A Constitutional Commitment to Access to Literacy: Bridging the Chasm Between Negative and Positive Rights

EVAN CAMINKER

Michigan Law dean emeritus Evan Caminker discusses a decision by the U.S. Court of Appeals for the Sixth Circuit, in which that court held that the Fourteenth Amendment’s Due Process Clause secures schoolchildren a fundamental right to a “basic minimum education” that “can plausibly impart literacy.” Caminker—one of the co-counsel for the plaintiffs in that case—explains why the decision is so remarkable and why the supposed dichotomy between positive and negative rights is not as stark as canonically claimed.

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In re Pimentel-Soto

Court: US Court of Appeals for the First Circuit

Docket: 17-1967

Opinion Date: April 23, 2020

Judge: William Joseph Kayatta, Jr.

Areas of Law: Legal Ethics

The First Circuit reversed the district court's order sanctioning Attorney for failing to appear at a status conference, holding that where Attorney was fined without first being given a chance to show cause or explain her failure to appear, the court's order was an abuse of discretion. After Attorney failed to appear at a status conference the district court opened the conference by imposing a monetary sanction on Attorney for her failure to appear. Attorney filed two motions for reconsideration asking the court to excuse her non-appearance due to "mistake" in scheduling. The district court denied the motions for reconsideration. The First Circuit reversed, holding that the sanctions were an abuse of discretion because (1) the district judge in this case does not uniformly sanction all counsel who fail to appear; (2) it cannot be determined which non-appearing attorneys are sanctions and which ones are not; and (3) the district court fined Attorney without first giving her a chance to show cause or explain her failure to appear.

Taylor Lohmeyer Law Firm. P.L.L.C. v. United States

Court: US Court of Appeals for the Fifth Circuit

Docket: 19-50506

Opinion Date: April 24, 2020

Judge: Rhesa Hawkins Barksdale

Areas of Law: Civil Procedure, Legal Ethics, Tax Law

The IRS served a John Doe summons on the Texas Law Firm, which provides tax-planning advice, seeking documents for “U.S. taxpayers," who, during specified years, used the Firm's services "to acquire, establish, maintain, operate, or control" a foreign financial account, asset, or entity or any foreign or domestic financial account or assets in the name of such foreign entity. A John Doe summons, described in 26 U.S.C. 7609(c)(1), does not identify the person with respect to whose liability the summons is issued. The government made the required showings that the summons relates to the investigation of a particular person or ascertainable group or class, there is a reasonable basis for believing that such person or group or class may fail or may have failed to comply with any provision of internal revenue law, and the information sought and the identity of the person or persons is not readily available from other sources. The Firm moved to quash, claiming that, despite the general rule a lawyer’s clients’ identities are not covered by the attorney-client privilege, an exception exists where disclosure would result in the disclosure of confidential communication. The Fifth Circuit affirmed in favor of the government. Blanket assertions of privilege are disfavored. The Firm's clients’ identities are not connected inextricably with privileged communication. If the Firm wishes to assert privilege as to any responsive documents, it may do so, using a privilege log to detail the foundation for each claim.

Padden Law Firm, PLLC v. Trice

Court: US Court of Appeals for the Eighth Circuit

Dockets: 18-2451, 18-2576

Opinion Date: April 28, 2020

Judge: Beam

Areas of Law: Legal Ethics

The Eighth Circuit affirmed the district court's decision to alter the distribution of attorney's fees set forth in a contingency fee sharing agreement between two law firms in a products liability case. The court noted that it is unusual for the courts to revise fee-sharing agreements between lawyers, negotiated at arm's length, based upon the perceived fairness of the agreements. However, the court explained that this was not a typical personal injury litigation matter, which the district court presided over for more than seven years. Reviewing the matter in light of the construct of the Minnesota Code of Professional Conduct, the court found that the district court correctly analyzed the proportionality prong of Minnesota Rule of Professional Conduct 1.5(e) and did not abuse its discretion in altering the fee agreement and awarding the Padden Firm 15% of the disputed fee. The court also held that the district court did not err in finding that the Padden Firm did not take financial and ethical responsibility for the case within the meaning of Rule 1.5(e).

Basey v. Alaska Dept. of Pub.Safety

Court: Alaska Supreme Court

Docket: S-17099

Opinion Date: April 24, 2020

Judge: Daniel E. Winfree

Areas of Law: Civil Procedure, Civil Rights, Constitutional Law, Legal Ethics

Kaleb Basey, who was convicted of federal crimes, filed a federal civil rights lawsuit in January 2016 against several Alaska state troopers based on their actions during his investigation and arrest. In September, Basey submitted two public records requests to the Alaska State Troopers seeking various documents relating to the investigation of his case, including two troopers' disciplinary records. Basey's requests were promptly denied on the ground that the information pertained to pending litigation. Asking for reconsideration, Basey's request was again denied, again citing the pending litigation. Acting pro se, Basey appealed, and his appeal reached the Alaska Supreme Court. In 2017, the Supreme Court reversed a superior court's dismissal order, holding that neither disclosure exception the State used as grounds for resisting Basey's request had applied. Basey moved to compel production of the requested records in January 2018. The State responded by agreeing to produce certain records, denying the existence of others, and asserting that the requested disciplinary records were private personnel records exempt from disclosure. In a seonc trip to the Alaska Supreme Court, the issue before the Court was whether state employee disciplinary records were confidential “personnel records” under the State Personnel Act and therefore not subject to disclosure under the Alaska Public Records Act. To this, the Court concluded that, with one express statutory exception not relevant to this case, the answer was “yes.”

Mikhaeilpoor v. BMW of North America, LLC

Court: California Courts of Appeal

Docket: B293987(Second Appellate District)

Opinion Date: April 24, 2020

Judge: White

Areas of Law: Consumer Law, Legal Ethics

Mikhaeilpoor sued BMW and an auto dealership, asserting claims under the Song-Beverly Act (Civ. Code, 1790) stemming from her lease of a 2013 BMW. Mikhaeilpoor alleged that the defendants: failed to promptly replace her car or make restitution; failed to commence repairs aimed at conforming the car to its warranty; failed to make available adequate service and repair facilities; and breached express and implied warranties. A jury awarded $17,902.54 in compensatory damages and $17,902.54 in civil penalties. Mikhaeilpoor sought attorney fees of $344,639 under section 1794(d): $226,426, plus a 0.5 multiplier enhancement and $5,000 for the fee resolution process. Her motion was opposed as vastly overstating the work performed with excessive hourly rates and an unwarranted adjustment. The judge “went through all the bills” and was “aghast” that counsel sought $343,000 in fees for “a very simple case.” The court did not consider whether Mikhaeilpoor should have accepted a Code of Civil Procedure section 998 offer, but calculated 225 hours at a $350 hourly rate and found that $95,900 was the reasonable amount of attorney fees. The court of appeal affirmed. The trial court was in the best position to evaluate the professional services rendered before it; its decision is supported by substantial evidence.

Obbard v. State Bar of California

Court: California Courts of Appeal

Docket: A155106(First Appellate District)

Opinion Date: April 28, 2020

Judge: Burns

Areas of Law: Legal Ethics

The State Bar’s mandatory continuing legal education program, Business & Professions section 6070(c) exempts “[f]ull-time employees of the State of California, acting within the scope of their employment.” When the Bar implemented the continuing education program in 1992, two Bar employees informally concluded attorneys employed by the superior court were not exempt state employees. Obbard, a full-time research attorney at the Alameda County Superior Court, asserted that he was exempt. The Bar disagreed, acknowledging that superior courts are funded by the state but reasoning that Obbard’s paychecks are issued by the superior court (rather than the State Controller) and he is “covered by different labor rules and collective bargaining agreements.” The Bar has been inconsistent on this position. The trial court and court of appeal agreed with Obbard. The principal common law test of an employment relationship is whether the employer has the right to supervise and control the work and to discharge the worker. The presiding judge of each superior court is a state officer, who controls the hiring, firing, and supervision of superior court employees, or delegates those duties to the court’s executive officer. The superior court is part of the state judicial branch, administered by the state Judicial Council, and funded through the state budget.

Brewer v. Lennox Hearth Products, LLC

Court: Supreme Court of Texas

Docket: 18-0426

Opinion Date: April 24, 2020

Judge: Eva Guzman

Areas of Law: Legal Ethics

In this products-liability and wrongful-death suit, the Supreme Court vacated the order of the trial court sanctioning an attorney for commissioning a pretrial survey that commenced in the county of suit shortly before trial, holding that the sanctions order, issued under the court's inherent authority, could not stand because evidence of bad faith was lacking. After a hearing, the trial court imposed sanctions against the attorney that commissioned the pretrial survey, ordering the attorney to complete ten hours of legal ethics education and pay the movants $133,415 in attorneys fees and expenses. The court did not find that the attorney violated any disciplinary rules or other applicable authority, instead concluding that the attorney's conduct was intentional, in bad faith, and an abuse of the legal system and the judicial process. The court of appeals affirmed. The Supreme Court reversed, holding (1) the attorney's attitude and intermittent obstinance at the sanctions hearing likely taxed the trial court's patience but did not itself justify the imposition of sanctions; and (2) the attorney's errors in commissioning and executing the survey did not constitute bad faith.