As lawyers and advocates, we have to be assertive on behalf of our clients.  And, yes, more than we should, we get emotionally wrapped up in our cases and our client’s cause.  But, two Florida lawyers took the advocacy part of the job way too far.  One lawyer referred to the other as "retard." The other responded that the first lawyer is a "scum sucking loser" in escalating email insults.  

Nicholas Mooney of Tampa, Florida, represented Volkswagen of America, recieved a public reprimand and must take a class on professionalism.  He is a former partner at Hinshaw & Culbertson.  The Hinshaw law firm is one those mega-law firms in Florida.  He is now with Bromagen & Rathet. See website.

Kurt Mitchell, of Palmeto, Flroida, is an accident lawyer (i,.e. personal injury lawyer was suspended for ten days and must take a class on anger management.   See ABA Bar Journal report.  I like how the Florida Supreme Court was careful not to require them to take the same class.  

At one point Mooney called Mitchell a jerk.  At another point, Mitchell called Mooney an "old hack."  Subsequent emails worsened:

  • from Mooney to Mitchell: after being accused of not being able to handle the pressure of litigation, Mooney said he was handling more than 200 cases, many of which were more important than these little Magnuson Moss warranty claims that are handled by bottom feeding scum sucking loser lawyers like yourself. 
  • from Mitchell to Mooney: Mooney displays symptoms of disability: "closely spaced eyes, dull blank stare, bulbous head, lying."
  • from Mooney: Mitchell should look in the mirror to see signs of disability; then check his children to see if they are even his … and better check the garbage man that comes by his trailer to make sure they don’t look like the garbage man.
  • from Mitchell: after learning that Mooney’s son suffers from a birth defect: "While I’m sorry to hear about your disabled child, that sort of thing is to be expected when a retard reproduces."

Mr. Mitchell sent similar emails to a landlord and was involved in other complaints about him.

From Thomas More to Felix Frankfurter to Mooney and Mitchell, such is the state of the law today……

Mike Maslanka, who pens a blog oriented toward employers wrote a helpful post on terminating employees.  Mike is well read on management and leadership techniques.  He suggests the following:

1.  Conduct the termination meeting at the employee’s work space or office.  He explains that the manager can get up to leave after completing the difficult task.  The manager can "escape" when the meeting concludes.  And, going to the employee’s space also suggests some level of respect for the employee.

2. It may be unethical to keep an employee in a position in which they are not a good fit.  You, the manager, owe it to the employer to not retain folks who do not fit.  It is as much a strain on the employee as it is on the employer. 

3. Be patient.  The manager has had time to adjust to the new reality, the employee has not.  Give him/her time to digest what you have said.  They say a termination should never be a surprise.  But, truly, it almost always is a surprise on some level.  No manager should schedule an appointment immediately following a termination meeting. 

4. Allow the employee to retain some dignity.  As Mike explains, that means different things to different people.  To Mike, it means do not show false empathy.  Do not say "I know how you feel" unless you have been fired yourself before.  The best thing you can do is simply allow the employee some time to compose him/herself.  Silence is golden and respectful. 

5. Mike also suggests you look at yourself.  Ask yourself how and why you hired the wrong person. In the Army, we conducted "after action reviews" after every major training exercise.   The goal was to analyze the good and the bad.  Every termination, just as every major employment issue, should result in some improvement to the organization. 

If every employer followed these tips, lawsuits would decrease dramatically.  See Mike’s post for more information.  

I live in San Antonio.  My home is perhaps 5 miles from the military’s premier burn center at Ft. Sam Houston, Texas.  And, as most readers know, I am an Iraq vet.  So, the article by Scott Stroud regarding the burn unit resonates with me.  See San Antonio Express News story.  It is a moving account written by a captain in the unit.  The medical folks at Ft. Sam endure their own combat stress treating those of us who get injured in the two wars.

It is the nature of the two wars and a reflection of our improved care that we will see many burn victims.  You will see them.  They will have disfigured skin all over their body.  They require constant care for the rest of their lives.  My son recoils when he sees these victims.  But, when I see them, i see brave soldiers.  One young sergeant came to my church there at Ft. Sam most Sundays with his wife and three children.  It is hard to judge age when the skin is so disfigured, but I guessed him to be in late 30’s, perhaps a Sergeant First Class.  The children seemed happy, his wife always smiling.  He left the Army after a few months and moved to San Diego.  I am sure he received a disability retirement.  In my eyes, he had no disability.  

Remember our brothers and sisters who have suffered horribly.  Be respectful when you see a man or woman with disfigured skin.  They may have given up their "good looks" for you and I. 

Is opposition to the DREAM act discriminatory?  The DREAM act would allow youths who were brought to this country illegally by their parents to obtain citizenship.  These young citizens would acquire US citizenship if they attend college or join the military.  Some folks oppose the DREAM Act because it would supposedly reward illegal activities or because these illegal citizens do not deserve it.  They have not paid taxes, I have been told.

In employment cases, we show or "prove" discrimination in one of two ways: 1) show proof of discriminatory comments, or 2) show that the articulated reason for some adverse personnel action is false.  If the employer says we need more men working here, then that constitutes evidence of discriminatory bias.  If the employer says he fired someone because they ere late everyday and they were not actually late everyday, then that shows prevarication, lying.  If the jury finds an employer has lied, the jury can then infer that the employer was motivated at least partly by discriminatory bias. 

So, regarding the DREAM Act, is it true that illegal citizens pay no taxes, yet supposedly seek government funding? One illegal citizen, Lheezia Dhalla came from Canada.  When she arrived at the age of 6, her family was legal.  Over time, she somehow became illegal.  She attended Reagan High school here in San Antonio and graduated summa cum laude.  See San Antonio Express News report.  She received a Rotary Club award for youth leadership.  She is in her junior year at Northwestern University, majoring in journalism, political science and gender studies.  She collected $10,000 for a bone marrow transplant for  a boy with leukemia.  She had never met the boy. 

She is the sort of citizen we would want.  But, her illegal status has come to the attention of Dept. of Homeland Defense and she faces deportation.  She would be deported to Canada, not Pakistan. But, still, this is the only home she has known. 

She is not eligible for student aid or public assistance, because she is illegal.  Yet, her family has paid state and federal taxes for decades.  

Eric Balderas came to the US with his Hispanic parents when he was small.  He graduated as valedictorian from Highlands High School here in San Antonio.  He was attending Harvard University when he was stopped five months ago at the Boston airport.  He accepted the full Harvard scholarship because he could qualify for no other aid.  See San Antonio Express News report.  

So, if the rationale is that illegal immigrants have not paid taxes and that rationale is shown to be false, then the jury, aka the public, is free to presume the employer, aka the opposition, is lying.  If another rationale is that they would be using public aid and that rationale is shown to be false, same result, the jury can infer prevarication.  It appears that neither Lheezia or Eric have been able to obtain public aid for school. 

That’s how this works in a discrimination case.  Does that make sense for a proposed federal statute?  In both cases, the process and how we construct the process has a huge impact on a vulnerable group of Americans, citizens or not.  

 You would think an average prosecutor has better cases to prosecute.  A Michigan man is facing charges of felony computer misuse.  The man, Leon Walker, used his wife’s email password to review her gmal account.  In reading her emails, he learned that she was having an affair with another man.  See MSNBC report.  The couple has since divorced. 

The crime, felony computer misuse, was intended to prosecute identity theft and theft of trade secrets.  A privacy law writer wonders if a wife can expect privacy on a computer shared with a spouse.  I think I have the same question.  But, privacy or not, doesn’t the District Attorney have real criminals to chase? 

Note:  in a recent CBS  news report, the prosecutor says Leon Walker downloaded the material in a "contentious way."  See report.  Mr. Walker says he learned his wife was cheating on him with her second husband.  Leon Walker was concerned because Husband No. 2 had beaten the wife, Clara walker, in front of her young son, who she had with Husband No. 1.  So, Leon Walker provided the emails to Husband No. 1 to help protect the young son. 

Texas Monthly awards a "Bum Steer" to Omar Ramos-Lopez of Austin, Texas.  He was laid off from a used car lot in Austin.  The used car dealership used a web-based device in which they could sound the alarm remotely of any car whose owner was behind on payments.  A friendly reminder to forgetful note holders.  

Mr. Ramos-Lopez apparenrly objected to his layoff, because he used the code to activate some 100 car alarms throughout Austin which had been sold by the dealership.  

I do not know what sort of employee he was, but he it looks like he can navigate the web pretty well…..

So, you burglarize someone’s home.  If you are also a Facebook user, you might just post a picture of yourself with your ill-gotten gains on FB.  That’s what one burglar did.  See report.  The burglar stole money, an ipod, a laptop and a man’s new winter coat from the home of Marc Fisher, a reporter for the Washington Post.  So, of course, the burglar posted a picture of himself wearing the new winter coat, cash in hand on Marc Fisher’s son’s FB page.  See Marc’s blog post.  

The son was able to get Facebook to shut down the burglar’s access to the his FB account.  But, you gotta wonder what is going on when a burglar shows off his goods to the world on the son’s Facebook account.  As one policeman said, this is not the smartest crook.  The crime occurred in Washington, D.C.  The D.C. police response has been underwhelming so far…..

Discrimination takes many forms.  One of the most pervasive forms of discrimination is in regard to persons with disabilities.  Most are poor, so they have little voice.  For 20 years, every state has had a requirement to place developmentally disabled (i.e., "mentally retarded") in some place other than nursing homes.  Texas has lagged far behind.  So, some disability groups have filed suit in US district court.  See San Antonio Express News report.  The Arc of Texas and the Coalition of Texans with Disabilities have joined to file this class action suit. 

Advocacy, Inc. has also joined in the lawsuit.  Garth Corbett, lead attorney, mentions that many DD persons do fine at home.  They hold jobs.  But when they become ill, they go the hospital.  The hospital then mistakenly sends them to a nursing home, where they are trapped because they are ignored.  See Advocacy, Inc. report.  Their anger and depression then become diagnosed as a behavioral disorder.  And, they are deemed incapable of any sort of independent living. 

When I worked at Advocacy, Inc., we worked with persons with disabilities all the time.  In my 3.5 years there, I represented several developmentally disabled persons who did not belong in a nursing home.  They were capable of far more.  Some, not all.  Texas is woefully behind on creating halfway houses or semi-independent living conditions for those DD persons who can handle it.  

The law favors the DD person.  So, it is likely the state will eventually have to consider how to fix this (and pay for it) before a judge requires his/her changes.  It would be much smarter for the state to get ahead of this and make its own changes. Its "pay me now or pay me later."  if its later, the the state may lose control over what and how much is paid.  

 An African-American associate lawyer at Akin, Gump Strauss Hauer and Feld, one of the largest law firms in the country, charges Akin Gump with discrimination.  Tameka Simmons claims Akin Gump would "showcase" her at minority events to display their diversity, even while transferring her duties to other white associates.  Ms. Simmons has sued Akin Gump for her 2009 layoff in New York.  See ABA Bar Journal report.  

She says she received a positive review in 2008.  But, she was warned her job was in jeopardy because she was not aggressive enough in seeking work assignments, did not have enough clients and because she had too many medial absences.  But, she responds, her billable hours were on par with other associates.  

The suit claims the firm denied her the training and mentoring provided white associates.  

It is hard to believe a law firm would state in writing that a lawyer had too many health-related absences.  Firing someone because they have too many absences would violate the Americans with Disabilities Act.  One would expect a major law firm to know better than to admit in writing that you violated a statute.  Regarding her performance, billable hours are the "alpha and the omega" at big law firms.  If her hours were on par with other associates, the firm will have a very hard time showing that she was truly under-performing.  

We all have a boss.  Even CEO’s are overseen by a board.  Victor Mercado has learned that the hard way.  He was CEO of the Bexar Metropolitan Water District until last night.   He was hired in November, 2009.  His troubles started in May.  that month,  he hired a lawyer to address the board and tell them that hey were micromanaging the utility.  The board is elected, so they probably did not appreciate the message or the messenger.  See San Antonio Express News report.  

In August, Gilbert Herrera, a Bexar Met business analyst told a San Antonio Express News reporter that the utility was overstating its revenue by $3 million.  He said the utility was resisting his advice to properly classify a supposed revenue source.  Then, $25,000 was somehow stolen from Bexar Met that same month.  An audit team hired by Bexar met confirmed Mr. Herrera’s assertion about the $3 million item

In September, Mr. Herrera was fired, surely leading to a whistle blower lawsuit.  See my prior post on this topic.  The outside auditor then refused to sign the annual review of Bexar Met until the utility changed the classification on the $3 million item.  Bexar Met’s bond rating was lowered.  

In October, the board rated Mr. Mercado’s job performance at 2.28 out of 5.0.  Throughout this period of time, he had been telling the board he had to go to Detroit so often merely because he was a witness to possible corruption.  He always assured them he was not a "target" of the grand jury investigation.  Yet, he had hired a Detroit lawyer to represent him before the grand jury.  

Well, the grad jury indicted him yesterday in Detroit – along with former Detroit mayor Kwame Kilpatrick.  It appears that he mis-lead his employer regarding the actual status of the investigation.  

The board fired him last night.  Unless an employee can show some sort of discrimination, the employer always gets the last word.