November 19th, 2015

So You Had Sex With Charlie Sheen And Now You Want To Sue…

(A version of this post appears at The Hollywood Reporter. It is cross-posted here.)

Charlie Sheen got himself into a pickle. I know, you’re all shocked! The question we try to answer today, just how big is his pickle?

The nature of his confession is that he is now HIV-positive, that he has known this for four years, and that while knowing he was HIV-positive he had sex with many women. This includes prostitutes and porn actresses. He claims that he told all the women about the HIV.

But at least one of them, former porn actress and girlfriend Bree Olson, claims she was never told. Sheen said that ain’t true. He also claims that at least one other has been blackmailing him to the tune of $10 million, telling him to pay up or she would release the information.

What we call this back East is a big, fat headache. We call it other names too, starting with “cluster” and ending with the likely source of Sheen’s illness, but I’ve been told to keep this piece clean.

Since I practice civil law, I’ll tackle this cluster-intercourse from that end with five easy questions. And since the women may be anywhere in the country, and Sheen travelled widely (and wildly), a claim could theoretically pop up in any jurisdiction.

I’ll use New York law as my baseline, since that’s where I practice. It also happens to be almost identical to California law in important respects, where Sheen resides. But, as you’ll see below, I don’t think it will matter much anyway where any suit is brought.

Do any of the women have a negligence claim against Sheen for scaring the bejesus out of them with his HIV revelation?

In general, you can’t bring a claim purely for the negligent infliction of emotional distress in New York. “That car almost hit me, I was so scared!!!!!” doesn’t cut it, no matter how many exclamation marks you use.

There are a few small exceptions where a purely emotional injury could result in a claim, of which the desecration of a body is one, and the potential infection with HIV happens to be another. Thus, someone getting stuck with an infected needle due to negligence could result in a claim. It will most likely be six months before she knows if she was infected and there is little doubt a reasonable person would be anguished over it.

In order to prove negligence in the Sheen scenario, a woman (presumably) would have to come forward to say that Sheen breeched a duty of care to her because he knew of his diagnosis, and that he reassured her he was clean, and that they therefore didn’t use a condom. If a jury believed her — and remember that this is unlikely to be a nun that is testifying — a claimant could theoretically get over that hurdle.

But that is not the only hurdle. The woman will also have to prove that her mental injury is “a direct, rather than a consequential” result of the breach of a duty of care to her and that the claim “possesses some guarantee of genuineness.”

The problem is that it’s four years later. What direct injury? Remember, this is mental anguish only. Simple blood tests, if she hasn’t already had them, will give her peace of mind. The “guarantee of genuineness” is missing from the very tough New York rules against such claims.

But let’s say this was not someone in the porn or sex-work industry who might get tested often, but just a regular girl that liked the boy and they had good times together. Hey, it’s possible!

A claim now? Getting closer, but only if this was unprotected sex that occurred very recently, giving rise to a reasonable cause for AIDS phobia.

(California likewise has strict limits on suits regarding the negligent infliction of emotional distress.)

Charlie Sheen with some friends.

2. Even if a woman can elucidate a claim, does she bear any responsibility?

In New York we have something called comparative negligence. So too does California. If you’re in a car collision and sue, the jury gets to determine not only the fault of the guy you sued, but yours also. If they find you 25% responsible, you say goodbye to 25% of any jury award.

Here you got comparative negligence up the wazoo: A wild guy having sex with lots of different people. There is a heavy element of personal responsibility that goes on here not just from his point but from hers.

And a jury, if it were to actually reach the issue, would most likely wag a metaphorical finger at the woman and say:

“You had unprotected sex with Charlie Sheen?! CHARLIE DEGERERATED SHEEN! ARE YOU OUT OF YOUR FUCKING MIND?!”

Yeah, I know I said I wouldn’t use that word, but good grief, think about that concept. The comparative negligence would be pretty darn high.

OK, if negligence is out, how about suing for intentional infliction of emotional distress?

While this sounds like a better plan that suing under a negligence theory, the bar is still very, very high to prevail. The New York standard to prevail on that theory is:

“One who by extreme and outrageous conduct intentionally or recklessly causes severe emotional distress to another is subject to liability for such emotional distress.”

The problem with that is that there isn’t any evidence to show he tried to cause distress. By their own admissions, the women have to acknowledge that this was kept secret from them until he gave his recent interview. Is it possible? Yeah, maybe.

4. Are there any damages?

In the unlikely event someone could prove Sheen was liable, how will she prove that a reasonable person would be fearful if the contact happened more than six months ago and she is HIV-negative when tested now? And even if she could prove that a reasonable person would nevertheless be fearful, just how big could the injury be?

The jury will likely be instructed by a court to view how the reasonable person of average sensibilities could be affected under the circumstances. Blood test. Done. Relief. Go have a beer.

Could there be punitive damages if found liable for intentional causing the injury? While possible, the road is very long to get there, and with little in the way of compensatory damages, might not be viewed favorably by many courts.

5. Wait! Before you sum up! What about the extortion of $10 million?

In theory, if the extortionist were the one to sue, and in Bizzarro World — which doesn’t exist in our courts no matter what kind of headlines you might read — had a verdict rendered in her favor, a good argument could be made that the blackmailed dollars would be used as a set-off. But good luck proving it.

The only way the extortion issue comes into play is if some prosecutor says, “Hey, I bet a lot of cash was used for that!! Let’s follow the money to see if Sheen was breaking the law with respect to documenting transfers of cash over $10,000.”

But I’ll let the criminal defense lawyers and prosecutors discuss that.

Summation time! In the event a woman was able to surmount every single hurdle and survive motions to dismiss, what would the jury likely do?

They’d likely look at the rather motley array of witnesses that were presented, hate them all up, down and sideways, say a pox on you and your houses, you all get nothin’ and we’re going home to our families.

And frankly, they are likely to say that no matter where the suit was brought.

November 17th, 2015

Give Me Your Tired, Your Poor, Your #SyrianRefugees

I hate to go so wildly off-topic to venture into the world of politics, but when something happens that is so fundamentally at odds with our nation’s founding principles, it’s hard to silence my keyboard.

I woke today to find that, in the wake of the attack in Paris, a number of Governors are trying to keep Syrian refugees out of their states, apparently out of fear that a terrorist or two might slip through the tens of thousands of desperate souls seeking freedom:

After the terror attacks in Paris that killed at least 129 people, the placement of refugees fleeing Syria has come under scrutiny as at least 18 governors — mostly Republicans — have said they do not want the refugees in their state.

So this is a good time for them to re-read The New Colossus, that being the extraordinary Emma Lazarus poem that they learned about in grade school that sits affixed to the Statue of Liberty in New York Harbor — a statue that was a gift from France.

And it is a reminder to those governors that this is a city of a thousand cities, and this is a nation of a thousand nations, and that the vast diversity of our citizenry is what makes us stronger, not weaker.

If ever there was a group of “wretched refuse,” homeless and tempest-tost, it is the refugees of a war that has already claimed over 200,000 lives:

Not like the brazen giant of Greek fame,
With conquering limbs astride from land to land;
Here at our sea-washed, sunset gates shall stand
A mighty woman with a torch, whose flame
Is the imprisoned lightning, and her name
Mother of Exiles. From her beacon-hand
Glows world-wide welcome; her mild eyes command
The air-bridged harbor that twin cities frame.

“Keep, ancient lands, your storied pomp!” cries she
With silent lips. “Give me your tired, your poor,
Your huddled masses yearning to breathe free,
The wretched refuse of your teeming shore.
Send these, the homeless, tempest-tossed to me,
I lift my lamp beside the golden door!”

November 11th, 2015

Did David Aylor Really Cut and Run after Walter Scott Shooting?

David Aylor, initially hired by the insurance company to defend Slager.

You remember Michael Slager, don’t you? He’s the cop that shot Walter Scott in the back down in Charleston, South Carolina in April of this year. I pilloried his attorney, David Aylor, for first taking the case to defend Slager, then when the video surfaced and Slager was charged with murder, Aylor suddenly quit. And then yapped to the press about it. (See Enthralled With the Press).

Aylor was widely quoted as saying:

“All I can say is that the same day of the discovery of the video that was disclosed publicly, I withdrew as counsel immediately. Whatever factors people want to take from that and conclusions they want to make, they have the right to do that. But I can’t confirm from an attorney-client standpoint what the reason is.”

Damn that sounds bad. The implication to me, and many others, is that Aylor was not going to rep this loser. Even though that is what criminal defense lawyers are often asked to do.

Now we have a pretty damn good update — Michael Slager has sued over the incident. Sued?! Sued who, I hear you ask.

Sued his insurance company, the Southern States Police Benevolent Association, Inc., which issues polices of insurance. For it was the insurance company that apparently hired Aylor, and the insurance company pulled the plug on the representation. (Slager v. SouthernStatesPBA)

And here’s the thing — Southern States did this, according to the complaint, within a day of the video surfacing.

According to the complaint, Slager was paying every month for his legal coverage that included this:

“The Legal Defense Benefit will be provided to Southern States PBA members only in those cases where a lawsuit or criminal accusation results from professional acts or omissions which arise out of and in the scope of their duties as a law enforcement officer.”

“The Benefit shall consist of the payment by Southern States PBA of attorney’s fees and directly related Court costs.”

“Coverage under the benefit is intended to apply to cases where a member has taken some type of direct law enforcement action consistent with his/her responsibilities as a law enforcement officer.”

Seems pretty straightforward, right? No matter how awful his conduct, he was clearly undertaking some type of law enforcement action — he wasn’t sitting at a desk making management decisions on which new clerk to hire.

The cops even get a wallet card that specifically deals with shootings:

“ALL SOUTHERN STATES PBA ACTIVE MEMBERS RECEIVE THE FOLLOWING LEGAL DEFENSE BENEFITS WHILE ACTING WITHIN THE SCOPE OF THEIR LAW ENFORCEMENT DUTIES.”

“SHOOTING: FOR ANY DUTY RELATED SHOOTING OR ACTION WHICH RESULTS IN DEATH OR SERIOUS INJURY, AN ATTORNEY WILL BE SENT TO YOU. CALL EMERGENCY 800 NUMBER ON FRONT IMMEDIATELY!!!”

“… ASSISTANCE IN CRIMINAL MATTERS EXCLUDE INTENTIONAL CRIMINAL ACTIVITY OR DRUG RELATED CRIMES.”

Except for this exemption clause:

“Southern States PBA reserves the right to withhold approval of any benefits and to withdraw approval of any benefits if it is determined at any time that the member has committed an intentional, deliberate and/or illegal act, either civilly or criminally.”

Now there isn’t any question that Slager was acting in the scope of his employment when he shot and killed Scott. His employer will be liable for any civil claim against it.

But if I read the complaint right, the insurance company is happy to give him a criminal defense as long as he is determined not to have done anything illegal? An illusory and toothless contract?

This is the guts of the legal filing insofar as it pertains to Aylor and the April 4th shooting:

After requesting benefits under the Legal Defense Benefit plan, Defendant Southern States PBA granted Officer Slager’s request and assigned attorney David Aylor to represent Officer Slager in defense of the Scott murder charge.

On or about April 7, 2015, Attorney Aylor suddenly and summarily terminated his representation of Officer Slager.

Aylor took a lot of abuse for a few things: (1) cutting and running; (2) yapping to the press about it, and (3) allowing Slager to be interrogated despite the fact that he had only the word of his client to go on.

But it now appears that the reason for the cut and run was that he wasn’t getting paid. Aylor, it appears, wasn’t going to take on a very substantial and high profile murder defense without Mr. Green showing up to help.

There is this:

In a letter dated April 8, 2015, Southern States PBA explained that “upon review your [the] case,” it would not provide benefits under the intentional acts exclusion as it had determined that Officer Slager had “committed an intentional, deliberate and/or illegal act, either civilly or criminally.”

As per the suit, this was a one-day investigation, which is to say, that insurance company folks saw the video and saw a way out of the contract to defend and that, according to Slager, was bad faith.

This is not to say that Aylor’s conduct was the height of perfection, as he made dumb comments, allowed his client to be interrogated when he didn’t have all the facts and left the impression that he was running away from an unpopular client after seeing the video.

But this suit does seem to clarify the real reason he quit: He simply wasn’t getting paid by the insurance company.
—————–
Elsewhere: At Death and Taxes:

When it comes to police who fuck up, no matter how awful a fuck up it is, they can usually always count on the local police union or fraternal organization to staunchly defend them and slander their critics.

That is, apparently, unless you’re Michael Slager, the South Carolina cop who was caught on video shooting unarmed civilian Walter Scott in the back.

Guess cold-blooded murder proved to be too much for the Southern States Police Benevolent Association (we’re surprised too!), because the organization, to which Slager had paid dues for legal representation while active on the force, dropped him the day he was charged in the killing of Scott.

November 4th, 2015

Does New Gmail Feature Destroy the Attorney-Client Privilege?

If you use Gmail, then Google is reading your email. You may not like that fact, but that is reality. It isn’t private.

And for lawyers privacy is a pretty big deal.

Google announced a new feature yesterday called “Smart Reply” where they read your email and suggest replies for you. No, this isn’t coming from the Onion, this is real.

Here is the “problem” as they see it:

But when you’re checking email on the go, it can be cumbersome and time-consuming to reply to all or even some of them. What if there was a way for your inbox to guess which emails can be answered with a short reply, prepare a few responses on your behalf and present them to you, one tap away?

Well, starting later this week, Inbox will do just that with Smart Reply.

OK, next up, their solution:

Smart Reply suggests up to three responses based on the emails you get. For those emails that only need a quick response, it can take care of the thinking and save precious time spent typing. And for those emails that require a bit more thought, it gives you a jump start so you can respond right away.

Ouch.

Google, of course, has long ago admitted to reading your email if you use their service. But they just claim that this is exactly what people expect will happen, and that there is no expectation of privacy. Really.

Now they want to take it one step further, from not only reading your email but answering for you.

Thanks, but no thanks. I’d like my private communications to be just that, private. And by the way, if Google can read your email so easily, so too can the Government. Just sayin.’

(H/T Nicole Black and The Droid Lawyer)

October 31st, 2015

This is Reputation Management? (Updated)

Patrick Zarrelli, from his Twitter profile

Today, a story. A story of how a lawyer, bitten with critical commentary about him on blogs, made his situation horribly worse by hiring a “reputation management” company. Who proceeded to threaten the bloggers. Who were lawyers. Who are well educated in the First Amendment.

It didn’t work out so well for the criticized lawyer, or the person he thought would be his knight in shining armor. Pull up a chair, this is kinda good and more importantly there’s a good lesson in it, I think.

It starts back in January 2013 when Houston criminal defense lawyer Mark Bennett saw an odd December 2012 press release from Florida criminal defense lawyer Gary Ostrow (Narcissists Who Need Narcissists…), who wrote that he

has firmly stated that he will take on any celebrity criminal case, regardless of the severity of the accusation

Really. I did not make that up. He actually put out a press release saying he wanted to represent celebrities.

New York criminal defense lawyer Scott Greenfield followed (Gary Ostrow’s Important Announcement), starting with Ostrow’s own Onionworthy headline:

Criminal Defense Attorney Gary Ostrow has recently announced his intention to take on all celebrity criminal cases in the state of Florida, effective immediately.

Yes, yes, yes, he really put out a press release like that. It’s not the Onion and not April 1st.

But in the process, Ostrow obviously didn’t appreciate that just because you write something self-serving on the web doesn’t mean that others won’t mock you for it.

Just as I have an interest in calling on the carpet plaintiffs’ lawyers who do dumb stuff, so too do they do it on the criminal defense side. We all believe that more professionalism in the bar, and less stupidity, is a good thing.

Almost three years pass. Then out of the blue comes Patrick Zarrelli, who gives himself the Twitter handle @KidChronic32. (Were 1-31 already taken?). Zarelli, it seems, has been hired by Ostrow to clean up the reputational mess he made for himself years ago by putting out that dumb press release.

And boy did Zarrelli screw the pooch.

Seeing this unfold was like watching some guy race his car head-on toward a brick wall with a blindfold on, thinking, believing, that some magical power will save him. While everyone outside that car knows what’s coming.

In order to get the old posts taken down, he actually threatened Greenfield, and he threatened Bennett, and then went on to threaten Florida criminal defense lawyer Brian Tannebaum who, I think was mocking him on Twitter for having stupidly threatened Greenfield and Bennett. There are a couple of priceless voicemail message that Zarrelli left, at those links.

If, dear reader, those lawyer names don’t sound familiar, let me remind you: All three were my co-defendants and clients in Rakofsky v. Internet (I was local counsel, Marc Randazza did the heavy lifting). And all three were quite firm in telling Rakofsky in response to the suit that he should go shit in a hat and pull it down over his ears. OK, maybe those words were mine, but the sentiment was the same. (Greenfield prefers a more subtle response to the stupid threats he’s received over the years: “Bite me, asshole.”)

Gee, what do you think those guys did when Zarrelli threatened? Yep, not only did they put those idiotic threatening voicemails up on the web, but they also detailed the troubled pasts and dubious business practices of these people in the process. (Greenfield: Did Gary Ostrow Hit Bottom? Enter Patrick Zarrelli @Kidchronic32; Bennett: Reputation Management Expert Patrick Zarrelli Weighs In)

For instance, it was pointed out that Zarrelli, on his website pitching reputation management, writes that he will “fight back against poor reviews by flooding the internet with positive reviews of your company.” I think I was being kind by my use of the word “dubious” in the prior paragraph.

And now Techdirt has the story, and by the time I am done typing this up, it might be elsewhere. Oy vey.

OK, story part done, let’s move on to the lesson part. Here is my advice for those that might find themselves in a similar situation.

First, no matter what, don’t threaten. If the stories are true, or even just substantially true, or merely opinion, you will lose. And the courts have a very broad standard for what is substantially true and what is opinion. In poker terms, the law bloggers are holding a royal flush and you don’t even have a measly pair of twos. Not even a high card. You got nothin’.

The risks of having your bluff called are, shall we say, pretty damn high. And going all-in is going to be catastrophic.

So don’t make stupid and empty threats about filing law suits and bar complaints. Unless you want them to write about you, of course.

Threats are out, out, out. Don’t make them and don’t even hint at them.

Instead, ask to talk to them privately. Pick up the phone. Acknowledge that they have every right under the First Amendment to write what they did.

Almost three years had passed in this story and it’s likely that the bloggers hadn’t even thought of those stories in ages.

Your only hope is to catch a sympathetic ear as you concede you screwed up. It’s the only pitch you have.

And here’s the thing, criminal defense lawyers are accustomed to seeing people screw up. Folks have troubles in life and do something stupid and find themselves at their doors. Not everyone is a serial felon from the age of 3.

Be polite, ask graciously if they will consider quietly removing or editing the old post. Maybe they will, maybe not, but sometimes a pitch for mercy is the only shot you really have.

Update: From The Lawyerist (Lawyer Hires Internet Tough Guy to Silence Internet-Tough-Guy Lawyers):

Trying to get websites to take down pages that make you look bad is inherently problematic, but it’s even harder when your approach is to go around threatening lawyers who are well-known for not backing down in the face of threats….

In order to try to clean up his Internet reputation, Ostrow hired an Internet tough guy named Patrick Zarrelli, who spent yesterday threatening…

From The Beanstalk: Patrick Zarrelli: Killer Reputation or Reputation Killer:

…Seriously think that through for a moment. Patrick, much like a lot of other professional marketers, markets himself as an expert. In this case, an expert at online reputation management. In fact, he is so good at it, that he can’t even manage his own, falling prey to three attorneys who up until only a few days ago, didn’t know him at all, and largely, had forgotten about Patricks client, Gary Ostrow….