By a 5-2 margin, Australia’s High Court has rejected a constitutional challenge to a ban imposed by the country’s most populous state, New South Wales, on advertisements intended to solicit personal-injury law work. Plaintiff’s lawyers had unsuccessfully argued that such ads amounted to political speech deserving of protection, but the court ruled that they were more plausibly understood as commercial solicitations. The two dissenters were Justice Michael McHugh, who apparently embraced a reading of the national constitution under which states could not constitutionally enact legislation “which has the effect or object of reducing litigation” — surprised our ATLA hasn’t come up with that one — and Justice Michael Kirby. (Michael Pelly, “Injury ad ban to stay, judges rule”, Sydney Morning Herald, Sept. 2).
Archive for September, 2005
Update: Indictments in Roberts sex/extortion case
We reported June 13, 2004:
According to a story in the San Antonio Express-News, husband-and-wife legal partners Ted H. and Mary Schorlemer Roberts received money in a curious sequence of events. Mary, claiming to seek “no strings” discreet encounters, would seduce men over an Internet dating service. Ted would then write the men (in legal documents sometimes typed by Mary) and notify them that he planned to seek intrusive and public civil discovery to investigate whether the affair brought forward potential causes of action that were flimsy at best; the men would pay tens of thousands of dollars for a release and confidentiality agreement.
The Roberts couple’s bankruptcy trustee has since sued the Express-News over the story, on the theory that it “invaded their privacy, inflicted emotional distress and drove them into bankruptcy.” But a Texas grand jury has voted to indict the two on three charges of “theft” (which, in Texas, encompasses extortion); the FBI decided that federal charges weren’t possible. The Roberts couple’s attorney predicts they’ll be exonerated. “You can rest assured that I believe that lawyers are held to the same standards as everyone else in the community,” Bexar County District Attorney Susan Reed said. “The law doesn’t carve out the word ‘lawyer'” for special protection.” (Maro Robbins and Joseph S. Stroud, “Pair facing extortion indictment”, San Antonio Express-News, Sep. 1). The story does not detail what happened to the Roberts’ former partner, Robert V. West III, who originally brought the allegations to light; in return, the Roberts sued him and the Texas bar chose to investigate West rather than the Roberts.
The old Curmudgeonly Clerk weblog explored the legal legitimacy of the underlying Roberts lawsuits back in 2004.
In the original story, the newspaper asked Texas law professor and legal ethics specialist John Dzienkowski if legal ethics prohibited the Roberts’ tactics. “In the spectrum of Rambo litigation, and in the spectrum of trying to push people a little bit, just sending that piece of paper is probably on the mild side,” said Dzienkowski. “That’s why ethically I don’t really see a problem with it.” But who says reform of the legal profession is needed?
Katrina refugees
Employ them. (George Lenard, Sept. 2).
Gas price “gouging”, cont’d
The price spike (see Sept. 1) is the market’s way of reminding us that it’s better for fuel supplies to be redirected Gulf-ward (and toward other high-value uses) right now than for us to take that long holiday-weekend drive to the beach we’d been contemplating. Among those weighing in: Half Sigma, GrannyTiger, Radley Balko. More: Calif. AG Lockyer, who is not going to win any prizes for grasp of basic economic principles, finds it suspicious that gas prices in his state would soar even though the output of Gulf refineries is sent elsewhere.
Letter from Louisiana: triage and EMTALA
Longtime reader C.G. Moore, a 3L at Tulane Law who lives in St. Tammany Parish outside New Orleans, writes in to say:
My wife, 4 mo. old son, and I survived [Hurricane Katrina] (we live in St. Tammany parish, about 10 miles from lake Pontchartrain). I noticed you had a link to WWL television’s plea for medical personnel to assist the victims. I was in a unique position during the storm and afterward: my wife is an ER doctor, and we sheltered at the hospital where she works.
The doctors and nurses were incredible. They worked non-stop, under incredibly stressful conditions. Many didn’t know where their loved ones were, or whether they had survived, and there was no way to contact the outside world. Many lost everything to the flood waters, tornadoes, and fallen trees. And still, they worked 12-hour shifts (sometimes longer).
But one of the first hurdles they had to contend with was the effects of EMTALA in a disaster situation. [EMTALA is a federal law under which hospitals can be sued if they turn away patients needing emergency medical treatment. — ed.] Under EMTALA, ER physicians are cautious to the point of absurdity. But as the hospital quickly filled to capacity with seriously ill and injured patients, the ER was able to attend to life-or-death situations only. Strict triage procedures were needed to separate the “worried well” from the dying. Medical care really was a limited commodity. Although the magnitude of the catastrophe was clear to all, some patients and their families couldn’t understand that minor boo-boos didn’t merit immediate care (much less admission to the hospital, where it was air-conditioned and they could get a hot meal).
So, my concern is this: once the rubble is cleared and the power restored, the plaintiffs’ lawyers will ooze back into the scene — that this was a disaster situation won’t matter one iota — and they’ll use EMTALA to file lawsuit after lawsuit.
I really hope I’m wrong. But only time will tell.
“New liability frontier: instant messages”
As usual in the business context, spontaneous = dangerous, at least in a legal sense. “You can try to control it through policy,” says one consultant who advises companies on electronic discovery and risk management. “Or you can lock down the technology so people can’t do it.” (Dee McAree, National Law Journal, Aug. 31).
UK: Army tanks could run afoul of noise edict
“Defence chiefs are fighting to prevent the Army’s tanks being stopped in their tracks by the introduction of a European directive on vibration and noise at work. The Control of Vibration at Work Regulations and the Control of Noise at Work Regulations have left officers scrambling to discover if the military’s armoured vehicles break the rules.” The Ministry of Defence intends to invoke an “opt-out” provision to escape compliance; “If you are in a combat situation then clearly it will be difficult to bring in these regulations,” explained a spokesman for the health and safety executive, another government agency which is implementing the directive. (Thomas Harding, “‘Noise at work’ rules threaten to knock out Army’s tanks”, Daily Telegraph, Sept. 2). In the past, British defense officials have expressed alarm that the noise of gunfire during infantry training and even military brass bands could violate EU noise-at-work rules: see Dec. 22-25, 2000.
A Boies cookie jar
Famed attorney David Boies “champions himself as an advocate of honest corporate governance,” notes Tom Kirkendall (Aug. 31), so it’s more than a little piquant that Boies “just resigned as special counsel for Adelphia for violating the Bankruptcy Code and Rules by failing to disclose to the Adelphia Bankruptcy Court that members of his family indirectly own a substantial interest in a document management services company that did between $5 and $10 million of business with Adelphia. Apparently, other clients of Mr. Boies’ firm also have paid substantial sums to the document management company without knowing of the affiliation to Mr. Boies’ family members.” Larry Ribstein also comments (Aug. 30) and notes (Aug. 31) that the W$J story that broke the news “also notes that a former Boies associate, [William F.] Duker, who headed the firm [document management firm Amici] was sentenced to 33 months in prison in 1997 for ‘falsely inflating legal bills to the federal government.’ (Ironically, the same person helped Boies sue Mike Milken in 1990.) The current Amici CEO, ‘when asked if Mr. Duker had a consulting contract or office at the company this year’ said ‘I don’t know how to describe that relationship.’ Wonder if Boies’ clients knew about that when they approved use of Amici.” (Laurie P. Cohen and Robert Frank, “More Boies Clients Used Family Firm”, Aug. 31). Update: Larry Ribstein has more (Sept. 12).
Gasoline prices spike
You’d think one advantage of electing a Texas oil guy as president would be that, when prices at the pump react to a genuinely massive supply disruption as supply and demand predict they will, he’d know better than to direct public anger toward the ill-defined offense of “price gouging”. Apparently you’d be wrong, though:
“I think there ought to be zero tolerance of people breaking the law during an emergency such as this -– whether it be looting, or price gouging at the gasoline pump, or taking advantage of charitable giving or insurance fraud,” Bush said. “And I’ve made that clear to our attorney general. The citizens ought to be working together.”
(Adam Nossiter, “More National Guardsmen are sent in”, AP/San Diego Union-Tribune, Sept. 1). More: Mark Kleiman got there first (Sept. 1)(via Julian Sanchez). See also Dan Mitchell of Heritage at C-Log (Aug. 31). And Don Boudreaux, after thanking Hawaiian pols, wonders (Aug. 29):
Would it make sense to haul before Congress a group of real-estate agents, or a few homeowners, or some home-builders to accuse them publicly of causing the recent surge in real-estate prices?
Yet more, this time from Jane Galt (Sept. 1): “Prices of everything rise after a disaster, and a good thing too, since that encourages people and material to flood into the damaged area, where they’re needed most.”
Patent law reform
Backers of the bill, intended to reduce litigation and move the U.S. closer to other advanced nations’ practices on intellectual property, were (as of last month, at least) hoping that it would emerge from a House subcommittee after Labor Day. (Peter Geier, “Bill in Congress to Overhaul Patent Law Seeks to Quell Suits”, National Law Journal, Aug. 19; Mark Scarsi, “Sweeping Changes to the U.S. Patent System? Don’t Bet on It!”, Law.com, Jul. 5). See Jun. 22, May 31, May 9 and other entries on our tech law page. And InHouseBlog (Aug. 15) notices a Slashdot thread on a company named EpicRealm that “apparently has patent filings with claims covering ‘dynamically generating a web page in response to the request.’ That basically describes the entire Web these days.”