Mental Heath and the Practice of Law — RIP Paul Rawlinson

I am departing from snarky analysis today to address a subject of great importance to our profession:  mental health.  The trigger for this piece is the death of former Baker Mckenzie chair Paul Rawlinson, who just died during a leave taken for exhaustion. Words of memory can be found right now on Baker’s site, but they may move so I will quote them here:  “It is with great sadness that we mark the unexpected passing of Paul Rawlinson, the Firm’s Global Chair, on Friday, April 12, 2019. The Firm’s thoughts are with Paul’s family, who we will continue to support during this most difficult of times.  Our thoughts also go out to the very many friends at Baker McKenzie and outside the Firm who worked with and admired Paul. For all of us Paul was a visionary, a true leader and a good friend. He will be greatly missed.”

Dean Prosser wrote, slightly more than seventy years ago, that:

Your lawyer in practice spends a considerable part of his life doing distasteful things for disagreeable people who must be satisfied, against an impossible time limit and with hourly interruptions, from other disagreeable people who want to derail the train; and for his blood, sweat, and tears he receives in the end a few unkind words to the effect that it might have been done better, and a protest at the size of his fee. There is no lawyer who has not at some time in his life rebelled inwardly against all this, and wished that God had assigned him to the peaceful existence of a digger of ditches or a master plumber.

Prosser, 1 J. LEGAL EDUC. 257 (1948), Lighthouse No Good.  (accessible at https://www.stetson.edu/law/lawreview/media/lighthouse-no-good-reprint.pdf)

Those words were true well before then; those words are true now; those words will be true later.  Our profession wears away at the best of us and present greater dangers for those of us, me included, who come to the table with imperfect mental health.  Sports metaphors, though sometimes hackneyed, are useful — football beats down on the human body, and they running back with the genetically bum knee is going to get hurt faster and has to know his limits.

I won’t repeat the easy to find and all too amplified numbers on lawyer suicide.  Those numbers are the sizzle but detract attention from the real issue — mental health.  For every fatal suicide (please, let us cease using the phrase “successful suicide,” a writing sin of which I have been guilty), there are 25 survived attempts.   And for every one of those survived attempts, there are (depending on your source for information) a couple of hundred people with more than fleeting mental health issues.

Attorney mental health is both a professionalism issue and an ethical issue.  As colleagues, as fellow bar members, as people going through the same thing, we owe each other a duty to look for signs.  Sure, there are general lists that are out there about watching out for signs of  “feelings of hopelessness or worthlessness, depressed mood, poor self-esteem or guilt” but, do any of us really know how to see those feelings in others?  We must also consider that in our profession we have become quite adept at wearing various masks, that make any sort of feelings nearly impossible to detect from the outside.

There are, however, types of behaviors that we can see in others.  One list identifies behaviors like unreturned phone calls, unavailability, disappearance, changes in writing style, frequent extension requests and the like as signals for which to watch.  Certainly paying attention to negative professional outcomes and sudden economic pressures is worth doing.  If you see these behaviors in others, reaching out is not only the professional thing to do, it’s the “right” thing to do.  If reaching out directly is not something comfortable, you can talk with mutual friends, or you can make confidential reports to your bar’s lawyer assistance program and have professionals reach out.

Beyond the professional issue is the ethical issue.  I’ll spare the case cites, but if you go into your state’s lawyer discipline opinions and search for words/phrases “depression,” “bipolar,” and “mental health,” you will conclude that a statistically significant number of discipline cases involve attorneys with mental health issues.  Put simply, lawyers with unaddressed mental health issues present a danger to clients.  If you work with such an individual, take a look at the above factors to consider, and then look into whether you have an affirmative ethical duty to intervene.  (That’s too complicated an issue to address here.)

If you are that individual, it is up to you.  Monitoring your own mental health takes a level of self-awareness that — if you have a mental health issue — is likely not there.  Absent that self-awareness, all you can do is observe how others are treating you.  If there are changes for the worse — fewer invitations to lunch, a greater number of refused invitations, being passed over for things by others — then it is likely those changes are based on you, not others.  If you cannot determine those changes yourself — or even if you can — seek help from friends, from therapists, from clergy, from your bar’s lawyer assistance program, etc.

A few paragraphs ago, I underlined the word “unaddressed” with respect to mental health issues and the danger they present to clients.  An addressed mental health issue – and addressed here means therapy and perhaps medication – creates self awareness and stability.  Here, a medical analogy is instructive — an undiagnosed untreated asthmatic is playing with fire; a diagnosed and treated asthmatic avoids the dusty and dank spaces, and carries the emergency inhaler just in case.

Sadly, lawyers do not want to admit to mental health issues because of the stigma, or at least the perceived stigma.  Take another look at those discipline cases alluded to above, and you will find — as I have — numerous examples of attorneys with what are obvious mental health issues, who would rather get disbarred than admit to the issue.  Turning to pop culture, there are an enumerable amount of charming recovering alcoholic characters on screen and film (think:  Sam Malone), but those with mental health issues get to see the Castor Sotto character (Episodes) fall off the edge after going of medication.

I don’t know Paul Rawlinson; I don’t know what “exhaustion” means; I don’t know whether he had mental health issues.  I do know from context that he worked inside the hottest part of the crucible — running a major international firm — and then took a break, and then died.  That’s a signal to all of us to focus inside our heads, and inside the heads of others.

I can of course go on and on about this, and if you’d like me to, you know how to find me.

 

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When Gun Rights and Local Rights Collide

I don’t think it’s overly unfair to say that firearms rights, and a desire to be free of federal interference, are both tenets of those who call themselves conservative.  (It may be overly simplistic, but it is not unfair.) So when looking at a case like Burban v. City of Neptune Beach, 11th Cir., No. 18-11347, April 5, 2019 (and yeah, the Georgia state level courts are still not giving me anything to write about), where a local firearms regulation is more restrictive than a federal statute, you have to wonder which principle conservatives are rooting for.

At issue in Burban is the Law Enforcement Officers Safety Act (“LEOSA”), 18 U.S.C. § 926C.  LEOSA provides, basically, that a retired law enforcement officer, if provided the right type of identification, can carry a concealed weapon, notwithstanding  State or local restrictions.   Burban worked for the Neptune Beach police for 10 years, but when she sought the required ID from the police, Neptune Beach refused because of a application of various standards they require for the identification. Burban sued, claiming the existence of a private right of action under LEOSA enforceable under 42 U.S.C. § 1983.  The district court dismissed and the 11th Circuit affirmed.

The court began by explaining that a § 1983 claim required more that the violation of a federal law – rather, it required the violation of a federal right. Citing Blessing v. Freestone, 520 U.S. 329 (1997), the court explained a three part test – the alleged right must benefit the plaintiff; the right must not be vague; and it must be unambiguously binding on the states.  In this case, LEOSA did not contain mandatory language – indeed it lacked any directive requiring government action and spoke only to what a retired officer could be permitted to do.

The court went on, though, and discussed the concept of “anticommandeering,” which restricts the power of the federal government.  IN this case, the court reasoned, the federal statute could not be called into play to force a state actor (or local actor) to do something – like issue an identification card.

So, state/local rights 1, gun access 0.

How (Not) To Collect A Debt You Cannot Enforce

There are laws out there governing what can and cannot be done in the name of getting paid.  At the Federal level, it’s the Fair Debt Collection Practices Act (“FDCPA”), 15 U.S.C. § 1692 et seq. There are also various state law equivalents.   In Holzman v. Malcom S. Gerald & Associates, Inc., 11th Cir. No 16-16511, April 5, 2019, the Eleventh Circuit gave its view of the interesting issue of what happens when someone tries to collect a time-barred debt, joining the Third, Fifth, Sixth, Seventh and Eighth Circuits, sort of.

Defendant, a debt purchaser and collector, sought to collect a time-barred debt of $869.51 from Plaintiff. It stated that the balance was “due,” and was “delinquent.” It urged plaintiff to “take advantage of this offer” for a “reduced amount.”  Plaintiff sued (and sought class status), contending that (a) the communication was, itself, deceptive; and (b) that the attempted collection of a time-barred debt was a per se violation of the FDPCA.  The district court dismissed the claim with prejudice, citing authority from the Third and Eighth Circuits for the proposition that so long as no legal action is threatened, there is no FDCPA violation. The district court distinguished cases from the Fifth, Sixth and Seventh Circuits which held that the use of the word “settle” created an implicit threat of suit because Defendant’s communication used the word “resolve” and not “settle.”

Plaintiff fared better on appeal.  The Eleventh Circuit cited cases showing that “a debt collector violates § 1692e by making a representation in a collection letter that would be deceptive or misleading to the “least sophisticated” recipient of the letter.” This theoretical consumer “” is presumed to have only a “rudimentary amount of information about the world.””  So the question framed as such is whether this least sophisticated consumer would know that “resolve” and “settle” are not pretty much the same thing. Because this issue is one of fact, it is necessary that a jury decide it.  (The court very quickly upheld the dismissal of the per se claim.)

This leaves us with a good old fashioned circuit split. Keep your eyes open, and try to collect your debts in the Third (maybe) and the Eighth Circuits.

It’s A Boring FLSA Case, But It Is About Carvel Ice-Cream Cakes

The Georgia Court of Appeals seems to be on something of a spring break this week (4 days, 32 rulings, consisting of 1 actual option, 16 discretionary application rulings. 12 dismissals, 2 interlocutory denials, and 2 withdrawals) so the best thing out there today is the Eleventh Circuit’s unpublished opinion in Ehrlich v. Rich Products, 11th Cir., No. 18-12195, April 4, 2019.  On the one hand, I could ignore Ehrlich as a run-of-the-mill opinion in an area I don’t much discuss (FLSA).  But, and I cannot stress this enough, IT CONCERNS CARVEL ICE CREAM CAKES.  Any anything concerning CookiePuss and Fudgie the Whale is going to get my attention.

Ehrlich (and others similarly situated) worked for Rich Products, a company that makes and sells the aforementioned frozen dairy characters.  The products are made in Connecticut and sent all over the country.  They are not sent directly to stores, rather, they are sent to warehouses and distributed to stores from there.  Ehrlich worked in one of these warehouses and delivered products from the warehouse to the stores.  He worked more than 40 hours a week.  He believed he was owed an extra half on top of his cone for those hours.  Rich disagreed, contending that because Ehrlich was involved in the interstate transport of food products, the FLSA did not apply.  The district court agreed and the Eleventh Circuit affirmed.

At issue was whether the Motor Carrier Act (29 U.S.C. § 213(b)(1)) exemption applied to Ehrlich. The sole determination was whether Ehrlich’s deliver from a warehouse to a store both within the same state qualified as interstate commerce.  The court found the relevant question to concern whether there was a “continuous stream of interstate commerce because there was a practical continuity of movement.”  In concluding that this test was met, the court did not soft-serve its logic:  “the uncontroverted evidence establishes that Rich intended a continuity of movement of the products through the Burris warehouse because it intended for the products to be stored at the warehouse on only a temporary basis.”

Don’t, however, get mad at Fudgie (or CookiePuss).  Eventually – after Ehrlich complained but before this case concluded – overtime pay was put in place.

Everything You Ever Needed To Cite About Statutory Interpretation, Plus Lower Taxes For The Winner.

Although it is heartwarming to hear a court tell you that you were right when you said your taxes were too high, when it happens on April Fools Day, you might want to wait a few hours to be sure.  Dekalb County Board of Tax Assessors v. Astor Atl LLC, Court of Appeals of Georgia, April 1, 2019, No. A19A0516 concerns the assignment of market value for tax purposes to properties purchased in foreclosure sales.  To arrive at its answer, the Court of Appeals had to interpret three different statutes.

Astor purchased three properties at foreclosure in 2015.  In 2016, Dekalb assessed the properties as having higher values than the foreclosure prices. Astor sought summary judgment on the grounds that the 2015 foreclosure sale was a qualifying arms-length sale, and therefore established the value.  The trial court granted the motion, and Dekalb appealed.

In affirming the trial court, the Court of Appeals wrote your next statutory interpretation brief for you.  The issue was narrowly defined:  “whether a bank foreclosure sale pursuant to a deed under power qualifies as an arm’s length, bona fide sale.”  The court had to interpret three statutes to arrive upon the answer:  “OCGA §§ 48-5-1, which excludes forced sales from setting the valuation of a property; 48-5-2 (3), which freezes the fair market value at the price paid during the most recent arm’s length, bona fide sale; and OCGA § 48-5-2 (.1), which defines the term “arm’s length, bona fide sale.”

The court rolled out the greatest hits …. “presume that the General Assembly meant what it said and said what it meant”  . . . “simply apply the statute as written”  . . . “refrain from any interpretation which renders any part of the statutes meaningless” . . . ad of course “give a sensible and intelligent effect to each part.”  What’s more, we get to read that “specific statute will prevail over a general statute.”

All that taken together brought the court to the definitional statute, which included the words “including but not limited to a distress sale, short sale, bank sale, or sale at public auction” and was to control questions “notwithstanding any other provision of this chapter to the contrary.”  Thus, when Dekalb cited the general disapproval of forced sales, the Court chose to look to the more specific statute, and conclude  that the four enumerated types of sales, though not containing the word foreclosure, certainly descried the concept. The court told us to ignore contrary language in another case as dicta.

So, good news for foreclosure buyers.

Some People (OK, Some Lenders) Do Have To Be Told Twice

I haven’t had the chance to discuss foreshadowing in opinion-writing for a while, but a when a 60 page appellate opinion, in its third paragraph, uses the phase “If that wasn’t bad enough” to describe the actions of the defendant, you kind of know where the case is headed.  Marchisio v. Carrington Mortgage Services, 11th Cir. No. 17-10584, March 25, 2019, concerns the plight of a borrower who had to sue and settle once with a lender regarding false statements on a credit report, and then had to sue a second time when the lender didn’t comply with the settlement.

The facts, simplified for this summary, are as follows:  Defendant serviced Plaintiff’s mortgage. In 2008, Plaintiff defaulted and Defendants sought foreclosure.  In 2009 the foreclosure was resolved with, among other things, Defendant agreeing to report that the mortgage was discharged with nothing owed. Nonetheless, Defendant “resumed its debt collection efforts and reported Plaintiffs’ debt as delinquent.”  Plaintiff filed what I will call Lawsuit 1, then Defendant fixed some, but not all, of its misreporting.  That suit ended with a settlement which required, among other things, that Defendant fix the reporting.  This, Defendant did not do, causing financial harm to Plaintiff.  Lawsuit 2 followed. After that suit was filed, Defendants finally fixed all the errors.

Before I get into some legal analysis, let’s talk about judicial foreshadowing – my term for when the court dislikes your client so much, that you get reminded over and over before you even reach the law section of the opinion that you’re going to get slammed.  It’s not the warmest feeling.  This case uses more foreshadowing than I have read in a long while.  The following phrases appear in the fact section:

  • Defendant purportedly investigated
  • If that wasn’t bad enough
  • Plaintiffs continued to be plagued by Defendant’s failure
  • Given Defendant’s intransigence
  • Defendant’s continuing wrongful insistence
  • Plaintiffs’ previous efforts to end their ongoing nightmare

The law section contains many gems but “Defendant is dead wrong” stands out. To paraphrase Judge R. Bolton, if you think this has a happy ending for the Defendant, you haven’t been paying attention.

The rest of the case is a judicial tour de force filled with very citable paragraphs on the Fair Credit Reporting Act, the Florida Collections Act, breach of contract, and recovery of attorney’s fees. Because all but the FCRA claim concern Florida law, I will focus on the FCRA. The FCRA requires, roughly, that if someone claims there is an error, there must be an investigation and a correction.  There wasn’t really any dispute about the error, and the court upheld the summary judgment granted to Plaintiff. Where it got interesting was damages.  Plaintiff sought emotional distress and punitive damages, which the district court did not allow.  Defendant argued, and the lower court agreed, that there was a flaw in causation – namely that the emotional distress started before the FCRA violation. However, in so doing, the lower court ignored the Plaintiff’s contention that the violations were the cause of an exacerbation of distress.  Because of this, the court reversed the grant of summary judgment.

With respect to punitive damages, the district court – on its own and without argument – ruled that punitive damages should only be awarded for intentional misconduct.  The court here state that there was “no controlling authority” for that proposition, and send the case down for factual development at trial.

My view is that this is pretty clearly a case where the Defendant did something odious, the court was offended, and the court made its feelings clear.  As painful as that may be to read as the losing party, there are instances where as lawyers we tell our clients that their actions will cause problems, but our advice falls on deaf ears.  Sometimes a judicial slap across the face encourages an appropriate resolution.

SCOTUS Concludes That Repeating A Lie Violates 10b-5

I don’t normally cover SCOTUS decisions, but this makes two days in a row.  In Lorenzo v. Securities and Exchange Commission, SCOTUS No. 17-1077, March 27, 2019,  the court addressed whether an broker-dealer, who delivers statements made by an investment banking client to prospective purchasers, is liable if those statements are false or misleading.

It’s nice when the facts are simple.  Waste2Energy was Lorenzo’s investment banking client. In early October 2009, Waste2Energy publicly disclosed some very bad financial news.  Thereafter, Lorenzo’s boss gave Lorenzo some very positive emails to send regarding Waste2Energy, telling Lorenzo that these emails were approved.  Lorenzo sent these emails over his own name, with his title, asking anyone who received them to call him with questions.  The SEC fined Lorenzo and required him to seek work anywhere other than the securities industry for the rest of his life. Lorenzo appealed, making the Nuremberg-esque point that because he was just doing what his boss told him to do, he lacked the requisite intent to be held liable.  The Court of Appeals did not buy the logic. SCOTUS granted certiorari.

The Court noted that even though Lorenzo may not be the maker of the statement under 10b-5(b), his actions certainly called into play 10b-5(a) (“employ any device …”) and 10b-5(c) (“engage in any act . . ..”). Indeed, given Janus Capital Group, Inc. v. First Derivative Traders, 564 U. S. 135 (2011), the Court had little choice but to use those sections, having already ruled in Janus that “maker of a statement is the person or entity with ultimate authority over the statement, including its content and whether and how to communicate it.”

Lorenzo’s argument, at its core, was that if was not liable under Janus’s interpretation of 10b-5(b), that he could not be held liable under the other subsections.  The Court rejected that contention:  “Our conviction is strengthened by the fact that we here confront behavior that, though plainly fraudulent, might otherwise fall outside the scope of the Rule. Lorenzo’s view that subsection (b), the making-false-statements provision, exclusively regulates conduct involving false or misleading statements would mean those who disseminate false statements with the intent to cheat investors might escape liability under the Rule altogether.”

To me, the interesting thing is not the ruling, and not that Lorenzo wanted to continue to have opportunities in his chosen field of expertise, but that this case caught the Court’s eye at all.  The Court of Appeals already decided it the same way, there was no conflict in the circuits, etc.  Perhaps a desire to clarify Janus’s scope as narrow.