Last week Thursday was April first, a.k.a. April Fool’s Day. Of course, the legal community saw its share of pranks. For instance, the Harvard Law Record reported that Harvard Law School would offer tuition refunds to 3Ls graduating without job offers from firms (those seeking public interest jobs were excluded because they would probably earn more if they didn’t attend law school in the first place). http://www.hlrecord.org/news/harvard-law-school-to-issue-refund-to-jobless-graduates-1.1293460
Another such prank came from Eric Turkewitz, a New York personal injury lawyer who blogged that the White House had hired him as its official law blogger. http://www.newyorkpersonalinjuryattorneyblog.com/2010/04/on-becoming-white-house-law-blogger.html. Apparently, the New York Times reported the story without first confirming it with Turkewitz or the White House. The newspaper subsequently retracted its announcement. http://cityroom.blogs.nytimes.com/2010/04/01/when-lawyers-blog/?scp=1&sq=white%20house%20legal%20blogger&st=cse
Turkewitz’s post drew an accusation from another blogger that his prank was a violation of Model Rule of Professional Conduct section 8.4. http://ethicsalarms.com/2010/04/03/of-interns-heroes-and-hoaxes/ Since then a debate has erupted whether Turkewitz’s April Fool’s Prank was an ethical violation. For Turkewitz’s side, see http://www.newyorkpersonalinjuryattorneyblog.com/2010/04/is-april-fools-joke-ethical-violation.html. For the response, see http://ethicsalarms.com/2010/04/06/the-april-fool-lawyer-and-his-defenders-ethical-dodges-on-display/.
While the ethicality of a lawyer’s April Fool’s joke is a debate best left to the wags and the humorless, it does raise an interesting question: On this side of the continent, do the California Courts have anything to say on the subject of April Fool’s jokes? Well, of course they do! In San Francisco Bay Guardian v. Superior Court (1993) 17 Cal. App. 4th 655, the First District Court of Appeal demonstrated that judges may in fact have a sense of humor.
In this case, a landlord brought suit against the San Francisco Bay Guardian for printing a false letter to the editor under his name in a parody issue. While the case was pending in superior court, the Guardian moved for summary judgment. In opposition, the landlord submitted affidavits from several persons who claimed to have mistaken the letter for the truth. The superior court denied the motion finding there to be a triable issue of material fact. The paper then petitioned the court of appeal to issue a writ of mandate directing the lower court to grant the motion. The First District took the appeal finding that the trial court had failed to make an initial threshold inquiry: Before a jury can determine how the average person would understand the statement, the court must examine the entire context of the joke to determine whether it would be understood as an assertion of fact or otherwise. Id. at p. 659.
This time the court agreed with the Guardian. It found no merit to the landlord’s affidavits:
The fact that real party furnished declarations of a few people who stated that they did not recognize the letter as a joke does not raise a question of fact as to the view of the average reader. The question is not one that is to be answered by taking a poll of readers but is to be answered by considering the entire context in which the offending material appears. Id. at p. 660.
The court then concluded, as a matter of law, that the average reader would recognize that the letter was a parody under a totality of the circumstances. In reaching its conclusion, the court stated: “[T]he very nature of parody and of April Fool’s jokes is to catch the reader off guard at first glance, after which the ‘victim’ recognizes that the joke is on him to the extent that it caught him unaware.” Id.
While San Francisco Bay Guardian does not answer whether a lawyer’s April Fool’s joke would qualify as an ethical violation, it does demonstrate that the California courts will tolerate the misattribution of statements under certain circumstances in the name of humor. Justice Scalia would not be amused.