Maryland Lawyer Blog

Above the Law has a wild email exchange between a lawyer who hired a law student and then kinda took it back. And everyone gets mad.

• Dead guy gets arrested (Washington Post)
• State Farm Demands Damages for Bumper Damage Caused When Dog Is Hit (Baltimore Injury Lawyer Blog from Overlawyered)
• Hooters Sued for Weight Discrimination(Overlawyered again)
• Maryland Legal Aid Scam (Maryland Lawyer Blog)
• Tylenol Recall (Drug Recall Lawyer Blog)
• Justice Scalia thinks it is not a bad idea to have a Supreme Court nominee that has never been a judge.

Oh my. The Maryland Daily Record reports today that the former CFO of the Maryland Legal Aid - that's right, the folks we trust to supply civil legal aid to the poor and needy - is charged with scheming to steal over $1.1 million from nonprofit. The scam? The ole "pay bills to pretend companies" scam. Incredibly, the guy was the CFO of Maryland Legal Aid for thirty years.

I think it is time to go to Google to try to find a good, old fashioned feel good human interest story that might even be true.

The U.S. News and World Report law school rankings may be flawed. Wait, we knew that already. But they may be more flawed than we thought.

In the much anticipated 2011 U.S. News & World Report law school rankings, 74 schools did not report their employment numbers at the time of graduation. You don't have to be Oliver Stone to conclude that the vast majority of these law schools were covering up their employment numbers because, believe me, everyone gets the importance of the U.S. News & World Report rankings. But the schools who blew off reporting their employment numbers were just automatically assigned a number that is approximately 30% lower than the number of graduates employed nine-months later.

So law schools that played by the rules got burned. Somewhere, some kid with a magazine is making a wrong decision on which law school to attend based on a ridiculous use of statistics. My only solace is that kid should not have been using a magazine to pick his school in the first place.

• 2011 U.S. News & World Report Rankings and the University of Baltimore
• The Volokh Conspiracy on Law School Rankings

The Supreme Court yesterday unanimously rejected in American Needle v. NFL, the NFL's request for broad antitrust law protection as a joint venture, ruling that the NFL should be viewed as 32 separate corporations when selling branded merchandise and apparel. The court's ruling in American Needle flips a 7th Circuit opinion that reached the opposite finding.

The NFL really wanted this appeal, hoping to knock the ball out of the park and grab a baseball like antitrust exemption. This means that someone handicapped the Supreme Court and saw a victory. But the league's lawyers read it wrong and it was not even close. If the NFL had won, they would have parlayed that new leverage into even more anticompetitive behavior that would have been great for team owners but not for fans or players. If the American Needle ruling gave the NFL a broad exemption, it could have destroyed the years and years of leverage building NFL players have earned in the collective bargaining process. I think this ruling makes it less likely the owners are going to lockout the players in 2011. In fact, if the NFL owners (actually, their lawyers) had read the situation correctly, the league would have tried to get a deal done with American Needle hanging over the players heads.

A recent study, Employment Practice Liability: Jury Award Trends and Statistics, examines wrongful termination claims. This review of federal jury awards found the median verdict in wrongful termination lawsuits is $182,333.

The 4th Circuit flipped a District Court decision to reduce attorneys' fees in the case from $6,000,000 to $600,000. Why? The court acknowledged that plaintiffs' personal injury lawyers take on risk when they take a case.

Plaintiffs' personal injury lawyers are victims (yes, I said victims) of what Malcolm Gladwell and others call "creeping determinism," the sense that, in hindsight, what has happened was actually inevitable when the outcome was far from inevitable from the beginning.

Governor O'Malley signed into Maryland law a version of the "Castle Doctrine" that provides civil immunity when defending your house of workplace.

This bill has no practical impact in the real world. Criminals are really not bringing successful claims against homeowners. But, as I explained on the Maryland Injury Lawyer Blog, immunities are all a part of what James Sawyer called the "Long Con." Clearly, the commenters to this post disagree.

An Anne Arundel County lawyer who gave a woman Vicodin in exchange for oral sex was suspended from practicing by the Maryland Court of Appeals for 60 days. Incredibly, this lawyer had previously been suspended for the less creepy but still creepy offense of sending sexually explicit text messages to one of his clients and touching her inappropriately in the courthouse.

The court was split 4-3 with Judges Glenn T. Harrell Jr., Lynne A. Battaglia and Mary Ellen Barbera pushing for an indefinite suspension (although he could apply for reinstatement after six months).

I think the most logical question here is how on Earth did this guy get off with essentially a slap on the wrist? The short version of the story is that the court gave the offending lawyer a lot of credit for the fact that he came forward with information to help a client. You can read the full twisted story in the Maryland Daily Record article on the court's opinion. (If you read the case, this next comment will make sense to you. I find it a little odd that credibility of the woman's claim she was raped appeared to pivoted on the fact that she traded oral sex for Vicodin and no one even as an aside questioned the logic of this leap. But the details are not made entirely clear so I don't know what to make of it.)

The longer answer to the question of how the majority can justify such a short suspension is that the decision to discipline lawyers is not measured by the "how awful is it?" scale. The purpose of disciplinary sanctions is “to protect the public, to protect the integrity of the legal profession and to deter other lawyers from violating the Rules of Professional Conduct." The judiciary has an obligation to make sure the public can trust their lawyers. To me, comingling client funds with your own when you have no intention of stealing the clients' money is a lesser crime than exchanging drugs for oral sex. But when your mission is to protect the public and to maintain clients' trust in their lawyers, the relative innocence of comingling funds becomes the graver offense.

Discipline in sports is similarly, yet correctly, convoluted. Pete Rose bet on baseball, a relatively innocuous offense to the general public, particularly because he bet on his own team. His own team. Is that so awful?

From the point of view of the best interests of baseball, it is that awful. Baseball's primary job is not to sanction wrongdoers but to protect the game. Betting on baseball, which brings into question the very integrity of the game, is a graver crime for the game itself than, say, a violent crime or a DWI that leads to a fatality. Baseball fans can live with a player on the field being a bad or even evil human being. But that fan cannot live with the idea that the game could be fixed. Baseball's disciplinary rules reflect this reality.

Going back to this case, in his dissenting opinion, Judge Harrell called the 60 day sanction, in the absence of analysis of how long the sanction should be, "plucked randomly from the air." This is absolutely true. But even if you analyze it until you are blue in the face, isn't every sanction, where the determination is length of the sanction, plucked out of the air on some level? It is a "what does your gut tell you?" kind of decision, no matter how much you try to break it down.

I'm sure it did not hurt that the suspended lawyer was represented in the Court of Appeals by Kramon & Graham's Andy Graham, who is on everyone's "Best Lawyers in Maryland" list. He's just a spectacular lawyer.

The United States Supreme Court ruled today that the government can keep some sex offenders in prison after they serve their sentences, affirming the Adam Walsh Child Protection and Safety Act that authorized the civil commitment of sexually dangerous federal prisoners.

The U.S. Supreme Court ruling, issued just minutes ago, states that the government may indefinitely imprison convicts that are found "sexually dangerous" even after their prison sentences have been completed. In the case before the court, four men who served prison terms for possession of child pornography or sexual abuse of a minor were not released at the end of their sentences.

Justice Breyer wrote for the majority in a 7-2 opinion:

The federal government, as custodian of its prisoners, has the constitutional power to act in order to protect nearby (and other) communities from the danger such prisoners may pose.

Justices Antonin Scalia and Clarence Thomas dissented.

I have not read the opinion or the dissents. I have no opinion of the legal issues that were discussed. In theory, prisoners ought to be released after their sentences. They have served their time. Still, I support the law and I adopt whatever legal reasoning the majority used to reach their conclusion. Because it is just not responsible to release someone who you believe essentially poses a threat to children. You just can't.

Where's Elena Kagan on this issue? Well, no one knows for sure. But she did argue the government's case in the Supreme Court.

Incredible fact of the day: Of Elena Kagan gets confirmed, every Supreme Court Justice will have attended Harvard or Yale law schools.

• Kagan's Nomination: Youth Prevails
• The Supreme Court and Personal Injury Cases

What do you make of the much circulated rumor that President Obama will nominate Alan Dershowitz to the Supreme Court this week? Of course, I'm completely making this up. The Internet is great. If you say something crazy enough, someone will pick it up and it will become the next hot rumor. Could modern society function without Snopes?

This leads me to another "we would not have conceived of this even 5 years ago" tidbit: there is a fantasy Supreme Court website where you can go and make your fantasy pick for Supreme Court justice. On his site, Josh Blackmon has photoshopped Elena Kagan into a picture with the other Supreme Court justices.

In other Supreme Court news, the court has closed the main entrance to the Supreme Court for security reasons. Two justices dissented from the decision. That sounds like another joke. But it is not. There really was a dissenting opinion.

One more big Supreme Court issue out there is televising Supreme Court oral arguments. Is there any chance Supreme Court arguments won't be televised in 2030? Obviously, keeping cameras out is the wrong side of history. We now know what Tiger Woods is eating for breakfast. Americans now demand more information. We want to see how the sausage is being made, particularly when it is our sausage. So without a compelling reason for keeping cameras out, I think it is time to make the people's court the people's court.

Another great example of the heartache caused by billing by the hour.