Since the federal courts have by and large but not completely decided there is no problem with it, federal prosecutors have taken to reading routinely the emails from pretrial detainees and inmates to their attorneys. Nice to know. The New York Times reports: Prosecutors Are Reading Emails from Inmates to Lawyers.
Scott Greenfield has a good take on the issue on his blog, Simple Justice: The Future of Law: Prisoner Edition.
and Justice for All.
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I can't say whether Angela Powell-Puckett had any genuine claim of discrimination, retaliation or harassment against her former employer, AK Steel Corporation. I do know that Powell-Puckett's deposition is a textbook example of how a plaintiff can throw away whatever case she had to begin with. Here's a brief excerpt from the Sixth Circuit's opinion drawn from Powell-Puckett's depositition in which she simply refuses to testify about her own case:
Q: Why do you believe Bill Belding discriminated against you? Tell the court why.
A: Becuase I was a replacement worker.
* * * * *
Q: Any other reason why you think he discriminated against you besides you were a replacement worker?
A: I don't recall at this time.
Q: Okay. Any other reasons why you think that Bill Belding discriminated against you?
A: Don't recall at this time.
Q: Okay. Any other reasons why you think that Bill Belding harassed you beause of your race?
A: Retaliation
* * * * *
Q: All right. Well, ... tell me how he harassed you because of your race.
A: I don't recall at this time.
Q: Okay. Tell me how he retaliated against you because of your race.
A: I don't recall at this time.
Q: Okay. Tell me why you think aybody in supervision at AK Steel discriminated against you because of your race.
A: I don't recall at this time.
Q: Tell me why you think anybody in management discriminated agains you becuase of your gender.
A: I don't recall.
Q: Okay. Tell me why you think anybody in AK Steel management rtaliated against you because of any protected activity you engaged in.
A: Don't recall.
* * * * *
Q: What proof do you have ... that the company fired you because of your filings with the EEOC?
A: That's just what I feel.
Q: Do you have any other reasons why you feel that way?
A: I have plenty of reasons.
Q: Well, now is the time to tell them.
A: Don't recall at this time.
These are all appropriate questions, except the one that asks what "proof" Powell-Puckett has to present, which is simply formed improperly. Plaintiffs must be advocates for themselves at their deposition; if they can't or won't their case will get thrown out of court just like this one.
The case is Powell-Puckett v. AK Steel Corporation, No 12-4424 (December 2, 2013).
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The attorney-client privilege in Kentucky with regard to statements by a corporation's employees turns on whether the employees' statements regard matters within the scope of their employment. This point the Kentucky Supreme Court again emphasized recently in Collins v. Braden, No. 2011-SC-770 (October 25, 2012).
The case was a medical malpractice case. The principal defendant, Baptist Healthcare Systems, had outside counsel investigate the incident in question and claimed the attorney-client privilege applied to two documents: an "Investigative Case Report" and a "Risk Occurrence Report." The trial court ordered the documents produced; the hospital corporation obtained a writ of prohibition from the Court of Appeals.
The Supreme Court, in an unanimous decision written by Deputy Chief Justice Mary C. Noble, reversed the Court of Appeals and vacated the writ. First, while an assertion of privilege is presumed valid, it is burden of the party claiming its privilege to establish its application. Second, while statements of employees to the corporation's lawyers can be privileged, the statements must be within the scope of the employee's employment and must regard matters within the scope of employment.
This second point is critical and provides a critical limitation under KRE 503(a)(2)(B)(ii) on the attorney-client privilege as applied to corporations under Kentucky law:
The limitation under KRE 503(a)(2)(B)(ii) is even more important. It distinguishes between employees who are "mere eyewitnesses" to an alleged tort by happenstance, and those who are witnesses because of their employment (and, more often than not, are alleged to have been involved in the tortious conduct). As Professor Lawson notes, this requirement is perhaps the most important because it "distinguishes between those employees who qualify as clients and those who must be viewed as mere witnesses." The distinction is perhaps best illustrated by an example used in the commentary that was included when the rules were first proposed in the 1990s:
Suppose, in a suit for personal injuries sustained when the client's truck entering the client's loading yard struck a pedestrian, the lawyer for the client interviews the driver of the truck and a secretary who happened to be looking out the window when the accident occurred. The interview with the driver would be privileged but not so the interview with the secretary because the accident was not a matter within the course and scope of her employment.
Evidence Rules Study Committee, Commentary to Proposed KRE 503(a)(2), Final Draft (November 1989), quoted in Lexington Public Library v. Clark, 90 S.W.3d 53, 60 (Ky. 2002).
Ultimately, the Court resolved that it could not determine how or whether the attorney-client privilege did or did not apply to the documents in question, because the hospital had not created a record sufficient for review of the question. Accordingly, the case was remanded to the circuit court for further proceedings.
The leading case cited by the Court was Lexington Public Library v. Clark, 90 S.W.3d 53 (Ky. 2002), where Robert L. Abell represented the plaintiff and real party in interest.
Robert L. Abell
www.RobertAbellLaw.com
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Is a lawyer that terminates representation under a contingent fee contract over a disagreement with the client regarding the client's refusal to accept a settlement offer entitled to an attorney fee if the case later settles? "No" the Kentucky Supreme Court has answered unanimously in Lofton v. Fairmont Specialty Insurance Managers, No 2010-SC-749 (June 21, 2012).
Denise Maxey hired lawyer Rodger Lofton to represent her in a personal injury and accident case on a contingent fee basis. Maxey was required to cover costs associated with the claim but Lofton's fee was contingent. After Maxey rejected a $25,000 offer to settle her claim at a mediation conference, Lofton withdrew as her counsel, a withdrawal for which he had to obtain permission from the circuit court. Subsequently, Maxey did settle her claim for $25,000. Lofton claimed that he was entitled to an attorney's fee based on at least a quantum meruit basis.
The Kentucky Supreme Court, in an opinion written by Justice Bill Cunningham, ruled unanimously that Lofton was not entitled to any fee. The Court's opinion offers a clear-eyed and straightforward of the attorney-client relationship:
Before accepting a case, an attorney has the opportunity to investigate the value of a claim and determine whether to advocate the cause. This frequently calls for work to be performed before a formal attorney-client relationship is formed. The work often goes uncompensated. For the attorney, time and effort must be spent in evaluating a possible claim. Once that information is gathered, the attorney has the power to proceed with the case or part ways with the client, fully aware of the risks involved in his representation in a claim or suit. But once the contract is signed, the client is vested with the power to determine the ends of the representation and claim.
****
There are bound to be disagreements between attorneys and clients during the relationship, but such a conflict does not merit termination of the entire relationship. Attorneys and clients do not stand on equal ground in making decisions about the ends or goals of such a relationship. A disagrement with a client over whether to accept a settlement offer is not good and sufficient cause for an attorney to withdraw with expectation of a quantum meruit fee.
***
We simply find that a disagreement as to the value of a case does not provide sufficient good cause which rises to that level. We would view the matter differently if the attorney and the client had reached a mutual understanding as to what the settlement goals would be, and then the client later departed from that understanding and adopted a substantially different settlement objective. Here, however, Lofton and Maxey did not discuss in advance of the first mediation their respective settlement objectives.
This dispute highlights two absolutely essential points: (1) the vital importance for both client and attorney of educating the client about the lawsuit process and how their claim would be valued both in settlement considerations and by a jury; and, (2) the client, of course, has the final say on whether or not the accept a settlement offer, which has always been the case pursuant to Kentucky Supreme Court Rule 1.2(a). The Court's caveat -- "we would view the matter differently" -- indicates its view that an attorney that properly and fully educates a client as to the value of the client's claim yet finds the client unreasonably rejecting a settlement offer (here the client was apparently steadfast in demanding not less than $1.2 million prior to Lofton's withdrawal but later accepted the same offer of $25,000 that Lofton advised her to take) will be deemed to have earned at least a quantum meruit fee.
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HIPAA prohibits disclosure of protected medical information, except under certain circumstances. One circumstance is in the course of a judicial proceeding in response to a court order, subpoena, discovery request "or other lawful process." The Georgia Supreme Court has ruled in Moreland v. Austin, No. A08G0498 (November 3, 2008), that informal interviews by a defendant's attorneys of the plaintiff's prior treating physicians violated HIPAA. HIPAA requires, the court explained, defendant's attorney to first obtain a valid authorization, or a protective order, or ensure that the patient has been given notice and an opportunity to object to the ex parte contact.
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Finding a jury's award of $100,000 in pain and suffering damages amounting to $8 a day for a multiple amputee as too low and a "miscarriage of justice" an appeals court in New Jersey sent the case back for another trial in Walsh v. Disciglio (click here to read the opinion issued August 19, 2008). The plaintiff, Walsh, was subjected to seven surgeries including three amputations as she lost more and more of a leg. The appeals court called the jury's compensatory damages award "grossly insufficient and a miscarriage of justice."
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One of the five biggest mistakes that can wreck a claimant's accident case is misrepresenting or exaggerating their injuries or how they have affected their activities. In a case recently tried in Raleigh, North Carolina, the plaintiff claimed that long-lasting effects of a brain injury sustained in a car and truck accident had destroyed and derailed her plans to become a teacher, according to a report in Lawyers USA. But her MySpace page told a different story as it includes pictures of the plaintiff at parties and entries describing her job searches and classes she was taking. The MySpace posting seriously undermined the plaintiff's injury claims and the jury rejected completely her case.
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