Latest 4 Cases This Week: Doe v. Yim (Cal. Ct. App.), Skaff v. Rio Nido Roadhouse (Cal. Ct. App.), In re Judiciary’s Response to COVID-19 ...

“Might as Well Carry a Purse with That Mask, Joe”: COVID-19, Toxic Masculinity, and the Sad State of National Politics

JOANNA L. GROSSMAN, LINDA C. MCCLAIN

SMU Dedman School of Law professor Joanna L. Grossman and Boston University law professor Linda C. McClain comment on COVID-19, toxic masculinity, and the state of national politics today. Grossman and McClain contrast President Trump’s reckless bravado that endangers the lives of Americans with the empathy of Democratic presidential nominee former Vice President Joe Biden’s in asking people to be patriotic by doing their part by wearing masks to protect other Americans.

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Should Department of Justice Lawyers Defy William Barr?

AUSTIN SARAT

Austin Sarat—Associate Provost, Associate Dean of the Faculty, and William Nelson Cromwell Professor of Jurisprudence and Political Science at Amherst College—comments on an open letter addressed to the 100,000 professionals working in the U.S. Department of Justice and published by Lawyers Defending Democracy. In the letter, more than 600 members of the bar from across the United States call on their DOJ colleagues to refrain from “participating in political misuse of the DOJ in the elction period ahead.” Sarat argues that the letter rightly recognizes that Attorney General Barr’s blatant partisanship endangers the integrity of the DOJ itself and its role in preserving the rule of law.

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Doe v. Yim

Court: California Courts of Appeal

Docket: B299856(Second Appellate District)

Opinion Date: October 6, 2020

Judge: Nora M. Manella

Areas of Law: Legal Ethics, Personal Injury

The Court of Appeal affirmed the trial court's grant of respondent's motion to disqualify appellant's attorney, who is also appellant's mother and respondent's ex-wife, from representing appellant in all phases of tort litigation based primarily on the advocate-witness rule. In this case, appellant alleged that respondent sexually abused her from the time she was nine to 13 years old. The court held that the trial court reasonably concluded that the attorney is nearly certain to be a key witness at trial and thus the trial court acted within its discretion by effectuating the advocate-witness rule's purpose of avoiding factfinder confusion. Therefore, the trial court did not abuse its discretion in applying the rule to disqualify the attorney not only at trial, but also in depositions and pretrial evidentiary hearings at which the attorney is likely to testify. The trial court also acted within its discretion in disqualifying the attorney from representing appellant in all other phases of the litigation on the ground of the attorney's potential misuse of confidential information obtained through her 17-year marriage with respondent.

Skaff v. Rio Nido Roadhouse

Court: California Courts of Appeal

Docket: A152462(First Appellate District)

Opinion Date: October 5, 2020

Judge: Sanchez

Areas of Law: Civil Procedure, Legal Ethics, Real Estate & Property Law

Skaff sued the Roadhouse restaurant and grill, located in Sonoma County, alleging that the Roadhouse and parking lot were inaccessible to wheelchair users. Skaff cited Health and Safety Code section 19955 and the Unruh Civil Rights Act, Civ. Code section 51. Under section 19955, public accommodations must comply with California Building Code disability access standards if repairs and alterations were made to an existing facility, triggering accessibility mandates. No evidence was presented that the Roadhouse's owner had undertaken any triggering alterations. The owner nonetheless voluntarily remediated the identified barriers to access. The court entered judgment against Skaff on his Unruh Act claim but ruled in his favor on the section 19955 claim, reasoning that he was the prevailing party under a “catalyst theory” because his lawsuit was the catalyst that caused the renovations. Skaff was awarded $242,672 in attorney fees and costs. The court of appeal reversed the judgment and fee award. A plaintiff cannot prevail on a cause of action in which no violation of law was ever demonstrated or found. Nor is the catalyst theory available when a claim lacks legal merit. That a prelitigation demand may have spurred action that resulted in positive societal benefit is not reason alone to award attorney fees under the Civil Code.

In re Judiciary’s Response to COVID-19 Outbreak

Court: Supreme Court of Hawaii

Docket: SCMF-20-0000152

Opinion Date: October 5, 2020

Judge: Per Curiam

Areas of Law: Criminal Law, Health Law, Legal Ethics

The Supreme Court extended an August 27, 2020 order for first circuit criminal matters, which was extended pursuant to a September 11, 2020 order, until November 16, 2020, determining that changing conditions wrought by the COVID-19 pandemic required flexibility and vigilance regarding the need to protect the health and safety of court users and Judiciary personnel. In July 2020, there was a surge of COVID-19 cases in Hawaii, included cases in community correctional centers and facilities, particularly at the O'ahu Community Correctional Center. As a result, the time requirements for preliminary hearings under Haw. R. Pen. P. (HRPP) 5(c)(3) was impacted. In August 2020, the Supreme Court entered an order providing that the first circuit may temporarily extend the time requirements for preliminary hearings no longer than reasonably necessary to protect public health and safety. In September, the order was extended. Because the transports of custody defendants from all O'ahu correctional facilities remained suspended and the exponential number of citations issued for Haw. Rev. Stat. ch. 127A violations remained high, the Supreme Court extended the August order for first circuit criminal matters until November 16, 2020.

In re Olchowski

Court: Massachusetts Supreme Judicial Court

Docket: SJC-12730

Opinion Date: October 1, 2020

Judge: Ralph D. Gants

Areas of Law: Legal Ethics

The Supreme Judicial Court held that trust funds on deposit in an Interest on Lawyers' Trust Account (IOLTA) do not fall within the statutory definition of "abandoned property," and therefore, the disposition of these funds is not governed by the abandoned property statute, Mass. Gen. Laws ch. 200A. Attorney was temporarily suspended from the practice of law. Attorney's attorney later notified the Office of Bar Counsel that there were unidentified funds in Attorney's two IOLTA accounts and moved to order the transfer of the unidentified funds to the IOLTA committee. The Treasurer and Receiver General moved to intervene, requesting that the funds be remitted to the treasury as "abandoned property" under chapter 200A. The IOLA committee subsequently moved to intervene, requesting that the funds be remitted to it. The Supreme Judicial Court held that unidentified client funds on deposit in an IOTLA account do not fall within the statutory definition of "abandoned property" under chapter 200A and that such funds be transferred to the IOLTA committee for disposition under the conditions set forth in this opinion.