Overlawyered: Chronicling The High Cost Of Our Legal System

Archive for 2007

U.K.: “Teachers say greedy lawyers promote false abuse claims”

Great Britain continues to grapple with the repercussions of its decision to join the U.S. in permitting contingent-fee legal representation:

Lawyers who encourage parents and pupils to make speculative allegations of abuse against teachers in the hope of winning financial compensation risk are destroying the reputation of thousands of teachers, a teaching union has said.

The National Association of Head Teachers (NAHT) said that lawyers working on a “no win, no fee” basis were fuelling a rise in malicious allegations against teachers, made in the knowledge that local authorities would often pay complainants without even investigating their allegations.

(Alexandra Frean, Times Online, May 5).

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Wayback Machine: we won’t archive pages if owners object

According to an Apr. 25 announcement, “Internet Archive, a library of historical Web site content, and Suzanne Shell, the author and owner of the Web site www.profane-justice.org, jointly announced today the settlement of their lawsuit, which stemmed from the archiving of Ms. Shell’s Web site in Internet Archive’s Wayback Machine. … The Internet Archive said, ‘Internet Archive has no interest in including materials in the Wayback Machine of persons who do not wish to have their Web content archived. We recognize that Ms. Shell has a valid and enforceable copyright in her Web site and we regret that the inclusion of her Web site in the Wayback Machine resulted in this litigation. We are happy to have this case behind us.'” The Wayback Machine allows interested persons to go back to examine what particular web pages looked like at earlier dates. Jason Lee Miller has more at WebProNews (Apr. 25) as does John Ottaviani at Technology and Marketing Law Blog (Mar. 14 and May 1), both focusing on Shell’s theory that visiting spiders are capable of creating contractual relations. We covered a case raising some of the same issues on Jul. 13, 2005.

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Yet another Montgomery Blair Sibley profile

In today’s Washington Post:

John Wesley Hall Jr., a vice president of the National Association of Criminal Defense Attorneys and author of the standard text on defense ethics, calls [Sibley’s tactics in the Palfrey case] “spiteful” and “over the line,” and says it “doesn’t serve any purpose but to harass and embarrass people.”

Earlier: Mar. 27. The ABC News report on Sibley and Palfrey airs tonight.

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“A paradigm for ‘frivolous'”

This week, Roy Pearson, the Judge With the Missing Pants, has replaced Duke Lacrosse prosecutor Mike Nifong as the symbol of lawyers run amok in the United States. And after hearing the story of Pearson’s lawsuit, approximately 65 million people — one for every dollar Pearson is demanding — have asked me in exasperation what it takes for a lawyer to get disciplined in this country. Well, perhaps one reason it’s so difficult to discipline an attorney can be illustrated by a case handed down on Thursday in the Ninth Circuit, involving an attorney named Richard Canatella. Mr. Canatella has a rather… spotty disciplinary history. As described by the California State Bar:

Canatella stipulated to filing numerous frivolous actions in courts in San Mateo, San Francisco, and Santa Clara county courts, as well as in the California Court of Appeal and federal district and appeals courts.

[…]

Canatella’s involvement in nine other matters also was the subject of discipline.

Sanctions were ordered against him or his clients 37 times. Courts repeatedly found him responsible for frivolous, meritless and vexatious actions. Sanctions totalled more than $18,000 in one matter, and the opposing parties were granted all fees and costs in another.

In one case, a federal judge said, “This complaint is a paradigm for ‘frivolous.’” Wrote another federal jurist: “Plaintiff’s repeated attempt to challenge the sanctions and judgments . . . in the face of clear authority that his claim is frivolous evidences his bad faith and wrongful purpose.”

So what did Canatella do? You guessed it: he sued the California Bar and various Bar officials for publishing this disciplinary record online, claiming that it violated his civil rights. The California Appellate Report elaborates:

You’d probably freak out too if that’s what they said about you. Mind you, Cantanella offers the following defense (?) of his conduct in his second amended complaint, and alleges that he was not actually sanctioned 37 times, but was instead “investigated” for 47 “purported sanction orders” over a nine year period and was sanctioned on at least 26 “separate” occasions by federal and state courts between 1989 and 1998. Once you hear that, by the way, do you think the judges have a pretty good sense regarding whether Cantanella’s a particularly sympathetic figure? Or, perhaps, think — shockingly — that a person sanctioned this pervasively is precisely the type of person who would file the present action?

Not surprisingly, Canatella lost his suit. So, showing the same level of sense that got him sanctioned all those times, he appealed. He lost again, in the decision handed down yesterday.

This wasn’t the first suit he filed against the Bar, by the way.

So, it’s not hard to see why state bar officials may be a little cautious in disciplining attorneys.

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“Negligent failure to legislate”

We often discuss regulation-via-litigation, but usually there’s at least a little bit of metaphor in that phrase. But apparently some people might be taking it entirely too literally. Eugene Volokh points us to this story in the Philadelphia Daily News, in which a City Councilman named Darrell Clarke has come up with a new strategy to pass gun-control laws, despite the fact that the state legislature won’t allow him to do so:

What’s different is that he says Council also is preparing to file a legal complaint related to the Legislature’s inaction.

[…]

Asked how Council can move forward on the bills without a state enabling law, Clarke said, “We think that with our complaint, we will show in our theory that the state has been negligent in terms of enacting good-sense legislation. We think we have a compelling case.”

Indeed, why bother with state legislatures at all? Just let lawyers decide what laws would be “reasonable,” and then get courts to pass those laws.

(Think of all the time and money we could save by abolishing elections.)

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Forward an email, get sued?

Just what we need: more causes of action. If you’ve ever wondered why this country is overlawyered — besides greed and lack of personal responsibility, I mean — you might want to look to our law schools, where law professors with too much time on their hands spend some of it thinking of new ideas for increasing litigation. The latest example, from Fortune.com’s The Browser:

The mere act of forwarding an email or posting an exchange to a website is grounds for legal action, according to University of Arkansas law professor Ned Snow. In a paper to be published in the Kansas Law Review this summer, Snow contends that one of the most common acts of the digital age is a violation of privacy and warns that our courts are running headlong into this issue.

But don’t worry; Snow’s only trying to help:

His paper is a result of that curiosity, and he’s hoping it will serve as a roadmap for the courts in an issue that is bound to come into the spotlight. “Most of the time, when you forward emails, there’s no harm. But when you can show the harm, there’s reason to go to court,” he says. “I’m trying to offer insight to the courts, who will be grappling with this issue.”

And if there’s big money to be made somewhere along the way, well, I guess that’s just the price we all have to pay.

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Pant-demonium breaks loose, cont’d

Outrage continues to spread over Roy Pearson, Jr.’s $65 million suit against a Washington, D.C. Korean dry cleaner over a lost pair of suit pants (Apr. 26, May 1). The Washington Post editorially wonders whether Pearson should continue in his position as an administrative law judge given the “serious questions” raised by the case “about his judgment and temperament”. (“Kick in the Pants”, May 3). Associated Press coverage is circulating worldwide: Lubna Takruri, “Judge sues cleaner for $65M over pants”, AP/Kansas City Star, May 3. And Alex Spillius in London’s Daily Telegraph (“Judge sues dry cleaners over lost trousers, May 3) notes that Pearson

reached the figure of $67,292,000 as follows: Washington’s consumer protection law provides for damages of $1,500 per violation per day. Mr Pearson started multiplying: 12 violations over 1,200 days, times three defendants (the Chungs and their son)….

Mr Pearson has set the Chungs and their lawyers a long list of questions, which includes: “Please identify by name, full address and telephone number, all cleaners known to you on May 1, 2005 in the District of Columbia, the United States and the world that advertise ‘SATISFACTION GUARANTEED’,” according to the Washington Post.

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Edwards Angell Palmer & Dodge and a sense of proportion

We’ll agree: the posters at the AutoAdmit/Xoxohth board—like commenters on DailyKos, Google and Yahoo! boards, Legal Underground, The Volokh Conspiracy, and even Overlawyered—can be distasteful or obnoxious, and all the more so because in Xoxohth’s case because the board is largely unmoderated. Posters have engaged in racial slurs and misogynist remarks; they are notorious for threads where posters evaluate the looks of female attorneys and law students. (Even my girlfriend was the subject of a brief thread.) The site has recently had negative publicity from a Yale Law student who blames a thread there for an inability to find a job and from a Boalt Law student who is facing expulsion because he briefly posted to AutoAdmit and quickly withdrew a poor-taste-joking threat of a Virginia-Tech-copycat at Hastings that resulted in the latter school being shut down for a day.

A Penn Law student who was an administrator on the site resigned in response to some of the shenanigans on the board in March. The WSJ Law Blog is reporting today that that was not enough for his future employer, Boston law firm Edwards Angell Palmer & Dodge, which withdrew its job offer to Anthony Ciolli, who (to my knowledge) is not accused of making any objectionable remarks himself. Now, an employer can reasonably decide that it does not wish to associate with a controversial employee (though the Massachusetts Civil Rights Act imposes on private employment relationships in some circumstances what are in most other states thought of as constitutional speech and freedom-of-association protections applicable only to governmental relationships, which may mean that Ciolli has a cause of action against the firm).

But the decision of Edwards Angell Palmer & Dodge to find Ciolli’s association with the AutoAdmit board disqualifying is curious if only because one of the attorneys at the same office of the law firm has been indicted for felony homicide for allegedly killing a man in an auto accident while driving under the influence of sleeping pills. (Three and a half pills were missing from a three-hour-old Ambien prescription, and the attorney allegedly admits “tasting” them.) Now, that attorney is entitled to a presumption of innocence in his criminal trial (he pled not guilty in the summer of 2006, a motion to dismiss was denied later that year, and I cannot find any reference to the current status of his case). But if you ever wanted to know how damning it is in the modern legal community to be associated with a controversial website accused of misogyny, you now have an answer: it’s worse than being accused of killing someone.

More blogosphere commentary: Concurring Opinions; Above the Law.

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