Category: News Feeds

The big lie that’s been circulating around right-wing circles and fomenting an insurrection is, of course, that there was massive election fraud and that Donald Trump was the winner of the 2020 election. But it isn’t true, and that matters.

Enter Smartmatic. They’re an election technology company that’s been targeted by Fox News, Lou Dobbs, Maria Bartiromo, Jeanine Pirro, Rudy Giuliani, and Sidney Powell and painted as a bad actor that swung the election for Joe Biden (never mind that they only provided Los Angeles County election technology for the 2020 election). Again, this is false. But that hasn’t stopped the conspiracy theories. As one might imagine, this is an incredibly harmful lie to be spread about a company whose entire business model is securing free and fair elections. So, yeah, they’ve filed a $2.7 billion defamation lawsuit against Fox, Dobbs, Bartiromo, Pirro, Giuliani, and Powell.

And my, oh my, the complaint starts out on a delightfully biting note:

The Earth is round. Two plus two equals four. Joe Biden and Kamala Harris won the 2020 election for President and Vice President of the United States. The election was not stolen, rigged, or fixed. These are facts. They are demonstrable and irrefutable.

Defendants have always known these facts. They knew Joe Biden and Kamala Harris won the 2020 U.S. election. They knew the election was not stolen. They knew the election was not rigged or fixed. They knew these truths just as they knew the Earth is round and two plus two equals four.

Defendants did not want Joe Biden and Kamala Harris to win the election. They wanted President Donald Trump and Vice President Michael Pence to win re-election. Defendants were disappointed. But they also saw an opportunity to capitalize on President Trump’s popularity by inventing a story. Defendants decided to tell people that the election was stolen from President Trump and Vice President Pence.

Hmmm, did someone use their quarantine to take a Master Class on engaging writing?

The lawsuit goes on to allege that, despite Smartmatic’s limited role in the 2020 national election, tales were spun about the company because a “story of good versus evil, the type that would incite an angry mob, only works if the storyteller provides the audience with someone who personifies evil.” And those lies “did more than just make Defendants’ money and jeopardize Smartmatic’s survival. The story undermined people’s belief in democracy.” The complaint then details what’s characterized as a “widespread disinformation campaign” and proceeds to list out the media campaign where the story was peddled.

This isn’t the first defamation case sparked by the 2020 election. Rival election technology company Dominion, which has also been falsely painted as having “stole” the election for Biden, previously filed lawsuits against Giuliani and Powell.

Read the full complaint below.

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Kathryn Rubino is a Senior Editor at Above the Law, and host of The Jabot podcast. AtL tipsters are the best, so please connect with her. Feel free to email her with any tips, questions, or comments and follow her on Twitter (@Kathryn1).

As one wades deeper into the turgid waters of 2021, one is heartened to see the dovetailing of two welcome copyright trends. First, our elected representatives in Congress are working to revise the Digital Millennium Copyright Act, the turn-of-the-century statute that Big Tech has hijacked over the past two decades to build billion-dollar valuations while trampling the rights of artists and creators. The most devastating provision of the DMCA is Section 512, which was originally promulgated to protect online bulletin board operators against claims related to files uploaded by readers. Companies like YouTube seized on this section to stream music videos and films without consent and with knowledge that its site was popular because it was a hotbed of pirated content. And companies like Amazon exploited the same section to sell counterfeit and knock-off product with impunity.

But, now, Congress is looking to rewrite Section 512 to more fairly balance the rights of artists with the rights of Big Tech. And, perhaps cognizant of the way the wind is blowing, courts are now issuing orders limiting the safe harbor created by Section 512, which was previously expanded massively beyond the original intent of its authors.

This appears to be what transpired in Atari Interactive, Inc. v. Redbubble, Inc. The accused infringer, Redbubble, like many tech parasites before it, had built a valuable company by exploiting the work of artists and copyright holders without consent. The company sold shirts, hats, mugs, and various other types of swag bearing graphic designs that the company did not create. Atari, the brand responsible for such arcade hits as Pong and Breakout, filed a lawsuit against Redbubble because Redbubble was advertising and selling a wide swath of products bearing Atari trademarks and artwork.

Redbubble attempted to pass the blame for the massive infringement on its proprietary site to the site’s users, asserting that the users uploaded the Atari artwork and its role was simply to display the uploaded artwork to the public.

In claiming that it was wholly unaware of the infringing content and had no involvement in the use of said content, Redbubble was attempting to exploit the Section 512 safe harbor to avoid liability for the obviously infringing items sold on its website. To qualify for such protection, which, in effect, strips artists and copyright holders of any right to pursue damages against the site, Redbubble had to convince the court that the the infringing Atari content at issue permeated its site “by reason of […] storage at the direction of a user[.]”

Then, to be eligible for the safe harbor under Section 512, Redbubble must prove that “(1) it lacked actual or red flag knowledge of the infringing material; and (2) it did not receive a ‘financial benefit directly attributable to the infringing activity, in a case in which the service provider has the right and ability to control such activity.’”

Many courts, at the urging of Big Tech, have found tech companies’ business operations to meet the above, even when they had knowledge of the infringement, received financial benefits from the infringement, and actively modified the infringing content. But the Redbubble court does not fall into this trap.

Citing Mavrix Photographs, LLC v. Livejournal, Inc, a Ninth Circuit case from 2017, the court found that Redbubble could not even make the threshold showing that the infringing Atari content had been stored “at the direction of the user.” The court noted that storage at user direction can only be found when the service provider played no role in making the infringing material accessible on its site and did not carry out any activities that were ‘narrowly directed’ toward enhancing the accessibility of the infringing content.

The court concluded that Redbubble failed to meet these requirements because Redbubble actively participated in “modifying the files uploaded by users to display the designs on Redbubble-selected physical products.” Redbubble’s response — that it, like Amazon, simply facilitates access to third-party seller’s products — was swiftly swatted aside by the court. Atari’s argument, which was, in essence, that Redbubble doesn’t just “store” artwork uploaded by its users, was more persuasive because the evidence made clear that Redbubble actively manipulates the uploaded artwork, “copying infringing designs onto model photos to create images of products for sale, and exhibiting those images on Redbubble’s product pages that are hosted on its website[.]”

Given this finding, Redbubble was found to be outside the purview of the Section 512 safe harbor and potentially liable for the infringement at issue. The copyright claims will now go before a fact-finder at trial (or the matter will settle). Hopefully, the courts and Congress continue to align to more fully protect artists and copyright holders and push back against the creeping shadow cast by Big Tech over the artistic community.

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Scott Alan Burroughs, Esq. practices with Doniger / Burroughs, an art law firm based in Venice, California. He represents artists and content creators of all stripes and writes and speaks regularly on copyright issues. He can be reached at scott@copyrightLA.com, and you can follow his law firm on Instagram: @veniceartlaw.

As legal tech pros have learned over the past several months, an IT provider is likely to get raked over the coals whenever a Zoom call fails — for any reason.

A more recent trend: Law firm helpdesks have been receiving emails showing an internet “speedtest,” with senders — often inaccurately —
presenting this as proof that there are problems with a particular network.

In this environment, how can legal tech pros demonstrate to sometimes-skeptical clients what’s really causing a particular problem?

Join our experienced panel on February 10th at 1 p.m. ET for a discussion of the connectivity challenges that arise when supporting the remote law firm.

What you’ll learn:

• How to prove what’s really causing a tech problem
• How network monitoring tools can safeguard privacy
• How to facilitate communication while reducing finger-pointing

Key Speakers:
Neeraj Rajpal, CIO, Stroock & Stroock & Lavan LLP
Brad Schaffel, CEDS, Manager, eDiscovery & Lit Support, Sullivan & Cromwell
Steven Vugrin, Head of Sales, Pingman Tools
Gary Welch, Senior Sales Engineer, Pingman Tools

Moderator:
Bob Ambrogi, Founder of LawSites blog, Technology Columnist at Above the Law

By filling out the form, you are opting in to receive communication from Above the Law and its Partners.

Last week was an expensive one for Steve Cohen. His Point72 Capital Management first lost something like $2.5 billion on all of the GameStop kerfuffle (at least: the hedge fund was said to be down between 10% and 15% when Melvin Capital Management—in which Point72 has, or had, $1 billion invested—was said to be down about 30%; we now know it, and with it Cohen & co., lost quite a bit more). Then, he had to pony up another $750 million to keep Melvin afloat. And that leaves him with quite a bit less money than he’d like to get his revenge on those who’ve wronged him. So, who wants a piece of a Point72 revenge tour?

For the final day of this February Legalweek, the organizers invited former New Jersey governor Chris Christie, eager to take any opportunity to distance himself from the Trump administration that he’d aggressively endorsed and actively assisted throughout the campaign. But life comes at you fast, and Christie has clearly decided that there’s a lane for “Republican who doesn’t believe QAnon” and he’s sprinting toward it. That’s what made this keynote so eagerly anticipated… how would Christie keep every plate spinning in his mission to strike just the right amount of distance from Trump without dooming his career? And broken plates are funny.

Why give someone who just facilitated a four-year concerted assault on the rule of law any platform at all, let alone a legal technology keynote that has nothing to do with legal technology? Presumably this was a “balancing” move to bring on a Republican after talking with Stacey Abrams on the first day of the show and Rudy wasn’t available. But the problem with playing in the middle of a road is that you’re going to get hit and Christie put on a game effort at times before launching into mendacity because he simply cannot help himself.

As for his brush with COVID, Christie said that he diligently wore a mask for months but took it off at the White House while prepping Trump for the debates. For him, the lesson is that there is nowhere safe from the virus. For the rest of us, the lesson is that a place that openly mocked public health precautions wasn’t safe from the virus, which wasn’t be surprising. Natural and logical consequences and all.

But throwing him into a life-threatening situation isn’t enough to dampen his affection for his old buddy Donald! Though we’re certainly going to test that before this talk is over.

But first, Christie has some disingenuous garbage he needs to share.

For four years Democrats complained about executive orders and 15 days in there’s already triple the number of executive orders.

This is a lie. Trump issued 220 executive orders and Biden’s issued 25. The “triple” number refers to Biden issuing triple the number in his first days in office except these executive orders are almost entirely just reversals of Trump’s executive orders, which is the only mechanism available for doing that. This is where an interviewer needs to say, “Hey, that’s a lie and you should know better.” Instead, Christie just rolled into some blather about how he wishes Biden would be more bipartisan.

Bipartisan in the way that, Christie reminds, he had to be with the New Jersey legislature — a wild revision of his entire history as governor.

He continued hitting the GOP talking points by complaining bitterly about election results not being counted on election night and demanding states prevent that going forward. To Christie’s mind, all of the misinformation about voter fraud grew out of the lengthy delay in getting results. Which is partially true, except he elides the part where Republican legislators refused to allow officials to process absentee ballots early for the express purpose of creating the misconception that the election was being “stolen.” This isn’t a mystery — it was done completely in the open! Moreover, as Professor Rick Hasen has explained repeatedly this cycle, the problem is the mentality that America deserves real-time, instantaneous election results because in reality votes are never fully counted immediately, it’s just that decision desks are skilled at making projections. Everyone who has ever really worked in politics knows this, but it’s the sort of thing a disingenuous actor can lie about in speeches to fire up low-information voters.

When pressed about Trump’s impact on the Republican Party going forward, Christie offered that “I think the core of the Republican Party is still the same. Appoint conservative judges.”

You’ve got to appreciate the unguarded honesty that — fundamentally — confirmed that the “core of the Republican Party” has definitely changed, at least in terms of its priorities. Anyone alive during the Reagan administration or who watched George H.W. Bush drummed out of office for daring to backtrack on “no new taxes” would have thought the “core” of the GOP was a low tax, hands off government. But it’s not. Recognizing its dwindling electoral appeal, a coherent foreign or domestic agenda takes second-billing to entrenching lifetime appointments with the power to stymie elected officials.

“Should that be a mission?” the interviewer adroitly asks, unaware of how readily Christie was prepared to double down on the idea that courts are just tools for implementing contemporary GOP policy that can’t win elections. Christie specifically called out Abbott and Mount Laurel as the foundation of his commitment to appointing right-wing judges. The decisions which govern equal funding for poor and minority students and the obligation to provide affordable housing are great threats to Christie because, he says, of how they changed “how a town looks.”

Did someone just blow a dog whistle in here?

As a 9:30 a.m. speech, I’ve decided to forego my standard Chris Christie game, which is to take a shot every time he calls himself a former prosecutor. And, friends, it was a good decision because the latter stages of the keynote brought the truly challenging questions about law enforcement and provided the uncomfortable moments that got us tuned in.

How does Chris Christie — former prosecutor, don’t ya know — feel about Trump’s pardoning of Charles Kushner? The official answer is that Trump had the authority to pardon whomever he wanted and it “doesn’t take away” the work Christie’s team did. Unofficially, Christie is clearly peeved, moving from his diplomatic answer to detail just how much he thinks Charles Kushner sucks. “We took on the second richest man in NJ who engaged in massive tax fraud…. Then to cover up that fraud engaged in witness tampering like I’ve never seen.” Then, because he’s hyped up, he lets drop that he assumed pardoning Charles Kushner was one of the primary goals of the Trump administration — outing the team he served as a front for scratching the backs of friends and family. Amazing.

Is it time for some traffic problems at Legalweek? You bet! What are Christie’s thoughts on Bridgegate? Well, he blames “the Obama Justice Department” and former U.S. Attorney Paul Fishman for an egregious prosecutorial abuse. The Supreme Court unanimously tossed the case! Christie likes leaning into that fact, even though the Court’s opinion turned on its long-term commitment to gutting all federal government authority to prosecute public corruption than an acknowledgement that Christie’s administration based off petty thuggery were really angels. Indeed, the opinion reads more like, “shouldn’t New Jersey have laws against this instead of the feds?” but that doesn’t fit Christie’s preferred narrative.

And this speech was nothing if not a battle for “narrative.” Christie, after being given COVID and watching as his signature prosecution is undone by nepotism, still can’t stop gushing about his buddy Trump. It’s actually kind of a sad display. The “bipartisan, moderate Trumper” is a hell of a character to draw up, but Christie’s giving it a shot. Let’s see if any of this Legalweek material makes it to his traveling show!

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Joe Patrice is a senior editor at Above the Law and co-host of Thinking Like A Lawyer. Feel free to email any tips, questions, or comments. Follow him on Twitter if you’re interested in law, politics, and a healthy dose of college sports news. Joe also serves as a Managing Director at RPN Executive Search.

Ed. note: This is the latest installment in a series of posts on motherhood in the legal profession, in partnership with our friends at MothersEsquire. Welcome Emily N. Litzinger to our pages. Click here if you’d like to donate to MothersEsquire.

Working mothers have always had a full, let’s be honest, overflowing plate of responsibilities balancing work and family. Even before the pandemic, the U.S. did very little to support working parents with a lack of resources and infrastructure to level the playing field. But moms, being the superheroes they are, made it work by cobbling together childcare and working late hours to keep up. But then the pandemic unexpectedly rips through everyone’s lives and the world of working mothers begins to crumble. What starts as a few weeks turns into months and months turns into nearly a year of remote schooling, scarcity in childcare, illness, shutdowns, business closures, and loss for so many Americans. All these factors coupled with the lopsided division of labor in heterosexual couples has resulted in an exodus of women leaving the U.S. workforce.

The Problem

In September, an eye-popping 865,000 women dropped out of the U.S. workforce — more than four times the number of men. Working mothers in heterosexual relationships are three times as likely to be responsible for the majority of the housework and childcare during the pandemic, one source reports. Studies find that full-time working mothers in two-parent households are on average doing around 22 hours of childcare a week during the pandemic, in addition to maintaining their jobs. This loss has set women’s progress in the labor force back to levels not seen since 1988. Shockingly, the Bureau of Labor Statistics reported that in December alone women lost 156,000 jobs while men gained 16,000. Every job lost in December was one held by a woman.

Women of color are even more adversely affected and of the 865,000 more than 324,000 were Latinas and 58,000 were Black women. Women of color are disproportionately represented in low-wage and high-contact service sectors such as restaurants, travel, and hospitality, which have seen the most closures and economic damage. The share of workers earning low wages is higher among Black and Latina women, reflecting the structural racism that has limited options in education, housing, and employment for people of color.

The Long-Term Impact To The Gender Gap

This trend coined the “shecession” has the threat of a long-term economic impact, the risk of losing women in leadership positions, future women leaders, and unwinding years of painstaking progress toward gender equality. The impacts could sideline an entire generation of women. Economists worry that if women decide to stay on the sidelines post-pandemic the dynamism of the U.S. economy is at risk with an estimated $64.5 billion per year lost in wages and economic activity. The U.S. economy simply cannot rebound without women in the workforce. The consequence from the pandemic could deadlock women’s earnings potential and career progression, and for women who leave the workforce during this time, re-entry could prove even harder than usual. Indeed, the loss for women continues long after the economy has bounced back with an atrophy of their skills, experience, and job prospects.

Pre-pandemic, the average U.S. female employee earned only 81 cents for every dollar the average male employee made. The pandemic’s disproportionate economic toll on women could create an even larger gender wage gap during and following the economic downturn. Historically, recessions moderately decrease the gender wage disparity since they tend to have a greater impact on men. While normal recessions close the gap by 2 percentage points, the pandemic’s recession is projected to widen the gap by 5 percentage points. Economists project that the average female worker will earn about 76 cents for every dollar the average male worker makes, and it will take more than 10 years for the wage gap to close to what it was before the pandemic.

Curbing The Negative Impact

We are a year into this pandemic, the consequences are palpable, and the future is uncertain. Now is the time for the legal businesses to plan for and act to curb the long-term damage to gender equality and the economy.

• Normalize Flexibility. Make a shift toward more progressive work policies. Even beyond the pandemic, normalize remote work and flexible work arrangements. Who says you must work a 9-5? Consider parent-friendly scheduling policies such as a compressed workweek, shorter workday, job sharing or part-time for positions where those options do not exist.  Flexible scheduling supports juggling childcare and work and ultimately improves employee job satisfaction. Further, with a virtual workplace, the talent pool is limitless and enables legal businesses to recruit a higher caliber workforce.
• Continue Empathy. Leaders should communicate empathy and flexibility to workers. Train managers on how to support teams who are balancing childcare, isolation, and virtual schooling on top of their demanding workload. Ask employees what they need, how they feel, and if they are comfortable with the current work situation. Normalize talking about these feelings. One way is to start all meetings with a check-in with the group or share successes. Another example is to celebrate working mothers’ efforts. Compassion can go a long way.
• Communicate Openly and Frequently. Listen to the needs of working mothers and communicate openly and often. Working mothers are facing anxiety about the pandemic, childcare, and job security. Share regular updates on the state of the firm and any key decisions that impact employees’ lives such as pay and benefits.
• Empower Women Leaders. It is important for female leaders and other employees to connect with one another; help empower women in your law firm by organizing a forum for women leaders to come together to share ideas and connect. Implement programs and policies empowering women to achieve leadership roles such as equity partnership. Establish programs where female partners or leaders mentor women beginning their career or returning to work after the pandemic.
• Invest in Diversity and Inclusion Efforts. Studies have found that gender and racial diversity improve the quality of decision making, increase innovation, and improve reputation. In uncertain times and in an environment where many companies are pivoting their business model, a focus on recruiting and retaining a diverse workforce will lead to a richer talent pool and improved business efforts. Now is the time to sharpen your DEI agenda. Do not take your foot off the pedal!
• Commit to Pay Equity. Federal pay equity legislation is high on President Joe Biden’s priority list, and it should be high on legal businesses’ list as well. Companies should develop formal process to remediate pay inequities. To achieve pay equity, it is vital to track outcomes for promotions and raises by gender to ensure that women and men are being treated fairly and consistently. Perform an annual pay equity analysis to rectify any wage gaps.
• Act Now. Seize the moment. To rebuild our economies, we must start now to implement efforts to support women in the workforce and recruit those who have left during the pandemic. McKinsey forecasts that taking action now to advance gender equality means an additional  $13 trillion to the global GDP in 2030 when compared with the gender-regressive scenario.

In a year marked by uncertainty and panic, legal businesses have an opportunity to make significant investments in building a more flexible and empathic workplace. The efforts, or lack of effort, will have consequences on gender equality and the entire economy for years to come.

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Emily N. Litzinger is a partner in the national labor and employment law firm Fisher Phillips and practices out of the Louisville office. Emily is a trusted adviser and experienced litigator who counsels and defends employers through the intricacies of labor and employment law and works with her clients to develop preventative strategies to ensure compliance and avoid costly litigation. Emily has a special interest in serving clients in the restaurant and hospitality industry and serves as on the Board of Directors for the Kentucky Restaurant Association. As a mother of three energetic young daughters, Emily is passionate about the advancement of women in both the legal profession and the workplace.

Oh, the foibles of virtual court hearings… they’re just another joy the COVID-19 era has brought us. The latest example of a virtual court hearing gone awry comes from the U.K., where 140 observers tuned into a hearing conducted over Microsoft Teams about whether Swindon Town football club (soccer) is part owned by sports agent Michael Standing.

Judge Iain Pester urged observers to avoid disruptions, “During this hearing if you are not making submissions please turn your microphone to mute. Experience tells us it works much, much better.” But, of course, that wasn’t to be.

One observer shared their screen, only problem? It showed the results of a Google image search for “well-endowed men.” Yikestown. The judge is said to have responded:

“I’ve got quite a strange screen at the moment. I’m wondering who’s interfering with the conduct of the court?” He continued: “I’m afraid if this goes on I’m going to say only the representatives of the parties can attend, because we can’t have a hearing like this.”

But that admonishment was ignored. As Legal Cheek describes:

The judge’s warning was ignored however, as moments later a member of the public allegedly shouted “suck my d***”. Users also continued to share pornography and other images as the hearing went on. Meanwhile, attendees were seemingly able to take control of the video call settings, with the judge and barristers muted by other users.

Further problems arose after users began making firework noises, blowing raspberries and mimicking one of the barrister’s Scottish accent. Odd behaviour was also seen in the text chat bar, after one commentator called for “#PowerOut”, while another was offering cups of tea.

Standing’s attorney, Colin West, said the hearing was “a circus.” Though he argued that open attendance should be reconsidered, the judge said he just ignored the outbreaks of impropriety and took a “soldier on” stance. Trial in the matter was scheduled for late 2021 or early 2022.

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Kathryn Rubino is a Senior Editor at Above the Law, and host of The Jabot podcast. AtL tipsters are the best, so please connect with her. Feel free to email her with any tips, questions, or comments and follow her on Twitter (@Kathryn1).

There’s been a lot of chatter in the news recently about Robinhood, GameStop, and Reddit. But, if you’re anything like me, you’re likely barely making a dent in your endless daily to-do lists, and probably haven’t had the time to fully understand what’s got everyone talking. So just what is happening with Robinhood and GameStop, and why is it capturing headlines? How have they impacted the stock market? Moreover, what are the legal implications of these latest developments and how do they affect attorneys?

We’re breaking it all down right here, and providing a roundup of helpful resources guided to help you understand the answers to your most pressing questions.

What’s happening with GameStop?

In sum, GameStop’s stock price has increased exponentially this month from $4 to a high of $470. How? Several high-profile Reddit users worked together to make it happen, recommending the stock because they believed it to be undervalued. However, several hedge funds were less confident in GameStop and decided to short the stock in order to make money for their investors. Many of the amateur traders on Reddit ended up with huge financial gains while major Wall Street tycoons suffered losses, pitting them against each other. The stocks commonly discussed amongst non-professional traders in the online community are now commonly referred to as “meme stock.”

So where does Robinhood fit in?

Robinhood is an extremely popular app that lets consumers trade stocks, free of charge. This past Wednesday, Robinhood suddenly suspended trading of all “meme stocks,” including GameStop. The decision caused a huge uproar and led many to think that a conspiracy was afoot. Robinhood insists that the decision was not made at the behest of any hedge fund managers, but rather because compliance with its numerous SEC requirements became too much of a headache. Since then, many Robinhood users have filed a class-action lawsuit against the app, claiming it manipulated the market and caused users to lose money. Several top lawmakers, including Elizabeth Warren, have called on Congress to investigate and are asking the SEC to provide clearer guidelines and enforcement mechanisms for market manipulation. On Thursday evening, Robinhood pivoted slightly to allow restricted buys of meme stock.

So what comes next?

It’s unclear! Right now, we have more questions than answers. Among of the legal issues being raised are:

One thing we know for certain is that developing technologies, coupled with strengthening online communities, have allowed ameteur traders to come together in a way like never before to shake up the stock market. It seems this is only the beginning.

For an even more detailed breakdown of the Robinhood/GameStop debacle, check out this very helpful explanation.

Related Content:

1. Arbitrating Securities Claims: A Basic Guide for Lawyers
2. Securities Law and SCOTUS 2020: What the Most Recent Decisions Mean For Your Practice
3. Securities Fraud Litigation: Trends in Class Certification

Tuesday was Groundhog Day; every February 2, Punxsutawney Phil sticks his head up out his hiding place to proclaim whether winter is almost over or there will be another six weeks of it. Given that Pennsylvania, along with other locations, is digging out from a massive snowstorm, I wondered if Phil would even bother to poke his head out, but he did and there’s another six weeks of winter still to go.

The pandemic has lasted for almost a year and there is no quick end to the monotony. Many, if not all, of us are suffering from Groundhog Day syndrome, that every day is pretty much the same and looks to be that way for the foreseeable future; it doesn’t help that the whole vaccination procedure has been totally FUBAR.

As a diversion, here are several stories of colleagues behaving badly. They should take your mind off your troubles and make you glad that you don’t have any of these problems. Careers have gone up (down?) in flames when they didn’t think.

If you ever harbor aspirations to the bench, here’s the cautionary story of Justice Jeffrey Johnson of the Second District Court of Appeal here in Los Angeles, a justice who lost his way. The California Commission on Judicial Performance, after extensive evidence and hearings, removed Justice Johnson from the bench for incidents of misconduct, sexual harassment, and other behavior not befitting a judicial officer. Johnson appealed that decision to the California Supreme Court, which let stand the Commission’s order of removal.

The Commission’s decision to remove the justice was clearly the right decision, as it was his conduct that led to the removal. Did he, like Icarus, fly too close to the sun?

Johnson is the first appellate justice to be removed from the bench. There have been other justices here in California who have resigned, retired, whatever name you choose, especially when their behavior was scrutinized closely after the rise of the long overdue MeToo movement, which has empowered women to speak up and speak out.

Some recent examples of lawyers behaving badly: the Tennessee Supreme Court suspended an attorney for advice he gave on Facebook. As alert readers know, I am not a fan of social media, one reason being ethical issues that arise.

The Tennessee Supreme Court doesn’t like social media use when it leads an attorney to violate the Rules of Professional Conduct. The first line of the Court’s opinion gets right to the heart of the dilemma of attorneys using social media. “This case is a cautionary tale on the ethical problems that can befall lawyers on social media.”

The attorney gave advice to a Facebook “friend” who was seeking advice, essentially, on how to get away with murder. (Where is Viola Davis when you need her?) The attorney suggested that the friend delete the Facebook thread. And how many might have seen the thread before its purported deletion?

The court acknowledged “there is nothing wrong with lawyers participating in social media. Indeed, much good can come of it. Lawyers can establish an online presence, engage in their communities, show their personalities and interests outside the law, develop relationships on social-media platforms, and market their legal services. Lawyers participating in social media can do much to de-mystify the legal system.”

However, the court reminded attorneys that they are still bound by the Rules of Professional Conduct. It found that the attorney’s advice promoted exactly the wrong image of the legal profession and the administration of justice as “something to be manipulated, rather than respected.” The court said that the attorney’s “comments, posted for all the world to see, depict lawyers as fixers who manufacture fake defenses to evade criminal conviction.”

Does giving advice on Facebook or other social media create an attorney/client relationship? What do you think?

A Florida lawyer’s online posts got him disbarred, as well they should have. He was already on suspension at the time.

Witchcraft, satanism, and threats were outrageous posts the attorney made. Sexism still ran rampant through them when the attorney called one judge a “dumb satanic slut,” and bar counsel as inept and worthless and a “satanic slut.” The attorney also said that the chief justice of the Florida Supreme Court should be executed for allegedly tolerating hate crimes and witchcraft. Double, double, toil and trouble, which is exactly what this lawyer got.

A Texas judge hammered both a lawyer and his client for $150,000 (not a typo) for sanctions arising from their conduct in a foreclosure lawsuit.

The lawyer filed a lawsuit that had no basis in fact. (Has that ever happened to you?) The attorney never did his due diligence in investigating the facts before filing the lawsuit, even though that’s his job. Newbies: don’t just take what your client tells you as the truth. It often isn’t and even if it’s largely truthful, clients just naturally shade the truth for the sake of how they appear. It’s a normal human trait to want to position yourself in the best possible light.

The Texas court found that the lawsuit was an abuse of the judicial process and that the abuses were willful and deliberate in an effort to perpetuate a fraud on the court. The court said that the case was a “mountain of evasiveness, lack of candor, concealment, numerous outright lies, and a total disregard for truth, which is the foundation of our judicial system.” A well-deserved benchslap here.

Take comfort that there are lawyers out there who behave badly and bear the consequences. Remember that even in these monotonous times, you still need to observe the rules.

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Jill Switzer has been an active member of the State Bar of California for over 40 years. She remembers practicing law in a kinder, gentler time. She’s had a diverse legal career, including stints as a deputy district attorney, a solo practice, and several senior in-house gigs. She now mediates full-time, which gives her the opportunity to see dinosaurs, millennials, and those in-between interact — it’s not always civil. You can reach her by email at oldladylawyer@gmail.com.

* A woman accused of assaulting a police officer for impounding her pig has been assigned counsel. Guess the government is paying that lawyer’s “bacon”… [Texarkana Gazette]

* The Justice Department has dropped a lawsuit against Yale University alleging that the school discriminated against Asian and white applicants. [CNN]

* The Supreme Court has ruled in favor of Germany in an action filed by the heirs of individuals who had their art stolen by the Nazis. [SCOTUSBlog]

* A Cleveland lawyer is suing a former client who punched him in court. [Cleavland.com]

* A Texas lawyer connected to a probe involving the Attorney General of Texas says he found a GPS tracker on his car. Sounds like something from an episode of Dallas… [Fox News]

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Jordan Rothman is a partner of The Rothman Law Firm, a full-service New York and New Jersey law firm. He is also the founder of Student Debt Diaries, a website discussing how he paid off his student loans. You can reach Jordan through email at jordan@rothmanlawyer.com.