Yes, Trump Is (Still) Engaged in an Attempted Coup; and Yes, It Might Lead to a Constitutional Crisis and a Breaking Point

NEIL H. BUCHANAN

UF Levin College of Law professor and economist Neil H. Buchanan explains why Donald Trump’s actions reflect an attempted coup and might still lead to a constitutional crisis. In this column, Buchanan first explains what a coup is and describes the ways that Trump has failed in his attempts thus far. Buchanan warns about how all this could still end in a constitutional crisis that Trump creates and exploits to stay in power.

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Alemarah v. General Motors, LLC

Court: US Court of Appeals for the Sixth Circuit

Docket: 20-1346

Opinion Date: November 18, 2020

Judge: Per Curiam

Areas of Law: Civil Procedure, Labor & Employment Law, Legal Ethics

Alemarah sued her former employer, GM, in both state and federal court, claiming employment discrimination based upon identical factual allegations. The state suit asserted state claims, the federal suit, federal claims. The state court dismissed that case after a case evaluation ($400,000); the federal district court granted GM summary judgment. Alemarah challenged the court’s grant of summary judgment, its denial of her motion to recuse the judge, and an award ($4,715) of costs. The Sixth Circuit affirmed. The court properly granted summary judgment. Under Michigan law, the state court’s order dismissing her claims after acceptance of the case evaluation was a judgment on the merits, Alemarah and GM were parties in both case, and the matter in the second case could have been resolved in the first, so res judicata bars every claim arising from the same transaction that the parties, exercising reasonable diligence, could have raised. The court acknowledged that a reasonable observer could conclude that the district judge’s statement in a letter to Alemarah’s counsel expressed anger and another of the judge’s actions could be seen as punitive but those actions were not “so extreme as to display clear inability to render fair judgment.” GM submitted as costs the amount it paid for deposition transcripts that it attached to its summary judgment motion; the costs were allowable.

Moore v. Superior Court

Court: California Courts of Appeal

Docket: G058609(Fourth Appellate District)

Opinion Date: November 16, 2020

Judge: Goethals

Areas of Law: Legal Ethics, Professional Malpractice & Ethics

While representing a client at a mandatory settlement conference (MSC) before a temporary judge, petitioner Kevin Moore was rude and unprofessional. Among other things, Moore: (1) persistently yelled at and interrupted other participants; (2) accused opposing counsel of lying while providing no evidence to support his accusation; (3) refused to engage in settlement discussions; and (4) effectively prevented the settlement officer from invoking the aid and authority of the supervising judge by asserting this would unlawfully divulge settlement information. To make matters worse, Moore later acknowledged that his contemptuous behavior was the result of a tactical decision he had made to act in such a manner in advance of the MSC. After a hearing, respondent court convicted Moore of four counts of civil contempt, imposed a $900 fine for each count ($3,600 total), and ordered the payment of attorney fees and costs to the opposing party. Moore challenged all four contempt convictions and the associated sanctions. After review, the Court of Appeal concluded the record and applicable law required that three of Moore’s convictions be overturned; the Court affirmed one conviction and the punishment required for that offense. The clerk of the appeallate court was ordered to make the required notification to the State Bar for whatever additional action the Bar may consider appropriate. The award of attorney fees and costs here was precluded by statute.

Inquiry Concerning Judge Robert M. Crawford

Court: Supreme Court of Georgia

Docket: S18Z1636

Opinion Date: November 12, 2020

Judge: Per Curiam

Areas of Law: Legal Ethics, Professional Malpractice & Ethics

The Hearing Panel of the Judicial qualifications Commission ("JQC") recommended that Judge Robert "Mack" Crawford be "removed from office" for violating Rule 1.1 of the Georgia Code of Judicial Conduct ("CJC") which said "Judges shall respect and comply with the law." Judge Crawford resigned as Superior Court judge of the Griffin Judicial Circuit upon investigation by the JQC. The complaint alleged that Crawford violated CJC Rule 1.1 in two ways: (1) by “impermissibly converting money from the registry of the Superior Court of Pike County . . . when he ordered the Pike County Clerk via handwritten note to disburse $15,675.62 in funds from the court registry to him via check” and “then cashed and used a portion of the check for his personal benefit and deposited the remainder of this money in his personal checking account,” although he later returned the funds; and (2) by “failing to follow the proper procedure for the disbursement of funds, even if the money had been his, as required by law,” noting the certification requirement for withdrawal of funds from a court registry contained in Uniform Superior Court Rule 23. In 2002, when Crawford was in private practice, he had deposited the funds into the registry from his client trust account in connection with a lawsuit. The JQC complaint acknowledged that Crawford claimed that at least some of the money was owed to him as attorney fees and expenses.The Hearing Panel did not recommend that Crawford be permanently barred from seeking or holding judicial office. The JQC Director did not file a notice of exceptions, thereby accepting the Hearing Panel’s recommendation. Under rules promulgated by the Georgia Supreme Court, the Court had to file a written decision either dismissing this matter or imposing a sanction. The Court elected to dismiss.

Zander v. Carlson

Court: Supreme Court of Illinois

Citation: 2020 IL 125691

Opinion Date: November 19, 2020

Judge: Lloyd A. Karmeier

Areas of Law: Government & Administrative Law, Labor & Employment Law, Legal Ethics, Professional Malpractice & Ethics

Fox Lake patrol officer Zander was charged with misconduct arising from multiple job-related incidents. The chief recommended termination. Zander's union, FOP, assigned Attorney Carlson, an FOP employee. Zander had no input into the choice of an attorney, had no retainer agreement with Carlson, and was not charged for Carlson’s services. Under the Illinois Municipal Code (65 ILCS 5/1-1-1), police officers who face removal or discharge are entitled to a hearing before the local board of fire and police commissioners unless a collective bargaining agreement (CBA) provides for arbitration. The CBA between Fox Lake and FOP gave officers the option of pursuing either avenue. On Carlson’s advice, Zander chose arbitration. The arbitrator upheld the termination. Zander sued, alleging legal malpractice and that FOP has no right to employ attorneys to furnish legal services under its direction to FOP members, and cannot control what attorneys assigned to help FOP members may do and “should be vicariously liable.” The circuit court dismissed, citing the U.S. Supreme Court’s "Atkinson" holding, which immunizes union members and officers against personal liability for actions taken while acting as a union representative in the context of the collective bargaining process. The court noted the parallels between federal labor law and the Illinois Public Labor Relations Act. The Illinois Supreme Court agreed. But for the collective bargaining agreement. FOP would have owed Zander no duty. Zander’s claim against the union fell within the exclusive jurisdiction of the Illinois Labor Relations Board.

Ewing v. Westport Ins. Co., et al.

Court: Louisiana Supreme Court

Docket: 2020-C-00339

Opinion Date: November 19, 2020

Judge: Johnson

Areas of Law: Civil Procedure, Insurance Law, Legal Ethics, Personal Injury, Professional Malpractice & Ethics

The Louisiana Supreme Court granted this writ application to determine whether “collectibility” was a relevant consideration in a legal malpractice action. Specifically, the issue presented was whether plaintiff’s damages in this legal malpractice action were limited to the amount she could have actually collected on a judgment against the tortfeasor in the underlying lawsuit. Elaine Ewing was injured in an automobile accident in 2015, when her vehicle was hit by a vehicle driven by Marc Melancon. Her counsel failed to forward the original petition for damages within seven days as required by La. R.S. 13:850. The original petition was filed on April 22, 2016, after the one-year prescriptive period had passed. Ms. Ewing’s suit was dismissed on an exception of prescription. Ms. Ewing subsequently filed a legal malpractice action against her attorney and Westport Insurance Corporation, counsel's malpractice insurer. Defendants filed a motion for partial summary judgment asserting the court should apply the “collectibility rule.” Defendants alleged Ms. Ewing’s recovery could be no greater than her potential recovery in the underlying personal injury lawsuit, and recovery in this case should have been capped at Mr. Melancon’s insurance policy limits. The Supreme Court held that proof of collectibility of an underlying judgment was not an element necessary for a plaintiff to establish a claim for legal malpractice, nor could collectibility be asserted by an attorney as an affirmative defense in a legal malpractice action.

In re: Justice of the Peace Cody King, Ward 6, Morehouse Parish

Court: Louisiana Supreme Court

Docket: 2020-O-01069

Opinion Date: November 19, 2020

Judge: Crichton

Areas of Law: Government & Administrative Law, Legal Ethics, Professional Malpractice & Ethics

The Judiciary Commission of Louisiana filed a disciplinary proceeding against respondent, Justice of the Peace Cody King on one count that alleged respondent violated Canons 1, 2, 2A, 3A(1), 3A(7), and 3B(1) of the Code of Judicial Conduct (1996) and La. Const. Art. V, section 25(C). In 2018, the Attorney General's Office filed the first of three complaints against Respondent with the Office of Special Counsel of the Commission, asserting that Respondent failed to respond to constituents in his district, and likewise failed to respond to letters or calls from the Attorney General's office. In 2019, Hannah Zaunbrecher filed a complaint, asserting: (1) Respondent was difficult to reach; (2) he overcharged Ms. Zaunbrecher for an eviction she filed; (3) he did not set a court date in the eviction matter despite repeated requests from Ms. Zaunbrecher after the eviction was filed; and (4) Respondent failed to refund the unearned filing fee. The OSC sent letters to Respondent notifying him of each complaint. Respondent did not reply despite later acknowledging that he received them. After a hearing on these charges, the Commission filed a recommendation with the Louisiana Supreme Court concluding that the above violations had been proven. To this, the Supreme Court agreed with the Commission’s recommendation, and ordered the removal of Respondent from office, that he reimburse the Commission the costs incurred in the investigation and prosecution of the case, and further, that he pay restitution for an unearned filing fee he failed to return to Parish Leasing Company, LLC.

In re Grundstein

Court: Vermont Supreme Court

Citation: 2020 VT 102

Opinion Date: November 13, 2020

Judge: Eaton

Areas of Law: Government & Administrative Law, Legal Ethics

Robert Grundstein appealed the Vermont Board of Bar Examiners’ determination that he failed to establish his eligibility for admission to the Vermont bar in connection with his 2019 application for admission by examination. He argued that, for numerous reasons, the Board erred in evaluating his application pursuant to the Rules of Admission to the Bar of the Vermont Supreme Court in effect at the time his application was submitted. After its review, the Vermont Supreme Court concluded the Board correctly applied the Rules and affirmed.