Thursday, January 15, 2015
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.
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)
Tuesday, November 18, 2014
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)
Wednesday, October 22, 2014
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)
Tuesday, October 7, 2014
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)
Thursday, October 2, 2014
A death sentence imposed upon a dog was reversed by the West Virginia Supreme Court of Appeals.
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)
Sunday, September 7, 2014
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 Ahead." 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]
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 ago, 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]
Wednesday, July 2, 2014
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)
Thursday, June 26, 2014
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
Tuesday, May 6, 2014
A law firm's suit for defamation was dismissed by the New York Appellate Division for the First Judicial Department:
In this action for defamation, plaintiffs, a law firm and its two members, allege that defendant, the chief executive of a party named as a defendant in a law suit brought by plaintiffs on behalf of their client, NDTV, defamed them in an interview conducted by a journalist in India and published in an online Indian financial publication. Among the allegedly false and defamatory statements made by defendant were that the plaintiff firm is a two-lawyer, Florida-based law firm specializing in restaurant law, that it accepted cases on a contingency basis, and that it broached the topic of settlement with their client's adversaries in an attempt to "extort" money from them.
The motion Court properly found that plaintiffs failed to state a valid cause of action for defamation. Given the overall context in which the statements were made, a reasonable reader would conclude that they constitute hyperbole and convey non-actionable opinions about the merits of the lawsuit and the motivation of NDTV's attorneys, rather than statements of fact.
Friday, April 11, 2014
Most of the ebooks and print books produced by the book project I started in 2010, called Quid Pro Books, are on law, history or political science, and are not really the topic of this blog. But one we released this week goes to its core. It is a republication, in Kindle, Google Play, and Nook formats (and next week in Apple iTunes; this summer in paperback), of the renowned collection edited by Robert Dingwall and Philip S.C. Lewis, The Sociology of the Professions: Lawyers, Doctors and Others. The new edition adds a substantive 2014 Foreword by Sida Liu of the University of Wisconsin. Chapters are by Dingwall, Lewis, Paul Atkinson, Maureen Cain, John Eekelaar, Eliot Freidson, Marc Galanter, Gordon Horobin, Malcolm Johnson, Geoff Mungham, Topsy Murray, Alan Paterson, Dietrich Rueschemeyer, P.M. Strong, and Philip Thomas. A full description is found at any of the links above.
We also just released a courtroom thriller by University of Houston law prof David Crump, The Target Defendant. Its ebooks are out already, and the paperback will follow next week. And last month we published a mystery novel by Stanford law prof Lawrence Friedman, called Who Killed Maggie Swift? Here is an interview of Professor Friedman in Palo Alto Weekly in which he discusses mystery writing and his other books with this publishing project ... and shouts out to me! [Alan Childress]
Friday, February 7, 2014
An interesting opinion from the New York Appellate Division for the First Judicial Department sounds like a New York, New York kind of a story
This case, apparently one of first impression, aptly illustrates the well-known axiom that cautions against mixing business with pleasure. The question presented is whether a so-ordered stipulation, agreed upon by plaintiff and defendant Valenti in Family Court and which precludes all contact between them except by counsel, renders impossible the performance of two prior contracts between plaintiff and Jayarvee, Inc., Valenti's artist management company. We hold that it does.
Plaintiff is a well-known professional jazz singer. Valenti is the sole shareholder and president of Jayarvee, a corporation that manages musical artists, produces musical recordings, and owns and operates the well-known jazz club Birdland. Plaintiff and Valenti met in 2003 while plaintiff was performing at Birdland, and the two quickly kindled a romantic relationship. By early 2004, plaintiff had moved into Valenti's Manhattan apartment. They became engaged that year, and for some years held themselves out as husband and wife, although they never married. They also developed a professional relationship, many details of which are still at issue in Supreme Court.
By 2011, the couple's personal relationship had deteriorated. Plaintiff alleges that in or about March 2011, Valenti obtained her private electronic materials — in part by physically overpowering her — and subsequently made repeated threats to release those materials to the public. He allegedly stated that he would ruin plaintiff's professional career and personal life by posting the data on the internet.
Despite the ongoing personal drama between plaintiff and Valenti, their professional relationship continued. Plaintiff and Jayarvee — with Valenti signing as the company's president — entered into a recording contract and a management contract in April 2011 and June 2011, respectively. Plaintiff moved out of their shared residence in May 2011.
Nonetheless, in October 2011, plaintiff commenced a Family Court proceeding in which she sought an order of protection against Valenti. The court granted a temporary order of protection that, inter alia, prevented Valenti from contacting plaintiff, either directly or through third parties. The order was extended on consent several times through June 2012.
Plaintiff commenced the instant action on November 21, 2011 — while the Family Court proceeding was pending — against Valenti, Jayarvee, and plaintiff's accountant, Howard Weiss (who is not a party to this appeal). Among other things, plaintiff sought rescission of the contracts and a declaration that Jayarvee was in breach. In April 2012, defendants answered, Valenti counterclaimed for the return of an engagement ring he had given to plaintiff, and Jayarvee counterclaimed for breach of the contracts. Defendants then moved for a default judgment against plaintiff for failure to timely respond to the counterclaims; the motion was ultimately denied. In their verified answer, Valenti and Jayarvee — and Valenti, in his affidavit in support of defendants' motion for default — argued that the temporary order of protection had made performance of the contracts impossible.
Plaintiff and Valenti resolved the Family Court matter on June 13, 2012, by entering into a stipulation, so-ordered by the court. Under the terms of the stipulation, plaintiff withdrew her petition without prejudice, and both parties agreed to have no further contact with each other. The stipulation specified that "[n]o contact shall include no third party contact, excepting counsel." Following that provision, there is language, visibly crossed out, that would have allowed for contact by "other individuals at Jayarvee or [Valenti's] place of business." Thereafter, plaintiff moved for partial summary judgment on her claims for rescission of the contracts. Supreme Court granted the motion and declared both contracts terminated on the ground of impossibility. We now affirm.
The court intrepeted and applied the doctrine of impossibility. (Mike Frisch)
Thursday, February 6, 2014
The District of Columbia Court of Appeals has affirmed the divorce decree, initial custody and visitation orders in a domestic dispute that involved the twin sister of Jill Kelley, noted for her role in the General Petraeus downfall.
The litigation had been the subject of numerous media reports because of the Petraeus connection.
The court remanded for further proceedings a motion to modify the custody award to the father and dismissed an appeal to the attorney's fees award "for lack of a final order."
The National Organization for Women Foundation filed an amicus brief on behalf of the mother.
Judge McLeese wrote the division's opinion. (Mike Frisch)
Friday, November 15, 2013
Konefsky and Sullivan on Placing the Big Changes to Legal Practice and Legal Education into a Broader Context of the Profession
Alfred Konefsky (SUNY University at Buffalo, Law) and Barry Sullivan (Loyola-Chicago, Law) have posted to SSRN their fascinating paper, "In This, the Winter of Our Discontent: Legal Practice, Legal Education, and the Culture of Distrust." It will be published in Buffalo Law Review. Its abstract:
This essay seeks to situate the challenges facing legal education within the broader context of professional culture — a context that seems to us to have been neglected in the present debates. In a sense, the “market reformers” have been swept up, consciously or not, in a wider movement that elevates markets over other forms of social analysis and therefore asserts and takes for granted what is in fact deeply contested. More specifically, they have pushed to the side the public-serving dimension of the lawyer’s role because it allegedly conflicts with the psychology of classical economic liberalism. Our aim, then, is to restore the concept of the public domain to a discussion now dominated by mere considerations of costs and a belief in the inevitable triumph of a narrowed sense of professional culture. Before we can begin to reform the infrastructures of legal education, we need to identify the function of the legal profession in a democratic society and the role that a legal education might play in preparing men and women for service in a profession so conceived. In that sense, cost is not an independent variable, and any judgment about the cost-effectiveness of legal education necessarily depends on a decision concerning the purposes to be served by a legal education.
In Part I, we discuss, in a general way, some of the changes that have occurred in society, the profession, and legal education in the past 40 years or so. We are particularly interested in the growing tendency to re-conceptualize many social phenomena in market terms and the effects of this trend on legal education and the practice of law. In Part II, we continue our discussion of those themes, as they relate to the current debate over the future of legal education, by considering the analyses of Thomas D. Morgan and Brian Z. Tamanaha, both of whom approach the problem from the vantage point of economic analysis. Notwithstanding the similarities in their methodologies, their respective prescriptions point in somewhat different directions. We suggest that a broader view is necessary and that the work of these commentators and others suffers from a failure to give sufficient attention to the public dimension and significance of the legal profession. In Part III, we endeavor to reframe the problem in a way that may be useful in developing a forward-looking approach to accomplishing the reforms that are necessary.
Definitely worth a read, especially for its taking the costs meme from Tamanaha's Failing Law Schools and others to a different level. [Alan Childress]
November 15, 2013 in Abstracts Highlights - Academic Articles on the Legal Profession, Law & Society | Permalink | Comments (0) | TrackBack (0)
Tuesday, November 5, 2013
Thursday, October 17, 2013
A commercial landlord and the building's managers may be liable for invasion of privacy after installing surveillance cameras in the men's and women's bathrooms of a building, according to a decision of the New Jersey Appellate Division.
The defendants had gone to the video in response to vandalism, and claimed that privacy was not invaded because the toilet stalls were not surveilled.
The court concluded that "a rational jury could reject defendants' claim and find in favor of plaintiffs' factual contention that the scope of the surveillance included the toilet stalls."
The court held that the case was erroneously resolved by summary judgment in favor of the defendants as to invasion of privacy but affirmed the dismissal of infliction of emotional distress claims. (Mike Frisch)
Thursday, October 10, 2013
The New York Court of Appeals has held that the tort claims of a probationer who contends that a drug testing company falsely reported a positive test for drug use survive the company's motion to dismiss.
The court majority found that public policy favors a cause of action because
...the release of a false positive report will have profound, potentially life-altering consequences for a test subject. In particular, here, plaintiff faced the loss of freedom associated with serving an extended period of probation. The laboratory is also in the best position to prevent false positive results. Under the circumstances, we find that [the laboratory] had a duty to the test subject to perform his drug test in keeping with relevant professional standards and that the existence of its contract with the County does not immunize defendant laboratory.
Not according to the dissent
The law of defamation provides a remedy for people who claim that they have been falsely reported as testing positive for drugs. The remedy is subject to strict limits, as it should be. There is no good reason to invent a new tort.
Tuesday, September 24, 2013
A limited liability corporation that owns an Alququerque art filmhouse had its criminal conviction for an ordinance violation arising from a film festival ("Pornotopia") that showed at least one adult film reversed by the New Mexico Supreme Court.
The court concluded that a weekend of pornographic films does not make the theatre an "adult amusement establishment" any more than serving martinis on a single weekend makes a bar a "Martini Bar." The court quotes a Wisconsin case for this proposition.
The governing legal principle:
One weekend of erotic films per year does not an adult theatre make.
Tuesday, August 27, 2013
The New Jersey Appellate Division has held that "the sender of a text message can potentially be liable if an accident is caused by texting, but only if the sender knew or had special reason to know that the recipient would view the text while driving and thus be distracted."
The court affirmed the grant of summary judgment against the plaintiff but disagreed with the trial court's reasoning that the sender has no legal duty to someone injured by the driver's negligence.
The defendant sender testified that she sends 100 or more texts a day: "I'm a young teenager. That's what we do."
Claims against the young driver were settled.
The accident occured shortly after the driver had left the YMCA and caused both of the victims to suffer horrific injuries. (Mike Frisch)
Monday, August 26, 2013
Dinovitzer, Garth & Sterling Question (Empirically) Current Meme of Buyers' Remorse in Going to Law School
New at SSRN is Buyers' Remorse? An Empirical Assessment of the Desirability of a Legal Career by acclaimed law-and-society scholars Ronit Dinovitzer (Toronto), Bryant Garth (now at UC Irvine, in addition to ABF and Southwestern), and Joyce Sterling (Denver). Their abstract:
The literature attacking the value of legal education relies as a rule on the idea that individuals attend non-elite law schools because of optimism bias -- thinking they will get the lucrative corporate jobs deemed necessary to pay off educational debt. They presumably would then get buyers' remorse when their optimism proves unjustified. Drawing on the first two waves of the only longitudinal data on lawyer careers, the After the J.D. Study, the authors examine whether those who began their careers in the year 2000 -- with substantial debt even if not as high as today's graduates -- showed evidence of buyers' remorse about their decision to get a law degree. The evidence indicates that law graduates beyond the most elite were able to pay down their debt at the same rate or better than most elite law graduates. In addition, after seven years of practice the great majority of these lawyers were still satisfied with their decision to become lawyers. In fact, there is no statistically significant difference in reported satisfaction with the decision to become a lawyer when we compare graduates from the higher and lower ranked law schools. And while there is some suggestion that lawyers who reported still owing more than $100,000 after seven years of practice were either ambivalent or dissatisfied with their decision to invest in a legal career, multivariate models show that percent of debt remaining seven-eight years into one's career has no significant relationship with career satisfaction. Thus, in contrast to the dominant story, most respondents irrespective of debt are extremely or moderately satisfied with their decision to become a lawyer. There is no indication in our data that these law graduates feel they made a mistake by choosing to go to law school. The data also show that those most likely to favor eliminating the third year of law school were elite law graduates and attorneys in large corporate law firms -- again a contrast to the dominant story.
Check it out. [Alan Childress]
August 26, 2013 in Abstracts Highlights - Academic Articles on the Legal Profession, Law & Society | Permalink | Comments (0) | TrackBack (0)