Thursday, July 30, 2015

Death Must Be Caused Willfully To Invoke Slayer Statute

The Mississippi Supreme Court has held that a person found not incompetent to stand trial on charges that he had murdered his mother is not necessarily precluded from recovery by the Slayer Statute.

Based upon this Court’s holding that the Slayer Statute requires a finding of willful conduct in order to preclude a person from inheriting from his or her victim, this judgment is reversed and the case is remanded for a hearing to determine John’s mental status at the time of the murder and whether he wilfully caused Joan’s death. The Slayer Statute will be applicable only if it is proven that, at the time of the murder, John’s actions were willful. The chancellor is instructed that “ all evidence which will throw any light on the issue of whether or not this killing was willful is competent and admissible.” Henry, 50 So. 2d at 923.

The facts

John R. Armstrong, a severely mentally ill man, killed Joan Armstrong, his eighty-year-old mother. This fact is not disputed by any party. The Circuit Court of Jackson County determined that John was not competent to stand trial for the murder of Joan, and John was committed to the state hospital at Whitfield, where he resides today. Based on the Slayer Statute, John’s four siblings requested that the devise to John in their mother’s will be declared void.

...On August 7, 2010, Joan Armstrong was contacted by several of her son’s neighbors, who were worried about their children’s safety, after they noticed John acting erratically. John had a long history of serious mental illness, having been treated since 1989.1 Joan picked up John at his apartment and brought him back to her condominium. Joan had invited some of her friends to come over to the condominium swimming pool. Worried that his mother was leaving him, John went upstairs and retrieved a crochet-covered brick, which he used to hit Joan repeatedly over the head. He then moved her body to the bathroom and repeatedly stabbed her. He informed law enforcement officers from the Ocean Springs Police Department (OSPD) that he was preparing her body to be buried by bleeding her.

He is being held pending a finding that he is competent to be tried. (Mike Frisch)

July 30, 2015 in Law & Society | Permalink | Comments (0)

Friday, June 26, 2015

Mouse Clicks And Fair Trials

The Iowa Supreme Court reversed the Court of Appeals and reinstated a second degree murder conviction, rejecting a claim of juror bias. 

The juror had disclosed that she knew and was Facebook friends with a relative of the victim but

there is no evidence the juror provided false testimony during voir dire...

Webster’s lawyer elected not to thoroughly explore the nature of the relationship, including the intriguing mention that she and Frisbie’s stepmother were friends on Facebook. Instead, Webster’s counsel asked a series of questions that seemed more designed to rehabilitate the juror than challenge her. At the conclusion of the hearing, Webster did not challenge the juror for cause. Based on the record before us, we cannot conclude the juror engaged in misconduct by lying during the in camera hearing.

This was of some concern

That brings us to the most troublesome point in the case. There is some suggestion the juror, after the in camera inspection but prior to the verdict, clicked “like” on a Facebook comment by the victim’s stepmother which stated, “Give me strength.” A juror who directly violates the admonitions of the court and communicates with the mother of a crime victim about a case certainly raises questions about her ability to be an impartial juror. This action occurred after voir dire and apparently after the in camera hearing. Thus, Webster has not waived his bias challenge based upon this event, which would not have been uncovered through diligent use of ordinary trial processes. However, the record here does not disclose the court’s initial admonition or when the juror clicked “like.” In any event, while the short form admonition to the jury in the record indicated that the juror should not communicate with parties and witnesses about the case, the juror apparently thought (erroneously) that merely clicking “like” on Facebook was not a “communication.” Moreover, the communication did not relate to the guilt or innocence of the accused, but only showed a degree of empathy for a grieving stepmother who lost her son. A juror who does not have empathy for a grieving mother whose son was a homicide victim would be awfully cold hearted. If we disqualified jurors because they empathized with the family of crime victims, we would have no jurors...

Notwithstanding our resolution of the issues in this appeal, we do not approve of the juror’s conduct in this case. While the click of the mouse does not require reversal of Webster’s criminal conviction, it is troublesome nevertheless. While it did not occur in this case, a single click of the mouse on Facebook can trigger cascading responses. Further, messages posted on Facebook may be viewed by many persons, generating a perception of a miscarriage of justice. In the future our district courts would do well to recognize that in this day and age, our jurors are part of the new electronic world. This can pose a problem in our jury trials. We have held that the click of the mouse in this case was not misconduct sufficient to require a new trial...

The court provides a useful summary of the emerging body of case law and scholarship on social media and juror misconduct. (Mike Frisch)

June 26, 2015 in Hot Topics, Law & Society | Permalink | Comments (0)

Wednesday, June 24, 2015

Attorney Who Failed To Report Abuse Disqualified

An opinion from the Oklahoma Supreme Court

The issue before this Court is whether the district court erred in sustaining the legal parent's motion to disqualify opposing counsel. The question we consider is whether the integrity of the judicial process is likely to suffer real harm when an attorney who represents a client in a proceeding to establish paternity and to determine custody of a minor child fails to report suspected child abuse to the proper authorities as required by statute, conducts a forensic interview of the child to obtain evidence to support the client's position, does not obtain the legal parent's permission prior to the interview, and files his own affidavit attesting to the credibility of the child's affidavit. We find that the district court did not err in sustaining the motion to disqualify opposing counsel when the attorney likely compromised the legal parent's right to a fair proceeding by contaminating the fact-finding procedure and by establishing a relationship of undue influence with the child...

Attorney inserted himself into the paternity proceeding as a forensic interviewer, interviewed a minor child without parental consent, and submitted a signed affidavit attesting to Child's credibility. Attorney and Child were the only persons present during the interview. Thus, Mother's only option to rebut the evidence presented in Child's affidavit, to ascertain what type of relationship Attorney may have established with Child during the interview, and to determine if Attorney distorted Child's recollections by suggestive or leading questions would be to call Attorney as a witness to Child's credibility. Were Attorney to testify at trial, the integrity of the judicial process would be harmed in all the ways Rule 3.7 is designed to protect against: (1) Attorney's interest in winning the case for Client would call into question his objectivity as a witness, (2) Attorney's dual role as advocate-witness could confuse the factfinder, and (3) public confidence would be shaken were Attorney allowed to interview Child without parental consent.


A lawyer is not prohibited from interviewing a child witness, and nothing in this opinion should be construed to prevent an attorney from interviewing a child witness. However, if an interview scenario results in circumstances similar to those here, then he or she is no longer able to continue as an attorney in that particular case. A lawyer in a proceeding to establish paternity and to determine custody of a minor child who ignores his statutory duty to report suspected child abuse, inserts himself into the role of forensic interviewer, interviews the minor child without the legal parent's consent, likely taints the fact-finding process with improper interviewing techniques, likely establishes a relationship of undue influence with the child witness, and submits affidavits attesting to a fact witness's credibility should be disqualified from all aspects of the proceeding. Mother proved by a preponderance of the evidence that Attorney's continued representation will likely cause real harm to the integrity of the judicial process. We affirm the district court's order sustaining the motion to disqualify counsel and remand for further proceedings. Attorney is disqualified not only from acting as an advocate at trial, but also from acting as an advocate in all aspects of the underlying proceeding.

There is a concurring/dissenting opinion that would disqualify counsel but not impose the "blanket restrictions" of the majority opinion.

While I concur that under the particular circumstances, the attorney in this case should be disqualified; I do not believe lawyers should be per se prohibited from interviewing a child witness in custody disputes. Of paramount importance in any legal decision affecting the welfare of a child is consideration of his or her best interests. The majority opinion renders this basic principle subservient to the mother's custodial rights and the majority's perceived transgression of ethical boundaries governing attorney conduct...

the abuse suffered by the minor child in this case was shocking. So much so, the trial court issued an emergency order placing custody of the child with father--a direct result of the efforts undertaken by counsel and father. There were allegations the step-father drank excessively, hit the minor child, and imposed inappropriate discipline such as forced calisthenics. Additionally, it was suggested mother inflicted undue physical punishment on her son. However, the real issue presented in the trial court was the sexual abuse endured by this child. Although mother and step-father were not the perpetrators, mother had knowledge of the child's illicit encounters. She discovered the molestation and notified father. However, she apparently did not fully disclose the severity of the situation and urged him not to confront the child. On January 11, 2014, the child voluntarily disclosed the ongoing sexual activity to his father.

The father's efforts to get help through public agencies failed

After receiving no assistance from DHS and weighing the urgency of the situation, father sought to protect his son by contacting his attorney. While the attorney's interview in this case may have exceeded what was necessary, there is no ethical proscription which forbids attorney interviews of children.  Moreover, at the time the child was not represented by counsel and a guardian ad litem had not been appointed. Inherent in a lawyer's responsibilities is the obligation to thoroughly evaluate the facts of each case. This includes seeking information through witness interviews. It should be noted that [attorney] Thomas served as a Tulsa County Sherriff's Deputy for ten years prior to entering law school. During his service, Mr. Thomas interviewed numerous victims of criminal acts, including child and domestic abuse.

 (Mike Frisch)

June 24, 2015 in Law & Society, Professional Responsibility, The Practice | Permalink | Comments (0)

Monday, June 8, 2015

The Life Monastic

The Connecticut Appellate Court affirmed the imposition of punitive damages in a case where the plaintiff had given donations for chapel construction under the false belief that the defendant was a Benedictine monastery.

The Diocese of Norwich had issued a pious union decree in 1979 but the decree did not lead to recognition by the church. 

Pursuant to that decree, the union consisted of ‘‘Sister Mary Peter [also known as Dorothy Jordan], professed Sister of the Benedictine Community in Stillwater, Massachusetts and one secular Oblate, Eleanor J. Tremko, by name.’

The plaintiff's story

After her initial visit to the defendant in August, 2008, the plaintiff quickly became involved in all of its activities...She participated in bible study groups and various fundraising events, mostly with the goal of raising the money to build the new chapel. She developed a close relationship with women she believed to be Roman Catholic nuns who were involved with the defendant, including Jordan, whom she respected. On August 23, 2009, because she had been spending so much time with and contributing financially to the defendant, the plaintiff transferred her oblation from the monastery in Nebraska to the defendant.

An "oblate" is defined

Sister Sally J. Tolles, a canon and civil lawyer employed by the diocese, testified at trial that oblates are ‘‘laypeople who associate themselves with monasteries or abbeys or priories in order to say that they will help in a spiritual way or in a financial way with the needs of the community . . . .’’

The defendant had never been accorded recognized Benedictine status

On February 17, 2011, Bishop Cote sent a letter to the plaintiff advising her, among other things: that the defendant was not, and never had been, a Benedictine monastery; that the residents at Mount Caritas were not Benedictine sisters; that the defendant did not have permission from the diocese to build a Roman Catholic chapel; and that the defendant did not have permission to solicit money or to sell items in any Roman Catholic parish in the diocese. The plaintiff testified that this was the first time that she had heard anything disputing the defendant’s status as a monastic community. Upon receipt of the bishop’s letter, the plaintiff was in disbelief. Based on the pious union decree that Jordan had shown her, along with Jordan’s prior representation she plaintiff believed that the defendant had been a monastery for thirty-five years.

 The court

The record in this case is replete with evidence of the defendant’s portrayal of itself as a Roman Catholic Benedictine monastery. The record is likewise laden with evidence that Jordan knew that the defendant was not, in fact, a Roman Catholic Benedictine monastery. The plaintiffs testified that they would not have given money to the defendant if they had known that it was not a Roman Catholic institution. Although Jordan apprised the plaintiff of the contentious relationship between the defendant and the diocese, and the plaintiff later was informed by the diocese that the defendant was not a Roman Catholic Benedictine monastery, Jordan repeatedly assured the plaintiff that the diocese was lying. The plaintiff continued to trust Jordan and thus continued to fund the construction of the chapel.

The court respected the jury verdict

 The jury reasonably could have concluded that the defendant repeatedly and intentionally, over a period of years, misrepresented itself to the plaintiff as a Roman Catholic Benedictine monastery, knowing that that was the type of community that she was searching for in which to continue her work as an oblate. The evidence amply supported a finding that the defendant intentionally misrepresented its status to induce the plaintiffs to fund the construction of the chapel, and that, in so doing, it displayed a reckless indifference to the rights of the plaintiffs. We therefore conclude that the court did not abuse its discretion in denying the defendant’s motion to set aside the verdict with respect to the plaintiffs’ entitlement to punitive damages.

The Hartford Courant had this story.

The trial court decision is linked here. (Mike Frisch)

June 8, 2015 in Law & Society | Permalink | Comments (0)

Thursday, April 23, 2015

More Law Of Facebook

An interesting decision on authentication of documents from social media from the Maryland Court of Appeals

We shall hold that, in order to authenticate evidence derived from a social networking website, the trial judge must determine that there is proof from which a reasonable juror could find that the evidence is what the proponent claims it to be. We shall hold in Sublet that the trial court did not err in excluding the admission of the four pages of the Facebook conversation. We shall hold in Harris that the trial court did not err in admitting the “direct messages” and “tweets” in evidence. We shall also hold in Monge-Martinez that the trial court did not err in admitting the Facebook messages authored by Monge-Martinez.

The court resolved three criminal cases in its decision.

There is a concurring and dissenting opinion.

 Use of social media as evidence in civil and criminal trials is likely to become increasingly important. Today we advanced our jurisprudence by adopting the “reasonable juror” standard and holding that circumstantial evidence can be sufficient to authenticate social media evidence. But the Majority set bad precedent in holding that a trial judge can establish such a high bar for authentication as the court did in the Sublet case. The Majority muddled our “reasonable juror” standard by refusing to accept Facebook posts as authenticated, based on an undisputed admission by the witness that she made posts referring to the fight at the party in a Facebook conversation with friends the day after the party, but denying the posts on the same topic occurring shortly thereafter. We would enunciate a clearer standard and advance the law more profitably if we affirmed the trial court rulings in Harris and Monge-Martinez, but reversed the trial court in Sublet.

(Mike Frisch)

April 23, 2015 in Law & Society | Permalink | Comments (0) | TrackBack (0)

Sunday, April 19, 2015

"In Aid Of Unrequited Love Or Misplaced Desire"

The Delaware Court of Chancery has held that a man had capacity to lavish gifts on a much younger woman.

Since the time of King David and Abishag—and, surely, before—certain old men have pursued an interest in certain young women.  Sometimes, as in that case, the relationship is one of a powerful man and an exploited woman.  Sometimes, it represents, no doubt, a May-December mutual romance, or at least a mercenary exchange of value for value. In other cases, however, it involves exploitation of an elderly and vulnerable benefactor. This case involves a relationship that quickly arose between a moderately well-to-do recent widower in his mid-eighties and a diner waitress of an age to be his granddaughter. The Petitioners—the old man’s heirs, trust and estate—allege the relationship is of the third variety described above; the Respondent contends it belongs in the second category.

During a fourteen-month relationship, George Reed, Jr. (“George Jr.”) lavished gifts on the Respondent, Lisa Grandelli, ranging from a few hundred dollars to a pickup truck costing over $30,000. He also paid cash—nearly a quarter-million dollars—for a condominium in Rehoboth Beach, titled jointly with Lisa with right of survivorship. The Petitioners, George Jr.’s estate, his trust and the beneficiaries of his will, seek, principally through imposition of equitable remedies, to recoup the value of these gifts.

Individuals are presumed competent unless proven otherwise, and are free to deploy their assets, wisely or foolishly, as they see fit. Equity may act in appropriate cases to remedy breaches of fiduciary duty or oppression, or to carry out the true intent of parties. If, however, equity were empowered to remedy every improvident expenditure in aid of unrequited love or misplaced desire, Delaware would need a Chancery Courthouse on every corner.

Lisa must account for the condo and pay back the estate for a Key West jaunt that was financed under false pretenses (her testimony on that issue was "a concatenation of self-serving lies").

The concluding lament

George Jr.’s heirs are upset that in the last months of his life, their father lavished expensive gifts on a much younger woman. Their position is natural; frankly, this is a case that was neither a pleasure to hear or write on. As a competent individual, however, George Jr.’s choices were his to make. Lisa, on the other hand, has treated as her own a condominium unit owned in common with George, Jr.’s Trust, for which she must account. In addition, loans made to her by George Jr. must be repaid, together with amounts to pay for the Key West trip, which she received based on false representations. The parties should submit an appropriate form of order. Each party must bear its own fees and costs.

(Mike Frisch)

April 19, 2015 in Law & Society | Permalink | Comments (0) | TrackBack (0)

Friday, April 3, 2015

Georgia Supremes: Website Posts Not Stalking

The Georgia Supreme Court held that the subject of an internet campaign is not entitled to injunctive relief as the posts about her were not "contact" and thus not prohibited stalking

Matthew Chan has a website on which he and others publish commentary critical of copyright enforcement practices that they consider predatory. Linda Ellis is a poet, and her efforts to enforce the copyright in her poetry have drawn the ire of Chan and his fellow commentators. On his website, they have published nearly 2,000 posts about Ellis, many of which are mean-spirited, some of which are distasteful and crude, and some of which publicize information about Ellis that she would prefer not to be so public. At least one post is written in the style of an open letter to Ellis, referring to her in the second person, and threatening to publicize additional information about Ellis and her family if she continues to employ the practices of which Chan and the other commentators disapprove. It is undisputed that Chan never caused any of these posts to be delivered to Ellis or otherwise brought to her attention. But it also is undisputed that Chan anticipated that Ellis might see the commentary on his website, and he may have even intended that she see certain of the posts, including the open letter to her.

No relief was granted because

the commentary about which Ellis complains was posted on Chan’s website, and Ellis learned of that commentary— that is, it arguably was communicated to her — only as a result of her choice to discover the content of the website. The evidence shows that Ellis visited the website herself — it appears, in fact, that she registered herself as an authorized commentator on the website — and that she had others visit the website and report back to her about the commentary published there. Generally speaking, our stalking law forbids speech only to the extent that it is directed to an unwilling listener and even if Ellis did not likewhat she heard, she cannot be fairly characterized as an unwilling listener. Ellis failed to prove that Chan “contacted” her without her consent, and the trial court erred when it concluded that Chan had stalked Ellis.

(Mike Frisch)

April 3, 2015 in Law & Society | Permalink | Comments (0) | TrackBack (0)

Tuesday, March 31, 2015

Kritzer on Lawyers at Work

Herbert M. Kritzer (U. Minn., Law) has published a new volume Lawyers at Work, collecting and updating his 35 years of empirical and theoretical study of attorneys in action, including daily office work, use of expert Kritzer ebook front Cover interior smallest reswitnesses, contingency fees, "professionalism," sanctions, and international comparisons. He's known as one of the most insightful and sustained researchers in law and political science on the legal occupation and professional literature. The book is published as part of my Quid Pro Books project and is found as such places as Amazon and Barnes & Noble, in print (hardcover and paperback) and ebooks. (Alan Childress)

March 31, 2015 in Billable Hours, Books, Law & Society | Permalink | Comments (0) | TrackBack (0)

Tuesday, March 17, 2015

Bias Crime Statute Void For Vagueness

The New Jersey Supreme Court has held that the state's bias crime statute is unconstitutionally vague.

The facts from the case headnote

 Defendant David Pomianek, Jr., co-defendant Michael Dorazo, Jr., and Steven Brodie, Jr., worked for the Parks and Recreation Division of the Gloucester Township Department of Public Works. Defendant and Dorazo, who are Caucasian, worked as truck drivers. Brodie, who is African-American, worked as a laborer. On April 4, 2007, these men were assigned to work at an old garage used for storage by Public Works. In the garage was a sixteen-foot long and eight-foot wide steel storage cage. The cage was enclosed by a heavy chain-link fence on three sides and a cinder block wall on the fourth side and was secured by a sliding chain-link door with a padlock. A number of employees were horsing around in the building and "wrestling" in the cage. In a ruse, Dorazo approached Brodie and told him that their supervisor needed an item from the cage. Once inside the cage, Dorazo shut the cage door, locking Brodie inside.

A number of Public Works employees began laughing, but Brodie found no humor in his predicament. Brodie recalled defendant saying, "Oh, you see, you throw a banana in the cage and he goes right in," which triggered more laughter among the men. Brodie considered the remark to be "racial" in nature. From his perspective, the line about "throwing the banana in there" was like "being called a monkey in a cage." Brodie admitted, however, that he never heard defendant call him a monkey. The cage door was unlocked after three to five minutes. Brodie felt humiliated and embarrassed. After his release, Dorazo was heard saying, "You all right, buddy? We were just joking around." Brodie replied, "Yeah, yeah, I’m fine."

The incident led to a 16 count indictment and conviction on the bias charges.

The court

At issue in this appeal is the constitutionality of N.J.S.A. 2C:16-1(a)(3), a bias-crime statute that allows a jury to convict a defendant even when bias did not motivate the commission of the offense. Under the statute, a defendant may be convicted of bias intimidation if the victim "reasonably believed" that the defendant committed the offense on account of the victim’s race. Unlike any other bias-crime statute in the country, N.J.S.A. 2C:16-1(a)(3) focuses on the victim’s, not the defendant’s, state of mind. The defendant’s fate depends not on whether bias was the purpose for the commission of the crime but on whether the victim "reasonably believed" that was the purpose. Whether a victim reasonably believes he was targeted for a bias crime will necessarily be informed by the victim’s individual experiences and distinctive cultural, historical, and familial heritage –- all of which may be unknown or unknowable to the defendant.

Although a jury found defendant David Pomianek, Jr., guilty of the disorderly persons’ offense of harassment, it found him not guilty of purposely or knowingly harassing the victim because of the victim’s race or color. The jury, however, convicted defendant of bias harassment on the ground that the victim either "reasonably believed that the harassment was committed with a purpose to intimidate him" or that "he was selected to be the target [of harassment] because of his race [or] color." Based on the bias-intimidation verdict, defendant was also convicted of official misconduct.

The Appellate Division reversed the bias-harassment conviction. It concluded that a conviction "based on the victim’s perception" and not on the "defendant’s biased intent" would violate the First Amendment of the United States Constitution. State v. Pomianek, 429 N.J. Super. 339, 343, 358-59 (App. Div. 2013). To save N.J.S.A. 2C:16-1(a)(3), the Appellate Division rewrote the statute to impose a state-of-mind requirement and remanded for a new trial on both bias harassment and official misconduct. Id. at 343-44.

We hold that N.J.S.A. 2C:16-1(a)(3), due to its vagueness, violates the Due Process Clause of the Fourteenth Amendment. In focusing on the victim’s perception and not the defendant’s intent, the statute does not give a defendant sufficient guidance or notice on how to conform to the law. That is so because a defendant may be convicted of a bias crime even though a jury may conclude that the defendant had no intent to commit such a crime. We are therefore constrained to reverse...

The decision is unanimous. (Mike Frisch)

March 17, 2015 in Law & Society | Permalink | Comments (0) | TrackBack (0)

Wednesday, February 11, 2015


The New York Appellate Division for the First Judicial Department affirmed the dismissal of a suit brought against Vanity Fair.

Plaintiff failed to state a cause of action for defamation based on allegedly false and disparaging statements in an article published in the September 2010 issue of Vanity Fair ("Cassini Royale") that reports on plaintiff's secret marriage to the late designer, Oleg Cassini, and her conduct in litigation concerning his estate. Contrary to plaintiff's contention, the allegedly defamatory statements, including a quoted statement that plaintiff and her sisters used to throw parties in the 1960s that were attended by many wealthy "older guys looking for action," do not imply that plaintiff was a prostitute and lacked sexual morals. Given the overall context in which the statements were made, a reasonable reader would not conclude that plaintiff was a prostitute or otherwise unchaste. Nor were the statements so "extreme and outrageous" that they would support an action for infliction of emotional distress (citations omitted).

(Mike Frisch)

February 11, 2015 in Law & Society | Permalink | Comments (0) | TrackBack (0)

Friday, January 23, 2015

SLAPPed Down

The Washington State Supreme Court has held 

The city of Yakima claims the protection of statutes that were designed to protect the rights of those who engage in First Amendment protected communicative activity. U.S. CONST. amend. I. Those statutes-Washington's "anti -SLAPP" laws-protect speakers against frivolous,  speech-chilling lawsuits. We hold that a governmental entity like Yakima cannot take advantage of the anti-SLAPP statutes at least where, as here, the challenged lawsuit is not based on the government's own communicative activity. We reverse the Court of Appeals' decision to dismiss as moot Yakima's appeal of the trial court's decision to deny Yakima's anti-SLAPP motion. Instead, we hold that the case is ripe for review and reinstate the trial court's decision to deny Yakima's antiSLAP motion.

The case involves an employment claim by the police officer contending that he had been  subjected to a hostile workplace as a result of internal investigations into complaints filed by fellow officers. (Mike Frisch)

January 23, 2015 in Hot Topics, Law & Society | Permalink | Comments (0) | TrackBack (0)

Thursday, January 15, 2015

Medicaid Advice And Unauthorized Practice

The Florida Supreme Court has approved an ethics opinion dealing with whether providing medicaid advice violates prohibitions on the unauthorized practice of law

 the Florida Bar Elder Law Section’s Unlicensed Practice of Law Subcommittee petitioned the Florida Bar’s Standing Committee on the Unlicensed Practice of Law (Standing Committee) for an advisory opinion on whether it constitutes the unlicensed practice of law for a nonlawyer to engage in the following Medicaid planning activities leading up to the Medicaid application: (1) drafting of personal service contracts; (2) preparation and execution of qualified income trusts; or (3) rendering legal advice regarding the implementation of Florida law to obtain Medicaid benefits.

The committee

It is the opinion of the Standing Committee that it constitutes the unlicensed practice of law for a nonlawyer to draft a personal service contract and to determine the need for, prepare, and execute a Qualified Income Trust including gathering the information necessary to complete the trust. Moreover, a nonlawyer should not be authorized to sell personal service or Qualified Income Trust forms or kits in the area of Medicaid planning.

 It is also the opinion of the Standing Committee that it constitutes the unlicensed practice of law for a nonlawyer to render legal advice regarding the implementation of Florida law to obtain Medicaid benefits. This includes advising an individual on the appropriate legal strategies available for spending down and restructuring assets and the need for a personal service contract or Qualified Income Trust.

 It is the position of the Standing Committee that a nonlawyer’s preparation of the Medicaid application itself would not constitute the unlicensed practice of law as it is authorized by federal law. As noted earlier, it is also not the unlicensed practice of law for DCF staff to tell Medicaid applicants about Medicaid trusts and other eligibility laws and policies governing the structuring of income and assets when relevant to the applicant’s facts and financial situation.

The court order states that the inquiry was a result of activities of the Forida Department of Children and Families.

The opinion has the force and effect of the court's orders. (Mike Frisch)

January 15, 2015 in Bar Discipline & Process, Current Affairs, Hot Topics, Law & Society | Permalink | Comments (0) | TrackBack (0)

Tuesday, November 18, 2014

The Law Of Double Parking

The double parker is not always responsible for any accident that results from being double parked, according to a decision from the jurisdiction most likely to deal with double parkers.

The New York Appellate Division for the First Judicial Department affirmed summary judgment for the double parker

The fact that a vehicle is double parked "does not automatically establish that such double parking was the proximate cause of the accident" (DeAngelis v Kirschner, 171 AD2d 593, 595 [1st Dept 1991]). Here, plaintiff established her prima facie entitlement to summary judgment by demonstrating that the location of her vehicle merely furnished the condition or occasion for the occurrence of the event but was not one of its causes...

The record demonstrates that plaintiff's vehicle was double parked on a one way street. Defendants' vehicle, moving in the same direction, successfully passed plaintiff's vehicle on the left and pulled approximately three to four car lengths in front of it before stopping. One to two seconds later, defendants' vehicle drove in reverse in an erratic manner and struck the front of plaintiff's car, which was stationary at all times. According to plaintiff, while defendants' vehicle was moving in reverse towards her vehicle, she had her foot on the brake and sounded her horn. Defendants' vehicle did not stop, and plaintiff had no time to react before the collision. After the accident, the driver of defendants' vehicle told plaintiff that he was sorry, that the accident was his fault, and that he was having an argument with his passenger and had accidently backed up into plaintiff's vehicle.

No mention whether George Costanza had anything to do with this. (Mike Frisch)

November 18, 2014 in Law & Society | Permalink | Comments (0) | TrackBack (0)

Wednesday, October 22, 2014

Ethics Journal Current Developments Issue Is Out

My favorite issue of the Georgetown Journal of Legal Ethics -our yearly compilation of student notes on current developments in ethics law -  has just hit the street.

This issue holds up well with the past editions and gives the reader excellent exposure to the hottest legal ethics issues that face 21st century members of the legal profession.

As co-faculty advisor (along with my colleague Professor Mitt Regan) to the journal, I am biased in its favor.

With that disclaimer, I highly recommend that all practitioners with an interest in ethics take a look.

Kudos to the journal staff for their hard work and dedication to this notable contribution to the profession. (Mike Frisch)

October 22, 2014 in Ethics, Hot Topics, Judicial Ethics and the Courts, Law & Society, Law Firms, Professional Responsibility | Permalink | Comments (0) | TrackBack (0)

Tuesday, October 7, 2014

Death Be Public Or I, Flavius

The Indiana Supreme Court has held that certificates of death are public records, in response to the requests of a newspaper and an individual

In our society, death is an intimate and personal matter. We recognize that public disclosure of the details of a decedent’s death may cause pain to his family and friends. We are also mindful of the importance of open and transparent government to the health of our body politic. Our General Assembly has considered these competing interests and, insofar as we can determine, concluded that the public interest outweighs the private. Indeed, in recent history, it has rejected three bills that would have exempted death certificates from APRA. See H.B. 1067...Even if we wished to rebalance the scales, it is beyond our power to do so.

The court traced the history of death records in the state going back to the work of Senator Flavius J. Van Vorhis of Marion in 1881. (Mike Frisch)

October 7, 2014 in Law & Society | Permalink | Comments (0) | TrackBack (0)

Thursday, October 2, 2014

West Virginia Justices Save Dog From Execution; Dissent Remembers Faithful "Bozo"

A death sentence imposed upon a dog was reversed by the West Virginia Supreme Court of Appeals.

The story

On March 6, 2013, Bluefield Animal Control Officer Randall Thompson responded to a complaint about two dogs at Ms. Robinson’s residence. The complaint stated that one dog was running at large and that a second dog had inadequate shelter.

While investigating the complaint at Ms. Robinson’s residence, Officer Thompson was attacked by one of Ms. Robinson’s dogs, Major. Major was “tied-up” when Officer Thompson arrived at the residence. While Officer Thompson was talking to Ms. Robinson, Major broke free from the chain and bit Officer Thompson on both of his hands. Officer Thompson sought medical treatment following this incident.

A death order can only be imposed on

satisfactory proof that the dog is “vicious, dangerous, or in the habit of biting or attacking other persons or other dogs or animals” [that] must be presented before a circuit court or a magistrate.

The proof here did not meet that standard.

 Justice Loughry favored death to the dog

In complete disregard of the unfortunate truth that not all dogs are like the beloved Lassie, a vicious dog has been granted a pardon by the highest court of this State. Indeed, the majority of this Court has seemingly turned a blind eye to the fact that the dog in question  broke free of its chain and engaged in a brutal and unprovoked attack upon an experienced humane officer, whose resultant injuries required surgery and a hospitalization that approximated five days.

The majority also seems to disregard the fact that the dog’s owner pled guilty to owning and keeping an animal known by her to be vicious, dangerous, and in the habit of biting persons in violation of Bluefield City Ordinance § 4-49. While I, too, love animals, and have fond memories of my childhood companion and faithful dog, “Bozo,” my affinity does not blind me to the sad reality that some dogs are dangerous and vicious, and inflict serious injuries, and even death, on innocent victims

The pardoned dog is a pit bull terrier. (Mike Frisch) 

October 2, 2014 in Law & Society | Permalink | Comments (0) | TrackBack (0)

Sunday, September 7, 2014

Galanter's famous "Why the Haves Come Out Ahead" essay is reprinted as a book

The role of the legal profession and procedural-systemic advantages to repeat players and corporations are both at the heart of Marc Galanter's 1974 article "Why the 'Haves' Come Out AheCover Galanter interior for Qad." He wanted to make it available to classes and the like in a short-ish, cheap book, so I worked with him and we did that. Here's the 40th-anniversary paperback at Amazon, and in a week or two we'll add ebooks and a hardcover version. For now, though, it may be that profs who teach from the article and assign a photocopy may prefer this new incarnation by Galanter (Wisconsin) and his new introduction. It also adds new commentary by Shauhin Talesh (UC-Irvine) and Robert Gordon (Stanford). Obviously I have an interest in it, as series editor and publisher, so take this FWIW, but I did think teachers would want to know it's out now in this form. I was happy to work with Marc to release it this way. [Alan Childress]

September 7, 2014 in Books, Childress, Law & Society | Permalink | Comments (0) | TrackBack (0)

Tuesday, August 5, 2014

Collection of papers on "Jews and the Law" and in the legal profession: now published as a book and ebook

Collecting essays presented in a conference held at Cardozo Law School a few years agCover JATL interior final (3)o, editors Ari Mermelstein, Victoria Saker Woeste, Ethan Zadoff and Marc Galanter have published a new book on Jews and Judaism in the legal profession and law. Called Jews and the Law, it is a book of legal history and current insights about the profession, law firms, networks, assimilation, and antisemitism. Here is a story about it by Dan Ernst on Legal History Blog. It was published through my Quid Pro Books publishing project, and so it no longer sits as a collection of unpublished papers from a conference but is now -- I am proud to say -- a resource that can be read by anyone or recommended to a library to acquire. Its Amazon page for the paperback is here, and it can also be bought at many other places and in ebook sites such as Apple, Play, Kindle and Nook. [Alan Childress]

August 5, 2014 in Books, Law & Society, Law Firms | Permalink | Comments (0) | TrackBack (0)

Wednesday, July 2, 2014

Lack Of Biological Connection No Bar To Parent Status

The New Hampshire Supreme Court has held that a woman whose then-partner had a child through insemination of an anonymous sperm donor had adequately pleaded parentage of the child in guardianship and adoption proceedings.

Assuming the truth of Susan’s alleged facts, and construing all reasonable inferences in the light most favorable to her...we conclude that she adequately pleaded that she received Madelyn into her home and openly held Madelyn out as her child. She and Melissa planned to have and raise children together. They prepared Madelyn’s nursery together in the home they had jointly purchased because they "thought it would be a good place to raise a family." When Madelyn was born, Susan was in the delivery room. She alleges: "From the very beginning, Maddie, Melissa, and I were a family. Melissa was the ‘Mommy,’ and I was the ‘Momma.’ Together we were . . . Maddie’s parents, and Maddie was our daughter. I loved Maddie as my daughter, treated her as my daughter, and saw her as my daughter."

Susan’s allegations, taken as true, indicate that Melissa also regarded Susan as Madelyn’s parent as evidenced by, among other things, giving Susan a greeting card commemorating the "Birth of Our Baby," and including her as "Momma," and her parents as Madelyn’s grandparents, on Madelyn’s family tree. The allegations also indicate that Susan appeared "to the world" to be Madelyn’s parent. Madelyn shares Susan’s last name. Susan was named as a parent, along with Melissa, in birth announcements and in a church ceremony. Susan was named as a parent in Madelyn’s school and medical records, and was treated as a parent at Madelyn’s preschool.

The court concluded that the governing statutes apply equally to men and women and that the "lack of a biological connection" was not a bar to a parent-status claim. (Mike Frisch)

July 2, 2014 in Law & Society | Permalink | Comments (0) | TrackBack (0)

Thursday, June 26, 2014

Flying Hotdog Not Inherent Risk Of Watching A Baseball Game

A longtime Kansas City Royals baseball fan who lost a jury verdict for an eye  injury allegedly sustained during the "Hotdog Launch" by team mascot Sluggerrr gets a new trial.

The plaintiff was at a sparsely attended game with the Tigers.The court noted that the Royals won.

He and his father had moved down into choice seats nearthe dugout. He claimed he was struck by a hand-tossed hotdog but did not report any injury at the time. In fact, he attended the next night's game.

He sought medical attention and claimed the toss caused a detached retina. He advised the Royals of his claim eight days after the incident.

Sluggerrr had no memory of the event.

The jury found the plaintiff 100% at fault.

From the web page ofthe Missouri Supreme Court

A spectator, allegedly injured when a hot dog tossed by a baseball team’s mascot hit him in the eye, appeals a jury verdict in favor of the team that assessed 100 percent of the fault for his injury to him. In a unanimous decision written by Judge Paul C. Wilson, the Supreme Court of Missouri vacates the judgment and remands (sends back) the case. Whether a particular risk is inherent in watching a sporting event is a question of law for the court, not a question of fact for the jury. The risk of being injured by the hotdog toss is not one of the inherent risks of watching a baseball game. As a result, the trial court erred in submitting an instruction putting this question to the jury. Because the error affected the outcome of the case, it was prejudicial, requiring the judgment to be vacated and the case remanded.
The court's opinion is linked here. Also linked is a story from the Associated Press.
(Mike Frisch)

June 26, 2014 in Law & Business, Law & Society, Lawyers & Popular Culture | Permalink | Comments (0) | TrackBack (0)