How to Get Away With Unethical Lawyering, Season 1, Episode 2

Long ago I wrote a post on the first episode of How to Get Away With Murder detailing the plethora of ethical violations committed by the characters. After writing that post, however, work got busier, other legal issues grabbed my attention, jobs changed, and How to Get Away With Murder was not yet on Netflix. My attention turned to other things, and the show (and even blogging) fell off my radar.

Today, I begin to remedy this state of affairs.

This is the first of a regular series of blog posts in which I issue-spot the ethical violations in How to Get Away With Murder. Unlike other commentators who highlight the broader inaccuracies in the show's portrayal of the legal profession, these posts will focus primarily on the ethical violations committed by the show's characters. As with my first post, I will cite to Pennsylvania's Rules of Professional Conduct.

This post (and those to follow) contain spoilers for those who have not yet seen the show. My posts will start with Season One and both seasons of the show are on Netflix, so those of you who want to watch the show and avoid spoilers should have no difficulty catching up.

Congratulations to Those Who Passed the California Bar Exam!

Today is the day that those who took the July California Bar Exam learned whether they have passed.  For those who passed, congratulations!  For those who did not -- all is not lost.  The bar exam is a challenge like no other and those who passed this year are yet again in the minority of test-takers.

Queenan on the Coming "National Plague of Dumb Lawyers"

At the Wall Street Journal, Joe Queenan writes this column about how law schools' lowering their admissions standards will lead to a plague of dumb lawyers. Queenan describes the chaos that will result:

Dumb lawyers will lose clients huge amounts of money by confusing “escrow” with a salad. They will forget that they are not supposed to show the court the telltale coal scuttle or the bloodstained handkerchief or the strangled parakeet, and their clients will do hard time as a result. 

Procedurally, dumb lawyers will paralyze an already sclerotic legal system. They will misplace files, spill coffee all over the DNA samples, take the wrong exit on the expressway and end up defending the wrong conscienceless psychopath in the wrong court in the wrong state. They will forget that they are not supposed to call the jury a bunch of pathetic losers with bad perms like the one Melissa McCarthy has in “Spy.”

Terrifying as this prospect sounds, at least it is not a world without lawyers.

Criminal Charges Against Man Who Shot Down Drone Dismissed

So reports the Wall Street Journal Law Blog, taking note of this story from Wave 3 News about a Kentucky man who shot down a drone that he claims was hovering over his property.  From the Wave 3 News report:

The man who calls himself the "Drone Slayer" called a judge's decision a victory. 

Bullitt County Judge Rebecca Ward on Monday dismissed the case against William H. Merideth, who admitted to shooting down a drone he said was hovering over his home last July. 

"I think it’s credible testimony that his drone was hovering from anywhere, for two or three times over these people’s property, that it was an invasion of their privacy and that they had the right to shoot this drone," Ward told the courtroom. "And I’m going to dismiss his charge."

John David Boggs, the owner of the drone "appeared stunned."

Boggs had posted this video of the drone's last flight, making clever use of the soundtrack and less-than-clever use of emojis:




Based on the video, the drone seemed to be so high that Meredith's claim that the drone was hovering over his property is a bit strained. While the drone did indeed appear to be flying and hovering over multiple people's properties, it seems high enough that Meredith's claim that his property was being violated is weak.

There are several gems in this story. First, there is this intriguing point:

Merideth also was facing a charge for firing his gun in a residential neighborhood. That charge was dismissed as well.

The WSJ Law Blog reports that this gun was a "12-gauge, short-barreled shotgun loaded with birdshot." This birdshot was fired high into the air over what appears to be a fairly well-populated suburban area. And yet the charge was dismissed.

Finally, on a completely unrelated note, all of this took place in a county called "Bullitt."

Aerial Surveillance, Intrusiveness, and the Fourth Amendment

Eugene Volokh has this post at the Volokh Conspiracy highlighting the recent case of State v. Davis in the New Mexico Supreme Court. In that case, police officers observed property by flying over it at a height of fifty feet in a helicopter. The Court held that the intrusiveness of this surveillance, which apparently included broken beams and solar panels, rendered the flyover a Fourth Amendment search.

The Court also criticized the New Mexico Court of Appeals ruling on the case, which noted that intrusiveness should not be the metric for determining whether a search has occurred because officers may use drones to conduct equally low flyovers without the noise, dust, and damage of a helicopter flyover. The New Mexico Supreme Court pointed out that the Court of Appeals' discussion was unnecessary speculation.

This approach is consistent with the United States Supreme Court's approach in United States v. Jones, in which the majority held that officers had conducted a Fourth Amendment search when they attached a GPS device to a car and tracked it for a prolonged period of time. Rather than hold that the prolonged gathering of information rose to the level of a search, the majority concluded that the act of attaching the GPS device was a physical trespass and therefore violated the Fourth Amendment.

While the Davis court only makes a passing reference to Jones, the Court is correct to conclude its analysis with its discussion of intrusion, as such an intrusion is sufficient to establish a Fourth Amendment violation. Going beyond the intrusiveness discussion is therefore unnecessary to resolve the question presented.

But one day, the question will be presented as to whether a low-flying police drone constitutes a Fourth Amendment search. When that question arises, the drones involved likely will not kick up the dust, incite the panic, or cause the damage that is the central focus of the Davis Court's decision. When that day comes, courts may find themselves constrained by the precedents cited in Davis which uphold the constitutionality of aerial observations. This will be especially true if state and federal laws are drafted in a manner that gives ordinary drone users a wide range of freedom in flying their drones, as common drone use will form the foundation of people's reasonable expectations of privacy.

Courts can be rescued from these difficult decisions, however, if states draft rules regulating the use of evidence obtained by police drones. State legislation can be drafted in a manner that balances law enforcement interests with privacy interests -- and this balance can be reached through debate and public input, rather than through speculation and generalizations that may arise from a single case before a deliberating court.

For those readers interested in hearing more on what I have to say on state drone laws, check out my article on the subject which was just published by the Harvard Journal on Legislation. You can find that updated version on SSRN as well.

Chemerinsky on "The Return of the Jedi"

The title of this post refers to the title of Erwin Chemerinsky's article in the most recent issue of The Green Bag.  There, Chemerinsky notes that the October 2014 term of the Supreme Court was filled with more liberal victories than any term in recent memories.  However...

Does this mean that the Roberts Court has moved to the left? Not at all. It always is dangerous to generalize from a single Term. A year ago, for example, commentary on the Court focused on the fact that 66% of the cases were decided unanimously. This year, by contrast, only 34% of the cases decided after briefing and oral argument were unanimous. Next year, the Court will be deciding cases about affirmative action, voting rights, the First Amendment rights of non-union members, and possibly abortion. These are all areas where Justice Kennedy is much more likely to side with the conservative Justices. So if this year was the “Return of the Jedi” for liberals, next year well could be “The Empire Strikes Back.”

In all of today's excitement about The Force Awakens, I couldn't let this one go.  Chemerinsky does a fine job summarizing the 2014 term's opinions in his article, but his out-of-order use of "Return of the Jedi" and "The Empire Strikes Back" is flat out wrong.  A far cleaner Star Wars reference (and one that could have persisted through the entire introduction) could have been to analogize the Warren Court to the Jedi Order that maintained order during the years of the Old Republic, but which ultimately may have played an unwitting role in both the rise of the Empire and collapse of the Jedi.

Following the dark time of Sith/conservative Supreme Court decisions, Chemerinsky may look upon the 2014 term and say "A New Hope?"

California Governor Vetoes Drone Bills; Denounces Creation of New Crimes

The Los Angeles Times has this report on California Governor Jerry Brown's veto of several bills that would criminalize flying drones over wildfires, schools, and prisons and jails.  Governor Brown vetoed all three (and several other) bills with a veto message denouncing the creation of new crimes.

Of all of the drone-related bills mentioned in the article, the most notable is the bill prohibiting drone flights over wildfires.  I have not looked very much into coverage of the bill, or other laws restricting wildfire observation and interference with firefighting efforts to know if there are indeed pre-existing laws that would neatly apply to flying drones in the vicinity of a wildfire.  Moreover, the bill prohibiting drone flights near wildfires would immunize firefighters who disabled the drones -- a helpful provision that, again, I am not sure already exists in other laws restricting interference with fire fighting.

The intricacies of the drone-wildfire bill aside, Governor Brown's veto message makes a refreshing point about California's vast penal code. Here is the veto message:

Each of these bills creates a new crime -- usually by finding a novel way to characterize and criminalize conduct that is already proscribed. This multiplication and particularization of criminal behavior creates increasing complexity without commensurate benefit. 

Over the last several decades, California's criminal code has grown to more than 5,000 provisions covering every almost conceivable form of human misbehavior. 

During the same period, our jail and prison populations have exploded. 

Before we keep going down this road, I think we should pause and reflect how our system of criminal justice could be made more human, more just and more cost-effective.

Sincerely,
Edmund G. Brown Jr.

I have blogged about some of California's stranger criminal laws here and here. I think that Governor Brown is correct to criticize the creation of new crimes that may already punished under existing statutes. Hopefully more legislators take heed of this message and maybe (just maybe) some of them will take up the thankless task of clearing up some of the chaos that already exists.