Monday, March 12, 2018

Popcorn Alert

Up for argument this Thursday before the District of Columbia Court of Appeals


Larry Klayman, Pro Se

Richard W. Driscoll, Esquire

Panel: Chief Judge Blackburne-Rigsby; Associate Judges Fisher and Beckwith.

(Mike Frisch)

March 12, 2018 in Current Affairs | Permalink | Comments (0)

Friday, February 23, 2018

Google Immune

Google is not liable for content posted by a user per a decision issued today by the United States Court of Appeals fo.r the District of Columbia Circuit

Offended by a third-party blog post, Plaintiff Dawn Bennett (Bennett) and her company, DJ Bennett Holdings, LLC (DJ Bennett), sued Google LLC (Google) for failing to remove the post. They alleged three state-law causes of action: (1) defamation; (2) tortious interference with a business relationship; and (3) intentional infliction of emotional distress. The district court granted Google’s motion to dismiss, concluding that the Communications Decency Act (CDA), 47 U.S.C. § 230, immunized Google from liability for the publication of third party content. We affirm.

Precedent involves Larry Klayman

In Klayman, we held that “a website does not create or develop content when it merely provides a neutral means by which third parties can post information of their own independent choosing online.” Id. at 1358. We noted that, although the Facebook website’s “Statement of Rights and Responsibilities” might create an independent cause of action for breach of contract, the statement did not change the fact that the plaintiff was seeking to hold Facebook liable as a “publisher” of the objectionable material. Id. at 1359. Accordingly, we affirmed the district court’s dismissal of the plaintiff’s claims pursuant to section 230 of the CDA. Id.; see also Zeran, 129 F.3d at 331 (rejecting argument that defendant was “distributor” rather than “publisher” under CDA because it acquired “knowledge of the defamatory statements’ existence”).

This case is controlled by the three-part test in Klayman. First, as many other courts have found, Google qualifies as an “interactive computer service” provider because it “provides or enables computer access by multiple users to a computer  server.” 47 U.S.C. § 230(f)(2); see, e.g., Parker v. Google, Inc., 422 F. Supp. 2d 492, 501 (E.D. Pa. 2006), aff’d 242 F. App’x 833 (3d Cir. 2007) (“[T]here is no doubt that Google qualifies as an ‘interactive computer service’ and not an ‘information content provider.’”). Indeed, Bennett concedes that fact. Appellant’s Br. 6 (“Google provides interactive computer services, including websites and social media platforms.”). Second, Bennett alleges that only Pierson—and not Google—created the offensive content on the blog. Compl. ¶¶ 11-12.

Third, Bennett seeks to hold Google liable as a publisher of the content. Bennett argues that by establishing and enforcing its Blogger Content Policy, Google is influencing— and thus creating—the content it publishes. This argument ignores the core of CDA immunity, that is, “the very essence of publishing is making the decision whether to print or retract a given piece of content.” Klayman, 753 F.3d at 1359. In other words, there is a sharp dividing line between input and output in the CDA context. Id. Here, the input is the content of Pierson’s negative blog about Bennett’s business; that blog was created exclusively by Pierson. Google’s role was strictly one of output control; it had the choice of leaving Pierson’s post on its website or retracting it. It did not edit Pierson’s post nor did it dictate what Pierson should write. Because Google’s choice was limited to a “yes” or “no” decision whether to remove the post, its action constituted “the very essence of publishing.” Id.

In sum, the CDA “allows [computer service providers] to establish standards of decency without risking liability for doing so.” Green v. Am. Online, Inc., 318 F.3d 465, 472 (3d Cir. 2003). Although “other types of publishing activities might shade into creating or developing content,” the decision to print or retract is fundamentally a publishing decision for which the CDA provides explicit immunity. 

Circuit Judge Henderson authored the opinion. (Mike Frisch)

February 23, 2018 in Current Affairs | Permalink | Comments (0)

Thursday, February 15, 2018

Domestic Violence And Bar Discipline In The District of Columbia

When an attorney admitted to practice in the District of Columbia commits an act of domestic violence, such conduct constitutes a clear violation of D.C. Rule 8.4(b).

Comment [1] to the Rule states in part

Although a lawyer is personally answerable to the entire criminal law, a lawyer should be professionally answerable only for offenses that indicate lack of those characteristics relevant to law practice. Offenses involving violence, dishonesty, breach of trust, or serious interference with the administration of justice are in that category.

The appropriately intolerant view of the Board on Professional Responsibility came through clearly in In re Jacoby, Bar Docket No. 323-05 (BPR 5/11/2007), where the board advocated for a 60 day suspension as reciprocal discipline for a New Jersey censure

Respondent’s conviction in New Jersey was for a severe act of domestic violence: his wife suffered a dislocated shoulder as a result of being thrown twice into a wall of their home, requiring six months of physical therapy. Comment 1 to Rule 8.4(b) makes clear that “[o]ffenses involving violence, dishonesty, breach of trust, or serious interference with the administration of justice” fall within the Rule as conduct reflecting “adversely on [one’s] fitness to practice law (emphasis added).” See also In re Harkins, 899 A.2d 755, 759 (D.C. 2006) (respondent’s misdemeanor conviction of sexual abuse for touching another metro passenger on her thigh and buttocks, following her to another seat, and asking her to “Give me a call sometime, baby,” violated Rule 8.4(b), resulting in a thirty-day suspension). The Court held that the sexual nature of respondent’s conduct fulfilled the element of violence or threat of violence to bring this criminal conduct under Rule 8.4(b).

Despite not directly implicating honesty or trustworthiness, sexually abusive conduct, because of its inherently violent nature, calls into question one’s fitness as a lawyer and thus falls within the ambit of Rule 8.4(b). Harkins, 899 A.2d at 760.

The instant case raises no question as to the presence of “violence.” It is a clear violation of Rule 8.4(b) and in this jurisdiction “[t]he discipline for violation of Rule 8.4(b) has never been as lenient as public censure,” Id. at 761, the discipline imposed by the New Jersey Court. Rather, sanctions for such rule violations “have traditionally ranged from a thirty-day suspension to disbarment.” Id. Although we have been unable to uncover any domestic violence cases that arose as original jurisdiction matters, the Court has imposed disbarment in a reciprocal discipline case from the Court of Appeals of Maryland. In re Painter, 766 A.2d 49 (D.C. 2001) (per curiam) (evidence of a “long history of domestic violence.”). The Court in its Harkins opinion did cite with approval a case decided by the Supreme Court of Florida, Florida Bar v. Schreiber, 631 So. 2d 1081 (Fla. 1994), where the respondent was suspended for 120 days, with additional conditions, for the misdemeanor battery of domestic violence. As described in Harkins, such acts “warranted temporary suspension because it affected the perception of lawyers in a negative way.” Harkins, 899 A.2d at 760.

We note from the reciprocal record that Respondent’s explosive and violent behavior on March 5, 2005, involved two continuous acts of domestic violence, which we look at as one violent event...

The court imposed the suspension of 60 days. 

A second domestic assault by the same attorney drew a 36-month reciprocal suspension in D.C. based on a sanction imposed by the New York First Department.

As we reported, New Jersey had imposed a year suspension and fitness for that crime. 

Then there is the case of J. Michael Farren, convicted of attempted murder of his spouse, a crime that the board concluded involved moral turpitude per se

Respondent was convicted of attempted murder, in violation of C.G.S. § 53a-49(a)(2) (attempt) and § 53a-54a(a) (murder). The Court previously has held that murder for pecuniary gain, in violation of C.G.S. § 53a-54b (murder with special circumstances), is a crime of moral turpitude per se, because it requires proof of specific intent to cause the death of another person. In re Carpenter, 891 A.2d 223, 223 (D.C. 2006) (per curiam); see also Aron, Bar Docket No. 45- 99 at 3-4 (solicitation to commit murder under Maryland law is a crime of moral turpitude per se, because it involves “deliberate, intentional taking of the life of another person”). Similarly, conviction of attempted murder in violation of C.G.S. §§ 53a-49(a)(2) and 53a-54a(a) also “requires a finding of the specific intent to cause death.” State v. Murray, 757 A.2d 578, 583 (Conn. 2000). Based on this precedent, it is clear that Respondent’s conviction of attempted murder involves moral turpitude per se, requiring his disbarment under D.C. Code § 11-2503(a). 

The Stamford Advocate noted that the defendant was a "former White House attorney."

A former White House attorney who nearly bludgeoned his wife to death with a flashlight wants to delay paying her a $30 million settlement.

The attorney for Michael J. Farren asked Superior Court Judge Robert Genuario in Stamford on Monday to stop Mary Margaret Farren from collecting on a $28.6 million civil settlement until her client’s U.S. Supreme Court appeal is heard.

 Michael Farren, 63, who served as an attorney for both Bush administrations, is serving a 15-year prison term at the Garner Correctional Institution in Newtown, for the attempted murder of his wife during a violent, prolonged and vicious domestic assault in their New Canaan mansion in 2010.
New Caananite reported the conviction was appealed to the United States Supre me Court
According to a procedural history published by the Connecticut Judicial Branch, on the night of Jan. 6, 2010, the couple—both lawyers—were at their Wahackme Road home.

“The defendant and the plaintiff had been married for twelve years and had two young daughters. The plaintiff recently had served a complaint seeking to dissolve the parties’ marriage. The parties met in their home to discuss the action, which the plaintiff refused to withdraw, despite the defendant’s request that she do so. That night, the defendant physically assaulted the plaintiff with his hands, fists, and a flashlight, and said that he was going to kill her. The plaintiff lost consciousness from repeated blows to her head. When she regained consciousness, the defendant continued to hit her and attempted to strangle her. He also pulled out large amounts of her hair. Ultimately, the plaintiff and the children managed to escape from the defendant and to flee the home. Shortly after these events, and in addition to the marital dissolution action, the plaintiff initiated this civil action against the defendant to compensate her for the injuries that she suffered. The state also filed criminal charges against the defendant.”

Farren pleaded not guilty to charges of attempt to commit murder, first-degree assault and risk of injury to a child—and was convicted of all three offenses on Sept. 11, 2014, judicial records show. He is serving 15 years in a prison in Newtown.

The rule does not require a conviction to discipline the attorney if there is clear and convincing evidence of the violence. (Mike Frisch)

February 15, 2018 in Bar Discipline & Process, Current Affairs | Permalink | Comments (0)

Tuesday, February 13, 2018

Facebook Discovery In New York

A dispute over Facebook discovery in a personal injury action has been resolved by the New York Court of Appeals.

The plaintiff fell from defendant's horse and sued

At her deposition, plaintiff stated that she previously had a Facebook account on which she posted "a lot" of photographs showing her pre-accident active lifestyle but that she deactivated the account about six months after the accident and could not recall whether any post-accident photographs were posted. She maintained that she had become reclusive as a result of her injuries and also had difficulty using a computer and composing coherent messages. In that regard, plaintiff produced a document she wrote that contained misspelled words and faulty grammar in which she represented that she could no longer express herself the way she did before the accident. She contended, in particular, that a simple email could take hours to write because she had to go over written material several times to make sure it made sense.

Defendant sought full access to her account and the court here held

Before discovery has occurred – and unless the parties are already Facebook "friends" – the party seeking disclosure may view only the materials the account holder happens to have posted on the public portion of the account. Thus, a threshold rule requiring that party to "identify relevant information in [the] Facebook account" effectively permits disclosure only in limited circumstances, allowing the account holder to unilaterally obstruct disclosure merely by manipulating "privacy" settings or curating the materials on the public portion of the account.  Under such an approach, disclosure turns  on the extent to which some of the information sought is already accessible – and not, as it should, on whether it is "material and necessary to the prosecution or defense of an action" (see CPLR 3101[a]).

New York discovery rules do not condition a party’s receipt of disclosure on a showing that the items the party seeks actually exist; rather, the request need only be appropriately tailored and reasonably calculated to yield relevant information. Indeed, as the name suggests, the purpose of discovery is to determine if material relevant to a claim or defense exists. In many if not most instances, a party seeking disclosure will not be able to demonstrate that items it has not yet obtained contain material evidence. Thus, we reject the notion that the account holder’s so-called "privacy" settings govern the scope of disclosure of social media materials.

That being said, we agree with other courts that have rejected the notion that commencement of a personal injury action renders a party’s entire Facebook account automatically discoverable (see e.g. Kregg v Maldonado, 98 AD3d 1289, 1290 [4th Dept 2012] [rejecting motion to compel disclosure of all social media accounts involving injured party without prejudice to narrowly-tailored request seeking only relevant information]; Giacchetto, supra, 293 FRD 112, 115; Kennedy v Contract Pharmacal Corp., 2013 WL 1966219, *2 [ED NY 2013]). Directing disclosure of a party’s entire Facebook account is comparable to ordering discovery of every photograph or communication that party shared with any person on any topic prior to or since the incident giving rise to litigation – such an order would be likely to yield far more nonrelevant than relevant information. Even our broad disclosure paradigm, litigants are protected from "unnecessarily onerous application of the discovery statutes" (Kavanaugh, supra, 92 NY2d at 954).

Rather than applying a one-size-fits-all rule at either of these extremes, courts addressing disputes over the scope of social media discovery should employ our well-established rules – there is no need for a specialized or heightened factual predicate to avoid improper "fishing expeditions." In the event that judicial intervention becomes necessary, courts should first consider the nature of the event giving rise to the litigation and the injuries claimed, as well as any other information specific to the case, to assess whether relevant material is likely to be found on the Facebook account. Second, balancing the potential utility of the information sought against any specific "privacy" or other concerns raised by the account holder, the court should issue an order tailored to the particular controversy that identifies the types of materials that must be disclosed while avoiding disclosure of nonrelevant materials. In a personal injury case such as this it is appropriate to consider the nature of the underlying incident and the injuries claimed and to craft a rule for discovering information specific to each. Temporal limitations may also be appropriate – for example, the court should consider whether photographs or messages posted years before an accident are likely to be germane to the litigation. Moreover, to the extent the account may contain sensitive or embarrassing materials of marginal relevance, the account holder can seek protection from the court (see CPLR 3103[a]). Here, for example, Supreme Court exempted from disclosure any photographs of plaintiff depicting nudity or romantic encounters.

 Plaintiff suggests that disclosure of social media materials necessarily constitutes an unjustified invasion of privacy. We assume for purposes of resolving the narrow issue before us that some materials on a Facebook account may fairly be characterized as private.5 But even private materials may be subject to discovery if they are relevant. For example, medical records enjoy protection in many contexts under the physician-patient privilege (see CPLR 4504). But when a party commences an action, affirmatively placing a mental or physical condition in issue, certain privacy interests relating to relevant medical records – including the physician-patient privilege – are waived (see Arons v Jutkowitz, 9 NY3d 393, 409 [2007]; Dillenbeck v Hess, 73 NY2d 278, 287 [1989]). For purposes of disclosure, the threshold inquiry is not whether the materials sought are private but whether they are reasonably calculated to contain relevant information.

Applying these principles here, the Appellate Division erred in modifying Supreme Court’s order to further restrict disclosure of plaintiff’s Facebook account, limiting discovery to only those photographs plaintiff intended to introduce at trial. With respect  to the items Supreme Court ordered to be disclosed (the only portion of the discovery request we may consider), defendant more than met his threshold burden of showing that plaintiff’s Facebook account was reasonably likely to yield relevant evidence. At her deposition, plaintiff indicated that, during the period prior to the accident, she posted "a lot" of photographs showing her active lifestyle. Likewise, given plaintiff’s acknowledged tendency to post photographs representative of her activities on Facebook, there was a basis to infer that photographs she posted after the accident might be reflective of her post-accident activities and/or limitations. The request for these photographs was reasonably calculated to yield evidence relevant to plaintiff’s assertion that she could no longer engage in the activities she enjoyed before the accident and that she had become reclusive. It happens in this case that the order was naturally limited in temporal scope because plaintiff deactivated her Facebook account six months after the accident and Supreme Court further exercised its discretion to exclude photographs showing nudity or romantic encounters, if any, presumably to avoid undue embarrassment or invasion of privacy.

In addition, it was reasonably likely that the data revealing the timing and number of characters in posted messages would be relevant to plaintiffs’ claim that she suffered cognitive injuries that caused her to have difficulty writing and using the computer, particularly her claim that she is painstakingly slow in crafting messages. Because Supreme Court provided defendant no access to the content of any messages on the Facebook account (an aspect of the order we cannot review given defendant’s failure to appeal to the Appellate Division), we have no occasion to further address whether defendant made a showing sufficient to obtain disclosure of such content and, if so, how the order could have been tailored, in light of the facts and circumstances of this case, to avoid discovery of nonrelevant materials.7

In sum, the Appellate Division erred in concluding that defendant had not met his threshold burden of showing that the materials from plaintiff’s Facebook account that were ordered to be disclosed pursuant to Supreme Court’s order were reasonably calculated to contain evidence "material and necessary" to the litigation. A remittal is not necessary here because, in opposition to the motion, plaintiff neither made a claim of statutory privilege, nor offered any other specific reason – beyond the general assertion that defendant did not meet his threshold burden – why any of those materials should be shielded from disclosure.

(Mike Frisch)

February 13, 2018 in Current Affairs | Permalink | Comments (0)

Friday, December 15, 2017

Outsmarting A Narcissist: The FBI And Fake News

The United States Court of Appeals for the District of Columbia Circuit held that the FBI did not adequately search for information concerning "fake news" operations

In 2007, Seattle-area Timberline High School began receiving anonymous bomb threats, which prompted daily evacuations. See U.S. Department of Justice, Office of the Inspector General, A Review of the FBI’s Impersonation of a Journalist in a Criminal Investigation 1 (2016) (“OIG Report”), Joint Appendix (J.A.) 538. Unable to trace the emailed threats to their sender, local authorities called in cybercrime experts from the FBI’s Seattle Division. Id. Sensing the handiwork of a narcissist, the FBI agents devised a plan: if they could flatter the culprit into clicking a link to what appeared to be press coverage suggesting that he had outsmarted the authorities, they could, in turn, outsmart him by secretly delivering specialized malware that would reveal his computer’s location. Id. at 11–12, J.A. 548–49. Warrant in hand, an FBI Special Agent contacted an anonymous social media account associated with the threats, identified himself as an Associated Press “Staff Publisher,” and requested input on a draft article accessible through an emailed link. Id. at 14–15, J.A. 551–52. The suspect took the bait, clicking the link and unwittingly downloading the malware. Id. at 16, J.A. 553. Within hours, the FBI had its man. Id.

The court recounts that the matter received little notice until an ACLU technologist learned of the ruse.

Flash forward seven years to October 2014, when an American Civil Liberties Union technologist spotted a reference to the FBI’s ruse—which had previously drawn little public attention—in a set of FBI documents released years earlier to an electronic privacy organization. Troubled, the technologist took to Twitter, and within days, news of the media impersonation tactics employed at Timberline prompted headlines nationwide. Facing outcry from news outlets, interest groups, and members of Congress, then–FBI Director James Comey, Jr., penned a letter to the New York Times justifying the tactics. But the public’s interest had already been roused.

A FOIA request followed

Among those wanting to learn more were the Reporters Committee for Freedom of the Press and the Associated Press, appellants here...

During the course of litigation, the FBI eventually located and released some responsive records, most pertaining to Timberline and none identifying any other instances of media impersonation. The Reporters Committee insisted that the FBI’s search efforts were insufficient, but the district court disagreed and granted summary judgment to the agencies.

The court

The Reporters Committee argues that the FBI failed to justify its decision to limit its search for Group One records, i.e., “records concerning the FBI’s utilization of links to what are, or appear to be, news media articles or news media websites to install” malware, to the Tech Division, while searching more broadly for “documents referring to the decision to create the fake [Associated Press] news article in the Timberline High School case.” First Hardy Decl. ¶ 34, J.A. 110–11. Because the former set of requested records encompasses the latter, the Reporters Committee insists, the FBI acted illogically in declining to consider that locations reasonably likely to hold Timberline-specific records would be similarly likely to hold records pertaining more generally to other instances of media impersonation.

We agree that the FBI could have better justified its search methods. For Timberline documents, the Records Section ordered targeted searches of a number of Bureau divisions, including the Office of General Counsel, the Tech Division, the Behavioral Analysis Unit, the National Covert Operations Section, and the Training Division, id. ¶ 43, J.A. 114–15; by contrast, for the broader set of Group One documents, Records ordered a targeted search of the Tech Division alone, id. ¶ 38, J.A. 112–13. Attempting to justify this distinction, the FBI points out that the Group One request sought records linking media impersonation to the installation of malware, whereas the Timberline request sought records relating only to the decision to impersonate the press in the first place. Because “the FBI’s policy specifically states that [the Tech Division] is solely responsible for the deployment and collection of all lawfully conducted electronic surveillance [B]ureau wide,” Second Hardy Decl. ¶ 4, J.A. 491, the FBI reasoned, nowhere else was likely to hold records regarding the use of malware.

This does not follow. Certainly, the Tech Division’s role in approving malware use makes it likely to hold relevant records. But that hardly means that “no other FBI Divisions or personnel would reasonably likely possess records” regarding the tactics used to deploy such malware. First Hardy Decl. ¶ 40, J.A. 113. Indeed, the Timberline incident provides a ready illustration of just what those other divisions might be. For example, record evidence demonstrates that the agents involved in the Timberline investigation conferred with the Behavioral Analysis Unit regarding how best to deliver malware. See OIG Report at 12, J.A. 549. Further undermining its claim that malware-related records were likely to appear nowhere but the Tech Division, the Bureau on its own accord elected to group the request for “an accounting of the number of times . . . that the [FBI] has impersonated media organizations or generated media-style material . . . to deliver malicious software,” First Hardy Decl. ¶ 34, J.A. 111 (emphasis added), with the Group Two requests for which it ordered multiple targeted searches and not with the Group One request for which it searched only the Tech Division.

Put simply, given the FBI’s determination that certain divisions were “reasonably likely” to hold records relating to a specific instance where media impersonation was used to deliver malware, its failure to search these very same divisions for records relating to other such instances leaves us unable to conclude, barring some explanation, that the FBI searched for the latter records in a manner “reasonably expected to produce the information requested.” Oglesby, 920 F.2d at 68...

Finding that material factual questions remain as to the adequacy of the FBI’s search, we reverse and remand to the district court for further proceedings consistent with this opinion.

Circuit Judge Tatel authored the opinion joined by Circuit Judge Kavanuagh and Senior Judge Silberman.   (Mike Frisch)

December 15, 2017 in Current Affairs | Permalink | Comments (0)

Thursday, December 14, 2017

Constitutional Crisis In Florida: No Go On Quo Warranto

The Florida Supreme Court denied relief in a matter brought by the League of Women Voters. 

This case is before the Court on the petition of the League of Women Voters of Florida (the League) for a writ of quo warranto. Because the issue presented is not ripe for consideration, we dismiss the petition.

The League asks this Court to issue a writ of quo warranto against Governor Rick Scott prohibiting him from “filling any judicial vacancies on Florida’s appellate courts that occur due to terms expiring in January 2019.” The League’s basis for filing the petition is Governor Scott’s December 2016 announcement of intent to appoint the replacements for three justices of this Court. However, use of the writ to address prospective conduct is not appropriate...

Although Governor Scott announced his intent to appoint the replacements for three justices of this Court, clearly no appointments have been made. To use quo warranto to review an action which is merely contemplated but not consummated, as in the present case, would require this Court to depart from the historical application of the writ. This we decline to do. Until some action is taken by the Governor, the matter the League seeks to have resolved is not ripe, and this Court lacks jurisdiction to determine whether quo warranto relief is warranted.

Based upon the foregoing, the petition is hereby dismissed.

Justice Lewis dissents

It is most unfortunate that the majority finds it necessary to summarily dismiss this common law action to protect our State from blatantly unconstitutional actions for reasons other than a proper analysis of the law and do so directly contrary to the application of quo warranto in this judicial appointment context in 2016 in Lerman v. Scott, No. SC16-783, 2016 WL 3127708 *1 (Fla. June 3, 2016), in which the entire Court either concurred or concurred in result. It is even more regrettable and distressing that future Floridians have lost the ability to protect themselves and society from clearly unconstitutional action. The Florida Constitution requires devoted protection and the Florida citizens deserve better.

Contrary to Florida law and the general common law, the majority has now announced that the challenged conduct must have already produced a constitutional crisis and calamitous result before illegal acts of government officials are subject to quo warranto review or relief. Florida law has generally recognized that quo warranto is available to prevent significant impacts on the operation of government, Whiley v. Scott, 79 So. 3d 702, 708 (Fla. 2011), but the majority now negates that common sense, reasonable, and logical analysis to require that that illegal and unconstitutional conduct which produces disarray must have already occurred to allow judicial action. While writs of quo warranto may be applied to acts of state officials that have already been committed, the writ is not foreclosed as an avenue of relief for threatened and imminent future actions of state officials, based on the clear Florida law...

Under the majority view, elected politicians can announce their intentions and plan to engage in all types of illegal and harmful conduct but no relief is available until the illegal and harmful act has already inflicted its damage. Magnificent trees cut, pristine waters fouled, and unthinkable harm inflicted upon our citizens, which may not be prevented when the actor plans and even announces his intentions. Today, we have a new test. The writ is only available when the illegal act is taken and harm is actually inflicted—at times even irreparable harm.

December 14, 2017 in Current Affairs | Permalink | Comments (0)

Wednesday, December 6, 2017

Warrant Does Not Prevent Police Officer Liability

The United States Court of Appeals for the Fourth Circuit held that some claims against the estate of a police officer  who executed a warrant that required a photograph of the defendant's erect penis survive dismissal on the pleadings

In 2014, David E. Abbott, a detective with the Manassas City Police Department in Virginia, investigated allegations that 17-year-old Trey Sims used his cellular telephone to send sexually explicit photographs and video recordings of himself to his 15-year-old girlfriend. During the course of the investigation, Abbott obtained a search warrant authorizing photographs of Sims’ naked body, including his erect penis. When Abbott executed the warrant, he allegedly demanded that Sims manipulate his penis to achieve an erection. Sims unsuccessfully attempted to comply with Abbott’s order. The civil action before us is based on these alleged events.

Abbott died before the present case was filed. Sims therefore initiated this action against Kenneth Labowitz, the administrator of Abbott’s estate under Virginia Code § 64.2-454 (the Administrator). Sims asserted claims for damages under 42 U.S.C. § 1983, alleging that the search of his person violated his Fourth Amendment right of privacy or, alternatively, his right of substantive due process under the Fourteenth Amendment. Sims also brought a claim under 18 U.S.C. § 2255(a) alleging that, as a result of the search, he was the victim of manufactured child pornography. The district court determined that the Administrator was entitled to qualified immunity on the Section 1983 claims, and accordingly dismissed that portion of Sims’ action. The court also dismissed the remainder of Sims’ complaint.

Upon our review, we reverse the district court’s judgment with respect to the Section 1983 claim alleging a Fourth Amendment violation. Construing the facts in the light most favorable to Sims, a reasonable police officer would have known that attempting to obtain a photograph of a minor child’s erect penis, by ordering the child to masturbate in the presence of others, would unlawfully invade the child’s right of privacy under the Fourth Amendment. We therefore remand Sims’ Section 1983 claim alleging a Fourth Amendment violation to the district court for further proceedings. We affirm the district court’s dismissal of Sims’ remaining claims, including his claim for damages under 18 U.S.C. § 2255(a) as an alleged victim of child pornography.

Circuit Judge King dissented

I write separately to dissent from the majority’s denial of Detective Abbott’s qualified immunity claim. With great respect for my good colleagues, their decision fails to recognize the controlling facts that undermine the § 1983 claim of plaintiff Sims. That is, Detective Abbott was acting pursuant to the advice of counsel and adhering to a court order. In my view, Abbott’s actions were entirely consistent with applicable law and the Fourth Amendment. To explain my position more fully, this dissenting opinion contains three short segments. First, I emphasize the sanctity and importance of court orders. Second, I review the controlling facts and some guiding legal principles. Finally, I explain that Detective Abbott did not contravene any constitutional right and that he is entitled to qualified immunity. Put simply, I would affirm the district court.

The warrant authorized seizure of the following

Photographs of the genitals, hands, and other parts of the body of Trey Sims that will be used as comparisons in recovered forensic evidence from the victim and suspect’s electronic devices. This includes a photograph of the suspect’s erect penis.


Put simply, the search warrant at issue here was properly and legally issued, it was complied with, and Detective Abbott is entitled to qualified immunity.

The Washington Post reported on the death of the officer, who committed suicide when police came to his home to arrest him on sexual misconduct charges.

A Manassas City police detective, who was the lead investigator in a controversial teen “sexting” case last year, shot and killed himself outside his home Tuesday morning as police tried to arrest him for allegedly molesting two boys he met while coaching youth hockey in Prince William County.

David E. Abbott Jr., 39, was a member of the Northern Virginia-Washington D.C. Internet Crimes Against Children Task Force and had been an officer on the Manassas City force for 14 years. In his spare time he coached 13- and 14-year-old boys in travel hockey for the Potomac Patriots program at the Prince William Ice Center in Woodbridge, club officials said. When Prince William police learned Monday of the allegations of improper contact by Abbott over a period of years, they moved quickly.

Police said they learned that Abbott had sent inappropriate text messages and emails to a 13-year-old boy he met through the hockey program. By phone and social media, Abbott had been asking the boy for sex acts for more than two years, county police said.

Detectives then learned of a second potential victim, a boy who was 13 and was also part of the Patriots hockey club in 2008 when Abbott began sending him inappropriate messages, police said. Early Tuesday, Prince William police obtained a search warrant for Abbott’s townhouse on Senea Drive in Gainesville, where he lived with his mother. Police also obtained four felony arrest warrants — two counts of indecent liberties by a custodian and two counts of use of a communication device to solicit a sexual offense.

Police arrived at the townhouse about 2:30 a.m. Tuesday, Prince William Sgt. Jonathan Perok said. Abbott refused to surrender. Aware that the detective probably had weapons, the police then evacuated some nearby townhouses as a precaution, Perok said.

(Mike Frisch)

December 6, 2017 in Current Affairs | Permalink | Comments (0)

Monday, November 27, 2017

No Liability For Death Of The Bird

The Massachusetts Supreme Judicial Court affirmed the grant of summary judgment to defendants in claims arising from the death of Mark Fidrych

Mark Fidrych owned a dump truck that he used to haul soil. On the morning of April 13, 2009, Fidrych was seen at his farm working on the truck. Later that day, he was found dead underneath it, with his clothing caught up in a spinning universal joint (U-joint) that was part of the mechanical system used to tilt the "dump body" of the truck. The medical examiner identified the cause of death as accidental asphyxiation. In her capacity as executrix of Fidrych's estate, his widow, Ann Pantazis, filed a wrongful death action in the Superior Court. She sued, among others, Mack Trucks, Inc. (Mack Trucks), which manufactured the original, stripped-down version of the truck, and Parker-Hannifin Corporation (Parker-Hannifin), which had acquired the assets of Dana Corporation (Dana).  Dana manufactured a piece of equipment known as a "power take-off" (PTO), which was another part of the system used to tilt the dump body of Fidrych's truck. In two separate summary judgment rulings, different Superior Court judges ruled in favor of each of these defendants. We affirm.


we conclude that where, as here, the components manufactured by the defendants included no design defects, and the risks posed by the assembled product arose out of the addition of other components and the decisions made, and actions taken, by downstream actors, the defendants had no duty to warn of those dangers. Resolving the case as we do, we have no occasion to consider the defendants' other arguments, such as their claim that they had no duty to warn of the dangers posed by the exposed auxiliary drive shaft and U-joint in light of the obviousness of such risks, at least to someone with Fidrych's presumed familiarity with the truck that he had owned for over twenty years...

None of this is to say that appellate courts should never recognize exceptions to the component parts doctrine. In fact, this court recognized the possibility of such an exception in Morin v. AutoZone Northeast, Inc., 79 Mass. App. Ct. 39, 51-52 (2011).  Based on the summary judgment record and the arguments raised, the plaintiff has not demonstrated good cause to create an exception here.

(Mike Frisch)

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

Monday, November 13, 2017

Thirty Years And Going Strong

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

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

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

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

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

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

Monday, October 30, 2017

No Care For The Dead

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

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

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

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


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

(Mike Frisch) 

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

Ethics Of Paying Fact Witness At Issue In Florida

From sunEthics

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

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

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

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

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

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

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

Hat tip! (Mike Frisch)

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

Friday, October 27, 2017

The Sleeping Jurors

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

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

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

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

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

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

Friday, October 20, 2017

Public Business, Private Accounts

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

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

The court

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

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

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

(Mike Frisch)

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

Wednesday, October 18, 2017

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

From the web page of the Ohio Supreme Court

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

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

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

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

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

(Mike Frisch)

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

Tuesday, October 17, 2017

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

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

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

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

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

The court noted comments to the proposed order and concluded

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

(Mike Frisch)

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

Thursday, September 28, 2017

Belief In Systemic Bias Does Not Disqualify Juror

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

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

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

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

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

Key language

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

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

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

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

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

Wednesday, September 20, 2017

Breach Of "Shiduch" Lawsuit Sees A New Year

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

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

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

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

The New York Post had a story about the case.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Lifschitz and her attorney declined to comment on the case.

(Mike Frisch)

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

Thursday, August 31, 2017

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

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

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

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

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

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

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

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

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

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

(Mike Frisch)

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

Wednesday, August 30, 2017

A Crowded And Complex Relationship

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

Not your average family situation per the majority

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

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

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

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

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

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

The court noted

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

And footnoted

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

And the child had issues as well

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

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

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

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

Judge Getty dissents  and would hold the unfitness issue unpreserved. 

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

He quotes the Court of Special Appeals

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

Judge McDonald joined the dissent.

The oral argument is linked here. (Mike Frisch)

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

Tuesday, August 22, 2017

Yoga Instructor Fired For Being "Too Cute" May Sue

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

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

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

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

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


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

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

The Daily News has details.

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

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

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

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

(Mike Frisch)

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