Bad Ideas

law library Above the Law.jpgBrian T. Valery is our hero. He figured out a way to save $100K on a legal education — namely, by not getting one. From

Brian Valery is under fire for his pro hac vice appearance in a 2005 complex litigation case heard in Stamford, Conn. His motion to appear, which went unopposed, was based on his affidavit stating he was an attorney in good standing at the New York City firm of Anderson Kill & Olick. He also claimed to be a member of the New York Bar with no history of discipline.

As it turns out, Valery not only isn’t a member of the Bar, there’s no record that he ever applied or sat for the bar exam in New York or even set foot in a Fordham Law School classroom, which he told Anderson Kill partners he was doing at night to advance his career beyond that of a paralegal, Connecticut grievance officials say….

Valery, after working at Anderson Kill [as a paralegal] since 1996, told the firm in 2004 he had passed the New York Bar. Partners at the 132-lawyer firm have conceded to Connecticut grievance authorities that they regrettably took Valery at his word.

Oh Emily, if only you hadn’t sent that email, you could have tried this trick too.
Anderson Kill Discovers ‘Associate’ Is Not a Lawyer [Connecticut Law Tribune]Bryan Valery Brian Valery Brian T Valery Bryan T Valery.JPG

Emily Pataki Emily Pataki Emily Pataki Above the Law Legal Blog.JPG* Emily Pataki, the attractive and accomplished daughter of New York governor George Pataki, failed the New York bar exam — and sent around an office-wide email about it. The story was broken by the mainstream media.
* We heard from some of Emily’s law school classmates about the incident. In a reader poll, you opined that emailing her White & Case colleagues was unwise.
* The Democratic takeover of the Senate could make things tough(er) for the White House’s judicial nominees.
* Despite the sea change in Washington, President Bush resubmitted six controversial judicial picks to the lame duck Senate. Getting all of them confirmed is probably impossible, but getting two of them through might happen.
* The White House has not yet submitted nominees for the two vacant Fifth Circuit seats. (Texas’s Solicitor General, conservative legal superstar R. Ted Cruz, is said to be uninterested.)
* Borat-related litigation shows no signs of abating.
* O.J. Simpson: He’s back — and he’s still looking for his wife’s killer. Except this time, he’s looking in the mirror.
* Some bad ideas from the past week: getting frisky on an airplane; setting your ex-girlfriend’s kittens on fire; having sex with a deer (even if it’s dead); eating at Burger King or Taco Bell; and getting married without a prenup (if you’re a filthy rich Hollywood celebrity).
* Over the past few days, we’ve been spending some quality time with the Federalist Society. More reports on the proceedings — including lavish photography — will appear in the coming week.

email e-mail message microsoft outlook Above the Law.jpgWe recently quoted from this reader comment:

Repeat after me: an office wide email is never, ever a good idea.

This advice, while generally sound, is slightly overbroad. We can think of at least one occasion when an office-wide email is appropriate.
When you leave a job, it’s perfectly appropriate to send around a farewell email to the entire office, if you are so inclined. You should talk about how much you enjoyed working there, thank your colleagues for a great experience, mention your future plans, and provide your contact information (if you wish).
Try to refrain from writing things like this:

While I have a high degree of personal respect for PHJW as a law firm, and I have made wonderful friendships during my time here, I am no longer comfortable working for a group largely populated by gossips, backstabbers and Napoleonic personalities. In fact, I dare say that I would rather be dressed up like a pinata and beaten than remain with this group any longer. I wish you continued success in your goals to turn vibrant, productive, dedicated associates into an aimless, shambling group of dry, lifeless husks.

Yep, that’s a quote from an actual good-bye email, which an ex-Paul Hastings associate sent to his former colleagues. You can read the complete email here.
This email is an old one. In the future, the next time you receive a scandalous or funny email message at work, please forward it to us (tips AT abovethelaw DOT com). We love to reprint such emails in these pages. Thanks!
Paul, Hastings: “Gossips, Backstabbers and Napoleonic Personalities” [Gawker]

deer sexy deer Above the Law.jpgBestiality-oriented necrophiliacs who live in Wisconsin, we bring you some potentially good news. In the next few weeks, a court could hold that you may have your way with whatever animals you please — as long as they’re dead.
From The Smoking Gun:

Meet Bryan James Hathaway, alleged venison lover. The Wisconsin man, 20, is facing charges that he had sex last month with a dead deer. Hathaway, who previously has served time for killing a horse he intended to sexually assault, allegedly found the deer in a ditch alongside a roadway.

Now Hathaway’s lawyer has filed a court motion (a copy of which you’ll find here) arguing that since the animal was already dead, Hathaway should not face a misdemeanor rap of sexual gratification with an animal. “The statute does not prohibit one from having sex with a carcass,” lawyer Fredric Anderson wrote in the motion filed in Douglas County Circuit Court.

Anderson isn’t trying to be a wise-ass; he has a plausible argument of statutory interpretation. Here’s an account of the court hearing on the motion, from The Daily Telegram:

The Webster’s dictionary defines “animal” as “any of a kingdom of living beings,” Anderson said. If you include carcasses in that definition, he said, “you really go down a slippery slope with absurd results.”

Anderson argued: When does a turkey cease to be an animal? When it is dead? When it is wrapped in plastic packaging in the freezer? When it is served, fully cooked?

Sounds persuasive to us. So how did the prosecution respond? Well, they got a little Platonic on defendant’s ass:

“The common and ordinary meaning of a word can be found in how people actually use the word,” Boughner wrote in his response to the motion.

When a person’s pet dog dies, [Assistant District Attorney James Boughner argued], the person still refers to the dog as his or her dog, not a carcass.

“It stays a dog for some time,” Boughner said…. “It did not lose its essence as a deer, an animal, when it died,” he said.

We hope the defendant prevails. ‘Cause we’re really looking forward to Thanksgiving.
Can You Get Dear With A Dead Deer? [The Smoking Gun]
Case Presents Unprecedented Challenge [The Daily Telegram]

airplane cabin 2 Above the Law Legal Blog.jpgSome updates and corrections to our post from yesterday, And Don’t Even Think About Joining the “Mile High Club”. We quoted an AP article that begun thusly:

A couple’s ill-concealed sexual play aboard a Southwest Airlines flight from Los Angeles got them charged with violating the Patriot Act, intended for terrorist acts, and could land them in jail for 20 years.

First, a correction. The couple wasn’t charged with violating the Patriot Act, but with violating 49 U.S.C.A. § 46504. As Professor Orin Kerr explains, this provision was amended by the Patriot Act, but “the substantive offense that was charged dates back to the 1960s.”
Second, an update. The couple may have needed air sickness bags rather than a hotel room. From a later AP piece:

A man arrested for allegedly engaging in “overt sexual activity” with his girlfriend on an airliner was lying with his head on her lap because he wasn’t feeling well, his attorney said.

That gesture was misinterpreted by a flight attendant, who humiliated and harassed the couple, said attorney Deb Newton, who represents Carl Persing.

But we can’t blame the flight attendant for misinterpreting things. After all, the woman was “observed smiling.”
Chicken or beef? We’ll have what she’s having.
Lawyer: Man Felt Sick — Not Sexy — on Plane [CNN]
Earlier: And Don’t Even Think About Joining the “Mile High Club”

airplane cabin flight attendant steward Above the Law.jpgJeez, the terrorists really HAVE won. They’ve sucked all the fun out of flying:

A couple’s ill-concealed sexual play aboard a Southwest Airlines flight from Los Angeles got them charged with violating the Patriot Act, intended for terrorist acts, and could land them in jail for 20 years.

According to their indictment, Carl Persing and Dawn Sewell were allegedly snuggling and kissing inappropriately, “making other passengers uncomfortable,” when a flight attendant asked them to stop.

“Persing was observed nuzzling or kissing Sewell on the neck, and … with his face pressed against Sewell’s vaginal area. During these actions, Sewell was observed smiling,” reads the indictment filed by the Federal Bureau of Investigation.

Help us out here. How does “pressing one’s face” against the “vaginal area” of a fellow passenger violate the Patriot Act? Especially if that passenger is “observed smiling”?

On a second warning from the flight attendant, Persing snapped back threatening the flight attendant with “serious consequences” if he did not leave them alone.

The comment was enough to have the couple, both in their early 40s, arrested when the plane reached its destination in Raleigh, North Carolina, and charged with obstructing a flight attendant and with criminal association.

Okay, that makes more sense. Press all you want into the “vaginal areas” of your fellow passengers (provided, of course, that you know them and they consent). Just don’t threaten the stewardess flight attendant when ordered to stop, and you’ll be fine.
Update: Professor Orin Kerr has some doubts about this case. See here.
Further Update, and Correction: They weren’t charged under the Patriot Act, but under 49 U.S.C.A. § 46504. See Professor Kerr’s update. Serves us right for not looking at the indictment ourselves.
Mid-flight Sexual Play Lands US Couple Afoul of Anti-Terrorism Law [Associated Press]

Borat Above the Law Legal Blog Law Gossip Borat.JPGOn Friday night, we saw Borat at our local movie theater. We found it hilarious for the first fifteen minutes, before it turned repetitive. That said, there were some impressive set pieces in the second half of the film, such as the hotel room wrestling match.
(We viewed Borat on the recommendation of one of the Elect, and we spotted another in the theater. Supreme Court clerks: They’re just like us!)
If you’d like to know more about how the film was made, including who was in on the joke and who wasn’t, check out this Guide to Borat, from Salon (via How Appealing). According to Salon, most of the people who interacted with Sacha Baron Cohen in the movie were NOT in on the joke.
Commenting on “Lexytime” — our prior post about Borat, concerning two fraternity brothers who are suing the film’s producers — Tortious Malfoy wrote:

If you had seen the movie you would know why they’re suing: they went on a racial rant about how they wish they could still own slaves, women were nothing, and alot of other hostile stuff. Don’t think they’ll be getting much love in the South anytime soon, especially considering the movie’s reach.

Actually, if Borat’s portrayal of the South is even halfway accurate, we think that the plaintiffs might be embraced by southerners (e.g., the people at the rodeo, the gun store owner, etc.).
Having seen Borat, we actually have the opposite reaction to what Tortious Malfoy predicted: We are LESS sympathetic to the fraternity brothers’ lawsuit against 20th Century Fox and One America Productions. The frat boys are recorded drinking, watching porn, and spewing racist and misogynistic statements. And now they’re upset because, among other things, they thought that the movie would only be screened in Europe? Please.
Furthermore, we agree with this commenter at the WSJ Law Blog. In vino veritas. If the frat boys come across as racist and misogynist, well, maybe there’s a reason for that.
We also note that the frat boys’ lawsuit is counterproductive, due to the Robert Steinbuch effect. By filing a lawsuit, the plaintiffs are only highlighting the actions and statements of theirs that they did not want exposed to public view.
The impoverished Romanian villagers who are now thinking about suing over Borat are far more sympathetic than the frat boys. Regardless of the legal merits of the contemplated action, Cohen and the production companies might as well throw some money in the villagers’ direction, especially in light of Borat’s financial success.
A bunch of poor, exploited Romanian villagers are sure to arouse some public sympathy. Especially this man:

Mr Tudorache, a deeply religious grandfather who lost his arm in an accident, was one of those who feels most humiliated. For one scene, a rubber sex toy in the shape of a fist was attached to the stump of his missing arm – but he had no idea what it was.

Borat was number one again at the box office this past weekend, taking in another $28.3 million. Surely Cohen and Fox can afford to do something nice for the villagers. Like buying Mr. Tudorache a fist dildo made of glass, not rubber.
* The plaintiff frat boys are represented by the very handsome Olivier Taillieu. Here’s an excerpt from his unintentionally amusing bio:

[Olivier clerked] for the Honorable A. Wallace Tashima on the U.S. Court of Appeals for the Ninth Circuit, one of the most prestigious and sought-after clerkships in the country. Following his clerkships, he entered private practice as a litigator in the Intellectual Property and Technology Department in the Los Angeles office of O’Melveny & Myers, LLP, one of the top 15 law firms in the country as ranked by revenue by The American Lawyer.

Now, we are the last people to dispute the prestige of a Ninth Circuit clerkship and a Biglaw gig. But traditionally law firm bios merely list these credentials, without the grandiose description.
(Then again, self-promotion is to be expected from a former contestant on the short-lived, ill-fated reality TV show, The Law Firm.)
Earlier: Prior Above the Law coverage of Borat (scroll down)
Collected Borat coverage [How Appealing (linkwrap)]
Guide to Borat [Salon]
Borat film ‘tricked’ poor village actors [Daily Mail]
Olivier A. Taillieu, Esq., bio [Zuber & Taillieu]

box for mailing Above the Law Legal Blog.JPGWe’ve all done it: Use of office resources for personal purposes. Maybe you take the occasional personal call on your office telephone. Maybe you used the work fax machine to receive a one-page tax document from your accountant. Maybe you took some paperwork home with you one night, along with an office-issued ballpoint pen, and later used that pen to take down your mother’s chicken casserole recipe, as she read it to you over the phone.
If it’s de minimis use, then it’s okay. But this might have been, um, de maximus:

According to court records, while an attorney in the FTC’s Bureau of Competition, Seth Zimmerman used his office’s Federal Express account to send Redskins tickets to eBay bidders….

The FTC says he cost the federal government $1,938. FedEx also says it lost $3,880 due to the discount shipping rate given to the federal government. According to the plea agreement, Zimmerman also profited by charging each buyer an additional $12 fee for the FedEx delivery.

Two grand strikes us as a sizable sum. But there is room for argument. Zimmerman might respond: “Come on, feds, lighten up! Isn’t that just, like, three Pentagon toilet seats — not even the padded kind?”
So how was the fraud detected? Was an elaborate investigation required?

In August 2004, investigators at the Office of Inspector General for the FTC were contacted by people complaining that tickets they bought from Zimmerman on eBay were never delivered.

What could have been some difficult Internet sleuthing was made easier because Zimmerman used his FTC e-mail address to set up his eBay account. The inspector general subpoenaed records from eBay showing that Zimmerman had been buying and selling tickets on the site since 2001.

Seth, it’s called Gmail. Try it, you might like it.
(Yes, we know: even if Zimmerman had used Gmail, if he used it from his work computer, messages could still be traced back to him using his IP address. But at least then the investigators would have WORK a little to uncover his identity, instead of having it served up on a silver platter.)
Penalty Box: FTC Lawyer No ‘Overnight Sensation’ [Legal Times (pass-through link) via]

stripper Above the Law Law Blog.JPGIt’s tough enough as it is to make a living as a strip club dancer. Do we really need to make it harder for them?
In Tuesday’s elections, Seattle voters answered this question in the negative:

[L]ap dances will remain legal in Seattle. With a no vote on Seattle Referendum 1, voters were firmly rejecting the city’s “four-foot rule,” which would have banned lap dances by requiring exotic dancers and customers to keep their distance.

It’s nice to see the electorate strike a blow for free expression. If a “no contact” rule had been forced upon the clubs, they’d quickly go out of business. Patrons would just stay home — and watch porn. Same experience, no cover charge.
Another rule struck down by the vote would have required adult cabarets to be “well-lit.” Now that regulation would have REALLY killed the clubs.
Why? So many strippers have seen better days. They rely upon the cloak of darkness — plus foundation and concealer, by the pound — to look vaguely alluring to their clients.
(Summer associates who explore stripping careers, on the other hand, make up in youth what they lack in experience.)
Gavel bang: How Appealing.
4-foot Rule’s Defeat Means Seattle Reverts to Old Law [Seattle Times]
Seattle Initiatives: Attempt to Restrict Strip Clubs Failing [Seattle Post-Intelligencer]
Earlier: Summer Associate Stories: Girl Gone Wild

Supreme Court Above the Law Legal Gossip Blog.JPGThe judiciary was largely upstaged yesterday by developments from the other two branches: the Democratic takeover on Capitol Hill, and the resignation of Donald Rumsfeld as Secretary of Defense.
But the Supreme Court was still doin’ its thing yesterday, hearing the cases of Gonzales v. Carhart and Gonzales v. Planned Parenthood. These cases raise the constitutionality of the federal Partial-Birth Abortion Ban Act. So of course there was disorder in the court:

[O]ne man, clad in a shirt that read JESUS, entered the courtroom and sat in the spectator section midway through oral arguments.

Wake up, SCOTUS marshals!!! The guy might as well have worn a shirt reading “ARREST ME” — which is what they did, after this happened:

[D]uring the time allotted to [Priscilla] Smith, the pro-choice lawyer arguing on behalf of Nebraska abortion provider Dr. Leroy Carhart, the man erupted. “ABORTION!” he thundered in a voice that reverberated in the quiet and still courtroom. “REPENT OR YOU WILL PERISH,” he went on. He grabbed the arm of Carhart, who happened to be seated next to him, and pulled him to the ground.

As one would expect, the gracious and unflappable Chief Justice handled the interruption quite smoothly. He “drew polite laughs when he then offered Smith three extra minutes to make her case.”
Update: Or was it just an extra 30 seconds? See here and here.
The protester, a gent by the name of Rives Miller Grogan, was charged with violating 40 U.S.C. 6134. Here’s what that statute provides (robe swish: Orin Kerr):

It is unlawful to discharge a firearm, firework or explosive, set fire to a combustible, make a harangue or oration, or utter loud, threatening, or abusive language in the Supreme Court Building or grounds.

Professor Kerr: “That’s right: It’s illegal to make an oration in the Supreme Court building! So be careful out there, folks.”
Drama in the Court [MSNBC via]
When Oral Argument Is a Crime [Volokh Conspiracy]
High Court Focuses on Medical Alternatives in Partial-Birth Abortion Cases [Legal Times via How Appealing]
Commentary: Kennedy vote in play on abortion [SCOTUSblog]
Title 40, United States Code, Chapter 61 []

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