Thursday, October 22, 2020

Vanilla Claim May Go Forward

Neither side gets summary judgment in a tort claim brought against a veterinary clinic for a waiting room encounter according to an opinion of the New York Court of Appeals

Defendant Palmer Veterinary Clinic, PC treated Vanilla, a dog, for a paw injury at its clinic. That same day, plaintiff Marsha Hewitt brought her cat to the clinic for an examination. As plaintiff waited in the reception area, a veterinarian returned Vanilla to her owner in the waiting room; the dog had just undergone a medical procedure to remove a broken toenail. At some point after the veterinarian handed Vanilla’s leash back to her owner, Vanilla saw plaintiff’s cat in its carrier, slipped her collar and—in an apparent attempt to reach the cat—jumped at plaintiff from behind, grabbing her ponytail.

Several months later, plaintiff commenced the instant action against Palmer, alleging that she suffered injuries as a result of the incident. As relevant here, the complaint alleged that Palmer had a duty to provide a safe waiting room, that Palmer breached that duty by failing to exercise due care and by bringing an “agitated, distressed” dog into the waiting area, and that Palmer knew Vanilla had vicious propensities and was in an agitated and aggressive state.

The court reversed the grant of summary judgment to the clinic. 

Supreme Court granted Palmer’s motion for summary judgment, reasoning that Palmer’s liability was contingent upon it having had notice of vicious propensities in the same manner as that of a dog owner. Upon plaintiff’s appeal, the Appellate Division affirmed, with one Justice dissenting in part (167 AD3d 1120 [3d Dept 2018]).

The "vicious propensity"(one free bite) rule that applies to dog owners did not govern

It is undisputed that Palmer owed a duty of care to plaintiff—a client in its waiting room. Palmer is a veterinary clinic, whose agents have specialized knowledge relating to animal behavior and the treatment of animals who may be ill, injured, in pain, or otherwise distressed. An animal in a veterinary office may experience various stressors—in addition to illness or pain—including the potential absence of its owner and exposure to unfamiliar people, animals, and surroundings. Moreover, veterinarians or other agents of a veterinary practice may—either unavoidably in the course of treatment, or otherwise—create circumstances that give rise to a substantial risk of aggressive behavior. Indeed, here, a veterinarian introduced Vanilla into a purportedly crowded waiting room, where the dog was in close proximity to strangers and their pets—allegedly creating a volatile environment for an animal that had just undergone a medical procedure and may have been in pain. Palmer is in the business of treating animals and employs veterinarians equipped  with specialized knowledge and experience concerning animal behavior—who, in turn, may be aware of, or may create, stressors giving rise to a substantial risk of aggressive behavior. With this knowledge, veterinary clinics are uniquely well-equipped to anticipate and guard against the risk of aggressive animal behavior that may occur in their practices— an environment over which they have substantial control, and which potentially may be designed to mitigate this risk.

Therefore, we conclude that Palmer does not need the protection afforded by the vicious propensities notice requirement, and the absence of such notice here does not warrant dismissal of plaintiff’s claim.

Justice Wilson

I concur with the majority’s holding that Ms. Hewitt may proceed against Palmer Veterinary Clinic (Palmer) in negligence. I further agree with the majority’s holding that this case does not implicate Bard’s rule (subjecting animal owners to strict liability) because Palmer was not the owner of Vanilla, the dog who injured Ms. Hewitt. Because the record presents disputed issues of fact, I further agree with the majority that neither party is entitled to summary judgment. I concur separately to express why prudence and longstanding precedent dictate that Bard’s strict liability rule—a rule that has rendered New York an outlier and confounded common sense and fairness in application—should not be extended to persons who are not the owner of the domestic animal causing injury.

I note that neither party has asked us to overturn Bard—understandably so because its rule does not apply to the facts of this case.

...It remains for the trier of fact to resolve the issue of whether the exercise of due care under the circumstances would have required any or all of the measures advocated by Ms. Hewitt’s expert affiant, for example, delaying Vanilla’s return to the waiting room or discharging her through a separate room, checking or adjusting Vanilla’s collar, or otherwise preventing Vanilla from coming close to Ms. Hewitt’s cat. Thus, neither Palmer nor Ms. Hewitt is entitled to summary judgment.

(Mike Frisch)

October 22, 2020 in Current Affairs | Permalink | Comments (0)

Monday, October 19, 2020

Georgia: Votes For Deceased Candidate Void

The Georgia Supreme Court has held that votes cast for a deceased candidate do not count

Jerry NeSmith earned the support of a sufficient number of his community members to be elected as their district’s commissioner for the Athens-Clarke County Unified Government. Sadly, NeSmith died just three days before Election Day. In addition to the personal loss of his family and friends, NeSmith’s death before Election Day ultimately resulted in an electoral loss for his supporters, a number of whom joined to bring suit in superior court challenging the results of the election.

Because the applicable Georgia statutes dictate that votes cast on paper ballots for a candidate who has died before Election Day are void, none of the votes cast for NeSmith had legal effect.

Accordingly, for reasons more fully explained below, we determine that the Athens-Clarke County Board of Elections properly applied OCGA §§ 21-2-437 (d) and 21-2-438 (a) when it voided the votes cast for NeSmith and declared Jesse Houle the commissioner-elect for Athens-Clarke County Commission District 6. Moreover, we also hold that the Board’s application of those statutes in this case did not violate any rights of the appellants under the First or Fourteenth Amendments to the United States Constitution or the equal protection clause of the Georgia Constitution. Accordingly, we affirm the order of the superior court dismissing the appellants’ election challenge.

(Mike Frisch )

October 19, 2020 in Current Affairs | Permalink | Comments (0)

Sunday, September 13, 2020

Legal Malpractice Arbitration Agreements Upheld In Georgia

The Georgia Supreme Court has held that a retainer provision mandating arbitration of legal malpractice claims does not violate public policy

Innovative Images, LLC (“Innovative”) sued its former attorney James Darren Summerville, Summerville Moore, P.C., and The Summerville Firm, LLC (collectively, the “Summerville Defendants”) for legal malpractice. In response, the Summerville Defendants filed a motion to dismiss the suit and to compel arbitration in accordance with the parties’ engagement agreement, which included a clause mandating arbitration for any dispute arising under the agreement.

The trial court denied the motion to dismiss, concluding that the agreement was unconscionable and violated public policy

the Court of Appeals reversed that ruling, holding that the arbitration clause was not void as against public policy or unconscionable.

The court here agreed

we conclude that regardless of whether Summerville violated GRPC Rule 1.4 (b) by entering into the mandatory arbitration clause in the engagement agreement without first apprising Innovative of the advantages and disadvantages of arbitration – an issue which we need not address – the clause is not void as against public policy because Innovative does not argue and no court has held that such an arbitration clause may never lawfully be included in an attorney-client contract. For similar reasons, the arbitration clause is not substantively unconscionable, and on the limited record before us, Innovative has not shown that the clause was procedurally unconscionable. Accordingly, we affirm the judgment of the Court of Appeals...

Even if we assume – as we will for the remainder of this opinion – that such conduct does violate Rule 1.4 (b) such that an attorney may be subject to professional discipline, the Arbitration Clause in dispute here is neither void as against public policy nor unconscionable.

Rather than unnecessarily addressing this attorney ethics issue by judicial opinion, we will leave it to the State Bar of Georgia to address in the first instance whether this is a subject worthy of a formal advisory opinion about or amendment to the GRPC. We have before us only one factual scenario and the arguments only of the parties and one amicus curiae (the Georgia Trial Lawyers Association). Under these circumstances, the Bar’s processes provide better opportunities to obtain input from all types of lawyers as well as the public and to consider all of the potentially applicable rules without limitation to a particular litigant’s arguments.

(Mike Frisch)

September 13, 2020 in Clients, Current Affairs | Permalink | Comments (0)

Friday, August 28, 2020

Gun Rights In The New Hampshire House Of Representatives

The New Hampshire Supreme Court reversed the dismissal of a complaint

The appellant, John Burt, a member of the New Hampshire House of Representatives, appeals an order of the Superior Court (Kissinger, J.) dismissing his complaint against Stephen Shurtleff, in his official capacity as the Speaker of the New Hampshire House of Representatives. In the complaint, the appellant, together with co-plaintiffs Kevin Craig, Alicia Lekas, Tony Lekas, and Hershel Nunez, each a member of the New Hampshire House of Representatives, alleged that House Rule 63 — which, with limited exceptions, prohibits the carrying or possession of any deadly weapon in Representatives Hall, as well as in the anterooms, cloakrooms, and House gallery — violates their fundamental rights under Part I, Article 2-a of the New Hampshire Constitution.

The trial court had dismissed on separation of powers grounds

The trial court concluded that, “[a]s an independent and coequal branch of government, the legislature holds the inherent power to control the wearing of firearms within their chambers. This Court will not encroach on the legislature’s inherent authority to enact such rules.”

The court on remand must address the constitutional challenge

Finally, the Speaker urges us to reject the constitutional challenge, arguing that House Rule 63 is constitutional because it “merely imposes a reasonable restriction on deadly weapons in the House chamber.”

...Here, the trial court did not address the merits of the constitutional challenge. We express no opinion as to that issue, and remand for further proceedings consistent with this opinion.

(Mike Frisch)

August 28, 2020 in Current Affairs | Permalink | Comments (0)

Friday, August 21, 2020

Qualified Immunity And Government Attorneys: No Liability When Court Disagrees On Interpretation Of Law

The United States Court of Appeals for the Fourth Circuit reversed the denial of qualified immunity to two government attorneys.

The plaintiff had sued on a theory that the attorney's erroneous interpretation of law had prolonged his incarceration

This suit raises interesting questions about the liability of government attorneys when an agency adopts their legal interpretation, but a court later disagrees. According to lawyers for the South Carolina Department of Corrections (“SCDC”), state law required Marion Campbell to serve at least eighty-five percent of his drug-distribution sentence before he could be released. The South Carolina Administrative Law Court agreed; the South Carolina Court of Appeals did not. Based on the appeals court’s ruling, the SCDC should have freed Campbell earlier than he was actually released based on the application of work and good-conduct credits.

After his release, Campbell filed this § 1983 suit. He asserts that the SCDC lawyers’ analysis of South Carolina law was erroneous and violated the Eighth Amendment’s prohibition on “cruel and unusual punishments” by prolonging his detention. But we find that qualified immunity shields the government attorneys. Assuming Campbell’s continued detention falls within the ambit of the Eighth Amendment, the SCDC lawyers were not deliberately indifferent to his plight. So Campbell has failed to make out a constitutional violation, and his suit must be dismissed.

Plaintiff had been incarcerated for a drug offense

To fulfill its responsibilities—including determining parole eligibility and calculating release dates based on earned credits—the SCDC needed to sort through the new law in all its contradictions. The task fell to Chris Florian, the SCDC’s deputy general counsel. Florian pored over the South Carolina caselaw on statutory interpretation and legislative intent. And based on his review, he concluded that South Carolina law required the SCDC to adopt a legal interpretation that harmonized potentially contradictory provisions of a statute, if possible.


Finding the meaning of the state law obvious, the district court explained that Campbell’s Eighth Amendment right was, therefore, clearly established. So Florian and Tatarsky were not entitled to qualified immunity.


Simply put, the record shows that Florian acted reasonably to confront the interpretive problem before him. See Farmer, 511 U.S. at 845 (“[P]rison officials who act reasonably cannot be found liable under the Cruel and Unusual Punishments Clause.”). Indeed, Florian approached the relevant statutory-interpretation questions as a careful attorney would.

Plaintiff invoked res ipsa

Even if the res ipsa loquitor doctrine can be applied here, it fails. An incorrect legal opinion often occurs without some negligent (much less reckless) act or omission. In our adversarial legal system, roughly 50% of litigants lose—and thus have pressed an incorrect legal opinion. Competent administrative agencies and lower courts are often overturned despite careful and thoughtful legal interpretations. Indeed, the South Carolina Administrative Law Court (an independent body) first upheld Florian’s reading of the Omnibus Act. And even at the highest levels of the law, four colleagues at times share an “incorrect” or “unreasonable” opinion. See Brett M. Kavanaugh, Fixing Statutory Interpretation, 129 HARV. L. REV. 2118, n.4 (2016) (listing recent “divides in statutory interpretation cases”). An unreasonable outcome in that context cannot support an inference that the dissenters were negligent or criminally reckless in their analysis.


The correct interpretation of the Omnibus Act has now been settled as a matter of state law—Florian and Tatarsky were wrong. But legal error alone is not deliberate indifference. As a result, Campbell fails to make out a violation of the Eighth Amendment. Florian and Tatarsky are thus entitled to qualified immunity, and Campbell’s claim against them should be dismissed with prejudice.

(Mike Frisch)

August 21, 2020 in Current Affairs | Permalink | Comments (0)

Thursday, August 20, 2020

With Friends Like These

A significant criminal law decision of the District of Columbia Court of Appeals reversed a murder conviction on Constitutional grounds due to an overbroad warrant authorizing a search of the defendant's cell phone

A Superior Court jury found Mr. Burns guilty of first-degree premeditated murder while armed and related weapons offenses in the November 14, 2015 shooting death of Onyekachi Osuchukwu. The government’s theory at trial was that Mr. Burns killed Mr. Osuchukwu, his best friend, because he thought Mr. Osuchukwu was cheating him out of his fair share of the proceeds of a drug dealing business the two men operated together. Mr. Burns argued that he acted in self-defense, testifying that he shot Mr. Osuchukwu at close range only after Mr. Osuchukwu rushed him and tried to wrestle away his gun in an argument over the money.

The government prevailed at trial largely on the strength of data obtained from two cell phones seized from Mr. Burns on the day after the shooting and the testimony of the Chief Medical Examiner about the results of an autopsy performed by one of his deputies. Police obtained the cell phone data pursuant to Superior Court search warrants that authorized a review of the entire contents of Mr. Burns’s phones; the data included highly incriminating records of internet search inquiries made by Mr. Burns in the days leading up to the homicide (“Are you capable of killing your best friend?” “How does it feel when you kill someone for the first time?” “Shot placement for instant kill?”) and enabled the government to paint a compelling picture of Mr. Burns’s premeditation and deliberation. The Chief Medical Examiner’s testimony contradicted Mr. Burns’s claims about the way the shooting unfolded with detailed information about the gunshot wounds described in the autopsy report, including the absence of soot and stippling the government argued would have been observed at the site of the wounds had the shots been fired from within inches of Mr. Osuchukwu’s body.

The appeal challenged the admission of the evidence extracted in executing the search warrant

An investigator with the United States Attorney’s Office executed the search warrants a few days later using a software program called Cellebrite to extract all of the data on both phones, including data the user of the phones likely believed had been deleted.

The court

Both constitutional claims implicate important and recurring aspects of the criminal process in the District of Columbia. Virtually everyone in the District now uses a cell phone — typically a modern smart phone capable of holding an extraordinary amount of personal information related to the user and/or owner of the device...

Yet despite the ubiquity of cell phones and cell phone search warrants, this is the first case in which this court has been called on to analyze the validity of a cell phone search warrant under the Warrant Clause.


A search warrant for data on a modern smart phone therefore must fully comply with the requirements of the Warrant Clause. It is not enough for police to show there is probable cause to arrest the owner or user of the cell phone, or even to establish probable cause to believe the phone contains some evidence of a crime.  To be compliant with the Fourth Amendment, the warrant must specify the particular items of evidence to be searched for and seized from the phone and be strictly limited to the time period and information or other data for which probable cause has been properly established through the facts and circumstances set forth under oath in the warrant’s supporting affidavit. Vigilance in enforcing the probable cause and particularity requirements is thus essential to the protection of the vital privacy interests inherent in virtually every modern cell phone and to the achievement of the “meaningful constraints” contemplated in Riley, 573 U.S. at 399.


We conclude that Mr. Burns has established violations of his rights under both the Fourth and the Sixth Amendments. Police sought search warrants that authorized an unlimited review of the contents of his cell phones for “any evidence” of murder even though the warrants were supported by affidavits that established probable cause for only three narrow and discrete items of data. The warrants were thus overbroad and lacking in probable cause and particularity, and the warrant judge should not have issued them. The warrants’ deficiencies, moreover, were so extreme and apparent that a reasonably well-trained police officer, with reasonable knowledge of what the law prohibits, would have known the warrants were invalid notwithstanding their approval by a judge. The good faith exception to the exclusionary rule therefore does not apply, and the trial judge should have granted Mr. Burns’s motion to suppress all of the data collected from both phones. Separately, the Chief Medical Examiner’s testimony plainly transmitted to the jury the findings of the deputy medical examiner who conducted the autopsy on Mr. Osuchukwu’s remains. Because those findings, set forth in the autopsy report and other materials maintained in the autopsy file, were made in the context of an ongoing police investigation of a homicide, the findings were “testimonial” and their communication to the jury through the Chief Medical Examiner’s testimony violated the Confrontation Clause. Both constitutional
errors prejudiced Mr. Burns at trial, and in combination they cannot be deemed harmless beyond a reasonable doubt.

Superior Court Associate Judge Kravitz (sitting by designation) authored the opinion joined by Associate Judges fisher and Easterly. (Mike Frisch)

August 20, 2020 in Current Affairs | Permalink | Comments (0)

Wednesday, August 19, 2020

Crime And Punishment In Indiana

The Indiana Supreme Court addressed thorny criminal law issues in two cases decided yesterday.

Double jeopardy in the Wadle case

we expressly overrule the Richardson constitutional tests in resolving claims of substantive double jeopardy. Going forward, and with a focus on statutory interpretation, we adopt an analytical framework that applies the statutory rules of double jeopardy. See infra Section I.B.3. This framework, which applies when a defendant’s single act or transaction implicates multiple criminal statutes (rather than a single statute), consists of a two-part inquiry: First, a court must determine, under our included offense statutes, whether one charged offense encompasses another charged offense. Second, a court must look at the underlying facts—as alleged in the information and as adduced at trial—to determine whether the charged offenses are the “same.” If the facts show two separate and distinct crimes, there’s no violation of substantive double jeopardy, even if one offense is, by definition, “included” in the other. But if the facts show only a single continuous crime, and one statutory offense is included in the other, then the presumption is that the legislation intends for alternative (rather than cumulative) sanctions. The State can rebut this presumption only by showing that the statute—either in express terms or by unmistakable implication—clearly permits multiple punishment.

The defendant here stands convicted of several offenses for leaving the scene of an accident after twice striking and seriously injuring his victim while driving drunk. Because we interpret the statutory offenses charged as alternative sanctions, we hold that the defendant’s multiple convictions violate the statutory rules of substantive double jeopardy. Accordingly, we affirm in part, reverse in part, and remand with instructions for the trial court to vacate all but one of his convictions: Level 3 felony leaving the scene of an accident. And because this conviction alone justifies the penalty imposed, we further instruct the trial court to leave in place his sixteen-year sentence with two years suspended to probation.

Multiple offenses in the Powell case

Most everyone would agree that intentionally shooting at and killing two persons (one immediately after the other) amounts to two separate murders. Reasonable persons would also likely conclude that robbing a person and then brutally beating and injuring that person (all in the same encounter) amount to two separate criminal acts: robbery and aggravated battery. Other scenarios, however, are less clear. Is the baker who sells four loaves of bread on Sunday subject to four counts of violating the “blue law” or only one? Does the theft of a single package in which several articles of property belong to multiple persons amount to one offense or multiple offenses? Does every punch thrown upon a single victim amount to a separate act of battery? Are two pulls of the trigger one attempted murder or two? Does it matter if the defendant aimed at two victims rather than one? What if he had aimed at the same person but on different days and at different locations?


The defendant here, during an escalating confrontation, fired five to six shots in rapid succession at two victims sitting in an adjacent vehicle, seriously injuring one of them. In these circumstances, may a court convict on one count of attempted murder (for the single act of shooting) or two (one for each victim)? While our attempted-murder statute contains no clear unit of prosecution, we find sufficient evidence of the defendant’s dual purpose in firing his weapon: intent to kill both victims. Accordingly, we hold that the defendant’s actions, despite their proximity in space and time, amount to two distinct, chargeable offenses.

(Mike Frisch)

August 19, 2020 in Current Affairs | Permalink | Comments (0)

Monday, August 10, 2020

Password NOT Protected: A Foregone Conclusion

In a matter involving a question of first impression, the New Jersey Supreme Court has held that forcing a defendant to reveal iPhone passwords  for properly seized phones does not run afoul of the state or United States Constitutions. 

From the court's syllabus

The Court considers whether a court order requiring a criminal defendant to disclose the passcodes to his passcode-protected cellphones violates the Self Incrimination Clause of the Fifth Amendment to the United States Constitution or New Jersey’s common law or statutory protections against self-incrimination.

The target of a State narcotics investigation, Quincy Lowery, advised detectives that defendant Robert Andrews, a former Essex County Sheriff’s Officer, had provided him with information about the investigation and advice to avoid criminal exposure. The State obtained an arrest warrant for defendant, who was later released, and search warrants for defendant’s iPhones, which were seized.

The State moved to compel disclosure of the passwords to two iPhones

The trial court rejected Andrews’s arguments but limited access to Andrews’s cellphones “to that which is contained within (1) the ‘Phone’ icon and application on Andrews’s two iPhones, and (2) the ‘Messages’ icon and/or text messaging applications used by Andrews during his communications with Lowery.” The court also ordered that the search “be performed by the State, in camera, in the presence of Andrews’s defense counsel and the [c]ourt,” with the court “review[ing] the PIN or passcode prior to its disclosure to the State.” The Appellate Division affirmed. 457 N.J. Super. 14, 18 (App. Div. 2018). The Court granted leave to appeal. 237 N.J. 572 (2019).

The court agreed

Here, the State correctly asserts that the lawfully issued search warrants -- the sufficiency of which Andrews does not challenge -- give it the right to the cellphones’ purportedly incriminating contents as specified in the trial court’s order. And neither those contents -- which are voluntary, not compelled, communications -- nor the phones themselves -- which are physical objects, not testimonial communications -- are protected by the privilege against self-incrimination. Therefore, production of the cellphones and their contents is not barred. But access to the cellphones’ contents depends here upon entry of their passcodes. Communicating or entering a passcode requires facts contained within the holder’s mind. It is a testimonial act of production...

Based on the record in this case, compelled production of the passcodes falls within the foregone conclusion exception. The State’s demonstration of the passcodes’ existence, Andrews’s previous possession and operation of the cellphones, and the passcodes’ self-authenticating nature render the issue here one of surrender, not testimony, and the exception thus applies. Therefore, the Fifth Amendment does not protect Andrews from compelled disclosure of the passcodes to his cellphones. The Court would reach the same conclusion if it viewed the analysis to encompass the phones’ contents. The search warrants and record evidence of the particular content that the State knew the phones contained provide ample support for that determination. This was no fishing expedition.

The court majority reaches the same result under state law.

Justice LaVecchia, dissented (quoting from the opinion)

In a world where the right to privacy is constantly shrinking, the Constitution provides shelter to our innermost thoughts -- the contents of our minds -- from the prying eyes of the government. The right of individuals to be free from the forced disclosure of the contents of their minds to assist law enforcement in a criminal investigation, until now, has been an inviolate principle of our law, protected by the Fifth Amendment and our state common law. No United States Supreme Court case presently requires otherwise. No case from this Court has held otherwise. That protection deserves utmost respect and should not be lessened to authorize courts to compel a defendant to reveal the passcode to a smartphone so law enforcement can access its secured contents.

We are at a crossroads in our law. Will we allow law enforcement -- and our courts as their collaborators -- to compel a defendant to disgorge undisclosed private thoughts -- presumably memorized numbers or letters -- so that the government can obtain access to encrypted smartphones? In my view, compelling the disclosure of a person’s mental thoughts is anathema to fundamental principles under our Constitution and state common law.

The Court’s outcome deviates from steadfast past principles protective of a defendant’s personal autonomy in the face of governmental compulsion in a criminal matter. Those same principles should apply even in the face of the latest challenge presented by new technology. Respectfully, I dissent from the course the Court now takes.

...This Court has never before permitted law enforcement to compel from a defendant’s lips inner thoughts to assist in his own prosecution. I cannot join in taking our state law in that direction. Therefore, for the same reasons that I would not extend federal law to require what the Supreme Court has not expressly held, so too I would not turn our jurisprudence from the guiding principles it has followed to date.

This intrusive use of compelled cooperation forcing self-incrimination through disclosure of the contents of one’s mind is not consistent with our law. It should be rejected as a step backwards from the storied history in this State of protective law concerning personal autonomy and the privacy of one’s inner thoughts with respect to the privilege against self-incrimination.

The oral arguments can be accessed on the court's opinions page. (Mike Frisch)

August 10, 2020 in Current Affairs | Permalink | Comments (0)

Friday, July 24, 2020

Suing Facebook

The New Hampshire Supreme Court reversed and remanded the dismissal on motion of a small claims action brought against Facebook by an Instagram user whose account had been deleted

Teatotaller alleged that in June 2018, Facebook “deleted [Teatotaller’s] Instagram . . . account without notice.” Teatotaller further alleged that Facebook “sent two contradicting statements as to the reason for deletion and provided no appeal or contact to get more information.” Teatotaller also alleged that Facebook “had a duty of care to protect [Teatotaller] from an algorithmic deletion as it hampers [Teatotaller’s] business” and that Teatotaller has “continue[d] to lose business and customers due to [Facebook’s] negligence.” In addition to seeking $9,999 in damages, Teatotaller sought restoration of its Instagram account.

The case featured legal heavyweights against a non-lawyer

Emmett Soldati, non-lawyer representative appearing by approval of the Supreme Court under Rule 33(2), on the brief and orally, for the plaintiff.

Paul Frank + Collins P.C., of Burlington, Vermont (Stephen J. Soule on the brief); Keker, Van Nest & Peters, LLP, of San Francisco, California (Matan Shacham and Victor Chiu on the brief); and Primmer, Piper, Eggleston & Cramer, PC, of Manchester (Doreen F. Connor orally), for the defendant.

For now, David beat Goliath.


Following a hearing, the trial court granted Facebook’s motion, determining that the Terms of Use gave the court personal jurisdiction over Facebook, but also precluded Teatotaller’s claims. Specifically, the court  determined that, “given the language in the [Terms of Use],” Teatotaller “cannot state a claim or demonstrate any breach of contract that gives rise to a cause of action.” In response to Teatotaller’s subsequent motion to reconsider, the trial court stated that Facebook is entitled to immunity under the CDA for “the acts that are alleged by [Teatotaller].” This appeal followed.

On review

Teatotaller alleged that it entered into the Terms of Use with Facebook regarding Teatotaller’s use of Instagram in exchange for fees. Teatotaller further alleged that Facebook deleted Teatotaller’s Instagram account in violation of the Terms of Use, causing Teatotaller to “lose business and customers,” for which Teatotaller requested “damages and the restoration of [its] account.” Assuming the facts alleged by Teatotaller to be true, we hold that these allegations suffice in the context of a small claim action to state a cause of action for breach of contract.

Immunity under the Communications Decency Act

We next consider whether Facebook is entitled to immunity under the CDA for Teatotaller’s breach of contract claim.

...because it is not clear on the face of Teatotaller’s complaint and objection whether prong two of the CDA immunity test is met, we conclude that the trial court erred by dismissing Teatotaller’s breach of contract claim on such grounds. See Pirozzi, 913 F. Supp. 2d at 849. We simply cannot determine based upon the pleadings at this stage in the proceeding whether Facebook is immune from liability under section 230(c)(1) of the CDA on Teatotaller’s breach of contract claim. See id. For all of the above reasons, therefore, although Teatotaller’s breach of contract claim may ultimately fail, either on the merits or under the CDA, we hold that dismissal of the claim is not warranted at this time.

Footnote 2 in part

Because the parties have not yet litigated the issue, we express no opinion as to whether the trial court has authority to order Facebook to restore Teatotaller’s Instagram account in the context of this small claim action.

The web page of the plaintiff is linked here. (Mike Frisch)

July 24, 2020 in Current Affairs | Permalink | Comments (0)

More Than Mere Curiosity

The New York Appellate Division has reversed and remanded  an order that granted nonparty BuzzFeed's request to unseal the petition and confidential settlement agreement in a dismissed special proceeding involving Oleg Deripaska. 

Initially, we agree that Supreme Court had jurisdiction to unseal the documents, even if it had no personal jurisdiction over Deripaska (see Gambale v Deutsche Bank AG, 377 F3d 133, 141 [2d Cir 2004]). However, we find that the court abused its discretion in granting BuzzFeed's request to unseal the petition and settlement agreement in their entirety. The court improvidently found that Deripaska could not have reasonably relied on the confidentiality of the subject documents because they were not filed under seal. The record shows that the settlement agreement was the subject of a prior sealing order, and the documents were never made publicly available, but filed under restricted access, before they were placed under seal.

Nonetheless, as BuzzFeed persuasively argues, New York has a "long-standing, sound public policy that all judicial proceedings, both civil and criminal, are presumptively open to the public'" (Matter of James Q., 32 NY3d 671, 676 [2019], quoting Matter of Hearst Corp. v Clyne, 50 NY2d 707, 715 [1980]; see also Mosallem v Berenson, 76 AD3d 345 [1st Dept 2010]). Sealing of a document, when the public or press seeks to gain access to it, should not be permitted except in compelling circumstances especially where as occurred here, the court relied on the documents in reaching its decision (see generally United States v Amodeo, 71 F3d 1044, 1049 [2d Cir 1995]; see also Mosallem, 76 AD3d at 350). Buzzfeed contends that Deripaska is a well-known figure, who is connected to numerous people in American public life and American government at the highest level. The motion court described him as a figure of "notoriety." Appellant does not dispute this but contends that good cause existed for the prior justices to seal these documents, and that Buzzfeed has not met its burden to undo those rulings. Appellant further argues that since the documents were previously sealed, a higher standard should apply and that in applying this higher standard, Buzzfeed failed to demonstrate why the petition and settlement agreement should be unsealed (see Geller v Branic Intl. Realty Corp., 212 F3d 734 [2d Cir 2000]; see also Securities & Exch. Commn. v TheStreet.Com, 273 F3d 222 [2d Cir 2001]).

Here, in light of the strong public policy in favor of open court records and the fact that the documents were relied on by the court in its decision, we conclude that Buzzfeed has shown that complete sealing is not necessary. We reject Deripaska's contention that Buzzfeed's request is motivated by mere curiosity (see generally Danco Labs. v Chemical Works of Gedeon Richter, 274 AD2d 1 [lst Dept 2000]).

In unsealing the documents, the motion court did not address whether a more narrow remedy, such as limited redaction, would serve to protect any confidential or proprietary information in the agreements. While appellant contends that he relied on the sealing order when agreeing to the English Settlement Agreement, neither the record nor the briefs contain a satisfactory explanation as to exactly how he would be prejudiced if it were released, provided that any confidential or proprietary information is redacted. In rejecting appellant's contention that all of the documents should remain sealed we are not holding that all such media applications should be granted, but rather that, on balance, in this case Buzzfeed has established a basis for obtaining access subject to any redactions. Accordingly, we remand to the motion court for it to determine, after further submissions if it determines that is necessary, and after in camera review of the unredacted records, whether any redactions are necessary before the documents are released.

July 24, 2020 in Current Affairs | Permalink | Comments (0)

Monday, July 20, 2020

COVID And Confrontation

The Tennessee Court of Criminal Appeals has remanded an order allowing remote testimony in a murder case

On July 12, 2019, the State filed a motion requesting that four of the prosecution’s witnesses, all of whom were from Virginia, be allowed to testify via teleconferencing technology, namely “Microsoft Teams,” the software used by the District Attorneys General Conference.

The trial court

So to respond to the laser point that I made at the very beginning, is this gentleman going to receive exactly what he deserves under his right of confrontation, not only to observe and watch the witnesses who are testifying against him, but also have the right to cross-examine those witnesses. I believe he receives exactly the same rights as if . . . the witnesses were live testifying in the courtroom.

I will allow the witnesses to testify by [teleconferencing technology] .

The constitutional issue

On appeal, the Defendant contends that allowing witnesses in a criminal prosecution to testify against him via teleconferencing software violates his right to confrontation under the Sixth Amendment to the United States Constitution and Article I, section 9 of the Tennessee Constitution. The State counters that the Tennessee Constitution does not afford any greater protections than the United States Constitution and that the United States Supreme Court has held that teleconferencing software does not violate the Confrontation Clause where there is a sound public policy reason to use such technology. See Maryland v. Craig, 497 U.S. 836, 855-57 (1990). The State further contends that those public policy reasons exist in this case, so the trial court did not err when it held that the four witnesses could testify via teleconferencing software.


While we concede that two-way videoconferencing more closely approximates face-to-face confrontation, it is in no way constitutionally equivalent to the face-to-face confrontation envisioned by the Sixth Amendment. We respectfully but firmly disagree with the trial court’s finding that “if the software works the way it should work, will be, in my opinion, as good as the person being here live.” Further, two-way video conferencing allows for the witness to testify remotely and not come to the courthouse at all. The physical presence of the witness in the courthouse is, itself, a significant moment for the witness, during which any witness in a criminal proceeding understands the wide ranging implications their testimony may have on the life of another. Foregoing in person testimony potentially removes a witness’s understanding of the enormity of those implications. We are not inclined to remove the requirement of physical presence of a witness in the courthouse, save for instances in which the most necessary public policy considerations arise. We hold that face-to-face confrontation in Tennessee means simply that, face-to-face communication, unless there is some greater public interest that overrides the directives of our great state’s constitution.

Having so decided, we remand this case back to the trial court to make a specific finding, using the law as articulated in Craig, about the public policy implications triggered by the circumstances of each of the witnesses herein.

...we conclude that the standard as articulated in Maryland v. Craig, 497 U.S. 836 (1990), should extend to two-way video conferencing technology. As such we reverse and remand this case to the trial court for a case-specific and witness-specific determination that the denial of the defendant’s confrontation right is necessary to further an important public interest.

(Mike Frisch)

July 20, 2020 in Current Affairs | Permalink | Comments (0)

Tuesday, June 23, 2020

DC Provides Access To Remote Oral Arguments

The District of Columbia Court of Appeals has created opportunity out of challenges by providing easy online access to its oral arguments.

Today's arguments are already available.

DCCA Remote Oral Arguments

To expand the administration of justice during the current pandemic, the court is conducting oral arguments via videoconference, effective May 26, 2020. The public may view the argument in real time at the DC Court of Appeals YouTube channel. If you are the arguing attorney or a self-represented party in an oral argument, you will receive an email containing a link to access your videoconference, and the participant protocol (PDF) provides technical guidance and best practices.

The next Oral Argument will begin Thursday, June 25th at 9:30 am on the DC Court of Appeals YouTube channel. You may need to refresh the YouTube page to see it after 9:30 am.

Previous Oral Arguments
6/23/2020 D.C. Court of Appeals Zoom Oral Arguments

6/18/2020 D.C. Court of Appeals Zoom Oral Arguments

6/17/2020 D.C. Court of Appeals Zoom Oral Arguments

6/11/2020 D.C. Court of Appeals Zoom Oral Arguments

6/9/2020 D.C. Court of Appeals Zoom Oral Arguments



This is a major advance in court transparency. Glad I am around to enjoy it. (Mike Frisch)

June 23, 2020 in Current Affairs | Permalink | Comments (0)

Thursday, June 18, 2020

Steele Dossier SLAPP

The District of Columbia Court of Appeals affirmed the dismissal of claims brought by plaintiffs alleging defamation in the Steele Dossier

Appellants challenge an order of the Superior Court which granted appellees’ special motion to dismiss, brought under the District of Columbia Anti-SLAPP Act. D.C. Code §§ 16-5501-5505 (2012 Repl. & 2019 Supp.). Appellants present three primary arguments: (1) the Anti-SLAPP Act does not apply to the facts of this case; (2) assuming that the Anti-SLAPP Act does apply, appellants have demonstrated that their claim is likely to succeed on the merits; and (3), in any event, the court erred by granting the special motion to dismiss without allowing appellants to conduct targeted discovery. Finding appellants’ arguments unpersuasive, we affirm the trial court’s judgment dismissing the case.

The case

According to appellants’ complaint, in advance of the 2016 presidential election, Washington, D.C.-based Fusion GPS hired appellees Christopher Steele and his company Orbis Business Intelligence Limited (“Orbis”) to conduct opposition research about then-candidate Donald J. Trump. While appellees were initially hired by Mr. Trump’s Republican opponents, once it became clear that he would be that party’s nominee, appellees began working for the Democratic National Committee and Hillary Clinton’s campaign. Beginning that summer,  appellees investigated what if any connections Mr. Trump and his campaign might have to Russia and Russian President Vladimir Putin, and compiled the results of their investigation into Company Intelligence Reports (“CIRs”). The complaint states that by the end of October 2016 appellees had created seventeen CIRs, which collectively became known as the Steele Dossier.

Appellants Mikhail Fridman, Petr Aven, and German Khan are “ultimate beneficial owners” of Alfa Group (“Alfa”), a “Russian business conglomerate.” They claim that one of the reports in the Steele Dossier, CIR 112, defamed them.


The Honorable Anthony C. Epstein granted appellees’ special motion to dismiss and denied the Rule 12(b)(6) motion as moot. Judge Epstein determined that appellees had made a prima facie showing that the Anti-SLAPP Act applied to the conduct at issue because it involved a right of advocacy on an issue of public interest. Regarding the right of advocacy, Judge Epstein held that, “[e]ven if Mr.  Steele did not meet with the media in a public place or forum, he engaged in expression involving communicating information to members of the U.S. public through the media.” Indeed, the court explained, “Plaintiffs challenge Mr. Steele’s provision of his dossier to the media precisely because he expected and intended the media to communicate the information to the public in the United States and around the world.”


even drawing reasonable inferences in appellants’ favor, they have failed to proffer evidence capable of showing by the clear and convincing standard that appellees acted with actual malice.

Associate Judge Fisher authored the opinion. (Mike Frisch)

June 18, 2020 in Current Affairs | Permalink | Comments (0)

Thursday, June 11, 2020

Loan Modification Assistance And Unauthorized Practice

The Ohio Supreme Court has sanctioned a non-attorney for unauthorized practice as described by Dan Trevas

The Ohio Supreme Court today sanctioned  the operator of a Cuyahoga County loan modification business for the unauthorized practice of law and fined her $5,000.

A majority of the Supreme Court ruled that Melissa M. Smidt, doing business as A Perfect Solution, deceived a customer by stating she was a paralegal acting under the supervision of a licensed attorney. The attorney told disciplinary authorities he fired Smidt and she was using his attorney letterhead without his consent.

Chief Justice Maureen O’Connor and Justices Judith L. French, Patrick F. Fischer, Michael P. Donnelly, and Melody J. Stewart joined the Court’s per curiam opinion.

Justice R. Patrick DeWine concurred in judgment only with a written opinion, stating that Smidt’s actual attempt to negotiate a loan modification was not the unauthorized practice of law. Justice Sharon L. Kennedy joined Justice DeWine’s opinion.

Homeowner Seeks to Stop Foreclosure
A Perfect Solution advertised that it was a “knowledgeable, fully committed professional company preparing loan modifications and bankruptcy petitions under the direct supervision of consumer bankruptcy attorneys.”  Smidt was not licensed to practice law in Ohio, but had been employed by attorney J. Norman Stark as a contract paralegal. Smidt use the designations ACP (advanced certified paralegal) and RP (registered paralegal) in the signature line of her correspondence to indicate her paralegal training.

In March 2015, Deborah Krantz paid Smidt a $1,000 flat fee to prepare and negotiate a modification for a loan that was the subject of foreclosure proceedings in Franklin County Common Pleas Court.  Krantz already had an attorney representing her in the foreclosure. A final judgment on the foreclosure had been issued, and a sheriff’s sale of the property had been scheduled.

During the course of representation, Smidt sent two letters to Krantz’ mortgage lender on Stark’s letterhead. In the first letter, she identified herself as a paralegal and the “legal representative appointed to act or speak on behalf of” Krantz for the purpose of negotiating a loan modification. In the second letter, she related the reasons Krantz had been prevented from paying her loan obligations and suggested she was an “excellent candidate” for a modification.

Smidt later told Krantz she spoke with one of the attorneys representing the lender and asked him to delay the foreclosure proceedings so that she had time to submit a loan-modification packet for Krantz. She later emailed Krantz’ attorney and told him that she spoke with the lender’s underwriter, who told her the lender needed more time to make a loan-modification order.

Smidt suggested to Krantz’ attorney that he prepare — with her help — several motions, including asking the Court to stay the execution of the foreclosure judgment. The efforts to delay the judgment were unsuccessful, and the trial court confirmed the sheriff’s sale of the Krantz property in June 2019. Krantz fired Smidt. She requested a return of her documents and a full refund of her fee. Smidt did not do either.

Client Files Complaint, Paralegal Fails to Cooperate
In 2016, Krantz filed a complaint against Smidt with the Office of Disciplinary Counsel, which sent a letter to Smidt seeking information. Smidt requested additional time to reply to the disciplinary counsel, but only provided a partial answer. She sent several documents, including the two letters she sent to the lenders on Stark’s legal letterhead. When the office requested more information, Smidt did not reply.

In August 2018, the disciplinary counsel asked the Board on the Unauthorized Practice of Law to find Smidt in default and declare she was practicing law without a license.

The board also received an affidavit from Stark that denied he represented Krantz, and also that he terminated Smidt’s employment as a “paralegal assistant” because of her unauthorized practice of law and use of his law-office letterhead without permission. He stated that after he fired Smidt, he repeatedly asked her to cease and desist from using his letterhead, but she did not respond.

The board found no evidence that Smidt worked under the supervision of any licensed attorney. The board  recommended that the Court order Smidt to stop engaging in the unauthorized practice of law and pay a $5,000 fine.

Court Finds Practice Illegal
The Court’s opinion noted the unauthorized practice of law includes both the “rendering of legal services for another” and “representing oneself as authorized to practice law in Ohio” when the person is not. The opinion stated an unlicensed person may assist in providing certain legal services when acting under the close supervision of a licensed attorney.

The Court noted that attempting to represent the legal interests of others and advising them of their legal rights during settlement negotiations constitutes the unauthorized practice of law, as does advising debtors of their legal rights while helping them negotiate settlements to avoid foreclosure.

While Smidt did not directly give legal advice to “her client,” she gave litigation advice to Krantz’ attorney in hopes of delaying the foreclosure and buying her time to negotiate a loan modification, the opinion stated. The Court ruled her actions to be the unauthorized practice of law.

The opinion described Smidt’s attempt to convince others she operated under the supervision of licensed attorneys as “flagrant.” The Court noted the disciplinary counsel presented evidence that Smidt engaged with others in a similar pattern of the unauthorized practice of law.

Smidt’s indication that she had paralegal training led the Court to conclude she received instruction regarding the actions paralegal could not do and that she chose to ignore those instructions.

“Her intentional and deceitful misuse of Stark’s letterhead demonstrates her knowledge that in the absence of direct supervision by a licensed attorney, the actions she took on behalf of Krantz constituted the unauthorized practice of law,” the opinion concluded.

Concurrence Questions Right to Negotiate
In his concurring opinion, Justice DeWine wrote that he agreed Smidt engaged in the unauthorized practice of law by using the attorney’s letterhead to falsely convey she was working with an attorney.

Citing his opinion in the Court’s Ohio State Bar Assn. v. Watkins Global Network LLC decision, he wrote that merely offering an opinion with legal implications is not, on its own, sufficient to count as the unauthorized practice of law. He cautioned that concluding someone is engaged in the unauthorized practice of law by voicing a legal opinion runs the risks of burdening many professional activities by accountants, human-resource representatives, and real-estate agents, “whose jobs require them to opine on legally relevant matters.”

He also wrote he does not agree that debt negotiation is necessarily the practice of law. To find Smidt engaged in the practice of law requires a determination that she provided legal services, which would be behaviors that are exclusively the work of lawyers. He wrote the majority suggests an “overly broad understanding of what might count as the unauthorized practice of law.”

2019-0827Disciplinary Counsel v. SmidtSlip Opinion No. 2020-Ohio-3258.

June 11, 2020 in Current Affairs | Permalink | Comments (0)

Sunday, June 7, 2020

"The Past Is Never Dead. It's Not Even Past "

One of the highlights of my prior life as a disciplinary counsel was the opportunity to argue In re Abrams before the en banc District of Columbia Court of Appeals. 

At issue was the court's power to sanction a convicted but pardoned member of its Bar.  

The 5-4 decision authored by the late (and beloved) Associate Justice Frank Schwelb held that the pardon did not preclude professional discipline.

The Supreme Court denied certiorari without a dissenting vote. 

My preparation led me to an 1866 United States Supreme Court decision concerning the impact of a pardon bestowed on a member of the Confederate Congress by President Andrew Johnson. 

Ex parte Garland essentially restored the pardon beneficiary to full public life, including continuing membership in the Supreme Court Bar. 

Augustus Garland went on to become the Attorney General of the United States in the Grover Cleveland administration.

Garland was also a 5-4 decision. 

The single most useful source to me in understanding Garland (and the related case of Cummings v. Missouri) was Chief Justice Rehnquist's book. 

The present state of the country brings to mind the dissent of Justice Samuel Miller. 

I dissent from the opinions of the court just announced.

It may be hoped that the exceptional circumstances which give present importance to these cases will soon pass away, and that those who make the laws, both state and national, will find in the conduct of the persons affected by the legislation just declared to be void sufficient reason to repeal, or essentially modify it.

For the speedy return of that better spirit which shall leave us no cause for such laws all good men look with anxiety and with a hope, I trust, not altogether unfounded.

But the question involved, relating, as it does, to the right of the legislatures of the nation and of the state to exclude from offices and places of high public trust, the administration of whose functions are essential to the very existence of the government, those among its own citizens who have been engaged in a recent effort to destroy that government by force can never cease to be one of profound interest.

It is at all times the exercise of an extremely delicate power for this court of declare that the Congress of the nation, or the legislative body of a State, has assumed an authority not belonging to it, and, by violating the Constitution, has rendered void its attempt at legislation. In the case of an act of Congress, which expresses the sense of the members of a coordinate department of the government, as much bound by their oath of office as we are to respect that Constitution, and whose duty it is, as much as it is ours, to be careful that no statute is passed in violation of it, the incompatibility of the act with the Constitution should be so clear as to leave little reason for doubt before we pronounce it to be invalid.

Unable to see this incompatibility either in the act of Congress or in the provision of the constitution of Missouri upon which this court has just passed, but entertaining a strong conviction that both were within the competency of the bodies which enacted them, it seems to me an occasion which demands that my dissent from the judgment of the court, and the reasons for that dissent, should be placed on its records.

Justice Miller's prediction as to the "profound interest" in how history would regard Confederates was prescient.

Here we are 150 years later.

Note: I was unaware of litigation over the Faulkner quote in the title but learned that his estate had sued Woody Allen over its use in the movie Midnight in Paris.

The Jackson Clarion Ledger reported on the case and its aftermath.

Shooting has begun in Mississippi on a new documentary about legendary author William Faulkner — the first ever authorized by his estate.

It’s a documentary that might not have happened if Faulkner’s estate hadn’t decided to sue, alleging filmmaker Woody Allen had infringed on the author’s copyright.

In his 2011 movie “Midnight in Paris,” a writer played by Owen Wilson winds up being transported back to 1920s Paris, where he visits with F. Scott Fitzgerald and other literary greats.

When Wilson returns, he remarks to his fiancée, “The past is not dead! Actually, it’s not even past. You know who said that? Faulkner. And he was right. And I met him, too. I ran into him at a dinner party.”

Faulkner’s line appeared in his 1951 novel, “Requiem for a Nun.” (“The past is never dead. It’s not even past.”)

Perhaps no words are more relevant today than those in the Second Inaugural Address, in my opinion the greatest and most significant public address in American history

"Woe unto the world because of offences! for it must needs be that offences come; but woe to that man by whom the offence cometh!" If we shall suppose that American Slavery is one of those offences which, in the providence of God, must needs come, but which, having continued through His appointed time, He now wills to remove, and that He gives to both North and South, this terrible war, as the woe due to those by whom the offence came, shall we discern therein any departure from those divine attributes which the believers in a Living God always ascribe to Him? Fondly do we hope -- fervently do we pray -- that this mighty scourge of war may speedily pass away. Yet, if God wills that it continue, until all the wealth piled by the bond-man's two hundred and fifty years of unrequited toil shall be sunk, and until every drop of blood drawn with the lash, shall be paid by another drawn with the sword, as was said three thousand years ago, so still it must be said "the judgments of the Lord, are true and righteous altogether"

(Mike Frisch)

June 7, 2020 in Current Affairs | Permalink | Comments (0)

Wednesday, June 3, 2020

Minnesota Abolishes Champerty

The Minnesota Supreme Court has held that a litigation funder has an enforceable contract

This appeal arises from a contract between appellant Prospect Funding Holdings LLC and respondent Pamela Maslowski whereby appellant purchased an interest in respondent’s personal injury suit. When respondent settled her suit and did not abide by the terms of the contract, appellant sued respondent to enforce the contract. Both the district court and the court of appeals held that appellant could not enforce the contract because it violated Minnesota’s common law prohibition against champerty. We reverse and remand to the district court for further proceedings consistent with this opinion.

The respondent had settled a personal injury claim

This case concerns the common-law prohibition against champerty. Champerty is “an agreement to divide litigation proceeds between the owner of the litigated claim and a party unrelated to the lawsuit who supports or helps enforce the claim.” Champerty, Black’s Law Dictionary (11th ed. 2019). It is closely related to the concept of maintenance. See Maintenance, Black’s Law Dictionary (11th ed. 2019) (“Improper assistance in prosecuting or defending a lawsuit given to a litigant by someone who has no bona fide interest in the case; meddling in someone else’s litigation.”). The issue before us is whether we should affirm the court of appeals’ decision on the ground that the contract between Prospect and Maslowski is void as against public policy, or reverse the decision and abolish, under Minnesota law, the common-law doctrine that champertous agreements are unenforceable.

The common law’s disapproval of champerty and maintenance traces back many centuries.

The contract may be champertous but was not contrary to public policy

Under the rule of law articulated by these cases, the contract between Prospect and Maslowski is champertous because Prospect is a stranger to the lawsuit who agreed to provide Maslowski with financial support during her personal injury litigation in exchange for a right to recover from the proceeds of the settlement of her lawsuit. The lower courts therefore did not err in determining that, under our prior decisions, the contract was unenforceable.

We decline, however, to hold that the contract between Maslowski and Prospect is void as against public policy as we understand it today.


Our review of changes in the legal profession and in society convinces us that the ancient prohibition against champerty is no longer necessary.

We first recognized the prohibition against champerty in the years before we adopted formal rules of ethics  and before we adopted Minnesota’s Rules of Civil Procedure. Today, the rules of professional responsibility and civil procedure address the abuses of the legal process that necessitated the common-law prohibition. Although attorneys may advertise to the general public, there are strict limits on solicitation...

Along with the increase in regulation, another important development in the law has been the narrowing or abolition of other common law prohibitions based on concerns about champerty and maintenance. Although contingency fees were disfavored under early common law, all American jurisdictions now allow attorneys to take cases on contingency.

Societal attitudes

Societal attitudes regarding litigation have also changed significantly. Many now see a claim as a potentially valuable asset, rather than viewing litigation as an evil to be avoided. Radin, supra, at 72. The size of the market for litigation financing reflects this attitudinal change...

It is true that the rules of professional responsibility and civil procedure do not specifically regulate champertous agreements. But, as we have explained, the rules of professional responsibility and civil procedure prevent both attorneys and parties from profiting off of frivolous litigation—which is the type of behavior that we took issue with in Huber, Holland, and Gammons. It is also unlikely that companies like Prospect will fund frivolous claims because they only profit from their investment if a plaintiff receives a settlement that exceeds the amount of the advance—an unlikely result in a meritless suit. See David Tyler Adams, Note, Laissez Fair: The Case for Alternative Litigation Funding and Assignment of Lawsuit Proceeds in Georgia, 49 Ga. L. Rev. 1121, 1148–49 (2015). Litigation financing companies have claim valuation procedures to avoid this very problem. Id.

Professional responsibility professors may find this case useful  in teaching how ethics concepts and rules evolve with societal changes. (Mike Frisch)

June 3, 2020 in Current Affairs | Permalink | Comments (0)

Friday, May 22, 2020

Can't Buy Me Love (Or A Malpractice Cause Of Action)

The Iowa Supreme Court has held that a creditor cannot prosecute a legal malpractice action against the debtor's attorney

The narrow question presented in this appeal is whether judgment creditors can levy on their judgment debtor, obtain the judgment debtor’s chose in action for legal malpractice against the attorney representing the judgment debtor in the litigation giving rise to the judgment, and prosecute the claim for legal malpractice against the attorney as the successors in interest to their judgment debtor. For the reasons expressed below, we conclude the judgment creditors cannot prosecute the legal malpractice claim as successors in interest to their former litigation adversary.

The debtor was convicted of crimes

The facts of this case are not disputed. In 2013, James Hohenshell’s stepdaughter invited some of her girlfriends to the Hohenshell home for a party. One of the girls was thirteen-year-old J.G. Hohenshell provided alcohol to J.G. and the other girls. After J.G. became intoxicated and sick, Hohenshell carried J.G. to his bedroom and forcibly raped her. In November 2014, Hohenshell pleaded guilty to one count of committing lascivious acts with a minor and five counts of providing alcohol to a minor and was sentenced to incarceration. “At the guilty-plea proceeding, Hohenshell entered his plea with a smirk on his face and a chuckle.” Gray v. Hohenshell, No. 17–1100, 2019 WL 325015, at *2 (Iowa Ct. App. Jan. 23, 2019)

Civil litigation followed 

The parties tried the issue of damages to a jury. The jury awarded compensatory damages to J.G. in the amount of $50 million, loss of consortium damages to each parent in the amount of $1 million, and punitive damages in the amount of $75 million. The total verdict was $127 million.

It would be fair to say [attorney] Oliver did not vigorously defend the suit. The Grays offered to settle the suit for a confession of judgment in the amount of $2 million or for an amount “well into the six figure range” that included evidence of an ability to pay.

The court describes the lack of vigor in detail.

Defendant secured new counsel and appealed 

While the appeal from the Grays’ suit against Hohenshell was pending, the Grays caused to be issued a writ of execution on the $127 million judgment against Hohenshell.


The Grays purchased this right for $5000 at the sheriff’s sale. At the time the Grays executed on their judgment and purchased Hohenshell’s claims against Oliver, Hohenshell had not asserted any claim for legal malpractice against Oliver, nor has he ever, according to the record.

In November 2017, while the Grays were still defending the $127 million judgment against Hohenshell on appeal, they filed this malpractice claim against Oliver as successors in interest to Hohenshell.

This appeal involved summary judgment of the malpractice claim

The relevant cases identify a surfeit of reasons for concluding a claim for legal malpractice is not subject to assignment and prosecution by an assignee: (1) assignment divests the client of the decision to sue; (2) assignment imperils the sanctity of the attorney–client relationship; (3) assignment erodes the attorney–client privilege; (4) assignment compromises zealous advocacy and the duty of loyalty; (5) assignment degrades the legal profession and the public’s confidence in the court system by sanctioning an abrupt and shameless shifting of positions; (6) assignment restricts access to legal services by the poor or indigent; and (7) assignment creates a commercial market for legal malpractice claims.

These reasons apply with greater force where, as here, the assignment was involuntary and the claim arises out of the litigation in which the parties were adverse.


Given the uniquely personal nature of the claim, we conclude a chose in action for legal malpractice does not encompass the right for another to prosecute the claim as a successor in interest to the holder of the right where the successor obtained the chose in action through involuntary assignment. To conclude otherwise would allow the assignee to destroy the essential element of this peculiar species of property—the client’s right to prosecute or forego a claim of legal malpractice.

Justice Appel specially concurred

I do not completely agree with the majority’s analysis of the main issue in the case. For the second (integrity of the legal process), fourth (duty of loyalty), fifth (public confidence), and sixth (access to legal services) reasons listed in the majority opinion, I have reluctantly but firmly come to the conclusion that the transfer of a cause of action to a litigation adversary should not be permitted. I agree with the majority’s discussion of these specific points.

The majority opinion, however, offers not only the compelling rationale against the transfer of legal malpractice claims, which in my view pose unique problems, but piles on with further rationales that are not moored to the specific issue. It utilizes spill-over rationales—reasons one (only client determines malpractice), three (attorney–client privilege), and seven (commercial market)—that extend well beyond the specific context presented in this case and flood the legal plain off in the horizon. I view the second, fourth, fifth, and sixth reasons presented by the majority as wholly adequate to decide the issue before us.

(Mike Frisch)

May 22, 2020 in Current Affairs | Permalink | Comments (0)

Thursday, May 7, 2020

Corporate Integrity Agreements At Issue In South Carolina

The South Carolina Supreme Court has held that a prosecutor cannot appeal an accepted guilty plea

This appeal arises from special prosecutor David Pascoe's State House public corruption probe involving former South Carolina House Representative Rick Quinn, Jr., who pleaded guilty to a charge of statutory misconduct in office in February 2018. Following the plea hearing, the State grew concerned about the plea's validity because Quinn only admitted to a limited set of  facts supporting the indictment. Believing the plea lacked a sufficient basis, the State moved to vacate the guilty plea, reconsider the sentence, and for the court's recusal. The State appeals the order denying those motions. We dismiss the State's appeal of the guilty plea and affirm the trial court's order as to the sentence and recusal issues.

Justice Few wrote separately " primarily to address the actions of the State's representative" and issues that surfaced in oral argument

As an unsupervised prosecutor, free from any oversight or control by the Attorney General or the First Circuit voters, Pascoe has created a "prosecutive" mess. On one hand, by his own description, Pascoe allowed the most corrupt politician in Columbia (Quinn) and the most corrupt entity in politics (Richard Quinn & Associates) to go essentially scot free. On the other hand, Pascoe accepted hundreds of thousands of dollars from major South Carolina corporations on the promise not to prosecute them for conduct the State Grand Jury found probable cause to believe is criminal. These and other concerns demonstrate the risks and dangers article V, section 24 was designed to protect against.

While the propriety of allowing Quinn to plead guilty and avoid the most significant charges against him is beyond the review of this Court, the "corporate integrity agreements" are not. As the majority in this case indicates, this Court now plans to address the propriety, legality, and validity of the agreements in our upcoming oral arguments in State v. Harrison.

FITSnews reported on the controversy and decision

A controversial probationary sentence imposed on a former South Carolina legislative leader was upheld on Wednesday by the S.C. supreme court – although the real legal drama associated with this ongoing political/ prosecutorial soap opera was left unresolved.

In fact, justices explicitly declined to address the larger issue at hand – although one justice indicated it would be dealt with in the context of another case currently pending before the state’s judiciary.

First, the sentencing ruling: Former S.C. majority leader Rick Quinn will remain a free man after justices ruled unanimously that S.C. circuit court judge Carmen Mullen did not overstep her authority in giving the ex-politician a two-year probationary sentence in February of 2018.

That sentence had been challenged by S.C. first circuit solicitor David Pascoe – who repeatedly sparred with Mullen during his pursuit of plea agreements and/ or convictions tied to ProbeGate, a multi-year investigation into public corruption at the S.C. State House.

Actually, the court ruled that Pascoe had no right to bring the case in the first place because he failed to “make a contemporaneous objection to the plea” at the time it was filed.

“The state cannot appeal the guilty plea,” the justices ruled.

Beyond that, the court unanimously rejected Pascoe’s argument that Mullen showed bias in the case by allegedly instructing the prosecutor to “go light on the facts so the plea won’t blow up” during a December 2017 hearing at which Quinn copped to misconduct in office and resigned his office.

“The trial court did not abuse its discretion in sentencing Rick Quinn, Jr., and there is no evidence of judicial bias or prejudice requiring the court to recuse itself,” the justices ruled.

To recap: Quinn offered his guilty plea as part of a broader agreement to have conspiracy charges dropped against his father, once-powerful “Republican” political strategist Richard Quinn.

The elder Quinn has since been charged with perjury and obstruction of justice in connection with this ongoing investigation – which began in the fall of 2014 and yielded either guilty pleas or convictions of five former legislative leaders: Quinn, former S.C. speaker Bobby Harrell, former S.C. Senate president John Courson, former S.C. House majority leader Jimmy Merrill and former S.C. House judiciary committee chairman/ state code commissioner Jim Harrison.

According to Pascoe, Quinn was “the most corrupt lawmaker” of the bunch – a key cog in an elaborate pay-to-play network run by his father.

(More on that network in a moment …)

Given the alleged starring role Quinn played in his father’s empire, Pascoe asked Mullen to sentence the former lawmaker to a year in jail on the misconduct in office charge to which he pleaded guilty.

“I ask that he serve every day of that (sentence),” Pascoe urged the judge, saying that the court needed to “send a message” to other corrupt lawmakers.

Mullen declined to do so, though … and rightly or wrongly, the court has upheld her decision.

Left unresolved, though? The issue of accountability regarding the influential corporate entities who benefited from this pay-to-play corruption.

“Corporate entities retained Richard Quinn for the purpose of gaining access to and influence over public officials, and by failing to report Quinn’s services, influenced the outcome of legislative matters with no accountability or disclosure to the public,” the grand jurors who investigated Quinn and his cronies wrote in a report released in October of 2018.

Yet while the grand jury determined probable cause existed to charge these corporate defendants, they were able to avoid prosecution thanks to several “corporate integrity agreements” reached with Pascoe’s office.

These agreements consisted of more than $350,000 in monetary fines paid by the corporate defendants … directly to Pascoe’s office.

Those corporate integrity agreements always rubbed us the wrong way. Specifically, the entire ProbeGate investigation “left far too much meat on the bone as far as we are concerned – particularly with regard to the corporate clients implicated in this pay-to-play scandal,” we noted in December 2018.

More recently, we wrote that “allowing corporate entities to basically buy their way out of facing criminal charges is not ‘integrity,’ in fact some would argue it is no better than the sort of behavior Pascoe was prosecuting in the first place.”

Two months ago, supreme court justices challenged the legitimacy of these agreements in the context of Quinn’s appeal – putting the prosecutor on the spot regarding his authority to negotiate such deals and his decision to appropriate the proceeds from them unto his own office.

“The court’s decision to inject itself into this aspect of the case is clearly quite significant – threatening to flip the script on the entire ProbeGate narrative,” we noted at the time. “Up until this point, Pascoe has been portrayed as a crusading prosecutor looking to sweep the State House clean of corruption. Now he is the one on the defensive against similar allegations.”

After raising the issue of these agreements (rightfully, in our estimation) in the context of the Quinn appeal, though, justices declined to to address them in issuing a ruling on his sentence.

“We decline to address the issue of the state’s corporate integrity agreements, as it has no bearing on the resolution of this case, and we express no opinion as to the propriety of these agreements at this time,” justices wrote.

In a sharply worded concurring opinion, however, justice John Few (above) made it abundantly clear that the “propriety” of these agreements was something the court intended to take up in the future.

Few also pulled no punches in offering his assessment of such agreements.

“Pascoe uses the term ‘corporate integrity agreement’ to mean the payment of money to Pascoe’s First Circuit Solicitor’s Office by entities he has under investigation in exchange for a promise by Pascoe not to prosecute the entity, so Pascoe then has funds to prosecute entities or persons who either were not invited to pay or refused to pay.”

Ouch …

“On one hand, by his own description, Pascoe allowed the most corrupt
politician in Columbia (Quinn) and the most corrupt entity in politics (Richard Quinn & Associates) to go essentially scot free,” Few added. “On the other hand, Pascoe accepted hundreds of thousands of dollars from major South Carolina corporations on the promise not to prosecute them for conduct the State Grand Jury found probable cause to believe is criminal.”

Yeah … anyone care to guess how this is going to end for Pascoe?

Drilling down even deeper, Few expressed skepticism regarding Pascoe’s claims that his office needed the money to continue its investigation. This news outlet is curious as to those representations, too. In fact, we are mulling whether to submit a Freedom of Information Act (FOIA) request to the first circuit solicitor’s office in the hopes of obtaining the financial records of the investigation.

Bottom line? Nearly six years after it began, ProbeGate is continuing to generate headlines. Our hope? That this latest legal battle shines a light on the need for real accountability when it comes to those individuals and entities who are determined to have violated the public trust.

Absent real consequences for such behavior, we should not be surprised to see it continue in South Carolina … and as we noted earlier today the stakes are higher now than ever.

(Mike Frisch)

May 7, 2020 in Current Affairs | Permalink | Comments (0)

Virtual Ceremony For Ohio Bar Admission

Swearing in ceremony for the Ohio Supreme Court


May 11, 2020
1 p.m.

Broadcast live on the Ohio Channel. Streamed live on the Ohio Channel and Supreme Court websites.

View the complete list of names of the successful applicants.

(Mike Frisch)

May 7, 2020 in Current Affairs | Permalink | Comments (0)

Tuesday, May 5, 2020

The Law Of The Bird

The North Carolina Supreme Court has held that a car's passenger who had rendered a double middle finger salute passing by an officer did not create a basis for the charge of "resisting, delaying, or obstructing" the officer and that the ensuing stop was improper.

Th salute came as the trooper was rendering aid to a stranded motorist after a snowstorm. 

The following facts can be inferred from Trooper Stevens’ testimony: defendant was waving from the passenger window of an SUV and, a few seconds later, began to gesture with his middle finger; Trooper Stevens did not know whether defendant’s gesture was directed at him or at another driver; and, after pursuing the vehicle for approximately half a mile, Trooper Stevens did not observe any traffic violations or other suspicious behavior.

We conclude that these facts alone are insufficient to provide reasonable suspicion that defendant was engaged in disorderly conduct. The fact that Trooper Stevens was unsure of whether defendant’s gesture may have been directed at another vehicle does not, on its own, provide reasonable suspicion that defendant intended to or was plainly likely to provoke violent retaliation from another driver. Likewise, the mere fact that defendant’s gesture changed from waving to “flipping the bird” is insufficient to conclude defendant’s conduct was likely to cause a breach of the peace. Based on the facts in the record, we are unable to infer that, by gesturing with his middle finger, defendant was intending to or was likely to provoke a violent reaction from another driver that would cause a breach of the peace.

Thus, we conclude that it was error for the trial court to find that there was reasonable suspicion of disorderly conduct to justify the stop.

(Mike Frisch)

May 5, 2020 in Current Affairs | Permalink | Comments (0)