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On The Merits

Sometimes You Have to Face(book) the Music

Confidentiality provisions in settlement agreements are pretty common, but they used to be a lot easier to abide by. Social media and the Internet now provide the means to breach a settlement with just one click of the mouse. 

That’s what happened in Florida to 69-year-old prep school headmaster Patrick Snay, who had sued his employer for age discrimination when his contract wasn’t renewed. The $80,000 settlement plus legal fees that Gulliver Schools agreed to pay were withdrawn after Snay’s college-age daughter issued a Facebook post bragging that her father had won just four days after the agreement was signed.

Her post read: “Mama and Papa Snay won the case against Gulliver. Gulliver is now officially paying for my vacation to Europe this summer. SUCK IT.”

The school’s lawyers argued that the daughter’s post was a breach of the confidentiality agreement, which barred Snay from disclosing the existence or terms of the settlement to anyone except his spouse, lawyers or professional advisers. Snay responded by asking the trial judge to enforce the settlement, contending he had to advise his daughter of the settlement because she had been “retaliated against” by Gulliver and “had quite a few psychological scars.” The court agreed with him.

But in a reversal, the Florida’s Third District Court of Appeal court threw out the settlement. “Snay violated the agreement by doing exactly what he had promised not to do,” the appeals court opinion stated. “His daughter then did precisely what the confidentiality agreement was designed to prevent.” 

Unfortunate for Snay, perhaps, but the Court is correct that he had a contractual obligation to take all necessary steps to prevent that from happening because he agreed to it and accepted the benefits of the agreement. He should have not disclosed this information to his daughter. 

Or at least taught her some manners.  
 

Posted: 4/2/2014 12:00:00 AM by On the Merits Editor | with 0 comments

Who You Calling “Fanciful”?

A recent U.S. Supreme Court decision expands whistle-blower protections to employees of private contractors, bolstering the anti-corruption principles of the 2002 Sarbanes-Oxley Act. The ruling was widely reported and noteworthy based on its potentially far-reaching implications.

But the 6-3 decision also highlighted an important reality of the court that often is forgotten: both the majority and the dissent were written by justices that are often assumed to always be on the same side. Justice Ruth Bader Ginsburg penned the opinion for the majority, while Justice Sonia Sotomayor wrote the dissenting opinion. Both are generally considered members of the Court’s more liberal wing. 

The case involved allegations by two former workers at Fidelity Investments, who were employed as subcontractors by units of privately held FMR LLC. The units provide investment advice and management services to publicly traded Fidelity mutual funds. Both alleged retaliation resulting from their complaints about the company’s alleged wrongdoing. 

Fidelity Investments argued that the workers couldn’t bring claims under Sarbanes-Oxley because they weren’t employees of a publicly traded company. A federal appeals court agreed, but the Supreme Court reversed that decision.

Justice Ginsburg said that providing whistle-blower protections to mutual fund investment advisers “is crucial to Sarbanes-Oxley’s endeavor to protect investors.” In her opinion, she noted that Congress passed the law to strengthen corporate governance after the accounting scandals at companies such as Enron Corp.

Justice Sotomayor, writing for the minority, which included Anthony Kennedy and Samuel Alito, called the decision “stunning.” She suggested it would extend whistle-blower protections to office cleaners, day laborers and even baby sitters who work for people employed at public companies.

Justice Ginsburg didn’t take that lying down, writing that the dissenters were “indulging in fanciful visions of whistle-blowing babysitters and the like.”

Does this mean that the two Justices will no longer vote together on big cases? Does it mean that there is something personal between the two? 

No, on both counts. This dynamic happens all the time. Supreme Court Justices are not shrinking violets, and good jurisprudence demands that the Justices express their views clearly and forcefully for the sake of both lawyers and the lower courts that must rely on and interpret these decisions. It’s part of the job. 
 

Posted: 3/31/2014 12:00:00 AM by On the Merits Editor | with 0 comments

Skirting the Clear Intent of the Law?


You hear a lot of complaints about “judicial activism,” but you don’t often hear judges being criticized for not being activist enough

But that’s exactly what happened when the Massachusetts Supreme Court recently reversed a lower court and dismissed charges against a defendant who was caught by transit police on a Boston trolley while using his cell phone to take an “upskirt” photo of an undercover officer.

Not surprisingly, the court’s ruling unleashed a furor, with one CNN analyst calling the ruling an “assault on a woman’s right to privacy.” But the case demonstrates that, sometimes, it’s a lot easier be a commentator on CNN than it is to be a judge. 

The justices reasoned that while such actions should be illegal, they actually were not prohibited by the Massachusetts law at issue. That statute, adopted to protect people from being photographed in dressing rooms and bathrooms, applies only when the victim is nude or partially nude. Written before cellphones existed, the court held the law did not apply to clothed people in public areas.

A female passenger on a public trolley “who is wearing a skirt, dress, or the like covering these parts of her body is not a person who is ‘partially nude,’ no matter what is or is not underneath the skirt by way of underwear or other clothing,” the court said in its ruling.

Admirably, Massachusetts lawmakers quickly stepped in the following day and passed a revised statute that now clearly disallows such photography, imposing a possible fine of $5,000 and up to 2 ½ years in prison. And that’s how the three branches of government are supposed to work. The courts cannot convict someone of something the legislature has not made a crime, but it can suggest to the legislature that it fix a law that has become outdated. 

And lest you think the court was just unsympathetic or out-of-touch, consider this: The opinion was written by Justice Margot Botsford, a woman. 
 

Posted: 3/27/2014 2:02:57 PM by On the Merits Editor | with 0 comments

Lawyer Suicides Inspire Bar Action

Depression, stress, burnout, a profession filled with workaholics. Does the work drive lawyers to kill themselves? 
 
Anecdotally, there are many tragic examples from across the country, and CNN recently aired a feature story with statistics suggesting lawyers are more likely to kill themselves than only those who work in three other professions: dentists, pharmacists and physicians.
 
Although there is no single thread that unites the instances of suicides among lawyers, the American Psychological Association says depression generally is the most likely trigger. Lawyers are 3.6 times more likely to suffer from depression than non-lawyers, and suicide is the third-leading cause of death among practicing attorneys.
 
Of course, as in many professions, the recession and layoffs can lead to depression and worse. The National Law Journal reported in 2009 that several prestigious firms had lost attorneys to suicide after they were fired.
 
Fortunately, a number of bar associations have launched efforts to curb this deadly spiral. California, Florida, Iowa, Mississippi, Montana, North Carolina and South Carolina have added a mental health component to mandatory continuing legal education courses. Kentucky, where 15 lawyers have committed suicide since 2010, starts its annual CLE conference with a presentation on behaviors that raise the risk for suicide. And in Oklahoma, the bar association created its own suicide-prevention hotline after multiple lawyers claimed their own lives several years ago. 
 
Here in Texas, the Texas Lawyers Assistance Program provides a wealth of downloadable information on suicide prevention, in addition to staffing a 24-hour hotline for lawyers in crisis or those who are trying to help other lawyers in crisis. 
 
While many lawyers are familiar with the relatively high rates of suicide and depression in the profession, the public too often is not. After all, stories about lawyers killing themselves don’t make for sensational copy. 
 

Posted: 2/12/2014 1:33:14 PM by On the Merits Editor | with 1 comments

Take Me Home - to Prison

We know that judges are supposed to protect us from criminals by putting them behind bars, but are they supposed to protect the prison from people who like living there on the taxpayers’ dime? 
 
Judge Patrick Robb of the 5th Judicial Circuit Court in St. Joseph, Mo., rejected a proposed plea after deciding to protect a defendant from his own desire for a long prison sentence. Defendant Roy Murphy tried to plead guilty to second-degree attempted robbery based on his botched holdup of a convenience store. It seems Murphy asked the convenience store clerk to “please” open the cash register, and then told her to “Please call the police” before fleeing the store on foot. 
 
His arrest shortly afterward came less than a year after he was released from prison based on an earlier conviction. While entering his plea, Murphy told Judge Robb that he was looking forward to the proposed seven-year sentence since he already had spent so much time in prison that he didn’t know how to live on the outside.
 
But there was a problem with the attempted robbery charge. The judge said the law required that threatening physical force be used, so he refused to convict Murphy.
 
“The one thing everybody agrees is he didn’t threaten anybody,” Judge Robb was quoted as saying at the hearing.
 
The judge explained that he was worried a conviction could be overturned on appeal based on a lack of evidence. At the same time, Judge Robb noted the incident was dangerous, and “Mr. Murphy’s criminal record is terrible.”
 
A solution emerged when the prosecutor agreed to file an amended felony charge of attempting to take property. The resulting four-year sentence will likely prevent costly appeals and prevent Murphy from serving three more years than he actually deserved. 
 
Judges are supposed to see that justice is done. And sometimes that means taking the side of the defendant, even if the defendant isn’t on his own side. 
 

Posted: 2/10/2014 1:25:00 PM by On the Merits Editor | with 0 comments

About This Blog

Thanks for stopping by On the Merits, the first blog from the Texas Center for Legal Ethics. On the Merits will take a close look at significant legal stories with an eye toward addressing the legal myths and misconceptions that turn up in news stories, movies, TV programs, websites, anonymous emails and other forms of mass communications. Our goal at On the Merits is to provide readers with a thoughtful examination of what the media and others are saying about the legal profession and to apply the frequently-absent context of how the legal system actually works.

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