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On The Merits

When There’s a Will, There’s a Way

The untimely death of pop star Prince, 57, earlier this year was met with shock by his worldwide fanbase and the general public alike. Even more surprising was the fact that the multimillionaire passed away without a legal will.

When the news broke that Prince had not designated a legal heir, more than two dozen people reportedly came forward with claims that they were related to the fallen music icon. After weeks of interviews and investigation, the court overseeing Prince’s estate has found that only six possible heirs remain.

Without a will to guide the process, a special administrator was appointed to oversee the process, including hiring outside law firms to determine the extent of Prince’s existing assets and those that will be accumulated in the future through recording rights. As a result, the administrator recently petitioned the court for $2 million in legal fees that have already accumulated. People will complain about how the lawyers are getting rich off of Prince’s artistic body of work, but the irony is that Prince alone had the power to prevent it.  

He could have had a will.  

Sure, a will would have cost him some legal fees, but nothing like the fees that are likely to be spent before all of this is resolved.  When you don’t indicate where you want your money and your stuff to go, the courts have to figure it out.  And that takes both money and lawyers.  

The list of celebrities and other wealthy individuals who have died without a will is longer than you might expect. From TV star Sonny Bono to famed artist Pablo Picasso to former U.S. President Abraham Lincoln, there have been many who have gone to the great beyond without leaving instructions for how to settle their affairs.

The legal battle over Prince’s estate and the millions of dollars being spent are just the most recent reminders of the valuable role that estate attorneys play in our legal system.  So for all of you who have been fortunate to amass a huge amount of assets, and you don’t want to have lawyers battling over your estate, the advice is simple.  

Hire one attorney, and have him or her prepare your will.  

Posted: 8/31/2016 8:00:29 AM by On the Merits Editor | with 0 comments

You Scream, I Scream, We All Scream for the Fourth Amendment

Tensions between U.S. law enforcement and the public have been running high for some time, culminating recently with several high-profile shootings by police officers and the recent deadly attacks against police in Dallas and Baton Rouge, Louisiana. Some police departments have responded by implementing novel programs aimed at helping bridge their gap with communities, including a recent videotaped exchange between a driver and an officer in Halifax, Virginia, that has gone viral.

In the video, the officer and the local police chief are approaching a woman who has been pulled over in her car with her young son in the front seat. Likely expecting a ticket, the woman is told that she has violated a fake local ordinance that says it is illegal to drive on a hot day without an ice cream cone. The officer then hands both the woman and her son ice cream cones while she laughs in obvious relief.  

A nice gesture, of course, but perhaps unnecessarily stressing people out is not the best way to improve relations between police and the public.  And probably not legal, either.  

According to a Washington Post article by George Washington University Law School Professor Orin Kerr, a lot of these feel-good moments are actually illegal because police must have a justification before enacting a Fourth Amendment “seizure” of a vehicle and its occupants via a traffic stop. Stopping a motorist to give her a gift is clearly unconstitutional.  

As Professor Kerr rightly observes, what happens when an officer makes one of these “ice cream stops” but discovers a bank robber with a visible pile of stolen cash in the back seat? Does anyone believe that person wouldn’t be arrested? But evidence from traffic stop without legal justification usually ends up being suppressed due to the unconstitutional traffic stop.  

Professor Kerr correctly notes that some motorists are probably annoyed or angry, but we never see these videos.  Ice cream or not, an illegal stop is an illegal stop.  And sometimes it takes a lawyer to remind everyone of that fact.  

Posted: 8/29/2016 12:44:55 PM by On the Merits Editor | with 0 comments

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

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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