Sometimes the law doesn't make any sense but the result is alright (sex offender registration)

Sometimes the law doesn't make any sense.  Sex offender registration is one of those areas of the law that is so bizarre most people wouldn't believe it.  Any person convicted of any of the crimes listed in California Penal Code Section 290 need to register as a sex offender for life.

I have my own reservations about the sex offender registration system--in that it techincally isn't a punishment even though it really is, due process protections are scarce, and there is no proven benefit to the whole scheme.  It just seems like a big punitive measure taken to make these peoples' lives hell (which I suppose in some cases isn't sooo bad). 

In this case a 37 year old man had sex with a sixteen year old girl.  He branded himself her "love coach."  The shocker:  which of the following acts make the man subject to sex offender registry?

A) sending text messages saying: "Can you keep as a secret our secret" and "I missing you"

OR

B) Having sex with a sixteen year old girl.

Well, I suppose my heading gives it all away, but statutory rape does not subject an offender to sex offender registry, while "annoying or molesting a child"  does subject this guy to lifetime registry.

If you feel like reading the opinion, here it is, complete with defenses such as "by texting a sixteen year old girl that I loved and missed her I didn't mean to take advantage of her" and "Oh, I was just joking."

Losing faith in humanity in 5,4,3,2.............

Tax Deductibility of Legal Fees (sometimes)

What legal fees are tax deductible?

Most Likely Deductible:

1. Litigation related to doing or keeping your job.  (i.e. wrongful termination, wrongful discrimination, injury to reputation)
2. Cost of collecting taxable spousal support.
3. Portion of legal fees in divorce attributable to tax advice.  (Have your attorney itemize this.)
4. Estate planning fees related to income property or general tax planning.
5. Fees for recovering personal injury damages—if damages are taxable.

Probably NOT Deductible:

1. Costs related to divorce and child support cases, except portion attributable to collecting taxable spousal support.  (Have your attorney itemize this.)
2. Personal injury lawsuits unless taxable damages are recovered.
3. Will contests.
4. Title contests.  (However—add the legal costs to the tax basis of the property for when you sell the property later.)

The Bottom Line:

If it relates to collection or production of taxable income, it’s most likely deductible.  If it’s a business litigation expense it’s most likely deductible.  If it relates to tax advice or tax planning, it’s most likely deductible.  Your attorney should be able to itemize your bill upon your request.

The Bad News:

These expenses are miscellaneous expenses on IRS schedule A and are only going to help you if they are greater than 2% of your adjusted gross income (AGI). 

Hybrids, Lawyers, and Opting-Out of Class Actions (too good to be true?)

Most people get postcards in the mail once in a blue moon saying they can opt-out of a lawsuit if they want.  Most people also don’t understand what a class action is, what opting-out really means and what their rights are. 

Class actions are lawsuits in which so many persons interests are implicated that it is impractical for all those affected to sue separately.  If the court certifies the class (generally gives their approval), then the class action lawsuit is binding on all those affected even if they don’t participate.  So, even if you never step into court, the case can affect your rights and prevent you from suing later on your own. 

Under Federal law, class actions seeking damages have to give class members (like you and I) a chance to opt-out.  This means having an opportunity not to be bound.  If one opts-out they will not receive any benefit from the suit and also won’t be bound by it.  Under California law, class actions seeking damages do not have to, but MAY give class members a chance to opt-out.  It is within the judge’s discretion whether or not notice and a chance to opt-out should be given.

Heather Peters bought a Honda Civic Hybrid.  The sticker on her new 2006 hybrid Civic looked a lot like the one to the left.  (The sticker if for a 2007).  Recently someone started a Federal class action lawsuit against Honda, claiming that the real world mileage of the Honda Civic Hybrid is not anywhere near what was advertised.  An Edmunds forum has some reviews by owners claiming they get between 29-35 mpg.  Heather Peters received one of those postcards telling her about her right to opt-out.  She did.  She then sued Honda in small claims court in Los Angeles.  She won $9,867.  If she had stayed in the class action she probably would have gotten some coupons good for the next time she buys a Honda, while the lawyers involved are looking at around $8.5 million if they succeed (oh great!).  Heather’s class action is getting a lot of press coverage and is going to be pretty problematic if Honda Civic Hybrid buyers all opt-out and sue separately in small claims courts across the country.  Frankly, our courts can’t handle the number of cases they are currently facing and Honda’s litigation staff will be stretched to its limits.  Time will tell if others follow Heather’s example.

Now, Heather is probably going to have to deal with an appeal and not everyone has a legal background like Heather, but next time you get one of those postcards in the mail think twice about opting out.  In the meantime I am going to opt-out of buying a hybrid. 

One in two lawyers is always wrong (Quotes)

"One in two lawyers is always wrong--and they're  rich.  What they can't be is incompetent.  So don't stress if you are wrong."


Professor Peter Jan Honisberg, University of San Francisco School of Law

One step forward, two steps back (Scalia is retarded)

Most laymen normal people take the law as it comes, while law students and lawyers have stupid thoughts like, “I like the result, but don’t agree with the reasoning.”  Many times during my law school career I agreed with outcomes but not reasoning---or with reasoning and not outcomes.  The Supreme Court just wrote one of those opinions wherein they found that GPS tracking of vehicles constitutes a search for 4^th Amendment purposes and requires search warrant.  Duh, right.  Well, previous cases had found that GPS tracking devices were not searches because people did not have a reasonable expectation of privacy in the location of their cars.  Police could simply follow the car instead, and so GPS devices did little to alter the privacy concerns. 

The Law (Its Katz, not Cats)

The 4^th Amendment protects citizens from unreasonable searches and seizures by government actors.  However, not everything is considered a search.  Before 1967, the 4^th Amendment was construed as protecting places—areas that were deemed private.   In the 1967 decision, Katz v. United States, the Supreme Court changed the definition of search for 4^th Amendment purposes—stating that “The fourth amendment protects people not places.”  The concurrence in the decision gave us what is now the test for whether or not government conduct amounts to a search—that is whether or not a person has a “reasonable expectation of privacy.”  Katz shifted the focus from places to people and to an understanding of privacy interests more than property interests.  Subsequent cases have fleshed out exactly what that means, but they have been rather consistent in their reasoning.  In this case, Scalia wrote an opinion—properly finding that a GPS device attached to a car amounts to a search—but stated, “"The government physically occupied private property for the purpose of obtaining information, we have no doubt that such a physical intrusion would have been considered a 'search' within the meaning of the 4th Amendment when it was adopted."  But, being Scalia, he did acknowledge the existence of the “reasonable expectation of privacy” test, just failed to apply it.  Oh boy.  Even Justice Alito in his concurrence noted that Scalia was wrong—in that Katz had done away with any physical intrusion analysis. 

The problem is that application of bad law—even if it gets the right result may result in a shift back towards a physical space formulation for 4^th Amendment analysis in the future.  Let’s hope not.  In the meantime here is the very long read and drive free of warrantless GPS devices.

Guantanamo by the numbers (sad)

I have to agree with the government that some prisoners at Gitmo are too dangerous to release even though we lack adequate evidence to prosecute them.  However, no matter what one's political persuasion, Gitmo has been an overall failure.  America can and should do better than this.  If you can stand it, look at the numbers.

Be careful what you ask for (Attorney’s fees in contracts)

Common usage creates some confusion in this area, but lawyer fees are the amount an attorney charges his client, whereas attorney’s fees are costs of litigation potentially shifted between parties.  There are no attorney’s fees at common law.  Usually you pay for your lawyer, I pay for mine.  However—attorney’s fees can be awarded by statute or by contract. 

A common attorney’s fee provision reads something like this:

“The prevailing party shall have the right to collect from the other party its reasonable costs and necessary disbursements and attorneys' fees incurred in enforcing this Agreement.”

Some parties to contracts attempt to create a more one-sided risk regarding attorney’s fees, with clauses such as the following:

“The employer shall have the right to collect from the employee its reasonable costs and necessary attorney’s fees in enforcing this agreement.”

You thought you were so smart when you wrote that clause.  Guess what?  California has other plans for you.  Any provision calling for an award of fees to only one contracting party is deemed to apply to any contracting party who prevails in litigation under the contract.  See CA Code Civ. Proc. § 1717.  So, anytime one creates a one sided attorney’s fees provision, it is construed bilaterally and is binding on all parties.  Considering the uncertainty in litigation its generally best to stay away from attorney’s fee awards altogether.  Things have come to a pretty pass, goodness knows what the end will be, so let’s call the whole thing off.  (Louis Armstrong anyone?)  So, next time you are writing a really creative contract provision and think you’re really smart—remember the California legislature might just be one step ahead of you, and that provision may have unintended consequences.