The Unacknowledged Clash Between the Supreme Court’s Interpretation of the Religion Clauses and the Free Speech Clause of the First Amendment

VIKRAM DAVID AMAR, ALAN E. BROWNSTEIN

Illinois law dean Vikram David Amar and UC Davis law professor emeritus Alan Brownstein comment on a largely unacknowledged clash between religious accommodations and exemptions on the one hand, and core free speech principles which the U.S. Supreme Court has repeatedly recognized, on the other. Amar and Brownstein describe this apparent conflict and suggest that the Court begin to resolve the conflict when it decides two cases later this term presenting the question of the scope of the “ministerial exception.”

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Ex parte Sonya C. Edwards and Edwards Law, LLC.

Court: Supreme Court of Alabama

Docket: 1180255

Opinion Date: January 17, 2020

Judge: Stewart

Areas of Law: Contracts, Legal Ethics, Professional Malpractice & Ethics

Sonya C. Edwards and Edwards Law, LLC (collectively, "Edwards"), petitioned the Alabama Supreme Court for a writ of mandamus to direct a trial court to enter a summary judgment in their favor in an action filed against them by Ivan Gray. Sonya previously represented Gray in proceedings in federal court. In 2015, after mediation and a settlement, those proceedings concluded with the entry of a final judgment. Thereafter, Gray sought to set aside the settlement, and Sonya terminated her representation of Gray. In 2017, Gray sued Edwards alleging Edwards had entered into a contract with Gray in June 2014 in which Sonya agreed to represent Gray in the federal proceedings in exchange for a contingency fee of 50%. Gray alleged that he paid a total retainer fee in the amount of $14,380.85 to cover expenses. According to Gray's complaint, when his federal case concluded, Edwards disclosed that the actual expenses amounted to $4,516.77, therefore, he felt he was entitled to a refund of $9,864.08. When the refund was not forthcoming, Gray alleged Edward converted his retainer and breached the contract between the two. The Supreme Court determined the "act or omission or failure giving rise to the claim" occurred on September 16, 2015, and that was the operative date from which to measure the applicable two-year limitations period. Gray did not file his action until October 27, 2017, which was beyond the two-year limitations period. Accordingly, Edwards has demonstrated a clear legal right to have a summary-judgment entered in her favor.

Hance v. Super Store Industries

Court: California Courts of Appeal

Docket: F075852(Fifth Appellate District)

Opinion Date: January 23, 2020

Judge: Brad R. Hill

Areas of Law: Legal Ethics

This dispute arose between two attorneys representing the plaintiff class in an approved settlement. After the trial court made an award of attorney fees and divided the fees in accordance with the alleged fee division agreement, appellant challenged the enforceability of that agreement and the division of the attorney fee award between himself and respondent. The Court of Appeal reversed and held that the trial court abused its discretion by enforcing the fee division agreement, when the undisputed facts showed a clear violation of former Rules of Profession Conduct 3-410, which rendered the agreement unenforceable. The intent of the rule was to require the attorney to disclose the lack of professional liability insurance to the client, at the time the client retained the attorney, so the client could consider that information in making the decision to retain or not retain the attorney. The court remanded for the trail court to determine whether principles of equity entitled the law firm to some measure of compensation. In this case, the trial court did not reach the issues of whether respondent should recover compensation for his attorney services on a quantum meruit basis, despite invalidation of the fee division agreement for violation of former rule 3-410 and, if so, how much he should recover.