Judge Sciarrino Makes Us LOL

Here is the parodic, hashtag-laden opening paragraph of Judge Matthew Sciarrino’s decision this week in People v. Malcolm Harris, 2011NY080152, NYLJ 1202549877835 at *1 (Crim., NY, Decided April 20, 2012), that has everyone LOLing:

The New York County District Attorney’s Office seeks to obtain the #Twitter records of @destructuremal using a #subpoena. The defendant is alleged to have participated in a #OWS protest march on October 1, 2011. The defendant, Malcolm Harris, along with several hundred other protesters, were charged with Disorderly Conduct (P.L. §240.20[5]) after allegedly marching on to the roadway of the Brooklyn Bridge. The defendant moved to #quash that subpoena. That motion is #denied.

(footnote omitted).

Click here for the full text of the decision.

This jurist also appears to have played a role in an early episode exemplifying legal problems arising from social media. Click here to see other examples of legal problems arising from social media.

HT Joseph Ax.

Weekly Report of Current Opinions (RECOP): First Raw Feed Available

The first raw feed of the Weekly Report of Current Opinions (RECOP), a collection of newly released U.S. court decisions, is now available at Public.Resource.Org, according to a tweet by Carl Malamud of Public.Resource.Org.

Carl writes:

Will release processed version of cases in few weeks. Be careful if you use raw

Carl has also posted a new set of U.S. federal court decisions and docket information obtained from PACER, the U.S. federal judiciary’s fee-based database. Carl says a bit more about this data set in this tweet.

Click here for more information about RECOP.

Schuman on The Ticking Time Bomb in the Supreme Court’s Doe v. Reed Opinion

Daniel Schuman of Sunlight Foundation has written a very interesting post on yesterday’s U.S. Supreme Court decision in the Doe v. Reed case: The Ticking Time Bomb in the Supreme Court’s Doe v. Reed Opinion.

This case is of interest to the legal informatics and legal communication communities, because the case concerns the disclosure of information about citizens in their capacity as lawmakers in referendum or initiative processes.

Doe v. Reed: On the Disclosure of Referendum Petitions

Public disclosure of “referendum petitions in general,” which disclosure occurs pursuant to Washington State’s Public Records Act (PRA), does not violate the First Amendment of the U.S. Constitution, the U.S. Supreme Court held today, in the case of Doe v. Reed, No. 09-559.

In reaching its decision, the Court applied an intermediate, “exacting scrutiny” standard of review.

The Court did not decide whether disclosure, pursuant to the PRA, of the referendum petition respecting Washington’s Senate Bill 5688, which “‘expand[ed] the rights and responsibilities’ of state-registered domestic partners, including same-sex domestic partners,” would violate the First Amendment. The Court remanded the case to lower federal courts to decide that issue. The Court stated that its ruling on this broad challenge — respecting “referendum petitions in general” — “does not foreclose a litigant’s success in a narrower one.”

However, five Justices wrote or joined concurring opinions questioning or contesting the view that in a challenge involving a particular referendum the First Amendment would bar disclosure of the referendum petition, even respecting a highly controversial referendum.

This case is of interest to the legal informatics and legal communication communities, because the case concerns the disclosure of information about citizens in their capacity as lawmakers in referendum or initiative processes.

Legal communication scholars may find particularly interesting Justice Scalia’s concurring opinion, which contains an extended historical discussion of anonymity in voting in the U.S.

Second Circuit Strikes Down N.Y. Content-Based Attorney-Advertising Rules

Most content-based provisions of New York State’s attorney advertising rules were invalidated by a panel of the Second Circuit Court of Appeals, in the case of Alexander v. Cahill, Nos. 07-3677-cv (L), 07-3900-cv (XAP) (Mar. 12, 2010).

In the district court, plaintiffs — requesting a preliminary injunction and a declaratory judgment — had asserted that content-based provisions of Rule 7.1(c) of New York’s Rules of Professional Conduct, codified at N.Y. Comp. Codes R. & Regs., tit. 22, § 1200.50(c), violated the First Amendment. The challenged rules prohibit:

• the use of client testimonials and endorsements respecting pending matters;
• representations of judges or fictitious lawyers or law firms;
• the depiction of lawyers’ attributes not relevant to lawyers’ competence (e.g., puffery); and
• the use of names or marks “impl[ying] an ability to obtain results in a matter.”

The plaintiffs also challenged Rules 4.5 and 7.3(e), which establish a 30-day moratorium on lawyers’ unsolicited communications to injured persons or their families in the context of personal injury or wrongful death cases.

These rules had been adopted in response to the Report and Recommendations of the New York State Bar Association Task Force on Lawyer Advertising (2006). The rules differ in significant ways from those recommendations, however, as the Second Circuit panel observed in its opinion.

Applying intermediate scrutiny as required by Central Hudson Gas & Electric Corporation v. Public Service Commission of New York, 447 U.S. 557, 564-66 (1980), the district court invalidated all of the content-based advertising restrictions, but upheld the solicitation moratorium.

The Second Circuit panel affirmed in part and reversed in part. Applying the first prong of the Central Hudson test, the panel, in an opinion by Judge Calabresi, ruled that all of the advertising targeted by the content-based restrictions was protected by the First Amendment, with one exception. Narrowly interpreting the provision prohibiting portrayals of fictitious lawyers and firms to apply “only to situations in which lawyers from different firms give the misleading impression that they are from the same firm (i.e., ‘The Dream Team’),” the panel held that provision targeted “actually misleading” speech which “is not entitled to First Amendment protection.”

Applying the second prong of Central Hudson, the panel ruled that New York State had demonstrated two substantial interests underlying the advertising rules: “‘prohibiting attorney advertisements from containing deceptive or misleading content’” and “‘protecting the legal profession’s image and reputation.’”

Applying the third prong of Central Hudson, the panel found that none of the rules targeting protected speech was directly related to those state interests, because the targeted types of advertising were only potentially misleading, and the state had presented no evidence of actual, misleading or deceptive uses of such advertising. The panel also noted that respecting most of these restrictions, the Task Force had recommended only disclaimers or disclosure, rather than outright bans on speech. Respecting the ban on the use of trade names, the panel distinguished Friedman v. Rogers, 440 U.S. 1 (1979). The panel reasoned, first, that Friedman may no longer be good law, as it was decided before, and uses an analysis arguably inconsistent with that of, Central Hudson; and, second, that the state in Friedman had presented substantial evidence of actually deceptive use of tradenames in the profession that the state sought to regulate in that case.

The panel proceeded to apply the fourth prong of the Central Hudson test. The panel concluded that, even assuming that the content-based restrictions satisfied the third prong of Central Hudson, “each would fail the final inquiry because each wholly prohibits a category of advertising speech that is potentially misleading, but is not inherently or actually misleading in all cases.” The panel again cited the fact that the Task Force had primarily recommended the use of disclaimers and disclosures rather than prohibitions on speech.

Respecting the moratorium on direct solicitation, the panel upheld the provision. Applying the second prong of Central Hudson, the panel found that the state had demonstrated a substantial interest in preventing, in the language of the Task Force report, “‘annoyance and offense to those already troubled by an accident or similar occurrence.’” Respecting the third prong of Central Hudson, the panel, noting the similarities between the New York rules and those upheld by the Supreme Court in Florida Bar v. Went For It, Inc., 515 U.S. 618 (1995), concluded that the New York moratorium directly furthered the state’s interest. Applying the fourth prong of Central Hudson, the panel held that the rules were sufficiently narrowly tailored. The panel reasoned that the moratorium rules, even though medium neutral, governed speech “targeting certain accident victims,” and that speech so targeted — even if transmitted via broadcast media, Internet, or newspapers — was “more similar to direct-mail solicitations, which can properly be prohibited within a limited time frame, than to ‘an untargeted letter.’”

(After discussing the issue of format-specific versus format-neutral restrictions on commercial speech, the panel ruled “that even acknowledging that differences among media may be significant in some First Amendment analyses, they are not so in this case.” Three aspects of this portion of the panel’s opinion may be of particular interest to legal informatics and legal communication scholars:

• First, Judge Calabresi cited two law review articles to support the panel’s view that format-neutral restrictions were appropriate to this context: Amy Haywood & Melissa Jones, Navigating a Sea of Uncertainty: How Existing Ethical Guidelines Pertain to the Marketing of Legal Services over the Internet, 14 Geo. J. Legal Ethics, 1099, 1113 (2001); Christopher S. Yoo, The Rise and Demise of the Technology-Specific Approach to the First Amendment, 91 Geo. L.J. 245, 248 (2003).
• Second, the opinion notes that many states have adopted legal ethics rules respecting attorneys’ Internet advertising or solicitation, issues that had also been addressed in the New York Task Force report.
• Third, respecting the need for regulation of advertisements and solicitation transmitted via email providers, Judge Calabresi observed: “At present, Gmail’s algorithm for placing targeted advertisements next to e-mail messages omits such ads where an e-mail message mentions a catastrophic event or tragedy. See More on Gmail and Privacy, Jan. 2007, http://mail.google.com/mail/help/about_privacy.html. It is by no means certain, however, (a) that Google will continue such a policy, (b) that the algorithm runs without flaws, or (c) that other e-mail providers will exercise similar good taste.”)

The panel further concluded that the New York moratorium was more narrowly tailored than the similar rules upheld in Florida Bar, to the extent that the New York rules “shorten[] the moratorium period to fifteen days where an attorney or law firm must make a filing within thirty days of an incident as a legal prerequisite to a particular claim.”

Respecting the invalidated rules, the panel invited the Appellate Division to draft revised advertising rules consistent with panel’s ruling. Whether the state will seek further appellate review of the panel’s decision is unclear.

Milavetz and Attorney-Client Communication

Restrictions imposed by a 2005 statute on U.S. bankruptcy lawyers’ communications with debtor-clients were upheld on 8 March 2010 by the U.S. Supreme Court in the case of Milavetz, Gallop & Milavetz, P.A. v. United States, No. 08-1119 (Mar. 8, 2010).

In Milavetz, the Court, in a 9-0 opinion written by Justice Sotomayor — with Justice Scalia declining to join one footnote in the Court’s opinion, and Justice Thomas declining to join the Court’s reasoning respecting the advertising restrictions at issue in the case — ruled on three issues:

• First, the Court held that the term “debt relief agency” — as defined in Section 101(12A) of the U.S. Bankruptcy Code — applies to lawyers. In this ruling, which relied on the plain meaning of the statutory text, the Court affirmed the ruling of the Eighth Circuit Court of Appeals on this issue.
• Second, the Court upheld the provision of Section 526(a)(4) of the Bankruptcy Code prohibiting a debt relief agency — and therefore, under the Court’s first ruling, a lawyer — from “advis[ing a debtor] or prospective [debtor] to incur more debt in contemplation of such person filing a [bankruptcy] case ….” The Eighth Circuit had held that this language violated the First Amendment, to the extent that the plain meaning of the language barred attorneys from advising clients to take on legitimate debts, such as refinancing a mortgage at a lower interest rate or using secured credit to purchase a reasonably priced car that the client would need in order to commute to work. Reversing the Eighth Circuit on this issue, the Court reconciled the statutory language with the First Amendment by narrowly interpreting the statute: “we conclude that §526(a)(4) prohibits a debt relief agency only from advising a debtor to incur more debt because the debtor is filing for bankruptcy, rather than for a valid purpose.” In a footnote, the Court further clarified its interpretation of the statute:
  

  We emphasize that awareness of the possibility of bankruptcy is insufficient to trigger §526(a)(4)’s prohibition. Instead, that provision proscribes only advice to incur more debt that is principally motivated by that likelihood. Thus, advice to refinance a mortgage or purchase a reliable car prior to filing because doing so will reduce the debtor’s interest rates or improve his ability to repay is not prohibited, as the promise of enhanced financial prospects, rather than the anticipated filing, is the impelling cause. Advice to incur additional debt to buy groceries, pay medical bills, or make other purchases “reasonably necessary for the support or maintenance of the debtor or a dependent of the debtor,” [11 U.S.C.] §523(a)(2)(C)(ii)(II), is similarly permissible.

  The Court offered the following justifications for its interpretation:

• In the case of Conrad, Rubin & Lesser v. Pender, 289 U.S. 472, 477 (1933), the Court — construing Section 96(d) of the Bankruptcy Act, which the Milavetz Court asserted had “substantial similarities” with Section 526(a)(4) — had interpreted the phrase “in contemplation of bankruptcy” “to require that the portended bankruptcy have ‘induce[d]‘ the transfer at issue,” and held that the “‘controlling question’” in applying that phrase was “‘whether the thought of bankruptcy was the impelling cause of the transaction.’”
• The Court cited other provisions of the Bankruptcy Code — namely Sections 523(a)(2) and 707(b)(2) — that “sought to prevent the practice of loading up on debt prior to filing.”
• The Court found that the other provisions of Section 526 indicated congressional intent to proscribe only “actions that threaten to harm debtors or creditors,” whereas lawyers’ advice to clients to take on debt for the legitimate purposes identified by the Court would harm neither debtors nor creditors.
• The Court further cited the canon of avoiding incongruous results.
  “That ‘[n]o other solution yields as sensible a’ result further persuades us of the correctness of this narrow reading,” wrote the Court, citing United States v. Granderson, 511 U. S. 39, 55 (1994).
• Third, the Court ruled that certain advertising restrictions provided for in Section 528 of the Bankruptcy Code — as applied to lawyers — were consistent with the First Amendment. Those provisions require a debt relief agency to disclose in its advertisements to prospective debtor-clients “that the assistance may involve bankruptcy relief” and to include in such advertisements the statement: “We are a debt relief agency. We help people file for bankruptcy relief under the Bankruptcy Code.” Characterizing Section 528 as intended to prohibit deceptive advertising — and finding a substantial likelihood of deception in this context given “[e]vidence in the congressional record demonstrating a pattern of advertisements that hold out the promise of debt relief without alerting consumers to its potential cost” — the Court held that the rational basis standard of review applied to the statute, per Zauderer v. Office of Disciplinary Counsel of Supreme Court of Ohio, 471 U. S. 626, 651 (1985). Finding that Congress had a legitimate interest in prohibiting deceptive attorney advertising in the consumer bankruptcy context, and that Section 528 was reasonably related to that interest, the Court upheld the statute, and affirmed the Eighth Circuit’s ruling on this issue.

Justice Thomas, in a concurring opinion, declined to join the Court’s reasoning respecting Section 528. Justice Thomas argued that, for purposes of First Amendment analysis, commercial speech and noncommercial speech should be treated alike, and that restrictions compelling commercial speech should be subject to the same standard of review as restrictions limiting such speech.