Legal Profession Blog

New book on visiting judges in federal courts

Not a book on the legal profession, true, but more on law and society. I thought some of our readers would want to know about a new book that I didn't write but did edit and publish on behalf of the author, political scientist Steve Wasby. It's Borrowed Judges: Visitors in the U.S. Courts of Appeals. It is about how federal appellate courts use visiting judges--from other circuits, from the district courts, even from their Senior Judges bench. It publishes at midnight, or likely already as you read this. [Alan Childress]

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)

Won An Election, Lost A Job And A Claim

The United States Court of Appeals for the Fourth Circuit affirmed the dismissal of a complaint brought by a former assistant county attorney who was terminated from longtime service after a successful run for public office

David Bobzien (“Bobzien”), the County Attorney for Fairfax County, Virginia, terminated the employment of Nancy Loftus (“Loftus”), an assistant county attorney, following her election to the Fairfax City, Virginia, City Council (the “City Council”). After an unsuccessful grievance proceeding, Loftus filed suit in the United States District Court for the Eastern District of Virginia, challenging Bobzien’s decision to terminate her employment “solely because she had been elected to the City Council.” J.A. 4. Loftus contended Bobzien’s actions violated her rights under the First Amendment to the United States Constitution as well as a Virginia statute and Fairfax County ordinance. The district court dismissed Loftus’ complaint, concluding the termination of her employment did not violate the First Amendment, Virginia law or the local ordinance. For the reasons set out below, we affirm the district court’s judgment.

Bobzian raised ethical concerns during the candidacy, citing Virginia bar ethics opinions

In response to Bobzien’s concerns, Loftus contacted the “Ethics Hotline” of the office of the Virginia State Bar’s Ethics Counsel (“Ethics Counsel”). She inquired: “is it unethical for me to be an [a]ssistant [c]ounty [a]ttorney for Fairfax County and also serve on the Fairfax City Council?” J.A. 57. Answering by letter, Ethics Counsel stated that the “short answer” is “it is not per se unethical for a lawyer to be employed in a law firm or government attorney’s office and concurrently hold a public position or office.” J.A. 57. Ethics Counsel then qualified his abstract answer by cautioning “lawyers that serve on public bodies will create conflicts of interest if the law firm in which the public official practices also interacts with the public body on which one of its lawyers sits.”

Loftus was placed on administrative leave and later terminated, leading to the suit

...Loftus’ claim must fail. Although Loftus contends her termination was in violation of the First Amendment, the Supreme Court has made clear that public employers may permissibly bar their employees from participating in a wide array of political activities, including running for elective office. If a public employee can be prohibited from running for office, it follows all the more strongly that she also can be barred from holding elective office while remaining a public employee. In large part, the constitutional questions raised by this case are resolved by Clements. If the resign-to-run and automatic resignation provisions of the Texas Constitution -- which stripped certain public employees of their office upon declaring their candidacy for the state’s legislature -- pass muster under the First Amendment, surely the termination of Loftus’ employment only after her election to the City Council survives First Amendment scrutiny.

...The record reflects multiple potential points of conflict that could face Loftus as a member of the City Council and an attorney in the Fairfax County Attorney’s Office. As the LEOs from the Standing Committee illustrate, it is not simply Loftus’ status as a public employee that creates a problem, but particularly her status as a lawyer for a public “law firm.” That role appears to create non-waivable conflicts of interest not simply limiting Loftus under her ethical duties as a lawyer, but imposing significant burdens on her public employer.

Moreover, Loftus is unable to point to any appellate authority to suggest that, all else being equal, her employment by a different municipality should be a dispositive factor in our analysis. In fact, she can muster only two district court cases to support her position, both of which are factually inapposite and of no precedential value. See Segars v. Fulton Cty., 644 F. Supp. 682 (N.D. Ga. 1986); Hickman v. City of Dallas, 475 F. Supp. 137 (N.D. Tex. 1979). Neither case involves an attorney representing one municipality while also running for office in another municipality to which her client potentially will be adverse in the future.

The court rejected other claims raised by the plaintiff. She had worked as an assistant county attorney since 1997.

The Washington Post reported on the firing. (Mike Frisch)

The Law Of Urban Gun Battles

The District of Columbia Court of Appeals has affirmed a second-degree murder conviction on the basis of the "urban gun battle" theory of causation.

Because the decision relies on a 2005 court precedent, there is an impassioned concurrence and call for en banc consideration by Associate Judge Easterly

At the time Michael Jones was shot and killed, there were people around him shooting guns at each other. Bernard J. Fleming may have been one of the individuals shooting at Mr. Jones and his companions. No witness ever saw and no videotape ever showed Mr. Fleming shooting a gun, and he was never found in possession of a weapon. He was, however, seen with another man up on a second-floor balcony where police found bullet casings and a bullet; he was also seen before the shooting bringing an object—possibly a gun—to the balcony and removing an object when the shooting was over; and he could have hidden two guns later discovered by the police under a stairwell in the building, one of which might have been used in the shooting. But even if Mr. Fleming possessed a gun and was one of the persons shooting at Mr. Jones and his companions, no evidence connected any shot he might have fired to the shot that killed Mr. Jones. The bullet retrieved from Mr. Jones’ body was so fragmented that it could not provide  an evidentiary link to the shooter. Moreover, evidence showed that Mr. Jones was shot in the back of the head, making it possible that he was shot by Mr. Hamlin.

Nonetheless, Mr. Fleming was held accountable for Mr. Jones’ death. He was convicted of second-degree murder while armed based on the "urban gun battle" theory of causation that this court announced in Roy v. United States, 871 A.2d 498 (D.C. 2005), i.e., the proposition that a defendant who exchanges gunfire with another individual "proximate[ly] cause[s]" any death that results, whether or not the defendant fired the fatal shot, id. at 506. I assume the division is bound by this court’s decision in Roy to uphold Mr. Fleming’s conviction. But I cannot vote to affirm without commenting on the dangerous incoherence of Roy’s "causation" analysis. In truth, it dispenses with causation altogether, and, by thus reducing the government’s burden of proof for murder, captures in its net individuals who can only be proved to have committed far less serious crimes. Roy was wrongly decided. Moreover, I cannot sign on to the division’s opinion applying Roy, which effectively expands its illogic. I write separately to explain the flaws with Roy’s causation reasoning and to call for en banc review to reject Roy’s urban gun battle theory of guilt for murder.

Judge Easterly views Roy as creating a new crime

Courts may feel "pressure" to somehow find criminal liability in cases "where the culpable consequence of [the] defendant’s action is some unintended but voluntary action of another," but Professor Kadish warns that "[t]here is no way to extend liability in these cases . . . in a way that does not require a significant departure from doctrinal premises." Kadish, supra, at 399–400, 402–03. This court’s urban gun battle theory is a case in point. With no real causation  requirement (and no complicity requirement), this theory is unmoored from established common law principles of criminal culpability.

In effect, the court in Roy made a policy choice to create a new crime that allows an individual to be convicted of murder without proof that he caused (or was complicit in) a murder. If the objective was to ensure that certain homicides beget at least one murder conviction, it is antithetical to another "cardinal principle of Anglo-American jurisprudence that, in Blackstone’s immortal words, better ten guilty persons should go free than one innocent person be convicted." United States v. Greer, 538 F.2d 437 (D.C. Cir. 1976) (citing 4 William Blackstone, Commentaries on the Laws of England 352 (1769)). Indeed, the creation of this new crime leads to a perverse result: in contrast to cases where the government shoulders its burden to prove the identity of the killer, in urban gun battle cases, the government can successfully prosecute more people for murder based on far less proof. But the biggest problem with this court’s decision in Roy is that we exceeded our judicial role. It is not our job to create new crimes. We do violence to the law when we purport to apply the common law doctrine but in fact act as a legislature. Before more damage is done,24 we need a course correction. Roy should be overturned by this court en banc, not revised and effectively extended by the panel in this case.

The opinion is authored by Associate Judge Glickman and joined by Associate Judge Fisher. (Mike Frisch) 

Cape Fear Comes To Life

The Maine Supreme Judicial Court affirmed an improper sexual contact conviction, holding that the trial judge's handling of a disruptive spectator was appropriate and that a mistrial was properly denied.

During jury selection, [defendant] Frisbee’s attorney noticed that one of his former clients, who had no connection to this matter, was in the courtroom. The spectator had been convicted of, and had spent eleven months in prison for, threats against Frisbee’s attorney and his family.

Specifically, the spectator had threatened to drown Frisbee’s attorney’s children in the brook behind Frisbee’s attorney’s home. (footnote one)

Frisbee’s attorney was not the only one in the courtroom who had a history with this man. Before becoming a judge, the trial judge had been a prosecutor, and he had prosecuted the spectator some twenty years prior, resulting in the spectator being sentenced to jail. The State’s attorney had also prosecuted the spectator for the threats against Frisbee’s attorney and his family. Finally, the spectator had just been released from prison for charges of criminal threatening involving one of the potential jurors—juror 116—who would later be empaneled on the case.

Initially, the court asked the judicial marshals to move the spectator so he would not be directly behind Frisbee’s attorney during voir dire of potential jurors, but Frisbee’s attorney continued to be distracted because the spectator was glaring at him, smiling, making gestures, and smirking. The court, noting that Frisbee’s attorney’s fears and concerns regarding the spectator were not “fanciful and not an exaggeration,” then instructed the judicial marshals to remove the spectator should he reappear in the courtroom during the remainder of jury selection in order to protect Frisbee’s rights to effective assistance of counsel and prevent compromising Frisbee’s attorney’s professional responsibilities to his client. Jury selection continued without incident.

Approximately half-way through the first day of the trial, a marshal informed the court that the spectator was in the courtroom again and had moved closer to juror 116. The court immediately ordered a brief recess. The court, the State, and Frisbee’s attorney discussed the spectator’s arrival. Frisbee’s attorney, who had heard reports that the spectator had recently been seen in the community with a weapon, told the judge that he would not reenter the courtroom until the spectator had been screened by security. The court, considering the spectator’s significant history with juror 116 and with the defense attorney, directed security to take the spectator through security screening. The court also interviewed juror 116, who provided her history with the spectator.  She stated that she was “very distracted” by the spectator’s presence in the courtroom, but that she would not continue to be distracted as long as he was removed from the courtroom.

After the judge excluded the spectator from the courtroom

On the second day of trial, the court was informed that the spectator had been in the building, had made a transcript request, and had been approaching jurors inside and outside the courthouse that morning and asking them to take a copy of a book that he had written. Frisbee’s attorney requested that the jury be sequestered for the remainder of trial. The court undertook a voir dire of each juror individually to ask whether the spectator had been a distraction or would influence each juror’s ability to remain fair and impartial in deciding the case. Several of the jurors had seen the spectator, and several had heard that the spectator had stalked one of the jurors and her family. One juror stated that “some of the ladies on the jury are upset, disturbed.” However, all of the jurors except for juror 116 stated that they had not been distracted by the spectator’s presence, and all of the jurors stated that the spectator in no way would affect their ability to be fair and impartial. The court did not grant Frisbee’s attorney’s request for sequestration.

 Later that same morning, a judicial marshal alerted the court and the parties that the spectator had left his notebook at the courthouse. In the back of the notebook, there was a note that read, “I wish you were all dead, but since you’re not I hope you all die as soon as possible. And with as much agony as possible.” 

After the notebook was found, Frisbee moved for a mistrial on the ground that the spectator’s distraction of the jury on the previous day had interfered with the jurors’ ability to devote their full attention to the evidence on that day. In considering the motion, the court found that the jurors had been forthright during voir dire earlier in affirming that they were not distracted by the spectator and could devote their full attention to the case. In addition, the court noted that it had ordered a recess as soon as the spectator’s presence had been noted the previous day. It thus concluded that “the likelihood that there was in fact distraction is low,” and it denied Frisbee’s motion for a mistrial.

The court identified the competing factors presented by the facts and affirmed the action of the trial court .

BDN Maine has details about the decision and circumstances.  (Mike Frisch)

Defendant Conspired With Booth (No Not John Wilkes)

The Georgia Supreme Court affirmed a conspiracy to murder conviction notwithstanding the acquittal of the alleged co-conspirator

The instant case is one of first impression only inasmuch as it concerns inconsistent conspiracy verdicts between jointly-tried co-conspirators and as it concerns the validity of the dicta in Smith v. State, supra. Now having considered the matter, we see no reason why Milam and its progeny would not be applicable to this case. Here, the jury convicted appellant of conspiracy to murder and acquitted her co-conspirator of same, but also found her coconspirator guilty of the lesser crimes of making false statements. Given this outcome, it is plausible that the jury’s decision constituted a mistake, compromise or lenity, none of which warrant intruding into its deliberations. This approach is consistent with federal cases which have followed Powell by declining to reverse the conspiracy conviction of a co-conspirator when the other co-conspirator has been acquitted by the same jury and under the same evidence.

The conviction had been affirmed by the Court of Appeals.

The Mirror had the story of the trial

A Wayne County jury acquitted a woman and her male coworker on murder charges Wednesday night but found them both guilty of other crimes in her husband's slaying last year.

Patti Thornton and Walter G. Booth were found not guilty of killing Thornton's husband, Richard "Shell" Thornton III, 46, at the couple's rural K-Ville community home on Dec. 14, 2007.

Booth, 60, of Odum also was acquitted of conspiracy to commit murder in the fatal shooting...

A well-known farmer, Shell Thornton was found dead with a gunshot wound to the head in a bedroom at the ransacked home on Big Creek Road home near the Wayne-Appling County line.

Patti Thornton's mother, who lives nearby, called 911 and said her daughter had returned home from an errand, found her home in disarray and left frightened without going inside.

Testifying in her own defense, Thornton denied killing her husband or arranging to have him slain. She also denied having an affair with Booth.

Booth did not testify. Georgia Bureau of Investigation agents testified that Booth had told them that he was at a convenience store when Shell Thornton was killed.

(Mike Frisch)

Sanction Not Sustained For Limited Scope Representation

The Kentucky Supreme Court recently held  that sanctions imposed against attorneys who provided services but did not sign pleadings as part of a limited scope representation could not stand.

Sarah Jackson and David Thomas, of Owensboro, individually retained Appellants Persels & Associates, LLC (“Persels”) to defend them in their debt collection cases that were pending before the Daviess Circuit Court.  Persels is a national law firm organized in Maryland and engaged primarily in unsecured debt collection cases such as credit card debt.  Here, Persels attempted to negotiate with the credit card companies on behalf of its clients.  To assist in negotiations, Persels retained Kentucky attorneys K. David Bradley of Salt Lick, Kentucky, and Robert Gillispie of Leesburg, Virginia, to provide limited representation.  Mr. Bradley was assigned to “assist” Sarah Jackson;  and Mr. Gillispie was assigned to “assist” David Thomas.

The terms of Jackson's and Thomas's limited-representation agreements with Persels were confined to drafting and consultation services.  The agreements specifically provided that neither Kentucky lawyer was required to sign pleadings, enter an appearance, or attend court proceedings.  Therefore, it appears that the defendants were nominally pro se.  They either signed the documents that were prepared for them, or were at least instructed to do so by counsel.  In 2011, however, the Daviess Circuit Court ordered Attorneys Bradley and Gillispie to appear and show cause as to why they should not be held in contempt for their failure to enter their appearances and sign documents filed with the court.  The trial court consolidated the two cases and permitted Persels to intervene as a third party respondent.

Sanctions under Kentucky's Rule 11 were imposed and affirmed by the Court of Appeals.

The rationale behind CR 11 is to regulate the litigation process so that pleadings are valid for everyone – indigent or not. Second, pro se clients, indigent or not, must follow the rules of civil procedure, too. Unfortunately, the solution for providing legal service for indigent clients is much broader and more complex than this case. Undoubtedly, a decision to authorize limited representation through unbundled legal services in Kentucky would likely necessitate a review of the rules of practice, and perhaps, amendments to the civil rules. Such a course of action is not impeded or prevented by the actions of the Daviess Circuit Court in enforcing CR 11.

In conclusion, the trial court was not clearly erroneous in its findings nor did it abuse its discretion in the imposition of its sanction. In sum, we concur with the legal reasoning of the trial court and hold that pleadings prepared with the assistance of an attorney in the Commonwealth must be signed by the attorney.

The court here disagreed and considered the policy implications of limited scope representation agreements.

Kentucky Supreme Court Rule (“SCR”) 3.130 (Rule 1.2) governs the scope of representation and allocation of authority between client and lawyer. It provides in part:  “A lawyer may limit the scope of the representation if the limitation is reasonable under the circumstances and the client gives informed consent.” SCR 3.130(1.2)(c).  Comment 6 further defines the nature and scope of limited representation agreements and provides in part:

A limited representation may be appropriate because the client has limited objectives for the representation.  In addition, the terms upon which representation is undertaken may exclude specific means that might otherwise be used to accomplish the client's objectives.  Such limitations may exclude actions that the client thinks are too costly or that the lawyer regards as repugnant or imprudent...

There is a significant portion of the population comprised of individuals who are not indigent yet do not possess the means to afford full and rigorous representation of counsel.  See Cristina L. Underwood, Comment, Balancing Consumer Interests in a Digital Age:  A New Approach to Regulating the Unauthorized Practice of Law, 79 Wash. L.Rev. 437, 442 (2004) (“Many low- and moderate-income households simply cannot afford the cost of personal legal services.”). Indeed, “[s]ubstantial evidence indicates the existence of a latent marketplace for personal civil legal services to those of low and moderate incomes.”  Accordingly, many of our citizens cannot afford the full breadth of legal representation but are nevertheless in need of representation of some degree.

We encourage lawyers to take on cases that service the less fortunate.

The image of our profession is enhanced by these admirable efforts.  Therefore, it is clear that limited-representation agreements are necessary to some extent.  However, we acknowledge that these types of arrangements may be abused to the detriment of the litigants and the courts.

These policy concerns lead to this conclusion

In keeping with the letter and spirit of SCR 3.130 (Rule 1.2) and its accompanying commentary, we authorize agreements that limit the scope of legal assistance or that limit representation to discrete legal tasks, so long as they are reasonable under the circumstances and the client gives informed consent.  See Rochelle Klempner, Unbundled Legal Services in New York State Litigated Matters:  A Proposal to Test the Efficacy Through Law School Clinics, 30 N.Y.U. Rev. L. & Soc. Change 653, 654 (2006). This includes limitations on services provided in furtherance of traditional litigation as well as alternative dispute resolution methods.

Agreements that limit representation to distinct stages of litigation may also be reasonable under the circumstances.  The monumental increase in pro se and nominal pro se domestic filings provides a particularly apt example of the need for this unique type of limited-representation. For instance, family law practitioners may provide comprehensive representation during property division proceedings but not provide representation in any form during child custody proceedings, or vice versa.  However, these types of agreements must be carefully tailored to avoid abuse and confusion from the perspective of the client and the court.

To clarify, in addition to being reasonable under the circumstances, all agreements which limit representation must be in writing, require the informed consent of the client(s), and must comport with our rules, including the rules of professional conduct.

However, we do not adopt a strict rule requiring drafting attorneys to sign the documents they prepare pursuant to limited-representation agreements.  An attorney involved in the preparation of initial pleadings (complaint, answer, cross-claims and counter-claims), must indicate that the document has been prepared by or with the assistance of counsel by providing “Prepared By or With Assistance of Counsel” on the document concerned. See Bhojani, 65 SMU L.Rev. at 680 (“since the court is not being misled as to the fact of the drafting assistance, the attorney is not violating the duty of candor and not deceiving the court.”).  Of course, in cases where there is one or more attorneys of record, at least one attorney of record must sign documents presented to the court and provide their address in accordance with CR 11.  Pro se litigants must also satisfy the signature and address requirements of CR 11.

Furthermore, active assistance by counsel must be disclosed to the presiding tribunal and adversaries.  Active assistance includes drafting documents in furtherance of litigation that extend beyond initial pleadings. Notice of active assistance shall include the name, address, and telephone number of the attorney(s) working on the case, and the nature of the limited representation agreement at issue.  However, such disclosures do not constitute an appearance by counsel, nor do they require the drafting attorney to appear in court on behalf of the litigant receiving limited representation unless the court or the surrounding circumstances dictate otherwise.  For example, cases involving expedited or emergency relief may justify comprehensive representation, or at least a limited appearance of counsel, for the purpose of resolving the expedited matter.

In all cases, attorneys providing limited-representation are required to adequately investigate the facts to ensure that the pleadings or other documents drafted in furtherance of litigation are tendered in good faith.  See Rule 3.1.  Moreover, attorneys providing limited-representation of any kind may not deceptively engage in a more complete role.  See Rule 8.4.

Lastly, limited representation does not require proof of indigence.  Although the financial means of litigants pursuing limited-representation may be considered by courts as relevant to the overall reasonableness of the agreement, a litigant's financial status is not a dispositive factor.  On this issue, deference should be afforded in favor of the litigant seeking limited representation.

Here

...whether the agreement is reasonable also goes to the question whether it is ethical And because it is an agreement entered into by an attorney, if it is unreasonable, for example as to the fees charged, then the attorney may have committed an ethical violation by negotiating an unreasonable contract with his client.  Certainly, if a trial court becomes aware of such unreasonable aspects of a limited-representation agreement, then the court has a duty to file a bar complaint against the offending attorney, as does opposing counsel who may become aware of the situation.  Indeed, the party to the agreement may do likewise.  But collateral contract disputes or ethical violations are not proper issues for a trial court to address with CR 11 sanctions merely because a pleading is not signed by the attorney who drafted the document.

To clarify, we do not limit the authority of courts to impose other appropriate remedies that are necessary to maintain order and the integrity of the legal profession.  For example, if the court determines that a limited representation agreement is unreasonable, the court may order counsel to cease providing legal assistance of any kind to the client.  If an attorney continues to provide legal assistance for a client in violation of the court's order, the court may exercise its contempt authority in order to enforce its order.

The court remanded for a hearing on the reasonableness of the limited scope representation of the clients.

This is a decision of potential significance.  (Mike Frisch)

Once Is Enough

The Maine Supreme Judicial Court affirmed a domestic violence conviction of a defendant who raised on appeal the issue whether a single prior act of consensual sexual intercourse made his victim a "sexual partner"

[The defendant]  and the victim were at an apartment in Lewiston when Murphy “put her down on the floor and put his foot on her face . . . enough so it made her mouth bleed.” A little over a year before this incident, a Lewiston police officer responding to a noise complaint had witnessed Murphy and the victim having consensual sexual intercourse in the basement of an apartment building. Because the victim did not cooperate in the prosecution of the crime against her, the only evidence the jury had concerning the relationship between her and the defendant was that testimony about a single sexual act.

Holding

here the State presented evidence that Murphy and the victim did engage in a consensual sexual act approximately one year before Murphy assaulted the victim. Because the common meaning of the term “sexual partners” covers individuals who have engaged in a sexual act on one occasion as well as those in committed, intimate relationships, that evidence was sufficient to allow a jury to find that Murphy and the victim were or had been “sexual partners,” and thus “family or household members” for the purposes of domestic violence assault.

(Mike Frisch)

Not Induced By Affection

The Connecticut Supreme Court affirmed the conclusion that certain communications were not inadmissible due to marital privilege

The defendant, Sheila Davalloo, was convicted, after a jury trial, of murder in violation of General Statutes § 53a-54a. The defendant appeals from the judgment of the Appellate Court affirming that conviction after concluding that her statements to her husband, Paul Christos, did not fall within the protection of § 54-84b. State v. Davalloo, 153 Conn. App. 419, 436, 449, 101 A.3d 355 (2014). Because we conclude that the defendant’s statements were not ‘‘induced by the affection, confidence, loyalty and integrity of the marital relationship,’’ as § 54-84b (a) requires, we hold that the statements were not protected by the marital communications privilege.

The players

This case involves a love triangle that took a deadly turn. The defendant became infatuated with Nelson Sessler, her coworker at Purdue Pharma, Inc., a pharmaceutical company in Stamford. State v. Davalloo, supra, 153 Conn. App. 421. The victim, Anna Lisa Raymundo, also was a fellow Purdue Pharma, Inc., employee and the third member of the love triangle. Id. In late 2000, Sessler met Raymundo at an after work happy hour and, in the summer of 2001, Sessler met the defendant for the first time at another after work happy hour. The defendant told Sessler that she was divorced, although she was still married to Christos. Sessler began separate sexual relationships with both the defendant and Raymundo. Id.

The story gets complicated but ends up with the murder of Ms. Raymundo and, later, the defendant's stabbing of her husband Mr. Christos with a knife.

His testimony against his wife was properly admitted.

The trial court analysis

...the court heard arguments relating to the motions in limine and ruled that ‘‘ ‘these statements . . . were not made in furtherance or induced by affection, confidence, loyalty, and integrity of the relationship; quite the contrary. It is just the opposite. The statements made to the run-up of the murder of [Raymundo], the description of a faux triangle, again, for lack of a better word, it would be bizarre to classify those as in furtherance of the sanctity of the marital relationship. The plan here was to do in a potential third party suitor of [Sessler] . . . and, ultimately, [Christos], have him removed from the scene either by way of divorce and/or physically remove him from the scene. And, in fact, this defendant was convicted of the attempted murder of her husband in those [New York] proceedings. So, those statements leading up to the runup in this triangle and whatnot for various reasons don’t fall within the purview of the marital privilege. To rule that way would be . . . bizarre. Statements after the death of Raymundo to accommodate the relationship with Sessler fall in the same category, as well as the statements leading up to and relative to the attack and attempted murder of [Christos].’ ’’ Id., 430. The trial court further stated that, ‘‘[t]o argue that these [statements] were in furtherance of the marital relationship defies common sense, are in fact bizarre, and could only be applicable to some parallel universe . . . with which I am not acquainted.’’ The court then granted the state’s motion and denied the defendant’s motion.

Murderpedia has this entry. Dateline NBC has a series of videos on the case. (Mike Frisch)

Size Doesn't Matter In Dog Bite Claim

The Tennessee Court of Appeals affirmed dismissal of a civil claim predicated on a dog bite

Plaintiff James Anthony Moore was at Defendant Michael Gaut’s residence to do maintenance on his satellite dish when he was bitten by Defendant’s dog, a Great Dane. The dog was in Defendant’s fenced-in backyard, Plaintiff was on the other side of the fence, and the dog bit Plaintiff on his face. The trial court granted Defendant summary judgment based on its finding that there was no evidence that Plaintiff knew or should have known that the dog had any dangerous propensities. On appeal, Plaintiff argues that the large size of the Great Dane, a breed Plaintiff characterizes as being in a “suspect class,” should be enough, standing alone, to establish a genuine issue of material fact as to whether Plaintiff should have known the dog had dangerous propensities. We disagree and affirm the trial court’s judgment...

As the trial court observed, all the evidence presented by Plaintiff tends to show that Defendant believed his dog was friendly, gentle, and jovial before the bite occurred. Nor is there any evidence that Defendant was aware of any prior playful or mischievous behavior that could be dangerous. Moreover, it is undisputed that the dog did not get outside the fence, and that Plaintiff is the one who approached the dog.

A legal theory of liability failed to persuade

The trial court also correctly observed that what Plaintiff is asking us to do here is to create a “big dog exception” to the notice requirement established by centuries-old common law and Tenn. Code Ann. § 44-8-413. In his arguments to the trial court and in his appellate brief, Plaintiff states that “it is common knowledge that Great Danes are an extraordinarily large breed” and “submits that its size alone placed the Defendant on notice of any dangerous propensity.” (Emphasis added). Plaintiff asserts that “Great Danes are a suspect class of dog” because they are “a large and naturally dangerous animal, based on size, weight, and strength.” We, like the trial court, decline to craft an exception to the long and well established rules in dog bite cases, based solely on a dog’s size or breed.

The court rejected the suggestion that the appeal was frivolous.

The Maryland Court of Appeals reached a different result with respect to pit bulls. On a motion to reconsider, the Maryland Court

amended [its opinion] to delete any reference to cross-breds, pit bull mix, or cross-bred pit bull mix.

The Maryland decision is analysed here . 

(Mike Frisch)

Boston

Not a legal profession case but possibly of interest is a decision today of the Massachusetts Supreme Judicial Court finding no liability for a series of news articles about the suicide of a member of the band Boston.

The band Boston was founded in 1975, after [plaintiff] Scholz and Brad [Delp] obtained a recording contract with CBS/Epic Records, and Scholz hired band members Barry Goudreau, Sib Hashian, and Fran Sheehan to join the group. The band toured very successfully for a number of years, but, approximately thirty years before Brad's death, there was a falling out between Scholz and the latter three band members. All of the original members of the group, other than Scholz and Brad, left the band. Scholz continued to tour with different group members, including Brad, under the name "Boston." Fran Cosmo joined the band as a backup singer for Brad, and as he got older and had more difficulty reaching the high notes for which Boston was known, Brad was dependent on Cosmo's voice as backup to his. In addition to touring with the band, Brad maintained his friendship with the former members of the group, who had discontinued all contact with Scholz, and played with them when he was able to do so...

Brad committed suicide on March 9, 2007, having purchased the means to do so on March 8.

The litigation

In the mid-1970s, Donald Thomas Scholz, a musician, composer, recording engineer, and record producer, founded the rock band "Boston." After many years playing in the band, Brad Delp, who was its lead singer, committed suicide on March 9, 2007. The Boston Herald, Inc., published three stories regarding Brad's suicide, written by columnists Gayle Fee and Laura Raposa, who relied on information from Brad's former wife, Micki Delp, and various unnamed "insiders" and "friends." Scholz filed an action for defamation in the Superior Court against Micki, arguing that the statements made by her and reported in the newspaper articles insinuated that Scholz was responsible for Brad's suicide. Scholz later brought an action in the Superior Court for defamation and intentional infliction of emotional distress against the Boston Herald, Inc., and its two columnists (collectively, the Herald), based on the same statements as reported in the three articles.

The court

We conclude that the newspaper articles and statements contained therein constitute nonactionable opinions based on disclosed nondefamatory facts that do not imply undisclosed defamatory facts. Because the statements even arguably attributing responsibility for Brad's suicide to Scholz were statements of opinion and not verifiable fact, and therefore could not form the basis of a claim of defamation, we conclude that summary judgment properly was entered for the Herald by the second motion judge, and that the first motion judge correctly allowed Micki's motion for summary judgment.

(Mike Frisch)

Court Rejects Invasion Of Privacy Claim Over "Resolute" Dissent

The West Virginia Supreme Court of Appeals has held that an employee of The Marshall University failed to establish an invasion of privacy claim on these facts

Approximately twelve years ago, petitioner underwent a mastectomy and reconstructive surgery on her left breast that included the insertion of an implant. Several years later, petitioner grew concerned about the appearance of the reconstruction and the possibility that the implant had ruptured or shifted. In October of 2010, petitioner consulted with Adel A. Faltaous, M.D., a plastic surgeon employed by respondent, to inquire about whether she should undergo corrective surgery. As part of petitioner’s examination, photographs were taken of her naked breasts, from “just below the breasts to about the neck.” Petitioner’s face was not photographed, but her name was written on the picture. The purpose of the photographs was, in part, to obtain authorization from petitioner’s insurance carrier for the proposed surgery. Petitioner understood that the proposed surgery would have to be preauthorized by her insurance company.

A few days later, one of Dr. Faltaous’s employees sent a letter to petitioner’s employer seeking preauthorization for petitioner’s surgery because the employee mistakenly believed that such requests were to be sent there. The letter included the aforementioned photographs of petitioner and was opened by an assistant in the human resources department at petitioner’s work. After reading the letter and viewing the photographs, the assistant showed the photographs and letter to her supervisor, who then asked her own supervisor what she should do with the photographs. The upper-level supervisor did not look at the photographs. Instead, he directed the assistant to return the photographs to petitioner. The photographs were sealed in an envelope, marked “confidential,” and hand-delivered to petitioner. When petitioner opened the envelope, the photographs fell face-down on her desk. There is no evidence that anyone saw the photographs after they fell on the desk.

The court found that the situation might be embarrassing but was not actionable.

Justice Benjamin disageed

In the instant case, I believe that Ms. Mays can prove the elements of a claim for invasion of privacy under our law. Ms. Mays had a right to prevent photographs of her naked breasts from being published to her coworkers. Further, the defendant’s publication of photographs of Ms. Mays’ naked breasts among her coworkers, although unintentional, was unreasonable.

 And Justice Davis

Linda Mays, a breast cancer survivor who had undergone a mastectomy and reconstruction, consulted Dr. Faltaous regarding further reconstructive surgery. During this medical consultation, photographs were taken of Ms. Mays’ exposed torso to be used for the limited purpose of medical  confidential photographs to Ms. Mays’ employer, where they were viewed by two of Ms. Mays’ coworkers. Because Ms. Mays regularly sees those coworkers, she is frequently reminded of the disclosure of her private and confidential medical photographs. It is not this Court’s role to decide whether these actions constitute emotional distress or rise to the level of tortious conduct. Instead, a jury should have been allowed to consider these facts and determine whether Ms. Mays is entitled to recover for her embarrassment and resulting injuries. Because the majority upheld the circuit court’s summary dismissal of Ms. Mays’ claims rather than letting a jury determine the factual issues presented, I resolutely dissent.

(Mike Frisch) 

Proctor And Gambling

A woman named Lauren Proctor and an insurance company filed a suit to recover gambling losses in a case decided today by the South Carolina Supreme Court

Lauren Proctor and Trans-Union National Title Insurance Company ("Trans-Union") brought this action against Whitlark & Whitlark, Inc., d/b/a Rockaways Athletic Club ("Rockaways") and Pizza Man, Forrest Whitlark, Paul Whitlark, Charlie E. Bishop, and Brett Blanks (collectively "Defendants") seeking to recover money Proctor lost while gambling on video poker machines located at Rockaways and Pizza Man over the course of several years, including a time period following the South Carolina Legislature's ban of video poker in 2000. The circuit court granted Proctor's motion for partial summary judgment on her claim under the South Carolina Unfair Trade Practices Act ("UTPA") as to the liability of Defendants...

We find our Legislature has enacted specific gambling loss statutes as the exclusive remedy for a gambler seeking recovery of losses sustained by illegal gambling. Accordingly, we now overrule our decisions that have implicitly authorized recovery beyond these statutes. As a result, we hold that one engaged in illegal gambling cannot recover under UTPA. However, based on the distinct facts of this case, we find that Proctor may pursue the portion of her UTPA claim for the losses she alleged that she sustained between 1999 and July 1, 2000, the day on which the ban on video poker became effective.

The story

Beginning in 1995, Proctor started gambling on video gaming machines at various restaurants and bars in Columbia, South Carolina. From 1999 to 2005, Proctor frequently gambled on video poker machines located in Rockaways and Pizza Man, which are operated by Whitlark & Whitlark, Inc. ("Whitlark"). Forest Whitlark and Paul Whitlark are part owners of Whitlark. At the time, Charlie E. Bishop and Brett Blanks co-owned a limited liability company named Zodiac Distributing, LLC, which placed one coin-operated gaming machine at the Pizza Man restaurant.

According to Proctor, she lost between $1,000 and $5,000 per week while gambling at the restaurants. Proctor claimed the two restaurants provided her cash advances on her credit cards to enable her to fund her gambling, as well as free food, alcohol, and cocaine.

Proctor also funded her gambling with money illegally obtained from her employer State Title, which her mother owned. State Title provided real estate closing services to attorney Walter Smith. During the time period at issue, Proctor forged her mother's name on checks and stole money from Smith's trust account in order to play the video poker machines. As a result of Proctor's actions, Smith's trust account contained insufficient funds to satisfy the mortgages on several properties at closing. In turn, Trans-Union paid approximately $550,000 in claims stemming from the shortages in Smith's trust account.

The court held

Proctor is only entitled to seek recovery for those losses that were allegedly sustained prior to July 1, 2000, the effective date of the ban on video poker. In her pleadings, Proctor alleged that she sustained gambling losses "[b]eginning in 1999, and continuing until June 2005." Because it was legal for Proctor to engage in video poker prior to July 1, 2000, we find that she may pursue her UTPA claim for gambling losses allegedly sustained between 1999 and July 1, 2000. We emphasize that this case was presented in the posture of a summary judgment motion. Thus, Proctor still bears the burden of proving her alleged damages.

Chief Justice Toal concurred and dissented and would allow Proctor to pursue claims based on all her losses despite the view that she is "not a sympathetic figure..."

The attorney whose escrow account was invaded was suspended in 2006. (Mike Frisch)

Death Must Be Caused Willfully To Invoke Slayer Statute

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

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

The facts

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

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

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

Mouse Clicks And Fair Trials

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

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

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

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

This was of some concern

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

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

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

Attorney Who Failed To Report Abuse Disqualified

An opinion from the Oklahoma Supreme Court

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

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

Holding

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

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

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

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

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

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

 (Mike Frisch)

The Life Monastic

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

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

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

The plaintiff's story

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

An "oblate" is defined

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

The defendant had never been accorded recognized Benedictine status

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

 The court

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

The court respected the jury verdict

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

The Hartford Courant had this story.

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

More Law Of Facebook

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

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

The court resolved three criminal cases in its decision.

There is a concurring and dissenting opinion.

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

(Mike Frisch)

"In Aid Of Unrequited Love Or Misplaced Desire"

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

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

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

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

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

The concluding lament

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

(Mike Frisch)

Georgia Supremes: Website Posts Not Stalking

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

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

No relief was granted because

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

(Mike Frisch)