So who will be the first disc jockey to play today’s Song of the Day, in honor of Notre Dame’s Manti Te’o?
The song, of course, would be an oldie goldie from 1978:
“Imaginary Lover” by Atlanta Rhythm Section.
H/T to our news editor, Peter Vieth…
Legal ethics cases don’t make their way to the Supreme Court of Virginia all that often, but the high court had an unusual argument docket last week: It included three lawyer-discipline appeals.
The court heard issues involving lawyer blogging and the limits of the First Amendment in the Horace Hunter case. The Thomas Northam case addressed issues of firm conflicts.
The third appeal, the Heather Zaug case, involves contact with an opposing party and a phone call shorter than an NFL time-out.
Supreme Court Justice Bill Mims said that whenever a Virginia State Bar case comes to the court, the justices think, “There but for the grace of God go I. How would I have handled that?”
That’s probably the reaction of a lot of lawyers.
The Zaug case may hit a nerve like no other. A lawyer got an unexpected call from a woman who was the opposing party in one of her cases. The lawyer tried quickly to think what she needed to do, then told the woman she couldn’t talk to her and ended the conversation. Zaug did all that in less than 60 seconds.
She and her partner notified opposing counsel immediately. That lawyer sought to get Zaug thrown off the case (a judge declined to disqualify her) and she lodged a bar complaint, which resulted in discipline for Zaug.
Granted, a VSB district committee gave, then a three-judge panel upheld, a “dismissal de minimis,” the lightest possible sanction the bar has. It is a finding that a lawyer has “engaged in misconduct that is clearly not of sufficient magnitude to warrant disciplinary action,” and the lawyer has “taken reasonable precautions” against a recurrence.
In other words, you messed up but it wasn’t all that serious and you’ve taken steps to make sure you don’t mess up again. But it remains a formal finding of misconduct, something Zaug would have to report on any application or questionnaire that asked, “Have you ever been disciplined?”
Many, many lawyers across the commonwealth will tell you they have encountered a similar situation, especially lawyers who handle domestic relations cases.
I heard from a number of them Jan. 9, when Jim McCauley, the VSB’s Ethics Counsel, and I were the panel presenting “Hot Topics in Legal Ethics” to the I’Anson-Hoffman American Inn of Court last Wednesday night in Hampton.
Judging from the crowd’s reaction, legal ethics doesn’t get hotter than the Zaug case.
Rule 4.2 of the Rules of Professional Conduct is at issue in the case; it prohibits a lawyer from communicating with a represented party. But it’s not a strict liability rule, prohibiting any talk at all. It just prohibits discussion of the case or matter involved.
How swiftly the lawyer has to get rid of the party is a hard question. In Zaug’s case, it’s not known exactly when during the minute-long talk she realized she had the opposing party on the line. That’s the answer, though – end it when it becomes apparent what you’re talking about and with whom.
Some of the justices in Wednesday’s argument noted that it would be rude (i.e., not in keeping with guidelines encouraging civility, professionalism and courtesy) just to slam down the receiver or hang up.
And in this case, the opposing party who called Zaug was distraught and emoting about the toll her case was taking on her family.
Mims asked what should the lawyer do if she was facing someone who had mental health problems or who might be a danger to herself or others.
The Inn of Court audience in Hampton wanted to push the example of Zaug into other, common circumstances.
What if I am in the grocery store when a party recognizes me and comes over to talk about the case, asked one woman. And what if after saying “I can’t talk” and walking away, the party keeps pursuing me down the aisle? she said.
One man wondered what to do if he and his family were having dinner at a restaurant and a party approached their table. If the party persisted, would he have to get up and leave the restaurant?
Then there is email. One lawyer noted that he had the same fact pattern Zaug faced, but his contact came in an email message the opposing party sent him. Once he figured out what was happening, he wrote back saying he couldn’t communicate, and he called the opposing lawyer immediately.
Even though Zaug has had to endure three levels in her discipline case, I think she’s right to object to a finding of misconduct, even if it is a minor one.
What happened to Heather Zaug has happened to many lawyers. And it will happen again today, and tomorrow, and the day after that.
In her disqualification hearing, Zaug testified, “I was faced with a very difficult situation, totally surprised to be called by a plaintiff.”
She continued, “[The woman] was very upset and I did the best I could under the circumstances.”
That’s all that any of us can do.
As noted on numerous prior occasions in this space, it pays to proofread – a bit of advice worth taking, whether you work at a law firm or at a public relations firm that does work for a law firm.
Yesterday, for example, a publicist sent me the following email announcing a new hire (Names changed to protect the guilty):
Holmes and Rehnquist is pleased to welcome our newest partner, Antonin Roberts. Attached below please find our announcement available for release in your publication [PUBLICATION]. Please let me know if you have any questions or need any additional information.
Piers Morgan, the British-born host of the CNN program “Piers Morgan Tonight,” got into a verbal dust-up Dec. 19 with a guest on his show, Larry Pratt, executive director of Gun Owners of America.
Morgan ostensibly asked Pratt on the show to have a discussion on guns. But the host, incensed over the shootings at Sandy Hook Elementary School in Connecticut, called Pratt an “idiot” and “an incredibly stupid man” for arguing, among other things, that teachers should be armed.
What did Morgan get for voicing his opinions? A bump in the ratings? Nope. Two days later, a guy named “Kurt N.” in Austin, Texas, launched a petition drive, asking the Obama administration to deport the British national.
The White House has an online mechanism by which anyone can petition the government to take some action. Kurt N. said that “Morgan is engaged in a hostile attack against the U.S. Constitution by targeting the Second Amendment.”
He demanded “that Mr. Morgan be deported immediately for his effort to undermine the Bill of Rights and for exploiting his position as a national network television host to stage attacks against the rights of American citizens.”
By Dec. 26, more than 70,000 people had signed the petition. Half of those were added after news coverage of the petition first broke Christmas Eve.
Since the petition has topped 25,000 signatures, President Obama will have to respond.
Don’t expect Morgan to be packing his bags any time soon. The First Amendment still protects freedom of speech in this country. Even for British television hosts.
Take another example. A young Massachusetts woman named Lindsey Stone last month posted a goofy picture of herself on Facebook. She and a friend visited the Tomb of the Unknown Soldier at Arlington National Cemetery, where a sign asks “Silence and Respect.”
Stone, grinning all the way, flipped a bird and pretended to shout in the mugging shot. After she put it on Facebook, it went viral and veterans’ groups and families went ballistic.
A Facebook group called “Fire Lindsey Stone” was created, quickly gaining more than 4,000 likes. The drumbeat of publicity kept going; Stone herself received death and rape threats.
Her employer, a small non-profit, did indeed fire her, along with the woman who snapped the picture.
What does everyone I have discussed so far have in common? They all acted kind of stupidly.
Morgan asked a pro-gun guy on his show, then resorted to haranguing and petty name-calling. Pratt wants every schoolmarm to pack heat. Kurt N. needed two days to concoct a silly overheated petition. Stone’s dumb photo speaks for itself. Then some people lost all perspective and wanted her to lose her job, or wanted her killed, for a childish prank. Come on, everyone.
On one hand, you could start to worry about what’s happening to the ability to speak up or speak out.
But then, you need to remember that you have the right to do or say stupid things – in the marketplace of ideas it all gets sorted out. And it’s been that way in this country for a long time.
Ashley Messenger, associate general counsel for NPR, gave a talk on the First Amendment to the Society of Professional Journalists, Virginia Pro chapter, on Dec. 16. (I am the president of this group).
The setting: Gunston Hall in Fairfax County, Va., home of George Mason, author of the Virginia Declaration of Rights. Mason’s Declaration was the forerunner of the Bill of Rights, and Thomas Jefferson liberally cribbed Mason’s concepts and wording for the Declaration of Independence.
Messenger noted that when Mason, Jefferson and the other Founders were debating how to set up the new American government, there was a willingness to respect and protect the freedoms of others, particularly the freedom to express ideas.
The best way to deal with offensive speech or acts is not seeking to silence the speaker or resort to punishment, said Messenger. “The remedy for offensive speech is more speech,” she said, meaning, identify why the statements or acts are wrong or hurtful. Put the ideas on the table for discussion in an effort to increase understanding. The Founders had great faith that good ideas would win out and lesser ones would fall, after a respectful, vigorous exchange.
Morgan was given a megaphone along with a star on his door and his name on a show. But he used it to shout and failed to put it to his ear to listen to any point of view beside his own.
Respecting freedom of speech, Messenger said, must be “cultural” – people must be educated to respect other ideas and even to be “fighting for the right to say something offensive.”
Veterans’ families were offended by Stone’s prank, but it’s not overstating or disrespectful to note that their honored late loved ones went to war to preserve her right to do what she did.
Mason and Jefferson believed in protecting the expression of all ideas – good, bad, even stupid.
If we forget that, and allow blowhards or online lynch mobs to carry the day, well, that’s the surest way to “undermine the Bill of Rights” and for us to lose our freedoms.
In Sandusky, Ohio, a man was minding his own business, watching football in his garage when a drunken neighbor pulled into his driveway. A fight started; the neighbor bit off the eyebrow of the first guy and later was charged with felony assault, among other things.
According to the Sandusky Register, the first guy was named Scott Hall; the biter was named Roger Oates.
The Register’s headline:
“Maneater: Hall bitten by Oates”
Watch out, boy, he’ll chew you up…
(Hat tip to jimromenesko.com)
A Missouri lawyer is facing first-degree murder charges in the death of her father. She allegedly used an unusual weapon: a forged document.
The Kansas City Star reports that Susan Van Note is accused of attacking her father and his girlfriend at his home in Lake of the Ozarks. The girlfriend died of gunshot and stabbing wounds.
The father, shot in the head, was taken to a Columbia hospital. Van Note showed up with a document giving her the power to make end-of-life decisions for her father. Doctors removed him from life support and he died.
Prosecutors charged that the father’s signature was a forgery.
Trial is scheduled for November of next year.
A big six-foot monument to the Ten Commandments was placed on the grounds of the Oklahoma state capitol on Thursday, three years after it was authorized by the state legislature.
Two problems with that. Three if you’re the Oklahoma ACLU, but more on that below. It has spelling errors of biblical proportions.
The monument urges Sooners to “Remember the Sabbeth, and keep it holy.”
And another commandment states, “Thou shalt not covet thy neighbor’s wife, nor his manservant, nor his maidseruent.”
State Rep. Mike Ritze, R-Broken Arrow, dismissed the errors to the words “Sabbath” and “maidservant” as no problem.
“It’s a simple fix,” he told The Oklahoman. These kinds of errors are “not uncommon with monument manufacturing.”
Try telling that to a judge if you file a motion or brief riddled with errors.
Ritze was the guy who pushed the monument in 2009, sponsoring the necessary legislation. It passed the House, 83-2, and the Senate, 38-8. Sixteen legislators were, um, absent when the vote was taken.
The monument, which cost about $20,000, was paid for entirely with private funds and Ritze’s family will pick up the tab for maintenance.
Opponents, meanwhile, may lawyer up. The ACLU in Oklahoma is mulling a lawsuit challenging the monument as a violation of the separation of church and state.
Proponents will be ready. Ritze said a group called the Liberty Legal Institute, which recently helped to defend a challenge to a similar monument in Texas, stands ready to help.
Presumably all parties will use spell check before filing anything with a court.
The word of the year for 2012, according to Oxford University Press, is “GIF.” Go figure.
A 20-some-year-old word from technology, it stands for “graphics interchange format,” and most designers will tell you that GIF pictures have long since been eclipsed by JPGs as the medium of choice.
But according to the Associated Press, GIF was the word this year because it made the transition from noun to verb.
“To GIF” means to create an image or video, then post it on the Internet. All kinds of GIFs are online, from funnies about the election to pricelessly cute kittens to stuff from the Olympics.
The top word in the United Kingdom, according to the OUP, was “omnishambles,” a term describing a complete and total series of blunders, such as the state of the British media or its gaffe-prone government. At least they’re not GIF-prone. Yet.
The selection of GIF as the word of the year already has prompted some controversy. Katy Waldman, who writes for Browbeat, a “culture blog” at Slate.com, sniffed that it’s not even a word; it’s an acronym. And it’s so last century, Waldman noted, despite its 2012 morph into a verb, and no one much knows how to pronounce it.
For the record, don’t use a hard “G.” The proper pronunciation of “GIF” is “jif,” not unlike a certain brand of peanut butter.
Waldman observed that 2012 produced any number of possibilities overlooked by the OUP: malarkey, double down, fiscal cliff and Obamacare, among others.
The Brits apparently got it right about their own word of the year. As Ross Hart commented below, “The British have done it again. ‘Omnishambles’ is a lot more polite than that “cluster” phrase that’s so common . ..” Indeed.
Waldman’s suggestions notwithstanding, the Oxford Press dons said the runners up in the U.S. include “superstorm,” a weather term applied to Hurricane Sandy when the storm somehow no longer was a hurricane, and “YOLO,” a carefree social-media acronym for “you only live once,” as opposed to a certain James Bond movie from about 1967.
In honor of Election Day yesterday:
“It won’t mean a thing if they don’t win that swing”
In which newspaper did this one appear?
Actually, none — it was the winning entry in a headline-writing contest run by the Newseum, the DC-based museum for journalism.
A woman named Tara Jones sent in the winning entry, posted on the Newseum’s Facebook page, in a contest seeking a headline about the importance of swing states in the election.
President Obama no doubt would join in congratulating Jones…he took six of the seven closely watched swing states yesterday on his way to victory.
Who knew that appellate law would be one of the fastest-developing areas of practice across the country this fall?
In August, a judge of the 6th U.S. Circuit Court of Appeals filed an opinion “dubitante.” Translation: He was dubious. He didn’t like the result and didn’t really want to concur. But he didn’t really want to overturn the result either.
Now, the chief judge of the 9th U.S. Circuit Court of Appeals has carved out yet another possibility that can take its place alongside “concur” and “dissent” and “dubitante.”
In a hopelessly fractured immigration case, Garfias-Rodriguez v. Holder, Judge Alex Kozinski has filed an opinion that bears this header: “Chief Judge KOZINSKI, disagreeing with everyone.”
The California Appellate Report blog noted that the voting in the case, heard en banc, was 6-1-1-1-1-1. There were six different opinions filed, including Kozonski’s disagreement.
If the judge wants to create a new brand of opinion, seems like it needs a catchy name. “Dubitante” sounds kind of French, even though it actually comes from Latin.
How about “desaccord,” since that’s the French word for “disagreement.” Sounds sufficiently legal, too.
Give the blog How Appealing props for first reporting this case; the Law Blog of the Wall Street Journal has a nice piece as well.
It remains to be seen if the 4th U.S. Circuit Court of Appeals is interested in an import such as the Desaccord. Smart money says maybe not.
