Pennsylvania Supreme Court Terminates Emergency, Directs Courts to Restore Operations
In an
Order dated May 27, 2020, the Supreme Court of Pennsylvania declared that the statewide judicial emergency declared by the Court on March 16, 2020, cease on June 1, 2020. The Court stated that local administrative rules and judicial emergencies declared by local courts remain in full force and effect, and granted President Judges in the local courts wide discretion to exercise emergency powers. The President Judges may extend existing emergency declarations by filing self-effectuating notices in the Eastern, Middle, or Western Districts of the Supreme Court, as appropriate.
President Judges have authority to:
- Limit in-person access and proceedings in order to safeguard the health and safety of court personnel, court users, and members of the public;
- Suspend statewide rules that restrict, directly or indirectly, the use of advanced communication technologies;
- Suspend statewide rules that impede local provision for court filings by means other than in-person delivery;
- Suspend statewide rules pertaining to the rule-based right of criminal defendants to a prompt trial; and
- Suspend jury trials until such time that they can be conducted consistent with prevailing health and safety norms.
The Court noted that the reopening of the court system will present a need for Pennsylvania attorneys to gain physical access to their offices. The Court noted that the duty of diligence requires lawyers to represent their clients promptly and competently, and urged lawyers to resume access to their physical offices with appropriate measures to protect the safety of their employees and the public.
The Court also referred to the guidelines issued by the Executive Branch for the “Yellow Phase” of operations, and found that the guidance of the Executive Branch is consistent with the level and manner of physical office access that the Court has deemed necessary for attorneys to promptly, competently, and diligently represent their clients.
Third Circuit Also Rejects Attorney-Client Privilege as Bar to IRS Subpoena
Last month, we reported on a decision of the Fifth Circuit Court of Appeals, finding that attorney-client privilege does not prevent a law firm from complying with an Internal Revenue Service summons seeking information about any clients that created overseas accounts and entities.
A sharp-eyed reader,
Paul W. Kaufman, advised us that in 2018 the Third Circuit rendered a similar decision, based on Pennsylvania ethics laws. The case is
United States v. Jeffrey Servin, 721 Fed. Appx. 156, 159 (Feb. 1, 2018). The Court in that case concluded that attorney-client privilege does not preclude lawyers from complying with an IRS subpoena for names and addresses of clients. The order specifically addresses Rule 1.6 of the Pennsylvania Rules of Professional Conduct, holding that the rule does not prohibit lawyers from releasing information in compliance with a court order. Lawyers practicing in the area will certainly need to be aware of this decision.
Our thanks to Mr. Kaufman for bringing this important decision to our attention.
Ransomware Scandal Leads to Release of Lady Gaga Data
A noted law firm with many celebrity clients was
struck with a ransomware scandal. After the firm of Grubman Shire Meiselas & Sacks refused to pay a $21 million ransom, the hackers released 2.4 gigabytes of confidential documents on the firm’s client Lady Gaga. The information released included contracts sent to producers, collaborators, and members of her touring ensemble; promotional agreements; expense sheets; confidentiality agreement forms; performer agreements; reimbursement forms; a handful of promotional photos; and other routine paperwork.
The hackers claim to have 765 gigabytes of data harvested through the ransomware application REvil, on celebrity clients of the firm including Jennifer Lopez, David Letterman, John Mellencamp, Robert DeNiro, Christina Aguilera, Barbra Streisand, Mariah Carey, Andrew Webber, Luther Vandross, Sean Puffy Combs, Rod Stewart, Priyanka Chopra, Bruce Springsteen, Elton John, the Kardashian family, Madonna, Christina Aguilera, Nicki Minaj, Tom Cruise, and Dwayne Johnson. They have doubled the ransom demand to $42 million in response to the firm’s refusal to pay.
The hackers also claim in a
statement sent to Rolling Stone to have compromising information on President Trump, who was not a client of the law firm.
The Grubman firm released a statement deploring the theft of its client data despite “our substantial investment in state-of-the-art technology security.” The firm stated that it is working closely with law enforcement and has no intention of paying the doubled ransom.
Boom Shakalaka! You’re Suspended
A Massachusetts lawyer has been
temporarily suspended based on a finding he failed to respond to a disciplinary complaint.
Massachusetts has a rule requiring that a lawyer respond to the substance of bar counsel’s request for information on a disciplinary complaint. Ilya Livits, of Lowell, was administratively suspended by a single justice of the Supreme Court after he failed to respond to the inquiry, possibly based on allegations that he filed a
complaint in the form of a screenplay. He continued to practice and failed to file an affidavit demonstrating compliance with the administrative suspension, leading bar counsel to file a complaint for contempt, resulting in a second justice finding Livits in contempt.
On appeal to the full Court, Livits did not dispute that he failed to file a response to bar counsel’s inquiry, but argued that he "DID COMPLY, and DID PROVIDE AN ANSWER, and my answer was provided in a form of SILENCE. (BOOM SHAKALAKA)." He also demanded a jury trial.
The Supreme Court rejected Livits’s argument, and
affirmed both the decision of the first justice’s decision to suspend him and the second justice’s finding of contempt.
Like Massachusetts, Pennsylvania has a rule making failure to respond to Disciplinary Counsel’s inquiries in the course of a complaint grounds for discipline,
Rule 203(b)(7), Pa.R.D.E. The Disciplinary Board has recommended discipline in numerous cases for this failure, so it appears quite clear that it does not consider silence a valid “response” within the meaning of this rule. Neither, we venture to guess, is “BOOM SHAKALAKA!”
Lawyer and Law Firm Employee Suffer Consequences for Threatening COVID-Related Private Conduct
The COVID pandemic has many people on edge and has disrupted the normal patterns of our lives in many ways. But two legal professionals, a lawyer and a documents manager, paid a steep professional price for letting their emotions get the better of them outside their professional settings.
A
Vermont lawyer has been
placed on interim suspension after being charged with reckless endangerment for pointing a loaded gun at a store employee because she was upset about a sign on social distancing. Carrie Legus complained about a sign promoting social distancing and tried to knock it down, according to a police affidavit, then pulled the gun when a store employee confronted her. She also failed to respond to several communications from disciplinary counsel.
Kevin Bain
lost his job as a document services manager for a Dallas law firm after he posted on Facebook about his angry reaction to being required to wear a mask in stores. He wrote, “Do I have to show the lame security guard outside of a ghetto store my CV19 test results? I will show him my Glock 21 shooting range results.” He also referred to a brand of ammunition in his post, saying it was “pricey … but worth it in this situation.” Upon learning of the post, his employer, Thompson & Knight, terminated his employment, reported him to the police as a precaution, and released a statement calling his actions “threatening and offensive.”
It’s often rough out there, folks, but keep your cool.
Appeals Court to Miller and Coors: Mock Back, Don’t Sue
We have
previously reported on the litigation that arose from Budweiser’s
“Corn Syrup Castle” ad for Bud Light, shown during the 2019 Super Bowl. For those who don’t remember this landmark moment in advertising history, the ad depicted a wagon of corn syrup being delivered to the castle of the Bud Light King, who is confused, because, as the ad makes sure you understand, Bud Light doesn’t use corn syrup in its brewing process. The king attempts redelivery at the castle of Miller Lite, who advise they already received their corn syrup delivery, and then to the Coors Light castle, where it is gratefully accepted. The moral of the story: we don’t use corn syrup, they do.
Since Americans will sue about anything, Molson-Coors, brewer of both Miller Lite and Coors Light, sued Anheuser-Busch InBev for “false and misleading” advertising, claiming that the ad was misleading because the corn syrup cooks out during the brewing process and doesn’t reach the consumer. A Federal judge entered a preliminary injunction barring Bud Light from using certain terminology that implied the competing brands contain corn syrup, but not words stating or implying it was used in the brewing process.
On appeal, the U.S. Court of Appeals for the Seventh Circuit
gave Budweiser the green light to advertise as it chooses. The Court held that it is not false advertising to say the plaintiffs use corn syrup as an ingredient, because, well, the plaintiffs use corn syrup as an ingredient. The Court noted that Molson-Coors lists corn syrup as an ingredient on its packaging, and concluded, “It is enough for us to hold that it is not ‘false or misleading’ for a seller to say or imply, of a business rival, something that the rival says about itself.”
The Court even chided Molson-Coors for bringing the action, saying, “If Molson Coors does not like the sneering tone of Anheuser-Busch’s ads, it can mock Bud Light in return. Litigation should not be a substitute for competition in the market.”
