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On The Merits

ABA Speaks Forcefully on Harassment of Women Attorneys

At a time when American political discourse seems uglier than ever, it was nice to see what transpired at the annual meeting of the American Bar Association in late August. 

Before the House of Delegates was Resolution 109, a proposal to add sexual, racial and other forms of discrimination and harassment to the list of ethics violations under the Bar’s Model Rules of Professional Conduct. The measure won approval easily on a voice vote, setting a national standard among lawyers for the first time on this issue.

There were so many lawyers wishing to speak in favor of it – 69 altogether – that House of Delegates Chair Patricia Lee Renfro reportedly said she struggled to find a new description for the volume of support.

The proposal had attracted attention from The New York Times, which quoted women lawyers recounting their firsthand experiences with disrespect and humiliation based on their gender. Examples ranged from being called “honey” and “darling” to courtroom admonishments from male lawyers not to speak so loudly because “it’s not becoming of a woman.”

That’s not to say there was no opposition to the resolution. There were concerns about penalties for an attorney vigorously representing a client, and initial complaints argued that the proposal grew out of political correctness rather than real necessity. However, the resolution was amended to say that to be in violation, a lawyer must know or reasonably should know that conduct is harassment or discrimination and that the rule does not preclude legitimate client advice or advocacy. The changes led to even wider support and easy passage of the proposal.

The ABA Journal provides a full account of the matter from the House of Delegates session.

Efforts like these demonstrate that the lawyers really do spend time and energy trying to improve the profession and not just chasing business.  While arguably long overdue, the resolution recognizes, at the highest levels, that women attorneys have been treated poorly by some of their colleagues and that such behavior will not be tolerated.  

Posted: 8/24/2016 3:24:36 PM by On the Merits Editor | with 0 comments

Litigate Like it’s 1948

Juneteenth celebrates the day that Texas slaves learned of their freedom at the end of the Civil War, some two months after General Robert E. Lee’s surrender at Appomattox in April. Because news traveled slowly at that time, Texas slaves learned they were free long after most other slaves in the Confederacy heard the news.

Fortunately, with today’s instant communication, such a thing could never happen in the modern world, right? Well, apparently tiny Normanna, Texas, is somewhat insulated from the march of history, at least in the realm of civil rights. The San Domingo cemetery there was sued recently after it refused to bury a Hispanic man because doing so would violate the cemetery’s alleged “whites-only” policy.

According to the federal lawsuit filed by widow Dorothy Barrera, cemetery operator Jimmy Bradford told Barrera that her request to bury her husband Pedro at the cemetery had been denied by the Normanna Cemetery Association “because he’s a Mexican.” Bradford then reportedly directed her to “go up the road and bury him with the n------ and Mexicans” in the nearby Del Bosque Cemetery.

Now, such discriminatory covenants on real estate have been unenforceable since, um, 1948, when the U.S. Supreme Court ruled them unconstitutional in Shelly v. Kraemer. They are also against Texas law.

Fortunately, attorney Marisa Bono and the Mexican American Legal Defense and Educational Fund were there to right this wrong. After Bono filed suit, lawyers for the cemetery quickly agreed to a judgment that found the discriminatory rule to be void.

Kudos to Ms. Bono and MALDEF for representing Ms. Barrera in her moment of grief, and a hat tip to the cemetery’s lawyers for (presumably) persuading their client to not fight what has been the clear law of the land since Harry Truman was president.

Posted: 8/3/2016 8:29:54 AM by On the Merits Editor | with 0 comments

Would the Grand Canyon Sue Lake Powell for More Water?

Preserving and protecting the environment has long been a priority in the United States. The nation’s first national park, Yellowstone, was created in 1872 to preserve the incredible natural beauty that captivated its earliest visitors. In time, other national parks – Yosemite, Grand Canyon, Big Bend, and many other familiar names – would join the list of national treasures. Next month, the National Park Service will celebrate its 100th anniversary.

But the preservation and protection of these treasures always has been (and is still) at the whim and discretion of its human overlords. People decide whether roads are built, buildings are constructed, or trees are cut. Parks can’t do much to protect themselves.

Or can they? The New York Times recently reported on how the attorney general of New Zealand has adopted the mindset of the country’s Maori people by providing personhood status to a national park and one of the country’s longest rivers. The Maori people are the indigenous Polynesians who have lived in New Zealand since the 1200s. In the Maori belief system, a person’s natural surroundings are as much part of them as their heads, arms and legs.

In deference to those beliefs, the New Zealand Parliament is set to approve the personhood designation for the Whanganui River, the nation’s third-longest at 180-miles. The country previously approved the same status for the Te Urewera national park, which covers 821 square miles. Both areas have been the domain of the Maori people for hundreds of years.

“The settlement is a profound alternative to the human presumption of sovereignty over the natural world,” said Pita Sharples, who was the minister of Maori affairs when the law was passed. According to the Times, personhood means, “among other things, that lawsuits to protect the land can be brought on behalf of the land itself, with no need to show harm to a particular human.”

Sounds a little odd?  Couldn’t happen in the United States, right? After all, taking a large tract of land and deciding that it should have the same rights as a person seems a little, well, out there. A thing is not a person, and a person is not a thing.

Not always – even in our country. As Mitt Romney once famously observed, “corporations are people, my friend.” Yes, corporations in our country (and most others) are considered fictitious persons under the law. Now this isn’t necessarily a bad thing, obviously, as the development of corporations has led to greater economic growth and risk-taking than would occur if individuals were always personally liable for the actions of the corporation. One can argue about what rights corporations should have, or when its shareholders should be protected or liable, but few would argue that corporations have proved to be beneficial to humankind.  

Can the same be said for our national treasures? Only time will tell. One thing is for certain, however: if it proves successful in New Zealand, there will be a move to confer personhood on natural treasures here and in other countries. And lawyers will be leading the charge for and against this new development in the law.

Posted: 7/29/2016 9:10:49 AM by On the Merits Editor | with 0 comments

New York Attorney General Helps Those Who Can’t Help Themselves

Too often those who lack sufficient economic leverage must abide by the decisions of others even when the result is manifestly unjust.  But sometimes a lawyer is there to help.  New York’s Attorney General recently used the power of his office to help a couple of disparate groups affected by the arbitrary decisions of their respective employers.

In the span of two weeks, New York AG Eric Schneiderman convinced two sizeable companies to abandon a requirement that new employees sign non-compete agreements preventing them from going to work for competing businesses. While non-competes are not inherently illegal, the circumstances in each case raised eyebrows because of the overly drastic consequences involved.    

First was Jimmy John’s, the ubiquitous sandwich shop that you can see in nearly every commercial break during any live sporting event. Under the sample non-compete agreements sent to potential franchisees, Jimmy John’s prohibited entry-level sandwich makers who left the company from working anywhere within a two-mile radius of a Jimmy John’s location if the new employer derived more than 10 percent of its revenue from sandwiches. The AG called the non-competes unlawful since New York law only allows such agreements if a worker has unique skills or possesses trade secrets. Although Jimmy John’s brands itself as a “gourmet” sandwich shop, it’s pretty clear that there’s no unique skill or trade secret in making a sandwich for anyone who’s ever eaten one.  

Next in line was legal publisher Law360, which has employees nationwide. Under the Law360 non-compete agreements, entry-level reporters were barred from working for other legal publications for one year. The NY AG began to focus on the company after a story went viral about a reporter who was fired weeks after accepting a new job because Law360 notified her new employer about a non-compete agreement she had signed two years earlier. In addition to abandoning new non-compete agreements, Law360 also agreed to release anyone from such agreements that were signed in the past year.

While non-competes are important tools in today’s business world in the right circumstances, they have traditionally been used when carefully tailored to a legitimate threat to a company’s trade secrets or technological advantage.   How sandwiches are made or how reporters do their jobs is not exactly a lucrative mystery, and using this weapon against young and relatively powerless employees seems more like a punitive measure than a valid business interest.  Kudos to Attorney General Schneiderman for using his power and his office to protect these unfortunate victims.   

Posted: 7/14/2016 9:40:32 AM by On the Merits Editor | with 0 comments

Phishing for Lawyers

Email scams have been around nearly as long as email itself, whether it’s someone promising medical miracles in exchange for a “donation” or those inviting you to share in their million-dollar inheritance if only you can pay the “necessary” banking fees. But email scams aren’t reserved for the elderly or uneducated, and instead often target trained professionals, including attorneys.

The practice has become so prevalent that the State Bar of Texas maintains a regularly updated blog post detailing the latest attempts by online con artists to pluck money or otherwise victimize unwitting lawyers. While most of these scams prey on those who think they can make a quick buck, the latest scheme is somewhat different because the perpetrators are pretending to be regulatory officials inquiring about nonexistent disciplinary actions or false claims for bar dues.

The ABA Journal recently noted this latest twist in the seemingly never-ending parade of internet charlatans. According to the ABA’s Division of Bar Services, more than 50 lawyers in Alabama, California, Florida, Georgia and Nevada have received the phishing emails, which contain subject lines indicating pending disciplinary matters, unpaid bar dues or increases in bar dues. The ruse doesn’t stop with the emails, however, as the ABA reports that fake state bar websites also have been used to make the scam more believable.

Fortunately, there have been no reports of this particular phishing expedition reaching Texas lawyers, but there’s no guarantee it hasn’t already happened. Getting scammed online can be embarrassing, which leads many people, including lawyers, to decide against reporting what happened to the appropriate legal authorities. That lack of action may help protect victims from further embarrassment, but it only makes it easier for it to happen again to someone else.

If you receive a phishing email or have been victimized by one, it’s best to report it to your local police department and notify the FBI’s Internet Crime Complaint Center, where you can quickly file a complaint without much hassle. Remember, there are bad people on the internet. Let’s be careful out there.

Posted: 7/12/2016 12:17:42 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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