Tales from the US of A . . . Quarter 1 2022

By ., Published in International

Suspended lawyer tells Bar, "No-one can stop me"

A Kentucky lawyer, who says he is working as a paralegal at the law firm carrying his name, claims to be retired rather than suspended, which means that the Kentucky Bar Association has no authority to hold him in contempt for allegedly practising law. He previously called Kentucky Bar officials "jokes of human excrement". The lawyer has been suspended since 2013, and the suspension was upheld by the Kentucky Supreme Court in June 2021. The State Bar has filed a contempt motion.

Debra Cassens Weiss November 4, 2021


Judge suspended for jailing spectator who refused drug test

An Ohio judge has been suspended for a year for ordering a court spectator to take a drug test, then sentencing her to ten days in jail when she refused. The spectator was sitting quietly at the back of the court during a hearing of her boyfriend, who was accused of violating probation by failing to appear at a county drug court programme. The judge said he thought the spectator was under the influence and had her led away by the bailiff. She refused the test, and when she came back into court was sentenced to prison for ten days. While in prison, she was required to take a pregnancy test and undergo two full body-scans. The Supreme Court found the judge showed "undignified, improper and discourteous demeanour". There was nothing to justify the orders he made.

Debra Cassens Weiss November 11


Litigation funders leave lawyers owing double amount borrowed

Lawyers who received funding from a litigation funding firm are sometimes tripped up by contract provisions that leave them owing more than double the amount they borrowed after no more than two years. One lawyer borrowed $55 000 and owed more than $130 000 just 21 months later, for a case where the lawyer netted only $3 000. The funders typically give money to lawyers preparing a lawsuit and require repayment only if the case wins. The interest charge is 18% to 22% annually; but including interest and fees, can be equivalent of a deal that accrues interest at about 78% annually. The provisions often tie loans to a pool of cases so that any win can trigger repayment obligations. Collateral may be required for all fees that the firm "now is or may hereafter become entitled to receive". The company has, however, won nearly all the cases it has taken to arbitration for unpaid loans.

Debra Cassens Weiss November 18


Officer who shot dogs not entitled to qualified immunity

A federal appeals court ruled that a Minneapolis police officer was not entitled to qualified immunity in a lawsuit alleging that his shooting of two service dogs violated the constitutional rights of their owners. Two pit bulls were severely injured when they were shot by the officer while he was conducting a security check. One dog was the "emotional service and seizure alert animal" for the owner, and the other was a service animal for a child who had emotional-behavioural disorders. The court held that police officers may justify shooting a dog to protect life and property only when it presents an objectively legitimate and imminent threat to him or others. On the facts alleged and supported by a video, that situation did not exist and there was no qualified immunity.

Debra Cassens Weiss November 16


Lawyer suspended for texting witness during phone deposition

A Florida lawyer has been suspended for 91 days for texting advice to a witness during a phone deposition and then failing to come clean when questioned by the opposing counsel and a judge. The incident happened during a deposition of an adjuster who worked for an employer in a workers' compensation case. The opposing lawyer heard typing sounds and asked the lawyer and the witness whether they were texting. The lawyer said he was only receiving a text from his daughter. He said he would put his phone away but, in fact, continued to text. After a break, he resumed texting, but this time he inadvertently sent the text to the other lawyer instead of the witness. The texts revealed advice to the adjuster on how to deal with questions. The lawyer was found guilty of violating an ethics rule that says lawyers may not obstruct access to evidence, and for conduct prejudicial to the administration of justice.

Debra Cassens Weiss November 22


Judge censured for searching litigant's home for marital property

A West Virginia family court judge searched a self-represented litigant's home for marital property. She will receive a public censure and a $1 000 fine for the "egregious abuse of process". According to the appeal court, she admitted to a 20-year practice of going to people's homes to determine whether disputed marital property was present, or to supervise the transfer. She said that she mostly did this when requested by counsel. In the instant case, she adjourned the court to the husband's home, overrode his objections to the search without a warrant, and the request to recuse herself. She took all parties into the home, where she dealt with a dispute over several items including photographs, yearbooks, DVDs, recipes and a chainsaw. She resolved a dispute over an umbrella stand in favour of the ex-wife. Although she claims she was 'having a hearing', there was no record taken by her of what transpired.

Debra Cassens Weiss November 22


Remote-working lawyers subject to facial recognition surveillance

Contract lawyers are being forced to use facial recognition monitoring while they work at home. The software uses webcams to scan the user's face and re-verify it throughout the day. The software is on the alert for unauthorised people who enter the room, for photographs snapped of confidential documents, and for work interruptions. Lawyers claim to have been booted out for shifting slightly in their chairs, looking away for a moment or adjusting their glasses or hair. The system, they said, also chastises them for harmless behaviours like holding a coffee mug mistaken for an unauthorised camera.

Debra Cassens Weiss November 15


White supremacists liable for $25 million for conspiracy to commit violence

Jurors found the organisers of the violent 2017 "Unite the Right" rally liable under Virginia law for civil conspiracy to commit violence and intimidation. Jurors awarded more than $25 million in damages to nine plaintiffs. Individual defendants (including supremacist leaders) were each liable for $500 000 to the nine plaintiffs injured during the rally, seven of whom were injured when a neo-Nazi ploughed his car through a crowd, killing a paralegal. He is serving a life sentence for murder and was ordered to pay $12 million in punitive damages.

Debra Cassens Weiss November 23


Driver who collided with fortified mailbox can't sue owners

A pick-up truck driver hit a patch of black ice, veered off the road and hit a fortified mailbox. He argued unsuccessfully that a landowner owes a duty of care to drivers who strike a hazard off the road if the landowner consciously created the hazard with knowledge of the possible danger to motorists who leave the road. The mailbox, instead of a recommended two-inch diameter support pole buried 24 inches deep, had an eight-inch diameter metal pipe buried 36 inches deep. The judge and the appeal court held that Ohio law does not impose a duty of care on landowners to motorists who lose control of their vehicles. The conduct of the mailbox owner was also not the proximate cause of the injuries.

Debra Cassens Weiss November 30


Prosecutor subpoenaed phone records to stalk women

In an 88-count indictment, a former homicide prosecutor in Baltimore is accused of using grand jury subpoenas and other investigative tools to obtain information that he used to stalk two former romantic partners. He used the subpoenas to get the phone records of the former girlfriends and their associates on multiple occasions. He also sought recordings of phone calls, and details of the victims' whereabouts.

Debra Cassens Weiss December 1


Black man convicted by all-white jury in room with confederate flags gets new trial

A Tennessee appeal court ruled that a Black criminal defendant is entitled to a new trial because the all-white jury that convicted him deliberated in a room adorned with various mementos of the Confederacy. The memorabilia amounted to prejudicial extraneous information. Secondly, the trial judge had improperly admitted a prosecution witness' inconsistent statement to police to support the government's case. There were at least six pieces of Confederacy memorabilia in the room, including flags. Extraneous information raises a presumption of prejudice and shifts the burden to the state to show the information is harmless. The state sought to show that the defendant was acquitted by jurors using the same room in an unrelated case, but the court held that that was not sufficient to rebut the presumption of prejudice.

Debra Cassens Weiss December 6


Judge disparaged lawyer unaware of live stream

During a hearing, a judge, unaware that his comments were being broadcast, said of the defence lawyer, "Can you imagine waking up next to her every day? Oh, my God!" The judge has been re-assigned to other duties that are likely to include paperwork. He must also take sensitivity training and receive counselling on gender bias. The matter will be referred to the judicial enquiry board. The judge was speaking with a court clerk, an assistant public defender and two assistant state attorneys when he ridiculed the lawyer in this and a number of other ways. The lawyer had previously persuaded the Pennsylvania Supreme Court to overturn actor and comedian Bill Cosby's conviction.

Debra Cassens Weiss January 18


Florida lawyer arrested for removing her clothes at a bar; it was second arrest in 2 days

Florida lawyer was arrested on a charge of misdemeanour disorderly conduct after she allegedly stripped naked at a bar and refused to leave. The manager of the Beach Lounge had refused to serve Elkins because of intoxication. She then walked into the restroom and came back out "completely naked," the report alleged. The manager told Elkins to get dressed, but she allegedly refused to do so. She was arrested just two days earlier on a charge of obtaining food with an intent to defraud. According to that arrest report, Elkins entered the Nori Thai Restaurant in St. Pete Beach, Florida, on the afternoon of Feb. 16 and consumed food and alcoholic beverages valued at about $38. On both occasions the police arrested 49-year-old lawyer Kelly Elizabeth Elkins of Treasure Island, who was later released on her own recognisance.

Debra Cassens Weiss February 14

All these stories are summaries by Patrick Bracher of Norton Rose Fulbright (South Africa) of articles in the ABA Journal: Law News Now.