No Good Men?

SHERRY F. COLB

Cornell law professor Sherry F. Colb comments on a film called “Promising Young Women,” which purports to be a feminist movie about date rape. While Professor Colb describes the movie as interesting, thought-provoking, and “definitely” worth seeing, she argues that it suggests a view of men and sexual assault that is erroneous and potentially even anti-feminist.

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Last Call at the Bar: Grading the Briefs in Trump Impeachment 2.0

DEAN FALVY

Dean Falvy, a lecturer at the University of Washington School of Law in Seattle, offers thoughts on the legal tactics and briefs filed by each side in former President Trump’s second impeachment trial. Mr. Falvy argues that if Trump can survive a second impeachment vote, it will show that he is still operating where he has always believed himself to be: well beyond the reach of the law.

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Wireman v. Commissioner of Social Security

Court: US Court of Appeals for the Sixth Circuit

Dockets: 20-5159, 19-6395, 19-6396, 19-6397, 19-6398, 19-6399, 19-6400, 19-6401, 19-6402, 19-6403, 19-6412, 19-6413, 19-6414, 19-6415, 19-6419, 19-6422, 19-6432, 19-6433, 19-6438, 19-6438, 19-6440, 19-6441, 19-6442, 19-6443, 19-6444, 19-6445, 19-6446, 19-6452, 19-6453, 19-6472, 19-6473, 19-6474, 19-6487, 19-6488, 19-6489, 19-6490, 19-6491, 19-6492, 20-5057, 20-5058, 20-5059, 20-5060, 20-5061, 20-5062, 20-5063, 20-5064, 20-5065, 20-5066, 20-5067, 20-5078, 20-5079, 20-5080, 20-5106, 20-5107, 20-5108, 20-5109, 20-5146

Opinion Date: February 3, 2021

Judge: Gibbons

Areas of Law: Government & Administrative Law, Legal Ethics, Public Benefits

For many years, attorney Conn obtained social security benefits for his clients by submitting fraudulent reports and bribing an Administrative Law Judge. After the government discovered this fraud, the SSA decided to redetermine whether each of Conn’s 1,500 claimants was actually eligible for disability benefits. The SSA held hearings and allowed the claimants to submit evidence but categorically excluded medical reports created by the doctors with whom Conn had conspired because it had “reason to believe” fraud was involved in the creation of the reports (42 U.S.C. 1383(e)(7)(A)(ii))). The claimants were not permitted to challenge that finding. After the denials of their claims, 57 plaintiffs filed suit. The Sixth Circuit held that the exclusion of the reports violated the Due Process Clause and the APA. On remand, the district courts concluded that remand to the SSA was proper because “the Commissioner erred in some respect in reaching the decision to deny benefits.” The Sixth Circuit affirmed the subsequent denial of the plaintiffs’ motions for attorney’s fees under the Equal Access to Justice Act. The government’s position in the litigation was “substantially justified,” in light of the precedent cited by the government, the rationale for the decision, and the fact that district courts across the country have split on this issue. The case involved numerous issues of first impression. Despite the fact that the government’s arguments were rejected, a reasonable person could have believed them to be correct.

Pulliam v. HNL Automotive Inc.

Court: California Courts of Appeal

Docket: B293435(Second Appellate District)

Opinion Date: January 29, 2021

Judge: Laurence D. Rubin

Areas of Law: Legal Ethics

The Court of Appeal affirmed the trial court's award of attorney's fees to plaintiff after a jury trial on plaintiff's lemon law claims. HNL argued that plaintiff's counsel failed to provide evidence of their hourly rates, (2) the trial court erred in refusing to apportion attorney's fees, (3) the trial court erred in applying a lodestar multiplier, and (4) TD was not liable for attorney's fees under title 16, section 433.2 of the Code of Federal Regulations (2020) (the Holder Rule). The court upheld the amount of attorney's fees award, finding no abuse of discretion. The court explained that substantial evidence supported the Lodestar amount; there was no abuse of discretion in refusing to apportion the fee award; and there was no abuse of discretion applying a Lodestar multiplier. The court also upheld the trial court's ruling that TD is liable for attorney's fees, and concluded that the Holder Rule does not limit the attorney's fees that a plaintiff may recover from a creditor-assignee.

Yoon v. CAM IX Trust

Court: California Courts of Appeal

Docket: B301191(Second Appellate District)

Opinion Date: January 29, 2021

Judge: Grimes

Areas of Law: Legal Ethics

The Court of Appeal affirmed the trial court's award of attorney fees in favor of plaintiff, holding that defendants are entitled to fees under the note and deed of the trust. The court rejected plaintiff's contention that Civil Code section 1717 does not apply because his negligence and fraud claims do not refer to or rely on the existence of a contract. In this case, the court found no error in the trial court's conclusion that plaintiff's tort claims "directly relate to enforcement of the note through foreclosure." The court explained that, at its core, plaintiff's suit sought to avoid his obligations under the note by making claims defendants acted negligently and fraudulently during the foreclosure process. The court also concluded that the trial court did not abuse its discretion in awarding fees under Code of Civil Procedure 2033.420.

Delaney v. Dickey

Court: Supreme Court of New Jersey

Docket: a-30-19

Opinion Date: December 21, 2020

Judge: Barry T. Albin

Areas of Law: Arbitration & Mediation, Civil Procedure, Contracts, Legal Ethics

At issue in this appeal was whether the arbitration provision in the retainer agreement plaintiff Brian Delaney signed when he engaged the representation of Sills Cummis & Gross P.C. was enforceable in light of the fiduciary responsibility that lawyers owe their clients and the professional obligations imposed on attorneys by the Rules of Professional Conduct (RPCs). In 2015, Delaney, a sophisticated businessman, retained Sills to represent him in a lawsuit. He met with a Sills attorney who presented him with a four-page retainer agreement. It was understood that Trent Dickey was slated to be the attorney primarily responsible for representing Delaney reviewed and signed the retainer agreement in the presence of the Sills attorney without asking any questions. After the representation was terminated, a fee dispute arose and, in August 2016, Sills invoked the JAMS arbitration provision in the retainer agreement. While the arbitration was ongoing, Delaney filed a legal malpractice action against Dickey and the Sills firm. The complaint alleged that Dickey and Sills negligently represented him. The complaint also alleged that the mandatory arbitration provision in the retainer agreement violated the Rules of Professional Conduct and wrongly deprived him of his constitutional right to have a jury decide his legal malpractice action. The trial court held that the retainer agreement’s arbitration provision was valid and enforceable. Additionally, the court determined that Delaney waived his right to trial by jury by agreeing to the unambiguously stated arbitration provision. The Appellate Division disagreed, stressing that Sills should have provided the thirty-three pages of JAMS arbitration rules incorporated into the agreement, that Sills did not explain the costs associated with arbitration, and that the retainer included a fee-shifting provision not permissible under New Jersey law. The New Jersey Supreme Court held that, for an arbitration provision in a retainer agreement to be enforceable, an attorney must generally explain to a client the benefits and disadvantages of arbitrating a prospective dispute between the attorney and client. "Delaney must be allowed to proceed with his malpractice action in the Law Division. We affirm and modify the judgment of the Appellate Division and remand to the Law Division" for further proceedings.