Pictures? Really: When Clients Turn On You: Helping Mom Catch Dad

Think the Judge Watches the News?

Detroit Judge Wade McCree must not know of the story of Congressman Anthony Weiner.  Or else he might have thought twice about sending a photo of his nakedness to his court bailiff.  She did not mind apparently, but her husband did. He complained to the local new reporter of Fox2 News.  Oops. The reporter talked to the judge, who said among other things that “there is no shame in my game!” (whatever his game is).

That report got the attention of the Michigan Supreme Court. It censured McCree for his poor jokes, and bad judgment.  It was also reported by Fox2 News that “The Supreme Court also wrote in its decision that McCree’s female bailiff kept his naked picture as motivation to remind her to exercise and eat right.”  Not the kind of judicial statement I would hope for in a judicial opinion about an ugly situation (I saw part of the photo).

The baliff’s husband disputed the photo’s effect as a diet aid; he said “all it did was wreck our marriage.”

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When Lawyer-Clients Turn on their Lawyer

A New Jersey lawyer, Leonard, found out the hard way, there are consequences to representing a bad lawyer who was sued by his angry client, especially for making comments in the case that the lawyer-client committed a crime for the client, and the lawyer then sues you.

There is a rule that “the litigation privilege generally protects an attorney from civil liability arising from statements he has made in the course of judicial proceedings.”  The purpose is to protect the process from grinding to a halt if there is a dispute about some information a lawyer provides the court. The lawyer might be subject to disciplinary measures for some statements, but not civil liability (she cannot be sued for the comments).

Here Leonard, the new defense lawyer for the lawyer Buchanan, told Buchanan’s insurance company that the lawyer had committed bankruptcy fraud in the earlier case. Not only did he commit a crime, he lost the suit which resulted in a malpractice lawsuit.  The insurance company denied coverage to Buchanan (and probably payment of fees to Leonard) due to the fraud as stated by Buchanan’s lawyer.  Having been sued, Buchanan sues his lawyer Leonard.

The NJ Court of Appeals said that the litigation privilege does not protect the lawyer (now Leonard) in a case brought by the client (now Buchanan) for failure to live up to the standards of the profession.  Whether Buchanan can ultimately recover damages if the lawyer Leonard has violated the RPC by telling the truth to the insurance company is going back to the trial court to be heard.

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Helping Mom Catch Dad Leads to Court

Gail thinks that Lee, her husband, is cheating.  Her daughter in law, Holly opens Gmail, signs in as Lee and guesses the right answers to his security questions.  Holly finds the incriminating emails with the paramour, shares them with Gail, and the women both end up in court, when Lee sues them both for violating his privacy rights.

In 1986 Congress passed the Stored Communcations Act (SCA), not anticipating that in 25 years we would have Gmail and cloud services.  Early October this year, the South Carolina Supreme Court said that Holly’s reading Lee’s email off of Gmail is not a violation of the SCA.  Good enough?  Not quite, at least in the legal world.

In 2004 the 9th Circuit Court of Appeals (a federal appellate court) found the opposite, or nearly so. There an email that was read and saved on a local server was found to be a saved communication for purposes of the SCA. That was a local server, not an international server handling billions of emails a day, and it qualified. Maybe the bigger storage system should be protected, too.

What constitutes “electronic storage?”  The SCA defines it as “(A) any temporary, intermediate storage of a wire or electronic communication incidental to the electronic transmission thereof; and (B) any storage of such communication by an electronic communication service for the purposes of backup protection of such communication.” But was Lee backing up the email to save it on a back up?  Was the email in transit, on short-term storage?  It does not sound like it was either one.

A call to Congress, or the Supreme Court, to fill the gap in the law is now revealed as a good idea by technological advances and a philandering husband.  H/T to Patrick Olmstead for the story.

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