communicating with undercover Metropolitan Police Department Detective Timothy Palchak. Palchak was posing as an individual who had access to a fictional 12-year-old girl.

He was arrested and his computer searched after he sent images to the officer.

He is properly prohibited from computer use but

Another imposed condition of supervised release, the only preserved objection in the district court, under the heading “Additional Standard Conditions of Supervision,” states that Rock “shall notify the U.S. Probation Office when he establishes a significant romantic relationship and then shall inform the other party of his prior criminal history concerning the sex offenses.” Rock argues that this condition should be vacated because such a condition is unconstitutionally vague, not reasonably related to the goals of sentencing, and constitutes a greater restriction on liberty than necessary.

The condition was vague in light of the difficulty in quantifying matters of the heart

We cannot agree with the government’s proposition that people of common intelligence would share a conclusion as to whether the affairs of two people constituted a “significant romantic relationship.” Indeed, we think it likely that in many cases, the two persons involved might not agree as to whether they had such a relationship. In short, we agree with Rock that the vagueness of this condition is problematic.


Another condition of supervised release imposed upon Rock is that he “shall submit to penile plethysmograph testing as directed by the United States probation office as part of your sexual offender therapeutic treatment.” Rock contends that when the district court ordered him to submit to penile plethysmograph, there was no demonstration of what such testing actually required or if it is effective, and no discussion of why it is necessary.

The court concluded that the testing was not appropriate

The dissenter [in an earlier case] would have stricken the penile plethysmograph testing condition on the grounds that the procedure “implicates significant liberty interests and would require, at a minimum, a more substantial justification than other typical conditions of supervised release.” Id. at 566. We agree with the Malenya dissent and order this condition vacated as well.

The Malenya decision is linked here. 

Wikipedia describes the test. (Mike Frisch)

July 19, 2017 in Current Affairs | Permalink | Comments (0)

Monday, July 17, 2017

Claims When Employee Terminated For Lawful Use Of Medical Marijuana

The Massachusetts Supreme Judicial Court holds

In 2012, Massachusetts voters approved the initiative petition entitled, "An Act for the humanitarian medical use of marijuana," St. 2012, c. 369 (medical marijuana act or act), whose stated purpose is "that there should be no punishment under state law for qualifying patients . . . for the medical use of marijuana." Id. at § 1. The issue on appeal is whether a qualifying patient who has been terminated from her employment because she tested positive for marijuana as a result of her lawful medical use of marijuana has a civil remedy against her employer. We conclude that the plaintiff may seek a remedy through claims of handicap discrimination in violation of G. L. c. 151B, and therefore reverse the dismissal of the plaintiff's discrimination claims. We also conclude that there is no implied statutory private cause of action under the medical marijuana act and that the plaintiff has failed to state a claim for wrongful termination in violation of public policy, and therefore affirm the dismissal of those claims.

(Mike Frisch)

July 17, 2017 in Current Affairs | Permalink | Comments (0)