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    The Lawletter Blog

    CIVIL RIGHTS: Noncitizen Charged with Deportable Crime Is Entitled to Jury Trial

    Posted by Jason Holder on Thu, Jan 31, 2019 @ 12:01 PM

    The Lawletter Vol 44 No 2

    Jason Holder—Senior Attorney, National Legal Research Group

                Following an incident in which he allegedly grabbed, choked, and struck the mother of his children, Saylor Suazo (“Suazo”) was charged with a variety of crimes including assault in the third degree, unlawful imprisonment in the second degree, criminal obstruction of breathing or blood circulation, endangering the welfare of a child, menacing, and harassment in the second degree.  People v. Suazo, No. 117, 2018 WL 6173962, at *1 (N.Y. Nov. 27, 2018).  Immediately before the start of trial, however, the prosecution moved to reduce the charges to attempt crimes.  Id.  This reduction meant that Suazo now faced a maximum sentence of three months in jail and, more importantly, that the offenses could be tried without a jury pursuant to Criminal Procedure Law § 340.40(2).  Id. 

                Suazo challenged the reduction and continued to assert his right to a jury trial, arguing that he was a noncitizen charged with deportable offenses rendering any conviction sufficiently serious to mandate a jury trial under the Sixth Amendment.  Id.  In response, the prosecution argued that any deportation was merely a "collateral consequence" and not a criminal penalty for the purposes of the Sixth Amendment.  Id. 

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    Topics: Sixth Amendment, civil rights, Jason Holder, noncitizen, deportable crime, entitlement to jury trial

    ATTORNEY AND CLIENT: Maintaining Professional Competence in the Digital Age

    Posted by Amy Gore on Thu, Jan 31, 2019 @ 11:01 AM

    The Lawletter Vol 44 No 2

    Amy Gore—Senior Attorney, National Legal Research Group

                The Model Rules of Professional Conduct provide that “[t]o maintain the requisite knowledge and skill, a lawyer should keep abreast of changes in the law and its practice, including the benefits and risks associated with relevant technology.”  Model Rules of Prof’l Conduct R. 1.1 cmt. 8.  Maintaining computer security is both a business responsibility and an ethical obligation for all lawyers.  Additionally, attorneys are charged with the ethical obligation to make reasonable efforts to prevent the inadvertent or unauthorized disclosure of, or unauthorized access to, information relating to the representation of a client.  Id. R. 1.6(c).  The need for attorneys to maintain current security protocols for the technology used in their offices has never been more pressing. 

                Computer “hackers” have infiltrated thousands of computer systems from private individuals to government entities, and litigation firms have increasingly been targeted.  A recent article highlights the story of several firms involved in litigation arising out of the 9/11 attack, including the ransoming of sensitive and confidential information that had been on the firms' systems.  Dan Packel, “Dark Overlord” Hack Shows Mounting Cyber Risks for Law Firms, The American Lawyer (Jan. 07, 2019).  In another case, hackers destroyed files of global law firm DLA Piper in 2017, requiring expensive and time-consuming reconstruction of systems and documents. 

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    Topics: unauthorized disclosure, ethical obligations of attorneys, computer security, security protocols, safeguards

    FAMILY LAW: Admissibility of GPS Surveillance Data in Civil Cases

    Posted by Anne B. Hemenway on Fri, Jan 18, 2019 @ 09:01 AM

    The Lawletter Vol 44 No 1

     

    Anne Hemenway—Senior Attorney, National Legal Research Group

     

              When a spouse places a Global Positioning Systems ("GPS") device in the other spouse's vehicle without consent to monitor that spouse's movements and position around town, the admissibility of the GPS data in the divorce trial is likely to be challenged. In United States v. Jones, 565 U.S. 400 (2012), the United States Supreme Court held that a GPS tracing device is a "search" under the Fourth Amendment to the United States Constitution, and absent a warrant allowing for the device to be used, data from the GPS device will be considered inadmissible.  Further, in Carpenter v. United States, 138 S. Ct. 2206 (2018), the United States Supreme Court held that the Fourth Amendment protections against search and seizure also requires the government to obtain a search warrant before acquiring cell phone data, which the Court analogized to GPS tracking data.

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    Topics: family law, Anne B. Hemenway, GPS, invasion of privacy, exclusionary rule, no consent, admissibility of data

    PERSONAL INJURY: Liability for Employer's Failure to Obtain Workers’ Compensation Insurance

    Posted by Matthew T. McDavitt on Fri, Jan 18, 2019 @ 09:01 AM

    The Lawletter Vol 44 No 1

     

    Matthew McDavitt—Senior Attorney, National Legal Research Group

     

                Sometimes, through ignorance or neglect, employers subject to the state statutory workers' compensation mandates fail to obtain or maintain the requisite insurance. Where employers subject to the system's mandates are found on the date of an employee's workplace accident (or other compensable event) to lack such insurance (either as a self-insurer or through a third-party insurer), such noncompliance with the workers' compensation insurance mandate has serious consequences for the employer.

     

    First, a noncompliant employer loses a primary benefit of the workers' compensation system's exclusive remedy provision.  This provision bars injured workers from suing their employers in tort in exchange for statutorily defined wage replacement and medical benefits, thereby significantly limiting the potential legal exposure of the employer regarding such accidents.

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    Topics: Matthew T. McDavitt, workers' compensation, noncompliance consequences, insurance requisite, state's employer mandates

    CIVIL PROCEDURE: Facebook's Alleged Intrusion on Users' Privacy Confers Standing to Maintain Class

    Posted by Paul A. Ferrer on Fri, Jan 18, 2019 @ 09:01 AM

    The Lawletter Vol 44 No 1

     

    Paul Ferrer—Senior Attorney, National Legal Research Group

     

             In a putative class action against Facebook, a federal district court in California has determined that "[i]ntrusion on privacy alone can be a concrete injury" for purposes of establishing standing to bring suit in federal court. Patel v. Facebook Inc., 290 F. Supp. 3d 948, 954 (N.D. Cal. 2018). In reaching that conclusion, the court applied the concreteness analysis laid out by Justice Alito in Spokeo, Inc. v. Robins, 136 S. Ct. 1540 (2016).

     

             The judicial power of the United States resides in the federal courts and extends only to "Cases" and "Controversies." U.S. Const. art. III, § 2. Standing to sue is a doctrine "rooted in the traditional understanding of a case or controversy," and limits the category of litigants who can maintain an action in federal court. Spokeo, 136 S. Ct. at 1547. To have standing, a plaintiff must plead and prove three elements: (1) an injury in fact that is (2) fairly traceable to the defendant's conduct and (3) likely to be redressed by a judicial decision in the plaintiff's favor.

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    Topics: Paul A. Ferrer, Facebook, invasion of privacy, putative class action, concrete injury

    BUSINESS LAW: Is Predictive Dialer an Autodialer Subject to the Telephone Consumer Protection Act?

    Posted by Alistair D. Edwards on Fri, Jan 18, 2019 @ 09:01 AM

    The Lawletter Vol 44 No 1

     

    Alistair Edwards—Senior Attorney, National Legal Research Group

     

                The Telephone Consumer Protection Act (“TCPA” or the “Act”) makes it unlawful “to make any call . . . using any automatic telephone dialing system . . . to any telephone number assigned to a . . . cellular telephone service.” 47 U.S.C. § 227(b)(1)(A)(iii).

     

                In Maes v. Charter Communication, No. 18-cv-124-jdp, 2018 WL 5619199 (W.D. Wis. Oct. 30, 2018), the United States District Court for the Western District of Wisconsin recently considered whether a predictive dialer constituted an autodialer (an automatic dialing system) under the TCPA. In that case, the telemarketer called the plaintiff using a predictive dialer, a piece of equipment used in call centers to automatically dial phone numbers and connect representatives to customers that answer the phone.

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    Topics: Alistair D. Edwards, Telephone Consumer Protection Act, autodialer, cellular service, telemarketing

    EMPLOYMENT: Disability Discrimination in Employment—Health-Care Employer

    Posted by John M. Stone on Fri, Jan 18, 2019 @ 09:01 AM

    The Lawletter Vol 44 No 1

     

    John Stone—Senior Attorney, National Legal Research Group

     

                The Americans with Disabilities Act ("ADA") prohibits covered employers from discriminating against qualified individuals on the basis of disability in regard to job application procedures, the hiring, advancement, or discharge of employees, employee compensation, job training, and other terms, conditions, and privileges of employment. 42 U.S.C. § 12112(a). This prohibition against discrimination can apply to certain medical examinations and inquiries.

     

                However, the ADA does not forbid all medical examinations and inquiries. Their permissibility and scope varies depending on the stage of employment. Employers are generally prohibited from making any disability-related inquiries or requiring medical examinations of applicants before offering employment.

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    Topics: employment discrimination, ADA, John M Stone, health-care employer, screening and vaccination

    TORTS: Therapist's Liability for Eliciting False Memories of Sexual Abuse

    Posted by Alfred C. Shackelford III on Thu, Dec 27, 2018 @ 10:12 AM

    The Lawletter Vol 43 No 8

    Fred Shackelford—Senior Attorney, National Legal Research Group

                When individuals are accused of sexual misconduct on the basis of "recovered memories," courts must sometimes decide whether a therapist can be held liable for eliciting such memories from patients. In Mower v. Baird, 2018 UT 29, 422 P.3d 837 (as corrected July 11, 2018), the plaintiff's ex-wife took the couple's child to a therapist, who suspected child abuse. The therapist contacted authorities and was told to gather more information. Contrary to established guidelines, the therapist continued therapy instead of asking a forensic interviewer to talk to the child. Subsequently, there was a "supported" finding of sexual abuse against the plaintiff.

                The plaintiff sued the therapist for medical malpractice and negligence, but the trial court found that the therapist owed no duty to him. The Mower court examined five factors in deciding whether a duty exists:

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    Topics: torts, Alfred C. Shackelford III, inappropriate treatment techniques, therapist, eliciting recovered memories, improper application of treament

    TAX: Free Like-Kind Exchanges of Property

    Posted by D. Bradley Pettit on Thu, Dec 27, 2018 @ 10:12 AM

    The Lawletter Vol 43 No 8

    Brad Pettit—Senior Attorney, National Legal Research Group

                The Internal Revenue Code provides generally that "[n]o gain or loss shall be recognized on the exchange of real property held for productive use in a trade or business or for investment if such real property is exchanged solely for real property of like kind which is to be held either for productive use in a trade or business or for investment," as long as the transaction does not involve an "exchange of real property held primarily for sale." 26 U.S.C. § 1031(a) (also includes Pub. L. Nos. 115-233 to 115-253, 115-255 to 115-269; Title 26 current through Pub. L No. 115-270). "As used in section 1031(a), the words 'like kind' have reference to the nature or character of the property and not to its grade or quality." 26 C.F.R. § 1.1031(a)-1(b). Thus, "[o]ne kind or class of property may not, under that section, be exchanged for property of a different kind or class." Id. For example, "[t]he fact that any real estate involved is improved or unimproved is not material, for that fact relates only to the grade or quality of the property and not to its kind or class." Id.

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    Topics: Brad Pettit, exchange of like kind property, nature and character of property, Internal Revenue Code, personal residence

    EMPLOYMENT: Age Discrimination—Public Employers

    Posted by Nadine Roddy on Thu, Dec 27, 2018 @ 09:12 AM

    The Lawletter Vol 43 No 8

     

    Nadine Roddy—Senior Attorney, National Legal Research Group

     

                The Age Discrimination in Employment Act ("ADEA") applies to all public employers, including those with fewer than 20 employees, a unanimous Supreme Court held in its first merits decision of the October 2018 term. Thus, the 20-employee minimum that applies to private employers does not apply to a state or its subdivisions. The 8-0 decision, Mount Lemmon Fire Dist. v. Guido, ___ S. Ct. ___, 202 L. Ed. 2d 262 (2018), resolves a split of authority between the Ninth Circuit on one hand and the Sixth, Seventh, Eighth, and Tenth Circuits on the other.

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    Topics: Nadine Roddy, Age Discrimination in Employment Act, public employer, less than 20 employees, application to state and local governments

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