You know a lawyer is in trouble when he’s had sex with a client and gets called before the state bar’s disciplinary committee.  You know he’s in really big trouble when the sex isn’t even the biggest ethical issue that the disciplinary committee is investigating.  That’s where a Minnesota attorney found himself after allegedly having an affair with the woman he represented in a divorce proceeding.   As if the affair wasn’t enough, he reportedly billed the women for legal services for the time spent during their sexual encounters. Yikes.

Last month, the Minnesota Supreme Court suspended attorney Thomas Lowe indefinitely for his conduct relating to an affair with a client.   In August of 2011, Lowe began representing  a woman in divorce proceedings against her husband.  Lowe himself was married at the time.   In short order, the two began a sexual affair that lasted nearly six months.  The real kicker is that Lowe was apparently billing his client for the time spent during the affair.  Lowe reportedly billed the women for legal service on the dates of their alleged sexual encounters.  The billing entries were coded as meetings or drafting memoranda.

In fairness, there’s no ABA billing code to properly cover this kind of thing.

Things took a serious turn after he terminated the affair and withdrew as her attorney.   Lowe’s client, who had a history of mental health issues, attempted to take her own life when he ended the affair.   She was then hospitalized, at which she disclosed the affair.

Eventually, the information found its way to the Office of Lawyers Professional Responsibility  Of course, Lowe initially denied much of the allegations.   He later changed his stance to “unconditionally” admit the allegations.   The indefinite suspension by the Minnesota Supreme Court was accompanied by an order that he would not have a chance for reinstatement for at least 15 months.

Lowe’s disciplinary records reveal that in 1997 he was reportedly placed on probation for an offense involving cocaine.   But wasn’t just that he used or possessed cocaine.  He allegedly bought the cocaine from a client.  All we can say is, wow!

These days, guns and school safety are the biggest hot button topics around.   No one wants innocent children being harmed, whether it be by a crazed gunman or some other student who decided to bring a parent”s pistol to school.  But, at some point, we must remember that we can’t abandon common sense in the name of safety.  That advice goes particularly to a Colorado elementary school that suspended a second grader who was exercising his imagination during recess by pretending to stop imaginary bad guys with an imaginary weapon.

The seven year-old boy was playing a game he made up called “rescue the world” at Loveland, Colorado’s Mary Blair Elementary.  During the course of this game, the boy threw an imaginary grenade into a box where his imaginary evil forces were hiding.   There were no threats to other students.  There was no real weapon or dangerous object involved.  Just a boy pretending to be a hero.

So, why exactly, was the boy suspended?  Apparently, the school has a list of “absolute” safety rules that result in automatic suspension if broken.  The list proscribes fighting and weapons, which makes perfect sense.  The list also bans “imaginary” fighting or weapons.  So we’ve got a school that can suspend kids for the strict liability crime of using their imagination.

It might be time for everyone to step back and take a deep breath.

Above, you’ll find the cover to the trade paperback The Trial of Yellowjacket, a storyline in featured The Avengers comic series in the early 1980’s published by Marvel Comics. Here’s hwo Comicvine describes the narrative: “The end of an era! They say pride comes before the fall, and this tumultuous tome is proof of that! When longstanding and founding Avenger Hank Pym – in his guise as Yellowjacket – demonstrates reckless behavior in battle, his fellow members schedule a formal court-martial hearing to determine the fate of their emotionally conflicted comrade. Will Yellowjacket triumph over his inner demons – or crumble under the pressure of being an Avenger?” But can the Avengers court martial one of their members? Are they members of the military? Aren’t they private citizens with superhuman talents and powers who have simply banded together to fight the bad guys? Where does a court martial come in? Why wouldn’t Yellowjacket be tried in the traditional civil – or criminal – courts for any reckless behavior in battle?

Well, Yellowjacket, whose real name was Hank Pym, is not the nicest guy.  Here’s how his Wikipedia describes these incidents:

. . . Pym participates in several missions until, after demonstrating hostile behavior towards Janet, he attacks a foe from behind once the opponent had ceased fighting. Captain America suspends Yellowjacket from Avengers duty pending the verdict of a court-martial. Pym suffers a complete mental breakdown and concocts a plan to salvage his credibility by building a robot (named Salvation-1) and programming it to launch an attack on the Avengers at his court-martial. Planning to exploit the robot’s weakness at the critical moment, Pym hopes to regain his good standing with the Avengers. The Wasp discovers the plan and begs Pym to stop, at which point he strikes her. Although the robot does attack the Avengers as planned, Pym is unable to stop it and the Wasp uses the design flaw to defeat it. Pym is subsequently expelled from the Avengers, and Janet divorces him.

Uh, that’s not good.

By the way, last week, in our weekly installment of Friday Links, we apparently misidentified a Marvel Comics alien symbiote.  We thought the symbiote Carnage was, in fact, Venom.  They are both foes of Spider-Man, and they are both really, really bad dudes. Shame on us. (Thanks to eagle-eyed commenter MattS for pointing out the error in our comments).

In a postscript to his recent blog entry “Donald Trump v. Bill Maher,” Walter Olson of Overlawyered includes a link to our McDonald’s hot coffee case coverage.  We’d love to see the depositions in that case, if it ever gets off the ground.

This can’t be good.

As we’ve noted in the past (see, e.g., the Fruit Rollups Lawsuit), there’s seems to be a whole niche of the law now devoted to lawsuits over false claims and advertising relating to food.  Well add a couple more lawsuits to the list.  Lawsuits in New Jersey and Illinois are now challenging Subway’s “footlong” sandwich claims.   Plaintiffs have alleged that the Subway “footlong” sandwiches they purchased really measured in at just under 12 inches, and for that egregious injury, they have chosen to go to court.  Oh, the humanity!

Nguyen Buren, the Plaintiff in the Illinois lawsuit, alleges that he visited a Subway location in mid-January of this year and purchased a “footlong” sub sandwich that measured only 11 inches.  Notably, Mr. Buren’s complaint (which is on available on PACER – Buren v. Doctor’s Assocs., Inc., No. 13-498 (U.S. Dist. Ct., N.D. Ill., filed January 22, 2013)) alleges that he was deceived on that single occasion in January.  He filed the suit against Subway’s parent company, claiming a “pattern of fraudulent, deceptive and otherwise improper advertising, sales and marketing practices.”

Mr. Buren’s attorney equated the injury to buying a dozen donuts and finding only 11.  But that’s not quite the case.  The number of donuts is different from the size of the donuts.   As a recent Forbes article noted, baking bread is not an exact science.  As bread is baked, it rises and grows, but the growth is not  the same on every occasion.  The way bread dough grows depends on a number of factors, such as temperature, humidity, and cooking time.  Remember that we are talking about bread, not airplane parts.

You know what I’d do if I ordered a dozen donuts and got 11 donuts, or ordered a footlong sandwich and got 11 inches ?  I would go back and ask for a refund or a remedy of the situation.  Alternatively, I might stop eating at that establishment.   You’re buying a meal, not a compact car.  There’s no indication that Mr. Buren ever asked Subway to remedy his sandwich or asked for a refund.  But why go to such extremes when you can simply file a lawsuit over a sandwich short by one inch?

Given the obesity problem in this country, Subway would probably be doing us all a favor by giving us a little less sandwich.  I mean, who really needs a to be eating a foot long sandwich?   Nevertheless, Subway has pledged to remedy the situation.   According to a spokesperson, Subway will “redouble [its] effort to ensure consistency and correct length in every sandwich [it] serves.”  Next time you go to Subway, just remember to take your tape measure to be sure.  Good grief.

From time to time, we here at Abnormal Use chance across quirky products (or quirky warnings) and offer our comments.  Well, we’ve seen some doozies, but this one may take the cake. The Retroist found a 1972 advertisement a Flame Gun!  Yes, you read that right.  The full post can be found here, but we simply can’t resist providing the actual image of the flame gun itself:

Now this thing looks useful!  After all, it’s “the gun of 1000-and-1 uses!”  Perfect for, um, well, I guess when your gas stove won’t light, this could do the trick! Apparently, it’s so easy to use that “Even your wife can use it.”  Wasn’t 1972 a little late for those kinds of statements? Actually, the helpful ad suggests a few other uses, including destroying insects, anthills, and old wasp nests from a “safe distance.”  But the real kicker, in our opinion, is that this unit is advertised as being of use BOTH indoors and outdoors.  Are we the only ones who think this is a BAD IDEA? The copyright on the bottom of the helpful ad shows that the project is registered to Bevis Industries, which apparently no longer exists.  We can’t imagine why!

Clark County (WA) Deputy Sheriff Edward Bylsma had an “uneasy” feeling after ordering a Whopper from a Burger King drive-thru. After lifting the bun from the burger, his suspicions were confirmed. As if living an urban legend, he allegedly discovered a large glob of spit on his burger. Fortunately, Bylsma had yet to take a bite out of the burger. Nonetheless, he claims that he now suffers ongoing emotional distress, including vomiting, nausea, food aversion and sleeplessness. After his subsequent lawsuit was appealed to the Ninth Circuit,  the Washington Supreme Court was faced with the certified question of whether emotional distress absent physical injury is recoverable under the state’s product liability statutes. See Bylsma v. Burger King Corp., No. 86912-0 (Wa. Jan 31, 2013)

The Model Uniform Product Liability Act (UPLA) includes mental anguish within its definition of the “harm” necessary to maintain a product liability cause of action so long as it is accompanied by some physical manifestation. Washington’s Product Liability Act (WPLA) chose not to adopt the definition but, rather, to follow trends in developing case law. Without any guidance from the WPLA, the Court turned to precedent involving emotional distress from other torts. As it turns out, Washington has permitted recovery in the absence of physical injury in situations involving emotionally laden personal interests such as the improper burial of an infant child. Like these cases, the Court concluded that food consumption is a personal matter and its contamination is associated with disgust and emotional turmoil. As such, emotional distress arising out of food contamination is recoverable under Washington law.

Now that the question is answered, it will be interesting to see how Bylsma’s suit develops. If his case is remanded back to the trial court, he still must prove his emotional distress. Despite the recent “victory,” proving injury may nonetheless be difficult given the fact he did not actually consume the contaminated product. Admittedly, we too would be disgusted to discover that someone had spit on our burger, but it’s not like the resulting fear would be anything new. Isn’t the risk of food loogies an assumed risk of eating fast food? In addition, Bylsma’s newfound aversion to fast food may not be a “damage” at all.

The point of the physical injury requirement is to temper fraudulent emotional distress claims. Emotional distress is completely subjective and very difficult to evaluate. While the Washington Supreme Court’s decision appears to be limited to the food context, it will be interesting to see how many purchasers, but not users, of defective products try to test its bounds.

Of course, what’s the harm in trying?

Gallivan, White & Boyd, P.A. is saddened to announce that longtime shareholder and friend Arthur L. Howson, Jr. passed away on Sunday, January 27, 2013.  Art practiced law for 36 years while spending 31 of those years with GWB.  Art focused his practice on corporate and business, commercial real estate, and banking and financial transactions.  He was listed as one of the Best Lawyers in America for Real Estate law and ranked in Chambers USA Leading Lawyers for Business.  Art was recently the recipient of the Greenville County Bar’s prestigious Tommy Thomason Award.  Art was also dedicated to his family, friends, and the community. He served on the boards of Greenville Chorale and Greenville Friends of the Zoo as well as president of the board of directors for Senior Action and Bank Greenville.

This broker rebate New York very eloquently states how all of us at GWB feel, “Art, I will miss your smile and good nature. So many times I sought your counsel and you never failed to share with me what you thought was fair and what was best for our law firm. We will miss that wisdom. Well done, good and faithful servant.”  Please keep Art’s wife Anne, their children, and their family in your thoughts and prayers.

“May God rest his soul and bless his family with a peace that brings them an understanding of His love for Art and them.” – Mills Gallivan

Behold, the cover of The Amazing Spider-Man #403, published not so long ago in the summer of 1995.  However, as you may know, the 1990’s was not the best time for comics, as the odd nature of the cover art suggests.  Here’s our question:  If it is the trial of Peter Parker that is depicted, why is the defendant clad in his Spider-Man costume? Why would the court system – even the faux court apparently convened by the super villains shown on the cover – permit him to remain hidden beneath his mask? And by the way, why isn’t Venom being more understanding?  Wasn’t he on trial recently himself? What gives?

This tweet might contain the best advice a criminal defendant ever receives.  (Hat Tip:  Kevin Underhill at Lowering The Bar).

We’ve written about driverless cars more than a few times.  Quite frankly, we’re kind of obsessed with the topic. So, check out this recent article in Slate, entitled “Even If Driverless Cars Are Banned In America, They’ll Be Allowed Somewhere.”

How long has it been since you’ve read the official Abnormal Use mission statement, published way, way back on January 4, 2010? Well, that’s too long!

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Lance Armstrong and his confession have been all the rage as of late. We here at Abnormal Use are apathetic, as we are neither fans of cycling nor Sheryl Crow’s ex-beaus. Others are outraged by his admission to doping – some even to the point of filing suit.

According to a report from USA Today, two men filed suit against the seven-time Tour de France winner in a California federal court alleging that Armstrong’s autobiography, It’s Not About the Bike, is a fraud. The men claim the book contains falsehoods about how Armstrong was able to perform at such a high level on cycling’s biggest stage. In support of its allegations, the suit cites Armstrong’s recent confession to Oprah Winfrey that he used banned drugs or blood transfusions during each of his Tour de France victories. The men claim that they would not have bought the book had they known “the true facts concerning Armstrong’s misconduct.” The suit seeks class-action status on behalf of other readers.

Sigh.

As you might expect, we question the merits of this lawsuit. The men apparently seek only a refund of the book’s purchase price and, of course, their attorney’s fees. We must wonder if the men have sought refunds for every autobiography containing lies and inaccuracies. While we don’t have any sources, we imagine Armstong is not the first to lie in a self-penned work.  (James Frey, anyone?). Nothing good comes from mendacity, especially when the liar profits from the falsehood. Nonetheless, it is hardly worth taking it to a federal court over $29.95.

This, like many lawsuits, is not about the money. It is a reactionary suit to being duped. Feeling wronged by an idol is tough to take. It is natural to assume our heroes walk on water. Despite their other-worldly talents, however, like us, they too are human. Rather that own up to our creation of an unrealistic of our heroes, upon this discovery, we often take our anger out on them.

In this case, we recognize that Armstrong played a role in creating his supernatural cycling mythos. It’s okay to be mad at him about it for awhile. Let’s just leave our anger out of a federal courtroom. Another sports star for us to worship will come along soon enough. And we guess someone will sue that person, too.

Late last year, NBA Commissioner David Stern fined the San Antonio Spurs $250,000 for benching its star players for a November 29th game in Miami. As you might recall, Spurs coach Greg Popovich elected to rest star players Tim Duncan, Manu Ginobli, Tony Parker, and Danny Green against the Heat for the last game of 6-game road trip. We here at Abnormal Use refrained from voicing our opinions on the fine because it was not necessarily a legal issue at the time.

Now, Miami lawyer, Larry McGuinness, has made it one – and opened the door for an Abnormal Use critique.

McGuinness filed a class action lawsuit against the Spurs in a Miami-Dade County court over the incident, alleging that the team violated the State of Florida’s unfair trade practices laws. The suit alleges that Popovich “intentionally and surreptitiously” sent the players home without the knowledge of the league. As a result, fans allegedly suffered economic damages in paying a premium price for a ticket. McGuinness, who bought his own ticket to the game on the resale market, compared the situation to a disappointing meal at a steakhouse:

It was like going to Morton’s Steakhouse and paying $63 for porterhouse and they bring out cube steak . . . . That’s exactly what happened here.

We understand the disappointment. No one likes to show up to a game only to discover that a star player is M.I.A. However, our sympathy ends there. From a legal perspective, we question the validity of McGuinness’ suit.  Tickets to sporting events are usually revocable licenses which provide the holder the right to attend a game.  The team can revoke the license at any time, for (essentially) any reason.  It seems illogical to perceive a situation where McGuinness can successfully bring a suit for events that happened within a game when his own license to said game could be unilaterally revoked prior to the game without repercussions.  Moreover, McGuinness has filed suit against the Spurs – not the Heat, the team who issued him the license in the first place.

Even assuming McGuinness has grounds for a cause of action against the Spurs, just how has he and the rest of the class been damaged?  We understand that this was a “premium” game and that fans may have paid a higher ticket price.  However, McGuinness bought his own ticket through the resale market – any premium he paid was not that charged by the team or the NBA.  Sure, he may have been deprived of the opportunity to watch the Spurs’ stars, but he still had the chance to observe Lebron James, Dwayne Wade, and Chris Bosh fine tune their craft.  Even without the Spurs’ stars, the trio struggled to a 105-100 victory.  We wonder if McGuinness would have preferred a Heat loss to a fully-manned Spurs?

From a fan’s perspective, this suit could set an unwanted precedent.  Requiring teams to play – rather than strategically bench – otherwise healthy players will place teams in precarious situations.  Imagine the backlash if star player is injured in a meaningless game against a woeful team simply because he was required to play.  We are thinking most fans would prefer that their favorite players sit for a game if it helps bring home a title. If teams are required to play players, where does the NBA draw the line?  What if a player is medically cleared to play, but wants another day to rest a sprained ankle?  What about a death in the family just before game time?  While it is unlikely that an entire starting lineup would be simultaneously plagued by these conditions, they do arise.  Some fans – like McGuinness – will continue to have their gripes, so should they continue to bring lawsuits?

Again, we understand the frustration of attending a game only to discover a star player is not in attendance.  However, it is a part of the game and a part of the risk involved when purchasing a ticket.