Does the First Amendment apply to social media companies?

by Trey Ross, M.Ed., Esq.

Photo by cottonbro on Pexels.com

Question: Does the U.S. Constitution limit my private company’s ability to censor certain users and certain subjects?

     I own a national social media company known as NormalStapler.com. We’re pretty popular; 99% of American adults use my company daily to discuss everything from earthworms to Game Theory.

     However, some people are using my company in a way which bothers me. For example, Pete Johnson, the Mayor of Greentree, has been creating a lot of chaos with the things he’s been saying to the general public on NormalStapler.com. Mayor Johnson is highly influential among certain demographics and I actually think some of the things he’s been saying about last year’s election results constitute sedition—albeit, he hasn’t been charged with the crime of sedition.

    I’d like to remove Mayor Johnson from my website immediately. I’d also like to censor all speech about last year’s election results because I just don’t think that type of chatter is beneficial to America.

    Can I remove Mayor Johnson and censor certain political speech on NormalStapler.com? Does the U.S. Constitution apply to my private company?

Brief Answer: Generally, the First Amendment will not apply to private parties or privately owned websites. However, there are some exceptions. For example, if you’re allowing the general public indiscriminate access to certain people’s public accounts, then you may have created one or more “public forums” which will have First Amendment and Fourteenth Amendment implications. Likewise, if you’ve dedicated your social media site to “public use,” the site itself may be limited in its ability to regulate speech about last year’s election.

I. Introduction

     This article is not political commentary but instead a reflection on several cases in an effort to shed light on widespread misunderstandings about our First Amendment guarantee of free speech.

    Also, as a nation, it is important that we are diligent in our hunt for truth, are willing to listen, and…to borrow from Dr. Martin Luther King, Jr. on this holiday weekend…it’s critical that we decide to choose “love…Hate is too great a burden to bear.”

II. Public forums explained

     The US Supreme Court has held that “a traditional public forum is property that has as ‘a principal purpose . . . the free exchange of ideas.’”[1] Thus, places such as “streets and parks which ‘have immemorially been held in trust for the use of the public and…have been used for purposes of assembly, communicating thoughts between citizens, and discussing public questions” have been described as quintessential public forums.[2]

      Unlike speech in a non-public forum, speech in a public forum is meant to be robust and censorship of speech in a public forum is subject to the US Supreme Court’s strict scrutiny—the highest form of judicial scrutiny engaged in by the court. As a result, to regulate speech in a public forum the entity (usually the state or federal government) must have (1) a “compelling interest,” and (2) the regulation must be narrowly tailored to achieve that interest.[3]

II. Privately owned public forums

Marsh v. Alabama[4]

     In 1946, the Supreme Court was called upon to determine if privately owned streets, privately owned parks, and privately owned market places can be “public forums.” In Marsh, Gulf Shipbuilding Corporation owned an entire town known as Chickasaw which was a suburb of Mobile, AL.[5] The property was made up of residential buildings, streets, a sewer system, and a “business block” on which retail establishments and a US Post Office were located.[6] The residents used the business block as their regular shopping center and they accessed it by using a street and a sidewalk owned by Gulf Shipbuilding Corporation.[7] Further, the town of Chickasaw and its shopping center were freely accessible to the public.[8]

    However, a woman who happened to be a Jehovah’s Witness, attempted to distribute religious literature on the street and sidewalk near the post office within the business block. Gulf Shipbuilding Corporation had posted a notice which read as follows: “This is Private Property, and Without Written Permission, No Street, or House Vendor, Agent or Solicitation of Any Kind Will Be Permitted.”

    The Jehovah’s Witness was warned not to distribute any religious literature and was asked to leave. When she declined, she was arrested for remaining on private property after being asked to leave.[9]

    The US Supreme Court provided that (1) the Gulf Shipbuilding Corporation’s privately owned business block was a traditional public forum, and (2) the corporation was to be treated like a state entity with regard to its regulation of speech.[10]      

Social media sites as public forums

     Also, the US Supreme Court has recognized that cyberspace and “social media in particular” have become the most important spaces for the exchange of ideas between citizens in the US.[11]

     So, while a business owner has the right to “lawfully dedicate”[12] his property to any lawful purpose, when a business owner’s private property is dedicated to public use, it evokes First Amendment concerns.[13]

     Further, in terms of social media sites, the Court has held that “[o]pening an instrumentality of communication ‘for indiscriminate use by the general public’ creates a public forum.”[14]

     Furthermore, the 2nd Circuit’s US Court of Appeals recently held that President Donald Trump’s social media account was indeed a public forum.[15]

IV. What this means to you, the social media mogul

    A broadly used social media company such as NormalStapler.com likely has created a public forum as it relates to Mayor Johnson if it’s been opened “for indiscriminate use by the general public.” If that’s the case, your regulation of seditious speech may not be a problem[16] but your removal of Mayor Johnson may need to pass the Court’s strict scrutiny test (i.e., you’ll need a compelling interest and the means used must be narrowly tailored to achieve that interest). With that in mind, you’d be wise to obtain a legal consultation before making that determination on your own.

    Likewise, if you’ve dedicated any part of NormalStapler.com to public use, then parts of the site—which could be the entire site—will also be public forums. Thus, if you intend to ban all conversations about the results of last year’s election from NormalStapler.com, you’ll need to again pass the Court’s strict scrutiny test. As I stated before, I suggest you speak with an attorney.


[1] International Soc. for Krishna Consciousness, Inc. v. Lee, 505 US 672, 679 (1992) (citing Cornelius v. NAACP Legal Defense & Ed. Fund, Inc., 473 US 788, 800 (1985)) (emphasis added).

[2] Perry Ed. Assn. v. Perry Local Educators’ Assn., 460 US 37, 45, (1983) (citing Hague v. CIO, 307 U. S. 496, 515 (1939)).

[3] See e.g., City of Boerne v. Flores, 521 U.S. 507 (1997)

[4] Marsh v. Alabama, 326 US 501 (1946)

[5] Id. at 502.

[6] Id.

[7] Id.

[8] Id.

[9] Id.

[10] Marsh, 326 U.S. at 507 (providing “[w]hether a corporation or a municipality owns or possesses the town the public in either case has an identical interest in the functioning of the community in such manner that the channels of communication remain free”).

[11] Packingham v. North Carolina, 137 S.Ct. 1730, 1735 (2017).

[12] See e.g., Cornelius v. NAACP Legal Defense & Ed. Fund, Inc., 473 US 788, 800 (1985).

[13]  Id.

[14] Knight First Amendment Inst. At Columbia Univ. v. Trump, 928 F.3d 226 (2nd Cir. 2019) (quoting Perry Educ. Ass’n v. Perry Local Educators’ Ass’n , 460 U.S. 37, 47 (1983)) (emphasis added).

[15] Id. at 237.

[16] Certain speech—such as obscenities, fighting words, and sedition—are not protected by the Constitution and can be regulated without violating the Constitution. See e.g., 18 USC § 2384 (providing imprisonment and/or fines for conspiring “to overthrow, put down, or to destroy by force the Government of the United States”).

Employers of immunocompromised employees should tread carefully during the COVID-19 pandemic

Photo by Anna Shvets on Pexels.com

By Trey Ross, M.Ed., Esq.

Question: I have an employee with a compromised immune system which places her at a higher risk of death if she contracts COVID-19. However, I’d like all of my employees to begin working in-person at the office. Can I fire an employee with a compromised immune system if she refuses to appear at work in-person?

Answer: Maybe not. A person with a compromised immune system will generally qualify as person with a disability as defined by the Americans with Disabilities Act of 1990 (hereafter, “the ADA” or “the act”). With that in mind, your obligations under the ADA continue during the COVID-19 pandemic.

      The ADA defines a disability to include “a physical or mental impairment that substantially limits one or more major life activities of such individual…”.[1] Further, the act makes clear that “a major life activity also includes the operation of a major bodily function, including but not limited to, functions of the immune system.”[2]

      Thus, all employers should be on notice that employees with compromised immune systems are indeed within a protected class of workers.

      Still, the ADA and the EEOC recognize that there are exceptions which may allow the employer to consider termination as a last resort. However, many legal factors must be thought through (e.g., Are there reasonable accommodations which can be made for the disabled employee?). These legal factors are case-specific and details about the nature of work can result in different outcomes for different employees/employers. To illustrate, allowing an immunocompromised school teacher to instruct students online from home can be a reasonable accommodation and the ADA “might require an employer” to allow the teacher to instruct students online to avoid violating the act.[3] While on the other hand, it may create an undue hardship for the employer to allow an immunocompromised restaurant chef to work from home.

     To be clear, the facts of your case should be examined and discussed with your attorney before you can know with reasonable certainty whether termination will result in violation of the act.

      If you’re an employer with questions about the rights of your company and your employees, we encourage you to contact Attorney Trey Ross or any lawyer with experience in employment law and/or employment litigation.  


[1] 42 U.S.C. § 12102(1) (United States Code (2020 Edition)).

[2] Id.

[3] See e.g., U.S. Equal Emp’t Opportunity Comm’n, Work at Home/Telework as a Reasonable Accommodation (Dec. 13, 2020, 11:05 PM), https://www.eeoc.gov/laws/guidance/work-hometelework-reasonable-accommodation (providing “the ADA’s reasonable accommodation obligation…might require an employer to…modify its telework program for someone with a disability who needs to work at home).

Increasing student interest in STEM: A multi-tiered approach

*Although BrighterLine.org normally focuses on legal topics, this article is being published in our new “Special Edition” category. We hope parents and teachers currently homeschooling students due to the global pandemic caused by COVID-19 find the research provided here useful. 

By: Trey Ross, M.Ed., Esq.; Jared Blankenship, M.Ed.; and Jermaine Ross, M.Ed.

Abstract

Research on the psychology of student motivation was examined. To increase student interest in studying science, technology, engineering and mathematics (STEM), the authors—current or former educators of urban students—learned that a focus on mastery is very important to fostering a greater interest in STEM. The authors also discovered evidence which supports research on the positive and negative impact peer friendships can have on a learner’s motivation to study STEM. Various research-based techniques were used by the authors. These methods helped to improve student competency and fostered a greater interest in the study of STEM among underrepresented groups.

Keywords: student motivation, STEM, mastery, influence of friends

Increasing student interest in STEM: A multi-tiered approach

“Ha! This is so cool!” At some point, Pictures from my camera June 2008 187we have all heard a child utter those words. Often, the previously mentioned phrase—or a similar positive expression—is exclaimed after some interesting conundrum has become crystal clear to the learner. Such positive experiences can increase both student confidence and student interest in a subject (Footnote 1)(Blustein et al., 2012). As math teachers, we know first-hand that student motivation and student confidence often harmonize when the learner understands both the value of the skill being taught and the sincerity of the teacher’s unrelenting support.

Still, schools across the United States have trouble preparing and motivating students to fill future roles in science, technology, engineering, and mathematics (STEM) occupations. Because our nation’s scientists will continue to play a large part in helping to make the US a global leader, the fact that only about 16 percent of seniors in U.S. high schools are competent in mathematics and attracted to STEM careers is a national problem that must be addressed (“Science, Technology, Engineering and Math,” n.d.). Further, the Organisation for Economic Co-operation and Development (n.d.) believes that a lack of motivation is one of the factors which contributed to the US being ranked 27th out of the 34 countries which participated in the international exam known as the Programme for International Student Assessment in 2012.

That said, education leaders may find that there are a number of ways to foster greater student interest in STEM subjects. Research related to student motivation points to several strategies of which school leaders should be aware. For example, according to Ames and Archer (1988), emphasizing mastery over normative comparisons is an important step toward increasing a student’s motivation to learn a subject. Also, to promote the pursuit of STEM skills—especially among underrepresented groups—work by Robnett and Leaper (2012) suggests that schools should cultivate supportive peer networks which allow for long-term peer encouragement; we will call them “STEM Circles”.

Emphasize Mastery

 To increase student confidence and ignite an intrinsic motivation to learn in STEM courses, all stakeholders should communicate a single message: Mastery is the most important goal (Ames & Archer, 1988). When a student accepts that it is all right to work on a topic until he understands it—and that the rate at which he understands it relative to his peers is unimportant— he begins to accept that he can be successful in that subject if he exerts enough effort (Ames & Archer, 1988). This realization is a significant step toward easing the learner’s anxiety and encourages greater participation in STEM subjects. The Ames and Archer (1988) study provides evidence that students find courses more enjoyable, are more likely to take on challenging tasks, and may even be able to overcome issues with low confidence when we effectively communicate—that is, students believe our message—that mastery is the most important goal.

In our experience, instructional leaders can promote a school-wide emphasis on mastery by  (1) influencing what is communicated in the classroom, (2) using “Flipped Classroom” methods to extend learning time, and (3) making use of mastery modules. Each approach will be discussed below.

Influencing What is Communicated in the Classroom

Typically, school leaders are able to exercise guidance on whether mastery is emphasized in the classroom. Leaders should start by assessing the expectations of teachers through a conversation about practices and by monitoring what actually goes on in teachers’ classrooms.

Without proper leadership, many teachers will unwittingly communicate that performance is more important than mastery. Teachers who grade student work, evaluate student projects, and provide learners with feedback on a daily basis often develop the “students get one shot at the assignment” motto. As a result, it is not uncommon for the rhythm of a course to take patterns such as the following: Introduction of a Topic A, instruction on Topic A, assessment of student understanding of Topic A, provide students with feedback on their level of mastery of Topic A, and then introduce Topic B regardless of whether masses of students failed to demonstrate a satisfactory level of mastery. Because of the teacher’s interest in covering as many of the standards outlined in the curriculum as possible, educators of both STEM and non-STEM subjects mistakenly feel that this is the best approach to take.

Moreover, teachers who adopt the method mentioned above are not emphasizing the saliency of mastery since the primary focus is on how well students performed. As evidence, student grades are overtly or covertly compared to others within the group, and teachers and students accept that only a small number of learners will receive high grades. As a result, some students will believe that the teacher is disinterested in whether they actually learn the information or not. Thus, the message frequently communicated to the student is as follows: Your grade in the course—as opposed to real mastery—is all that matters.

However, as previously mentioned, educators need to communicate the importance of mastery and minimize any potential ambiguity. We have found that the safest way to communicate the importance of mastery is to avoid discussions about the grades of other students, and provide learners with recognition for participation and effort.

Using Flipped Classroom Methods to Extend Learning Time

Mastery should be emphasized in other ways as well. To start, students should be given extended time to work on assignments until the teacher determines that the learner has actually reached a requisite level of mastery. One way to achieve this is by using a Flipped Classroom method.

Flipped Classroom models have mixed origins but the style we used can be attributed to the work of Jonathan Bergmann and Aaron Sams (Tucker, 2012). Rather than reteach lessons to students who missed class due to absences, Bergmann and Sams recorded and annotated lessons, and posted them online for students to view (Tucker, 2012). However, students who were not absent found the videos beneficial as well since they could be used to assist the learners in achieving mastery (Tucker, 2012).

While working with Thurgood Marshall High School (Footnote 1), an urban school in the US, we found that using the above mentioned version of a Flipped Classroom was effective in assisting calculus students master the subject. Like Bergmann and Sams, we recorded and annotated tutorial videos and posted them online for our students to view outside of class. If a student were absent or struggling with a topic, he reviewed the video at home and returned to class to ask follow-up questions and receive additional practice. Students and parents loved the online videos, and the tutorials enabled us to help learners achieve mastery in a time-efficient manner.

Mastery Projects

In addition, student projects are another type of assignment which is a good fit for programs that emphasize mastery. We call them “mastery projects” but they are in essence tasks which allow teachers—or students—to place standards into neat packages and give the learners a chance to work independently to analyze the issues, develop a plan of attack, and make attempts to explore what actually works. With the support of a teacher, a learner who completes a mastery project can ask questions and develop skills without the anxiety of becoming embarrassed by failed efforts. In addition, mastery projects give students an opportunity to gain hands-on experience solving real-world STEM problems—a skill U.S. students historically struggle with on the Programme for International Student Assessment (Organisation for Economic Co- operation and Development, n.d.).

Also, mastery projects are crucial since, as educators, we must provide opportunities for students to see how interesting and valuable STEM can be. Some students from underrepresented groups (e.g., students who attend urban schools) will need to view STEM skills as valuable before becoming motivated to learn STEM topics (Robnett & Leaper, 2012). Research by Bluestein et al. (2012) suggests that educators can help increase the level at which urban learners value STEM—and possibly encourage learners to consider a STEM career—through engaging students in relevant and interesting real-life experiences outside of the regular school period.

Consistent with research by Ames and Archer (1988), we were able to increase student interest, and possibly improved the way urban students valued STEM, with the use of mastery projects. For example, while working with Thurgood Marshall High School, we asked students to formulate a real-world math project based on a particular curricular standard. Students were asked to explore any topic they found interesting. To emphasize that mastery was the most important goal, the learners were also made aware that they would receive teacher support. We provided guidance and answered questions online through a website known as Edmodo—a site which provides a virtual platform for teachers and students to connect. While the project was assigned to the students over their winter break, the students knew that they would receive additional time to work on the project, if needed.

As a result of our work, student competency in mathematics—and probably how much they valued it—improved. To start, they demonstrated mastery of the curriculum standard1 by developing answers to amazing self-made projects such as investigations of the correlation between fast-food restaurant proximity and public school performance. In addition, through working on a topic for which they had a natural curiosity, students got a chance to witness how valuable math skills can be.

Addressing teacher concerns.  When a school adopts a mastery approach, we have found that educational leaders should expect some teachers to become apprehensive. One reason for their unease may be that many teachers believe a student’s grade should be based on how well he performs on his first and only attempt at an assessment. In the minds of such teachers, giving the student a grade after multiple attempts misrepresents the learner’s actual ability. However, leaders must communicate that while we sometimes have to sort and rank students, as K-12 educators, our ultimate goal is to increase student achievement and encourage a love of learning.

Cultivate “STEM Circles”

We have also found that actively forming and leading education-focused student groups helps learners build important networks of peer motivators. With that in mind, administrators, teachers, and parents should actively promote the creation of like-minded STEM communities within each school. Whether one calls such a community a “STEM Circle”, a “STEM Club”, or uses a Facebook-style “STEM Group”, the goal should be to link students with others who share an interest in STEM. Research by Robnett and Leaper (2012) provides evidence that the level of importance a friendship group places on a subject or career can influence how students value that particular subject or career. As mentioned before, the value students place on STEM skills and STEM careers has an impact on the level of interest students have in STEM (Robnett & Leaper, 2012). So, by giving students an opportunity to develop meaningful friendships with individuals who share their ambitions, schools take an important step toward increasing participation in STEM.

Examples

 For example, while working with Medgar Evers High School (Footnote 2), an urban school in the American South, we held weekly education-focused meetings with 11th Graders. The meetings were always 30 minutes long and structured so that students were able to socialize and engage in

fun learning activities. The activities included SAT question and answer competitions, career interest surveys and discussions, academic performance chats, and brief interactive videos or PowerPoint presentations. None of the activities were ever graded but participation was required of all students. While students did not generally form connections with each member of the group, most students were able to form significant friendships with people whom they shared a common interest.

Another example is illustrated by our work with Tych Middle School (Footnote 3), an inner-city school the US. At this middle school, we offered an after-school STEM workshop for all students who were interested. The first session included almost 300 students but within a short period of time, the population decreased to about 50 learners who had a sincere interest in STEM. We then separated the students into three STEM Circles of about 17 learners, and each session included fun and engaging activities. Throughout the program, students developed important friendships with peers as they worked together to build robots, develop websites, and present proposals to address environmental problems.

Like the students at Medgar Evers High School, the learners in our STEM Circles at Tych Middle School were able to identify and befriend peers who shared an interest in STEM. Since such friendships have the potential to endure after the program ended, research by Robnett and Leaper (2012) suggests that the program will help the students maintain their interest in STEM.

Additional Benefits

Such teacher-led groupings also provide educators with an opportunity to serve as mentors to students who may face future hurdles because of their race or gender. For example, during group sessions, teachers can address negative stereotypes and discrimination which could potentially cause learners within underrepresented groups to disidentify with their STEM interests (Robnett & Leaper, 2012). This is important since students from underrepresented groups sometimes feel isolated and discouraged when in classrooms with few other peers of their ethnicity or gender (Blustein et al., 2012). So, an added benefit of cultivating STEM Circles is that they can provide students with information about how to cope with possible dejection while in pursuit of a STEM education (Robnett & Leaper, 2012).

Summary

There are a number of ways to foster a greater interest in STEM. Research relevant to the psychology of motivation provides evidence that an effective emphasis on mastery can increase student interest in learning STEM subjects. Likewise, influencing classroom expectations so that educators communicate the importance of mastery, and making use of mastery modules can provide students with necessary tools to adopt an interest in STEM. Finally, since there is evidence that students are influenced by their circle of friends, schools interested in raising greater interest in STEM should consider making use of STEM Circles. Doing so will give students additional opportunities to cultivate important friendships with others who are interested in STEM.

References

Ames, C., & Archer, J. (1988). Achievement goals in the classroom: Students’ learning strategies and motivation processes. Journal of Educational Psychology, 80(3), 260-267. doi:10.1037/0022-0663.80.3.260

Blustein, D., Barnett, M., Mark, S., Depot, M, Lovering, M., Lee, Y.,…DeBay, D. (2012).

Examining Urban Students’ Constructions of a STEM/Career Development Intervention Over Time. Journal of Career Development, 40(1), 40-67. doi:10.1177/0894845312441680

Organisation for Economic Co-operation and Development. (n.d.). United States: Country Note.

Retrieved from http://www.oecd.org/pisa/keyfindings/PISA-2012-results-US.pdf Robnett, R. F., & Leaper, C. (2012). Friendship Groups, Personal Motivation, and Gender in

Relation to High School Students’ STEM Career Interest. Journal of Research on Adolescence, 23(4), 652-664. doi:10.1111/12013

Science, Technology, Engineering and Math: Education for global leadership. (n.d.). Retrieved June 20, 2014, from U.S. Department of Education website: http://www.ed.gov/stem

Tucker, B., (2012). The Flipped Classroom. Education Next, 12(1), 82-83.

1 The Thurgood Marshall High School example is a pseudonym for an urban high school that one of our authors worked with but due to concerns with confidentiality, we chose not to publish the actual name of the school.

2 The Medgar Evers High School example is a pseudonym for a second urban high school that one of our authors

worked with but, like the Thurgood Marshall High School example, we chose not to publish the actual name of the school due to concerns with confidentiality.

3 The Tych Middle School example is a pseudonym for an urban middle school that one of our authors worked with but, like the other schools we worked with, we chose not to publish the actual name of the school for reasons related to confidentiality.

 

Can we sue our way to safety from gun violence?

twisted gun

By Trey Ross, M.Ed., Esq.

Question:

I’m a member of an organization in Georgia which is interested in gun reform. I heard about a recent case in Connecticut which suggests that gun manufacturers can be sued for harm caused by the guns they make and sell. If that’s the case, can’t we sue gun manufacturers every time a criminal shoots someone in Atlanta? Can we sue gun manufactures and force them to make guns less dangerous to citizens, school children, and law enforcement officers who are subject to being shot by criminals and psychopaths?

Brief answer:

Probably not. However, you may be able to hold them accountable for irresponsible marketing strategies.

To hold gun manufacturers and sellers civilly liable, the companies’ actions will have to fall into one of six exceptions to the Protection of Lawful Commerce in Arms Act (PLCAA). The only exception which may apply in your scenario is the one that will require the manufacturer to be in violation of Georgia’s Fair Business Practices Act which prohibits “unfair and deceptive” acts.

Still, tying criminal shootings to deceptive trade practices by gun makers would require a special set of facts which will most likely be related to advertising. However, since many criminals who commit gun crimes have never seen an advertisement for the weapons they use—and since a lot of gun crimes involve stolen weapons—getting your lawsuit all the way to the jury will not be an easy task.

I. Tort law as an impetus to create a safer America

Every day, tort lawyers empower the little guy and protect citizens from misconduct of big corporations. To illustrate, if your child isn’t wearing flaming pajamas, if your car doesn’t explode when you’re rear-ended, and if your doctor is careful regarding any part of your medical treatment, you can thank a tort lawyer.

So, it’s no surprise that people interested in protecting the public from gun violence are turning to tort law for help.

However, in 2005, Congress gave gun manufacturers broad immunity from civil tort lawsuits by enacting the Protection of Lawful Commerce in Arms Act (PLCAA).[1] While the PLCAA is broad, it carves out six exceptions to the immunity granted under the act.[2]  Of the six exceptions, only two apply to lawsuits brought by citizens against gun manufacturers: the “knowingly violated a…statute” exception and the “breach of contract or warranty” exception.[3] Further, as a result of the Connecticut Supreme Court’s holding in  Soto v. Bushmaster Firearms Int’l, LLC, the “knowingly violated a…statute” exception has become a critical weapon in the effort to stop gun manufacturers from carelessly—or intentionally—influencing people to engage in gun violence.[4]

In Soto, family members of several of the deceased victims of the Sandy Hook Elementary School shooting of 2012 brought a wrongful death lawsuit against the manufacturer of the Bushmaster XM15-E2S semiautomatic rifle (an AR-15 style weapon) used in the attack. According to the Plaintiffs, the Defendants violated the Connecticut Unfair Trade Practices Act (CUTPA)—which prohibits “unfair or deceptive acts or practices…”—by advertising and promoting unlawful “offensive use of the rifle” to wage war on people rather than lawful uses such as hunting and self-defense.[5] The Connecticut Supreme Court agreed that such advertising would constitute an unfair and deceptive act and thereby violate CUTPA. So, the Plaintiffs were allowed an opportunity to go back to the trial court and try to prove that the marketing of the weapon led to the shooting.[6]

Georgia’s Fair Business Practices Act is similar to CUTPA since it also includes a prohibition of “unfair or deceptive acts or practices…”.[7] Thus, a Plaintiff seeking to hold a gun manufacturer liable for death or injury could possibly take the same approach as the Plaintiff’s in Soto.[8]

II. Reality: Most gun-related homicides are not a result of deceptive trade practices

However, most instances of gun violence will fail to rise to the level of being the result of unfair or deceptive trade practices for two major reasons: (1) gun crimes are often committed with weapons marketed for self-defense and (2) guns used in crimes are typically stolen.

First, guns commonly used by criminals are not the questionably advertised AR-15s discussed in Soto.[9] Instead, criminals in cities across America are using small handguns such as 9mm Lugers[10] and .40 Smith & Wessons[11]—guns which reputable manufacturers often legally promote as self-defense weapons.[12] Unless advertisements and marketing campaigns are promoting illegal use of the commonly used handguns mentioned above, Georgia’s Fair Business Practices Act will not apply and gun manufacturers are going to be immune to a lawsuit due to the PLCAA.

Second, 80% of gun violence is committed by stolen guns.[13] Thus, eight out of 10 times, it will be impossible for the victim of gun violence to connect a gun manufacturer’s marketing campaign with the unlawful actions of the criminal perpetrator. Without a sound link between the advertisement and the criminal act, the victim will not be able to establish causation.

III. Summary

Tort law may not create an avenue to pressure gun makers to develop solutions to everyday gun violence but it can force them to market their products in a responsible way. Due to the immunity granted to gun manufacturers, a victim of gun violence will need to show that the gun maker’s actions fall within the PLCAA’s limited exceptions. The exception the victim may find most helpful involves gun makers who promote the illegal use of guns. However, since the vast majority of gun crimes involve stolen guns, it will be quite difficult to establish a causal link between the gun crime and the marketing campaign of the gun manufacturer in many cases.

Footnotes:

[1] 15 U.S.C. §§ 7901(b)(1) (providing prohibition of lawsuits against gun manufacturers by persons seeking recovery “for the harm solely caused by the criminal or unlawful misuse of firearm products or ammunition products”).

[2] 15 U.S.C. § 7903(5) provides six exceptions to immunity granted to gun manufacturers. These exceptions include:

(i) an action brought against a transferor convicted under section 924(h) of Title 18, United States Code, or a comparable or identical State felony law, by a party directly harmed by the conduct of which the transferee is so convicted;

(ii) an action brought against a seller for negligent entrustment or negligence per se;

(iii) an action in which a manufacturer or seller of a qualified product knowingly violated a State or Federal statute applicable to the sale or marketing of the product, and the violation was a proximate cause of the harm for which relief is sought…;

(iv) an action for breach of contract or warranty in connection with the purchase of the product;

(v) an action for death, physical injuries or property damage resulting directly from a defect in design or manufacture of the product, when used as intended or in a reasonably foreseeable manner, except that where the discharge of the product was caused by a volitional act that constituted a criminal offense, then such act shall be considered the sole proximate cause of any resulting death, personal injuries or property damage; or

(vi) an action or proceeding commenced by the Attorney General to enforce the provisions of chapter 44 of Title 18…or chapter 53 of Title 26, United States Code….

[3] Id.

[4] 331 Conn. 53, 202 A.3d 262 (Conn., 2019)

[5] Id. at 284.

[6] 331 Conn. 53, 202 A.3d 262.

[7] O.C.G.A. § 10-1-399(b)

[8] 331 Conn. 53, 202 A.3d 262.

[9] Id.

[10] See, e.g., 2017 Firearms Used in the Commission of Crimes, Cal. Dep’t of J. (last visited October 13, 2019), available at https://oag.ca.gov/sites/all/files/agweb/pdfs/publications/firearms-report-17.pdf.

[11]  Sarah Kollmorgen, Chicago Criminals’ Favorite Gunmakers: A Visual Ranking, The Trace, (January 6, 2016) https://www.thetrace.org/2016/01/chicago-crime-guns-chart/

[12] See, e.g., Video archive on Smith & Wesson’s YouTube Channel, available at https://www.youtube.com/user/SmithWessonCorp/videos

[13] See, e.g., Christopher Ingraham. New evidence confirms what gun rights advocates have said for a long time about crime, Wash. Post, (July 27, 2016), https://www.washingtonpost.com/news/wonk/wp/2016/07/27/new-evidence-confirms-what-gun-rights-advocates-have-been-saying-for-a-long-time-about-crime/

What’s a “shotgun pleading”? Welcome to the 11th Circuit.

by Trey Ross, M.Ed., Esq.

Confused

Photo by Alexander Dummer on Pexels.com

Question:

I filed a complaint. It was a typical complaint that you’d see in any court in the country. However, Defendant’s counsel has alleged that my complaint is a shotgun pleading and it should be dismissed. I’ve never heard of such a thing. What is a shotgun pleading?

Brief Answer:

First, humbly remind Defendant’s counsel that the appropriate remedy would be a Rule 12(e) motion for a more definite statement rather than a dismissal. [1]

Second, in terms of complaints, a shotgun pleading is a complaint which does not give the Defendant proper notice of the charges against him. To put it another way, the complaint is confusing because you’ve probably cited to irrelevant facts/paragraphs at the start of each numerated count.

So, if you’re being accused of filing a shotgun pleading, you may need to revise your complaint so that each count only contains–and only cites to–facts which are relevant to the specific count. In other words: As a general rule, don’t say “Plaintiff incorporates all proceeding paragraphs” at the start of each count unless all proceeding paragraphs are actually relevant to proving liability for that specific count. Otherwise, the counts at the end of the complaint will contain information which is not relevant to prove Defendant liable for the later counts–even though some of the information was relevant to prove Defendant’s liability for the earlier counts.

In summary, instead of saying “Plaintiff incorporates all proceeding paragraphs” at the start of each count, simply (1) begin each count by citing the specific facts and/or paragraphs which establish liability for that specific count, or (2)  list the relevant facts necessary to establish liability underneath the count without citing to any previously mentioned facts/paragraphs.

Following this rule of thumb will keep you out of a lot of trouble in the courts of the 11th Circuit. However, as you’ll see in the complaints and orders below, exceptions have been permitted.

I. Shotgun Pleadings Explained

This article focuses on shotgun pleadings as they are defined by the 11th Circuit since this circuit can be considered the epicenter of the shotgun pleading doctrine. The 11th Circuit has approximately 2,224 published opinions on the topic of shotgun pleadings. By comparison, the number of shotgun pleading opinions in the 11th Circuit is 1,423% greater than its second-place runner-up (i.e., the 9th Circuit).

The 11th Circuit’s Court of Appeals provides that “[s]hotgun pleadings ‘contain[] several counts, each one incorporating by reference the allegations of its predecessors, leading to a situation where most of the counts (i.e., all but the first) contain irrelevant factual allegations and conclusions.” See e.g., Strategic Income Fund, LLC v. Spear, Leeds & Kellogg Corp., 305 F.3d 1293, 1295 (11th Cir. 2002). As a result, ‘“[a] shotgun pleading’…[is] one in which ‘it is virtually impossible to know which allegations of fact are intended to support which claims for relief…[and thus] does not comply with the standards of Rule [] 8[.]’” Kabbaj v. Obama, 568 Fed.Appx. 875, 879 (11th Cir. 2014). According to the 11th Circuit, shotgun pleadings run afoul of Rules 8 and 10 of the Federal Rules of Civil Procedure requirement that a plaintiff present a “short and plain statement of the claim showing that the pleader is entitled to relief” and if possible, articulate each claim in a separate count. Fed. R. Civ. P. 8(a)(2); Fed. R. Civ. P. 10(b); see also See Fikes v. City of Daphne, 79 F.3d 1079, 1082-83 (11th Cir. 1996) (quoting T.D.S. v. Shelby Mut. Ins. Co., 760 F.2d 1520, 1543 n.14 (11th Cir. 1985) (Tjoflat, J., dissenting)).

While the Court’s descriptions are helpful, a review of the complaints which have passed and failed a shotgun pleading challenge demonstrates that there are exceptions to the rule. Thus, you’ll need to see some actual complaints to get a feel for what a shotgun pleading actually looks like. Otherwise, it will be difficult to determine whether your complaint has “sinned” in the eyes of the 11th Circuit or whether Defendant’s counsel is just blowing smoke to stall your case.

II. Examples of what not to do…and some exceptions to the rule

Here are some complaints which illustrate what not to do:

  1. Paylor v. Hartfor Fire (Amended Complaint), Case No. 6:11-cv-00059-PCF-TBS (11th Cir. 2014)
  2. Cook v. Randolph County AMENDED complaint, Case No. 4:08-cv-131-CDL (11th 2009)
  3. Davis v. JPMorgan – Complaint by pro se plaintiff, Case No. 1:12-cv-04126-AT (11th 2012).
  4. Saldivar v. FRESENIUS Complaint, Case No. 1:10-cv-01614-AT (11th 2013)

     However, here are some complaints which appear to have broken the 11th Circuit’s rule yet survived their shotgun pleading challenge–at least at the district court level. The Judge’s explanation is provided here as well:

  1. Purvis v. Atlanta – Amended Complaint 1, Case No. 1:14-cv-03701-AT (11th 2014)
    • Click here to see the Judge’s Order which explains why the Purvis complaint is not a shotgun pleading
  2. In re Friedmans Complaint, Case No. 1:03-cv-03475-WSD (11th 2004)
    • Click here to see the Judge’s Order which explains why this complaint is not a shotgun pleading
    • By the way, this complaint is also a massive 213 pages long.  
  3. Stevenson v. CRRC Complaint, Case No. 6:16-cv-00129-RBD-DAB (11th 2016)
    • Click here to see the Judge’s Order which explains why the Stevenson complaint is not a shotgun pleading

Note: I repeat that the above-mentioned exceptions were discussed by district court judges and not the 11th Circuit Court of Appeals. 

III. Summary

If you’re new to the 11th Circuit, welcome to the world of shotgun pleadings. Defense counsel in this circuit have filed thousands of motions accusing complaints of being confusing and failing to give Defendants proper notice of charges. So, to be safe, you’ll need to draft complaints in which the counts only contain—and cite to—facts necessary to support each charge.

Although the shotgun pleading doctrine has given defense counsel a powerful tool—one which is subject to abuse by disingenuous advocates who would like to stall Plaintiff’s case—the 11th Circuit’s demand for precision within pleadings likely reflects the future of litigation.

Note: If you still need more examples of what to do when drafting your pleadings, check out some of the charging documents written by leading trial lawyers such as Robert Mueller, Special Counsel for the United States Department of Justice.

[1]  Bell Atlantic Corp. v. Twombly , 550 U.S. 544 , 590 (2007) (providing “[t]he remedy for an allegation lacking sufficient specificity to provide adequate notice is, of course, a Rule 12(e) motion for a more definite statement”).

cropped-brighterline-concept-1-large-in-jpg-2-e1557535280266-1.jpg

Breaking ties with a client

by Trey Ross, Esq.breaking ties with client photo

Lawyer:

I’ve been working on behalf of a client for about three weeks. However, the client has become extraordinarily demanding and impatient. Needless to say, I’m not enjoying our interactions these days.

I think its best that the client and I part ways before matters get any worse. Am I allowed to break ties with a client before the legal issue is resolved?

Brief Answer:

Ordinarily, a representation in a matter is completed when the agreed-upon assistance has been concluded. However, Md. Rule 1.16 and Md. Rule 2-132 govern the withdrawal of a lawyer from a case.

Guidelines for when withdrawal is mandatory and when withdrawal is optional are governed by Md. Rule 1.16. Also, the rule for determining when a lawyer may withdraw from an active proceeding is covered by Rule 2-132.

 

  1. Times when a lawyer’s withdrawal is mandatory

According to Maryland  Rules of Professional Conduct (“Rule”) 1.16(a), a lawyer must cease representation of a client if “(1) the representation will result in violation of the Maryland Lawyers’ Rules of Professional Conduct or other law; (2) the lawyer’s physical or mental condition materially impairs the lawyer’s ability to represent the client; or (3) the lawyer is discharged.”[1]

An example of a violation of Rule 1.16(a)(1) occurred in Atty. Griev. Comm’n of Md. v. O’Leary.[2] In O’Leary, a young female attorney represented a man in a divorce and child custody action.[3] During the course of the proceedings, the attorney began a romantic relationship with her client and allowed the man to move into her home.[4] Subsequently, the attorney continued to represent the client and negotiate his child support obligations while simultaneously paying the client’s child support.

These actions were a clear violation of Rule 1.7(a) which provides: “…a lawyer shall not represent a client if the representation involves a conflict of interest. A conflict of interest exists if: . . . (2) there is a significant risk that the representation of one or more clients will be materially limited…by a personal interest of the lawyer.[5]

Also, an example of a violation of Rule 1.16(a)(2) occurred in Atty. Griev. Comm’n v. Patton.[6] In Patton, an attorney suffered from an addiction to a narcotic known as oxycodone.[7] Despite his addiction, the attorney continued to enter agreements to represent clients in various criminal law matters.[8] However, the attorney failed to attend his clients’ court proceedings, and also failed to respond to judges, clients, and opposing counsel.[9] As a result, the court held that the attorney violated Rule 1.16(a)(2) by neglecting to withdraw from representing his clients.[10]

Since withdrawal is mandatory under the above mentioned circumstances, failure to withdraw can lead to sanctions such as suspension or disbarment.

Note: If you are a lawyer suffering from a drug addiction, you don’t have to face your problems alone. The MSBA’s Lawyer Assistance Program was created to help you with your treatment and recovery. Contact Lisa Caplan, Program Counselor, by phone at 443-703-3042 or by email at lcaplan@msba.org.

You may also benefit from visiting the organization’s website. To do so, go to http://www.msba.org, click on “departments” then click on “Lawyer Assistance Program.”

 

  1. Times when a lawyer’s withdrawal is optional

Although the situations above highlight times when a lawyer must withdraw his representation, the rules also mention a number of instances when withdrawal is optional:

According to Rule 1.16(b), in instance other than those involving tribunals, withdrawal is optional if:

“(1) withdrawal can be accomplished without material adverse effect on the interests of the client;

(2) the client persists in a course of action involving the lawyer’s services that the lawyer reasonably believes is criminal or fraudulent;

(3) the client has used the lawyer’s services to perpetrate a crime or fraud;

(4) the client insists upon action or inaction that the lawyer considers repugnant or with which the lawyer has a fundamental disagreement;

(5) the client fails substantially to fulfill an obligation to the lawyer regarding the lawyer’s services and has been given reasonable warning that the lawyer will withdraw unless the obligation is fulfilled;

(6) the representation will result in an unreasonable financial burden on the lawyer or has been rendered unreasonably difficult by the client; or

(7) other good cause for withdrawal exists.”[11]

The rules listed above are pretty self-explanatory. As a result, there have not been many cases or ethics opinions published on the topic.

Still, a careful reading of the published cases and the comments that follow the rule highlight two ethical concerns that should be used when examining actions under Rule 1.16. First, a critical consideration is whether the lawyer’s withdrawal will have an adverse impact on the client’s interest.[12] Second – and even more important – is whether the client has misused the lawyer’s services in the past.[13] If so, the lawyer may withdraw regardless of the effect the withdrawal has on the client’s interest.[14]

Thus, a lawyer has the right to inform the client of his intent to cease representation, so long as the attorney was not appointed by a tribunal,[15] and the attorney is not currently representing the client during an active proceeding.[16]

See Section C below for the process of withdrawing during active court proceedings.

 

  1. Withdrawal during court proceedings

In addition to the general rule regarding withdrawal discussed above, Rule 2-132 governs withdrawal during court proceedings.[17] As indicated in a state ethics opinion, in general,  Rule 2-132 “permits an attorney to strike his appearance (i) when the client has another attorney of record, or (ii) by motion accompanied by the client’s written consent or the moving attorney’s certificate that notice of intent to withdraw from representation has been mailed to the client at least five days prior the filing of the motion.”[18]

Still, the Court may deny the motion if withdrawal of the attorney’s appearance would cause undue delay, prejudice, or injustice.[19]

As long as the attorney provides the client with ample notice of his intent to withdraw, the court has tended to permit the attorney to end his representation of the client. For example, in Serio v. Baystate Props., the court approved an attorney’s withdrawal on the day of trial since the attorney had given the client notice of her intent to withdraw eight weeks prior to the day of trial.[20] Likewise, in Das v. Das, the court upheld an attorney’s right to withdraw since the attorney notified the client of her intent to withdraw approximately nine weeks prior to a pendente lite child support hearing.[21]

So, an important consideration to the court’s determination of whether withdrawal during a proceeding will cause undue delay, prejudice, or injustice is whether the client was given sufficient notice of the need to find a new attorney prior to a hearing or trial.

 

Summary:

Rule 1.16 sets guidelines for determining when withdrawal is mandatory and when it is optional. In addition, Rule 2-132 provides the appropriate means of withdrawing during a legal proceeding. A lawyer interested in withdrawing should consider each of these rules and their accompanying comments before acting.

[1] Maryland Rules of Professional Conduct 1.16(a) (2013).

[2] 69 A.3d 1121 (Md. 2013).

[3] Id.

[4] Id.

[5] Maryland Rules of Professional Conduct 1.7(a) (2013).

[6] 69 A.3d 11 (Md. 2013)

[7] Id.

[8] Id.

[9] Id.

[10] Id.

[11] Maryland Rules of Professional Conduct 1.16(b) (2013).

[12] Id. at cmt. 6 (providing that a lawyer who has been discharged by a client with diminished capacity, should still make a “special effort to help the client consider the consequences and may take reasonably necessary protective action…”); Attorney Grievance Comm’n v. Dietz, 629 A.2d 678 (Md. 1993) (reiterating that an important consideration when determining if a lawyer may withdraw is whether it can be accomplished without material adverse effect on the interests of the client).

[13] Maryland Rules of Professional Conduct 1.16 cmt. 7 (providing that “withdrawal is also permitted if the lawyer’s services were misused in the past even if that would materially prejudice the client”).

[14] Id.

[15] Maryland Rules of Professional Conduct 1.16(c) (2013) (providing that “[a] lawyer must comply with applicable law requiring notice to or permission of a tribunal when terminating representation. When ordered to do so by a tribunal, a lawyer shall continue representation notwithstanding good cause for terminating the representation”).

[16] Md. R. 2-132 (Michie, LEXIS through 2013) (providing the procedure for withdrawing representation during an active proceeding).

[17] Id.; Md. State Bar Ass’n Comm. on Ethics, Op. 1994-8 (1994) (providing that “the legal aspects of withdrawal of an attorney’s appearance in a proceeding in this State is governed by the Maryland Rules of Procedure, and specifically Rule 2-132”).

[18] Id.

[19] Id.

[20] 60 A.3d 475 (Md. Ct. Spec. App. 2013) (providing that the trial court did  not abuse its discretion when it allowed an attorney to withdraw representation since the attorney notified the client that she was ending her private practice to work for the federal government eight weeks prior to the trial).

[21] 754 A.2d 441 (Md. Ct. Spec. App. 2000).

Consultation Fees in Maryland

by Trey Ross, M.Ed., Esq.agreement

Lawyer: I’ve heard of attorneys charging a nonrefundable consultation fee or an engagement fee. I would like to know if it’s all right for my firm to request such fees. Can we do that?

Brief answer: In almost every case, a Maryland lawyer will be in violation of the Maryland Lawyer’s Rules of Professional Conduct if he charges a nonrefundable fee. Still, for lawyers who do, you should be well-versed in the limited exceptions (discussed below) in which Maryland courts have sided with attorneys on this topic.

  1. Consultation fees in general

A consultation fee is usually a nonrefundable fee paid to the attorney by the client – or the potential client – in exchange for the lawyer’s time at their initial meeting. Because the written agreement between the parties indicates that the fee is nonrefundable, attorneys often place the funds in their personal accounts rather than the state mandated client escrow account.

Lawyers who charge a nonrefundable fee and those who place such payments in anything other than the client trust account[1] will likely face reprimand or disbarment if challenged by the Attorney Grievance Commission.[2]

To start, lawyers are prohibited from charging unreasonable fees.[3] Ordinarily, at the point of consultation, the lawyer has not completed any legal work which should require a fee. Therefore, consultation fees are almost always unreasonable since they are unearned.[4]

In addition, nonrefundable consultation fees are contrary to public policy. A nonrefundable fee agreement “undermines the client’s understanding of her rights and may discourage a client from seeking refunds to which the client may be entitled.”[5] Also, non-refundable fees “may discourage the client from discharging her lawyer for fear the client will not be able to recover advance fees for which the lawyer has yet to perform any work.”[6]

  1. The Engagement Fee: A consultation fee exception

Some lawyers have tried to obtain nonrefundable-upfront-fees by calling the fee an “engagement fee.”[7] An engagement fee is a nonrefundable fee that is paid upfront and does not have to be deposited in a client escrow account since it automatically becomes the property of the attorney.[8]

Maryland’s highest court has provided that an attorney can require an engagement fee when he or she “performs a service or provides a benefit to the client in exchange for the fee.”[9] However, an engagement fee can be requested in a small number of situations; simply calling a fee an engagement fee will not suffice.[10]

One instance where Maryland has recognized that an engagement fee can exist is when “the attorney is deprived [of] the right of rendering services for the other party” by meeting with the potential client.[11] For example, as discussed in Stinson, “in certain counties [in Maryland] one spouse will attempt to prevent his/her mate from obtaining representation [in divorce proceedings] by arranging initial conferences and thereafter discharging skilled family practitioners. For this reason, those specialists demand what appear to be high–if not exhorbitant [sic]–initial consultation fees.”[12]

So, if meeting with a potential client forces the attorney to turn away work that he or she would have otherwise accepted, the attorney can charge an engagement fee.[13]

Other instances in which Maryland has implied – via dicta – that an attorney could be justified in charging an engagement fee occur when the fee is paid “in consideration of [an attorney’s] expertise and skill in [a particular area of law],” paid for an attorney’s act of “prioritizing [the client’s] case over other work,” paid because the attorney “would need to hire additional help to take on the case,” or paid so that the attorney “could keep up with” a particular field of law.[14]

Note: It is odd how the court suggests that an attorney can charge a nonrefundable fee for offering his “expertise” yet an attorney would be in violation of the rules if he holds himself out as an expert.[15] Likewise, the other examples mentioned in the paragraph above seem to fall under general duties of practitioners, so one would think that lawyers cannot charge a special fee for such actions.[16]

Summary:

Nonrefundable consultation fees are generally unreasonable and are arguably a violation of public policy. In most instances, a nonrefundable fee will be a violation of the Maryland Lawyer’s Rules of Professional Conduct, and can lead to disbarment or other sanctions. Thus, a lawyer would be wise to avoid using them altogether.

Although the court has provided an engagement fee exception, the risks associated with improperly charging a nonrefundable fee far outweighs the short-term windfall the lawyer may receive from the client.

[1] Md Lawyers’ Rules of Prof’l Conduct R. 1.15(a) (West, Westlaw through 2/1/2013) (requiring all client funds to be placed in a client trust account until earned by the attorney).

[2] Nonrefundable Fees? Maryland Courts (8/26/2013 1:50 AM), http://www.mdcourts.gov/attygrievance/docs/

articles/barjournalart4.pdf (providing “[a]n attorney who states that her advanced fee is non-refundable is…misleading her client”).

[3] Md Lawyers’ Rules of Prof’l Conduct R. 1.5(a) (West, Westlaw through 2/1/2013).

[4] E.g., Attorney Grievance Comm’n of Md. v. Stinson, 50 A.3d 1222 (Md. 2009) (providing that an attorney was in violation of the Maryland rules for refusing to a refund a client for a “nonrefundable” upfront fee).

[5] Nonrefundable Fees? Maryland Courts (8/26/2013 1:50 AM), http://www.mdcourts.gov/attygrievance/docs/

articles/barjournalart4.pdf (citing In re Sather, 3 P.3d 403 (Colo. 2000)).

[6] Id.

[7] Stinson, 50 A.3d 1222.

[8] Attorney Greivance Comm’n of Md. v. Kreamer, 946 A.2d 500, 542 n.16 (Md. 2008) (citing In re Gray’s Run Technologies, Inc., 217 B.R. 48, 53(Bankr. M.D. Pa. 1997) and providing that engagement fees are “earned upon receipt”); Md. State Bar Ass’n Ethics Op. 92-41 (1992)(providing that “[i]f the retainer is ‘an engagement fee’ and if it is reasonable under the dictates of Rule 1.5(a), the fee can be placed in the firm’s general account).

[9] Stinson, 50 A.3d at 1243 (quoting In re Sather, 3 P.3d 403, 411 (Colo. 2000)).

[10] Id. at 1222.

[11] Md. State Bar Ass’n Ethics Op. 92-41.

[12] Stinson, 50 A.3d at 1232-1233 (citing a lower court’s discussion of Melvin Hirshman, Aspects of Attorneys’ Fees: Engagement Fee, Non-Refundable Retainer, Limitations on the Ability of Counsel to set a Fee, Maryland Bar Journal, Apr. 17, 1984, at 13).

[13] Id. at 1244.

[14] Id.

[15] Md Lawyers’ Rules of Prof’l Conduct R. 7.4 (West, Westlaw through 2/1/2013) (providing “[a] lawyer shall not hold himself or herself out publicly as a specialist”).

[16] E.g., Md Lawyers’ Rules of Prof’l Conduct R. 1.3 (West, Westlaw through 2/1/2013) (providing “[a] lawyer shall act with reasonable diligence and promptness in representing a client”); Md Lawyers’ Rules of Prof’l Conduct R. 1.1 (West, Westlaw through 2/1/2013) (providing “[a] lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation”).

Copyright: Tricky business at times

By Trey Ross, Esq.Copyright symbol

Client: I’m a writer. I entered a contract with a photographer to produce some headshots that I could use for the cover of my new book. The photographer developed the pictures but also included her trademark and a copyright symbol in a small portion of the lower right side of the pictures. I explained to her that I need the pictures to be free of all commercial markings like trademarks and copyright symbols.

My book is going to be offered for sale on Amazon.com in two weeks so I used Photoshop to remove the photographer’s trademark and copyright symbol, and I submitted the revised portrait to Amazon.com along with the book cover.

Do copyright laws give her the power to force me to use her trademark on my portraits?

Brief Answer: That’s very likely. However, the answer depends on who owns copyright to the portrait. If the photographer is considered an employee, then you—the employer—would own copyright in the absence of an agreement stating otherwise. On the other hand, if the photographer is the author of the headshots, you may be liable for creating an infringing derivative work.

  1. Introduction:

Simply put, copyright pertains to the right to make copies. When an author expresses an original idea in a tangible form, the author has copyright to the work.[1] However, determining who the author is can be tricky. For example, employers can be authors of works created by employees, and people who commission a work to be completed by an independent artist can obtain copyright if a written agreement says such.

If one alters someone else’s copyrighted work without first obtaining permission to do so, the person making the alterations can be liable for infringement.

Still, if defenses to infringement apply, the person making the alterations may not face a penalty.

  1. Ownership of works made by others:

An author is “he to whom anything owes its origin; originator; maker.”[2] An important exception exists in the case of “works made for hire” (“WMFH”).[3] In WMFH situations, “the employer or other person for whom the work was prepared is considered the author” and owns the copyright, unless there is a written agreement to the contrary.[4]

Section 101 of Title 17 of the United States Code lays out two scenarios where there can be a work made for hire. The two specific circumstances where a work is “for hire” are as follows:

  • a work prepared by an employee within the scope of his or her employment; or
  • a work specially ordered or commissioned for use as a contribution to a collective work, as a part of a motion picture or other audiovisual work, as a translation, as a supplementary work, as a compilation, as an instructional text, as a test, as answer material for a test, or as an atlas, if the parties expressly agree in a written instrument signed by them that the work shall be considered a work made for hire.[5]

So, when the parties have not signed a written agreement describing a creation as a work made for hire, the Court’s analysis will focus on whether the person preparing the work is an employee. To determine whether the artist working for you is an employee, the court will examine factors which include:

  1. the hiring party’s right to control the manner and means by which the product is accomplished;
  2. the skill required;
  3. the source of the instrumentalities and tools;
  4. the location of the work;
  5. the duration of the relationship between the parties;
  6. whether the hiring party has the right to assign additional projects to the hired party;
  7. the extent of the hired party’s discretion over when and how long to work;
  8. the method of payment;
  9. the hired party’s role in hiring and paying assistants;
  10. whether the work is part of the regular business of the hiring party;
  11. whether the hiring party is in business;
  12. the provision of employee benefits; and
  13. the tax treatment of the hired party.[6]

For example, in Community for Creative Non-Violence, a nonprofit organization hired a sculptor to produce a sculpture that would raise awareness of the plight of homeless people. Although the nonprofit organization directed the work of the sculptor, the Court found that the sculptor was not an employee since (1) sculpting is a skilled occupation, (2) the sculptor used his own tools, (3) the sculptor worked from his own studio, (4) the sculptor was retained for a short period of time (less than two months), (5) the nonprofit organization was not able to assign additional work to the sculptor, and (6) the sculptor had absolute freedom to determine when and how long to work.[7]

As a result, the sculptor was considered either a joint author or the sole author of the sculpture.[8]

With that in mind, unless an author (e.g., a photographer) has given up some or all of his rights, he is entitled to a number of exclusive powers. See Section III below.

  • Alterations and Derivative Works:

As a copyright owner, a person is entitled to a number of exclusive rights.[9] For example, the copyright owner has the exclusive right to make and create “derivative works” from his original copyrighted work.[10] A derivative work is “a work based upon one or more preexisting works, such as a[n]…art reproduction…or any other form in which a work may be recast, transformed, or adapted.[11]

Also, it is important to note that if a photographer has copyright to a photograph but grants a person permission to use the photo, the user “may not exceed the specific purpose for which permission was granted,”[12] and “unauthorized editing of the underlying work . . . constitute[s] an infringement of the copyright….”[13]

For example, in Tattoo Art Inc., v. TAT International, a tattoo artist (“the author”) created a number of illustrations that were to be used as prototypes for future tattoos requested by clients.[14]  The author gave the defendant permission to use the author’s illustrations in exchange for a royalty fee. After some time, the defendant stopped making royalty payments to the author but continued to use the author’s illustrations.[15] In addition, the defendant removed the author’s copyright markings from the author’s illustrations and altered the color of some of the author’s works.[16] As a result, the defendant had created unauthorized derivative works of the author’s original works.[17]

After the author sued the defendant for copyright infringement, the Court found the defendant liable.[18]

 

Summary:

When having work produced by someone else (e.g., a photographer), the author of the work will typically be the person who places your ideas into a tangible form—like a photograph. However, if you and the photographer have signed a written agreement stating that the work was produced as a work made for hire or if the facts show that the artist was an employee, then you may be considered the author of the headshots.

Also, copyright laws give authors or copyright holders the exclusive right to make derivative works. So, if you remove things like trademarks and copyright symbols from a work, you could be liable for infringement.

 

 

Note: This article does not discuss defenses to copyright infringement or joint authorship. Look for future publications on each of those topics.

 

[1] 17 U.S.C. § 103 (1976) (providing that “[c]opyright protection subsists, in accordance with this title, in original works of authorship fixed in any tangible medium of expression, now known or later developed, from which they can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device”).

[2] Feist Publ’ns, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340, 346 (1991) (quoting Burrow-Giles Lithographic Co. v. Sarony, 111 U. S. 53, 58 (1884)).

[3] Cmty. for Creative Non-Violence v. Reid, 490 U.S. 730, 737 (1989).

[4] Id.

[5] 17 U.S.C. § 101 (1976); See e.g., Billco Int’l v. Charles Prods., 776 F.Supp.2d 105, 111 (2011).

[6] Community for Creative Non-Violence, 490 U.S. at 751-752.

[7] Id. at 752-753.

[8] Id. at 753 (providing that “[the nonprofit organization] nevertheless may be a joint author of the sculpture if, on remand, the District Court determines that CCNV [the nonprofit organization] and Reid [the sculptor] prepared the work ‘with the intention that their contributions be merged into inseparable or interdependent parts of a unitary whole’”).

[9] 17 U.S. Code § 106 (1976) (providing that “the owner of copyright under this title has the exclusive rights to do and to authorize any of the following: (1) to reproduce the copyrighted work in copies or phonorecords; (2) to prepare derivative works based upon the copyrighted work; (3) to distribute copies or phonorecords of the copyrighted work to the public by sale or other transfer of ownership, or by rental, lease, or lending; (4) in the case of literary, musical, dramatic, and choreographic works, pantomimes, and motion pictures and other audiovisual works, to perform the copyrighted work publicly; (5) in the case of literary, musical, dramatic, and choreographic works, pantomimes, and pictorial, graphic, or sculptural works, including the individual images of a motion picture or other audiovisual work, to display the copyrighted work publicly; and (6) in the case of sound recordings, to perform the copyrighted work publicly by means of a digital audio transmission”).

[10] Id.

[11] Id. at § 101.

[12] Gilliam v. Am. Broad. Cos., 538 F.2d 14, 20 (2d Cir. 1976).

[13] Id. at 21 (emphasis added).

[14] No. 11-2014 (4th Cir. 2012).

[15] Id.

[16] Id.

[17] Id.

[18] Id.

Premises Liability: Regular people differ from businesses

by Trey Ross, M.Ed., Esq.Holiday party

Homeowner: I’m hosting a Christmas party at my home this year. Because of the way my house is designed, guests have to climb a set of stairs once they enter the front door. A few of my guests are in their early 70s, so I suspect they may have trouble with the stairs.

I’ll also be serving alcohol and there will be teenagers at the party as well.

I know businesses can be sued when a person is hurt on a company’s property. What should I do to protect myself from liability during my holiday party?

Brief Answer: Unlike businesses, a homeowner hosting a party only has to warn his guests of known dangers that are not obvious.

Premises Liability: Regular people differ from businesses

Businesses and regular people have different relationships with those invited onto their respective properties; thus, Maryland recognizes that they also have different duties.[1] While businesses have a duty to make reasonable efforts to investigate potential hazards and to make their properties safe for their invitees,[2] homeowners who invite social guests onto their property have much smaller burden.[3]

Maryland follows the rule outlined in the Restatement (Second) of Torts which provides that a person who hosts others at his home is only liable for physical harm to his guests when:

(1) the host knows about or should know about a hazard,

(2) the hazard presents an unreasonable risk of harm to guests,

(3) the host should expect that guests will not discover or realize the hazard,

(4) the host fails to warn the guests of the hazard or makes it safe, AND

(5) the injured guest did not know about or have reason to know about the hazard.[4]

Each of the elements above must be satisfied if an injured guest is to hold his host liable. Further, “[t]he host has no duty to warn of dangers or defects of which he had no knowledge or means of knowledge, nor does he have a duty to give a warning of a condition which should be obvious to the guest.”[5]

For example, in Paquin, the defendants allowed the plaintiffs, Mr. and Mrs. William Paquin, to spend a weekend at their home while the plaintiffs were in town visiting.[6] The bedroom provided to the plaintiffs contained a small “scatter” rug on each side of the plaintiffs’ bed, and the floor was made of polished hardwood.[7] As Mrs. Paquin prepared for bed, she stepped on the scatter rug and the rug slipped across the hardwood floor. As a result, Ms. Paquin fell and was injured.[8]

Mr. and Mrs. Paquin sued the defendants believing that the hosts were liable for the injury Mrs. Paquin sustained while on their property. However, the Court held that the defendants were not liable since the hazard posed by a rug lying on a polished hardwood floor was obvious and it was not inherently dangerous.[9]

A second example of how homeowners have a lesser duty to their guests was examined by the Fourth Circuit (i.e., federal court) a few years ago in the case of Kirchoff v. Abbey.[10] In Kirchoff, the plaintiff, Mark Kirchoff, attended a party where underage people were drinking unsupervised.[11] While at the party, the plaintiff was attacked by a group of party goers and was struck in head by an empty vodka bottle.[12] The plaintiff suffered permanent injuries as a result of the attack, and he brought a suit against the owner of the property and the host of the party.[13]

The court held that the plaintiff was not entitled to recover from the property owner since there was no evidence that the defendant knew or should have known about the underage drinking.[14] Likewise, the court held that the plaintiff was not allowed to hold the host liable since, among other things, the plaintiff “was a social guest who could discover the risks posed by the underage drinking party.”[15]

Summary:

Individuals who host holiday parties should warn their guests of any nonobvious hazard on the property. Potentially dangerous conditions that are obvious (e.g., stairs and intoxicated guests) are not things homeowners should be overly concerned with since the law expects houseguests to protect themselves from observable hazards. Regular people who invite others into their homes for purely social engagements are not going to be held to the same standard as businesses who invite people to their properties for commercial reasons.

[1]  Paquin v. McGinnis, 246 Md. 569, 573 (1967) (providing that “[a] business visitor or invitee who enters the private premises at the express or implied invitation of the occupier has a relationship with the invitor much different from that of a social guest and a host”).

[2] Id. (providing that a business owner “is under an affirmative duty to protect…not only against dangers of which he knows, but also against those which with reasonable care he might discover”).

[3] Id. at 574 (providing that “[i]t would be too much to ask a host to provide greater care for a guest, who benefits from his host’s gratuitous hospitality, than the host provides for his own family”);  Voelker v. Delmarva Power & Light Co., 727 F. Supp. 991, 998-999 (D. Md. 1989) (providing that “a social guest is considered a licensee by invitation. Bramble v. Thompson, 264 Md. 518, 521, 287 A.2d 265 (1972). A licensee by invitation takes the property as the owner and the members of the owner’s family use them”).

[4] Paquin, 246 Md. at 572.

[5] Id.

[6] Id.

[7] Id.

[8] Id.

[9] Paquin, 246 Md. at 574 (providing that “[t]he use of hardwood, polished, waxed floors, furnished with rugs, in homes is a matter of common knowledge; and this type of floor and furnishing is not inherently dangerous or a hazard to the safety of a social guest”).

[10] 2011 U.S. Dist. LEXIS 114838, 13-14 (D. Md. Oct. 5, 2011).

[11] Id. at 4.

[12] Id. at 4-5.

[13] Id. at 5.

[14] Id. at 13-14 (providing that since “no reasonable jury could find that Windridge [the property owner] had actual or constructive notice of the underage drinking parties Windridge could not have foreseen the harm that would result from allowing such parties to continue occurring and so had no duty to shut them down”).

[15] Id. at 20.

Individualized Education Programs (IEPs), FAPE, and student placement: Questions answered

by Trey Ross, M.Ed., Esq.Student-IEP

Parent: “My child is failing and his teachers are ignoring his IEP. I’d like to have my child taken out of public school and placed in a private school that can better serve him. I’ve heard that I can get the school district to pay for his private school education; is that true?”

Brief answer: Possibly. If a public school fails to provide your child with a free appropriate public education by neglecting to implement “substantial and significant provisions” outlined in his IEP, private school placement at the district’s expense may be an option if doing so is appropriate.

  1. What is an IEP?

Under the Individuals with Disabilities Act (“IDEA”), States receiving federal aid must develop an individualized education program (“IEP”) for each child with a disability to ensure that it offers a free appropriate public education (“FAPE”) to all children.[1] The IEP must be in effect at the start of each school year,[2] it will need to consider the “academic, developmental, and functional needs of the child.”[3]

  1. Is a failure to implement an IEP a denial of a FAPE?

Typically, to determine if a child has been denied a FAPE, the court will decide (1) whether the school violated the procedural requirements of the IDEA, and (2) whether the IEP is “reasonably calculated to enable the child to receive educational benefits.”[4] The latter requirement generally protects a school from liability if its actions further the child’s education even if the education received is not the finest.[5]

However, when a school unilaterally chooses not to implement significant provisions of a child’s IEP (i.e. when it violates the procedural requirements of the IDEA),[6] the court has held that a FAPE is denied regardless of whether the child was resilient enough to receive some educational benefit.[7]

Thus, a FAPE requires that instruction be catered to the child’s IEP.[8] However, a failure to implement all the provisions of the IEP is not a denial of FAPE[9] since a FAPE is denied only if the school fails to implement “substantial and significant provisions” of the IEP.[10]

For example, in Manalansan, a first-grader with physical impairments that limited his ability to maintain balance while walking received an IEP which specified that he was to be aided when traveling through the school building. The school was also to provide the child with adult aides to assist him in a number of ways. However, the aides often came to school late, left early, and were frequently absent. As a result, the child was seriously injured when he was knocked to the ground by a group of children as he was going to his locker.

The court held that the presence of an aide was a substantial and material provision in the child’s IEP since the IEP mentioned that services could not be rendered without the help of an aide.[11] In essence, the school said that an aide was necessary to provide a FAPE, and the court determined that failure to provide an aide constituted a denial of a FAPE even if the child managed to learn without the aide.[12]

Moreover, if a public school denies a FAPE, the court may decide that the parent is entitled to enroll the child in a private school at the public’s expense.[13] See Section C below.

 

  1. Private school placement: Compensatory Education

A court may only award a parent with compensation for a private school education if (1) the public school is unable to meet significant provisions of the child’s IEP and thus incapable of providing a FAPE,[14] and (2) a private school can meet the provisions of the child’s IEP thereby making placement in a private school appropriate.[15]

For example, in School Committee of the Town of Burlington v. Department of Education of the Commonwealth of Massachusetts (“Burlington”), the US Supreme Court held that reimbursement of private school expenses was the appropriate remedy for the public school’s failure to provide a FAPE.[16] In Burlington, a child qualified for special education services but a specialist stated the child required education in a “highly specialized setting for children with learning handicaps . . . such as [the state-approved private school].”[17] Since the child’s public school was unable to meet his specific learning needs and the private school could, the child was enrolled in the private school at the public’s expense.

Summary:

Failure to follow the all of the requirements of an IEP will not necessarily give you a right to have your child placed in private school at the public school’s expense. To qualify for such an arrangement, the public school must fail to provide your child with a FAPE by neglecting to implement significant provisions outlined in the IEP. Also, there must be a private school capable of providing your child with the requirements outlined in the IEP or else placement in a private institution will not be appropriate.

[1] 20 U.S.C. §1412(a)(4) (GPO 2011) (providing that,  among other things, “[a] State is eligible for assistance…if the State submits a plan that provides assurances…[that it] has in effect policies and procedures to ensure that the State…[has an IEP for each child with a disability]”); Forest Grove Sch. Dist. v. T. A., 129 S.Ct. 2484 (2009).

[2] Id. § 1414(d)(2).

[3] Id. at 1414(d)(3)(a)(iv); Forest Grove Sch. Dist., 129 S.Ct. at 2503 (providing “[a]n IEP is an education plan tailored to a child’s unique needs that is designed by the school district in consultation with the child’s parents after the child is identified as eligible for special-education services”).

[4] Manalansan v. Bd. of Educ., 2001 U.S. Dist. LEXIS 12608, 41 (D. Md. 2001).

[5] MM v. Sch. Dist., 303 F.3d 523, 526 (4th Cir. 2002) (providing that “[t]he IDEA does not, however, require a school district to provide a disabled child with the best possible education”).

[6] Manalansan, 2001 U.S. Dist. LEXIS 12608 at 45 (providing “[t]he school, however, does not have the discretion to decline to implement the services listed in the IEP or decide unilaterally, without initiating an IEP meeting to institute a change, that a service listed in the IEP need not be provided”).

[7] Id. at at 41 (providing that “[t]he Fourth Circuit has held that ‘failures to meet the Act’s procedural requirements are adequate grounds by themselves’ for finding a denial of FAPE, apparently without an inquiry into whether educational benefit was conferred on the student despite of the procedural violation” quoting Hall v. Vance Cnty Bd. of Educ., 774 F.2d 629, 635 (4th Cir. 1985)).

[8] J. P. v. Cnty Sch. Bd., 516 F.3d 254, 257 (4th Cir. 2008) (providing that “[a] FAPE ‘consists of educational instruction specially designed to meet the unique needs of the handicapped child. . .supported by such services as are necessary to permit the child to benefit from the instruction’” quoting Board of Educ. v. Rowley, 458 U.S. 176, 188-89 (1982)).

[9] Manalansan, 2001 U.S. Dist. LEXIS 12608 (providing “to prevail on a claim under the IDEA, a party challenging the implementation of an IEP must show more than a de minimis failure to implement all elements of that IEP, and, instead, must demonstrate that the school board or other authorities failed to implement substantial or significant provisions of the IEP. This approach affords local agencies some flexibility in implementing IEP’s, but it still holds those agencies accountable for material failures and for providing the disabled child a meaningful educational benefit” quoting Houston Indep. Sch. Dist. v. Bobby R., 200 F.3d 341, 349 (5th Cir. 2000)).

[10] Id.

[11] Id.

[12] Id.

[13] § 1415(i)(2)(C)(iii) (providing that a parent may bring a civil action and the court may provide relief as it deems appropriate).

[14] Forest Grove Sch. Dist.. 129 S.Ct. at 2488 (providing that “when a public school fails to provide a FAPE and a child’s parents place the child in an appropriate private school without the school district’s consent, a court may require the district to reimburse the parents for the cost of the private education”).

[15] Id. at 129 S.Ct. at 2504  n.9 (U.S. 2009) (providing “courts may grant reimbursement under § 1415(i)(2)(C)(iii) only when a school district fails to provide a FAPE and the private-school placement is appropriate”).

[16] 471 U.S. 359, 361 (1985).

[17] Id. at 362.