biz org class 3

best way to max shareholder profits is to take a communitarian approach: consider the needs of the community.

dodge v. ford - what ford says on the stand makes good biz sense: most leaders probably believe that the best way to max growth is to take care of the employees, creditors, etc. ford said i don't care about shareholders -- which was the problem because the purpose of the corp is to max shareholder profits.

but from wrigley, we know that the executives don't have to be tunneled visioned. they should also consider non-shareholder interests when it also does what's best for shareholders (communitarian).

there is a direct link to helping the community and the shareholder.

see p. 279:
if shelensky was unhappy with wrigley operations, why didn't he just sell his shares? there are several aspects which define corps, and one fund characteristic is that interests are fully transferable and you can sell if unhappy

the point of a corp is not just to make money for shareholders but to *maximize* the growth. the shareholder won't want to sell because any money made is going to reflect lowered value of the shares, when the company can be more profitable and shelensky could sell for more.

could shelensky have prevailed? the court wanted him to be more specific in his complaint (the court calls his assertion "a mere conclusion") and to have given more concrete proof that nighttime games would have created more profit for the shareholders.

suppose you represent shelensky and called wrigley as a witness. what would you ask him/ what strategy would you adopt in questioning? other baseball companies have played night games and installed lights and the shareholders have made much more money, where mr. wrigley, the majority controlling shareholder at 80%, has denied the installation.

do we look at objective or subjective reality? the ford court looked at subjective state of mind of henry ford. the shelensky court instead looks at the objective operations in the way that the company might disturb the neighbors and the potential effect this could have on shareholders.

see p. 278, which illustrates the approach of objective reality and the controlling shareholder's state of mind.

when does a corporation exist?


how do we pierce the corporate veil?

what's the reason that barrett is not liable? when a promoter contracts with a 3d party on behalf of a corp not yet formed, who is liable? the corp wasn't de jure

walkowsky and sea-land were corporations. they were de jure (organized under laws of a jurisdiction and able to operate as a corporate entity) but they were organized for non-corporate intentions.

if the promoter forms the corporation later, can the corporation become a party to a contract? yes

can the initial agent avoid liability?
if the promoter later forms the corp, can s/he avoid liability? no
absent an agreement to the contrary, an agent for a not yet formed corp is liable and can avoid liability only if the other party to the contract agrees.

who is liable if the corp is never formed? what is the issue in so-gulf marine? the agent/promoter is liable if the corp is never formed.

agency principle. the court estops camcraft from saying that it can't do business with so-gulf because the fact that so-gulf's legal status (the fact it isn't a corp) doesn't effect camcraft's legal status.

the court has two doctrines to mitigate the potential liability:
1. corp by estoppel, where the court will treat a firm as though it was a corp because the parties dealing with the firm (1) thought it was a corp all along and (2) one party will earn a windfall if the firm is not treated as a corp.
2. de facto corp doctrine: instead of looking at the postiion of the party dealing with the corp, the court looks at the position of the promoters/organizers. the court may treat a firm not properly incorp as though it were a de jure corp if the organizers (1) in good faith tried to incorp, (2) had a legal right to inc and (3) acted as a corp.

did barrett make a good faith effort to incorporate?

walcovsky v. carlton.

commercial arbitration class 2

federal arbitration statute (see appendix 2)

if there's a written agreement, the court can only refuse to enforce
if it's on the same grounds that render any contract invalid.

courts decide whether the language falls within the scope of the arbitration --

arbitability means 2 things:
1. whether a dispute falls within the description of disputes covered
    by the arbitration clause
2.

NYCPL s. 7501 see appendix 1
the court isn't supposed to consider the meritability of the dispute.
meaning, even stupid claims are supposed to be handled by the arbitrators
not the court.

what if a party is recalcitrant about an arbitration?
a party to the contract can file a court action, but the other says that it
should go to arbitration.

"where a party is aggrieved by failure to arbitrate, the party seeking
arbitration can get the court to stay a court action and enter an order that
the case has to go to arbitration."  -- without this kind of provision,
treating a contractual arbitration agreement wouldn't have much sway....

if you have an award, it's not worth anything if it's not voluntarily
complied with or its turned into a judgment. both state and fed
have confirmation procedures:

see section 9 - 11 of federal arb stat, which deal with how to grant the
award or to deny the award under stat basis (award conferred by
corruption, fraud, misconduct, unfair hearing, excess of arbitrator's powers)

but again, there's nothing to suggest that errors of fundamental law or fact
create a basis to deny an award. there are limited public policy reasons to
refuse to confirm that we will explore later (for example sending a heroin
addict back to work at a power plant), and amicus disregard.

but part of the ouster concept and reluctance to arbitration was the idea that
people going to arbitration wouldn't have the protection of the appellate level.
but if parties are submitting to arbitration, either by honoring the clause or
by agreeing to arbitrate post-dispute, once the award was entered, it was
good and courts would rarely interfere with the award. the only time courts
would revoke would be times where parties would complain. parties can also
always settle a dispute, and courts do not get into the fairness of settlements or
consideration. history of these policies is pretty choppy.

these statutes were created to deal with merchantile arbitration. but whether the terms
of the enactments of 1925 were sound or not, congress was not thinking of arbitrating
securities or civil rights.

additionally, the statute talks about interstate commerce -- in 1925, congress
meant boats, trains, and shipments from state to state. nowadays, you don't
have to intend interstate commerce or for activity to take place in multiple
jurisdictions. this clause has huge impact, because you can arbitrate ginormous
claims!

when you go to arbitration you give up right to trial by jury. juries have
always been waivable by both parties. but some people argue that it is a
knowing act to waive the right to jury, and the common place use of
arbitration clauses creates a question of what does "knowing waiver" means?
why should we expect that people understand what arbitration is?

under choice of law principles, why not arbitrability? in a law suit involving
people from all over and a court different from where the court sits, why doesn't
that change to have the court invariably turn to its own rules to govern procedure?

procedure is at least somewhat linked with remedies -- therefore, what remedies
are available to a wronged party? early thinkers talked about arbitration
as a remedy (keeping in mind, one for which there was no jury).
because of this, arbitration didn't run into constitutional obstacles
because state constitutions would set up types of jurisdictions, and if arbitration
had been seen as a type of court, then it would have been difficult for the legislature
to establish it by statute.

are arbitrators required to apply the law?

proRo class 3

wednesday afternoon discussion sessions TBA.

class 3 overview:

who is the client?

how is the attorney-client privilege formed?

perez v. kirk and carrigan

attorney-client privilege. 

see post "proRo problem"
- not rule bound but est by common law
- can be vague whether the relationship is est
- general standards (see p. 25 of textbook)
     "person manifests to att intent for rep"
     "att knows/ reasonably should know person is relying on their rep"

The "C"s of confidentiality in attorney-client privilege: Client Communicates Confidentially with Counsel to obtain Counsel.

don't have to see the person face to face even, but can be probative.
however, there's no singular dispositive thing except, perhaps,
the REASONABLE EXPECTATION OF THE CLIENT
- esp if the person has given the att privileged confidential info

before giving opinions, the att must consider "would this person
reasonably consider this legal advice?" if so: court may say
"att-client relationship!"

while no single factor is dispositive,
the reasonable expectations of the client determine whether
the att-cli relationship has been formed."

confidentiality
model rules rule 1.6 
see comment 4
discussion of the 2004 updates to rule 1.6

you can see within the text of the rule 2 exceptions to the
baseline obligations:
1. client's informed consent to representation
2. implicit consent to representation

informed consent is defined for us at MPRC 1.0(e) but is a recurring concept.

implicit consent is where consent to reveal/disclose is implied.
- specific information that att has been given but hasn't turned over
- work done in the service of the client

what can you say/not say to others in respect to the work done for a client?
under just MPRC 1.06, you can say nothing.
with respect to comment 4, you can say things so long as the information
will not be related back to/identify the client. comment 4 makes it OK to
reveal information in hypothetical form for professional purposes. but
doesn't allow you to spill the beans about your client with your buddies...

bottom line: most lawyers interpret duty of confidentiality to not prohibit
the discussion of work entirely but to inhibit disclosures that may be linked
to any particular individual which could be traced back to a client.

explicit exceptions under 1.6 (b):
1. prevent reasonably certain death or substantial bodily harm
2. prevent the client from commiting a crime or fraud that is reasonably certain
    to result and substantial injury to someone's financial interest or property
    and in furtherance of which the client has used the lawyer's services
3. to prevent/mitigate substantial injury to property or financial injury to person
    that has resulted or will result from client's past commission of a crime or
    fraud and in furtherance of which the client has used the lawyer's services
4. to secure compliance with rules
5. to est. defense for lawyer in dispute between lawyer and client
6. to comply with another law or court order

* past criminal conduct: general consensus is lawyers can't reveal
* past criminal activity of their clients.  compare 1.6(b)(1) through (3).
1.6(b)(1) and (2) prevent future crimes
1.6(b)(3) deals with completed crimes
1.6(b)(3) allows the lawyer to reveal if the crime will result in substantial
      physical or financial injury or death
if the criminal act is past and the client hires the lawyer to hire him/her
     with respect to the past fraudulent act, 1.6(b)(3) is inapplicable.
     instead see comment 8.

hypo.

attorney learns that client intends to commit arson to former boss. 

can att disclose?

yes. why and under what rule?
can invoke 1.6(b)(1) if you show someone was likely to be hurt
can invoke 1.6(b)(2) if the cli was using the att to commit this crime...
    let's say the att was engaged for an age discrim suit. that connection
    would NOT allow the att to invoke because the cli didn't use the service
    to commit the crime.

what if the att gave the cli advice based on a hypo "i'm going to burn down

    my boss' building. what would happen if i do?" can he disclose?
    

hypo.

att unwittingly helps cli create and file falsified docs. can he disclose?
yes.
     now, rule 1.6(b)(2) does apply because the att's role
     directly impacts the crime or fraud committed.

hypo. 

att is approached to represent cli about fraudulent claims to SEC. 

over time att discovers that cli did make the fraudulent claims.

can he reveal?

no. under comment 8 of 1.6(b)(3), the att was approached by the client
for that charge and for (b)(3) to apply, cli must have approached the att
to advance the crime, not just to represent after the fact.

the harm resulting from a fraud is ongoing and difficult to pin down
when it occurs. the critical legal inquiry to decide if (b)(3) applies is
"is the commission of the fraud itself past?"

but when fraud can be ongoing, the att must be able to identify
components of the fraud which were ongoing and reliant on
representation and services of the att. it's very difficult to pin
down when a financial harm will occur, if it all.

all exceptions to duty of confidentiality are permissive, including (b)(1),
except in states which make (b)(1) mandatory. there is no requirement
to reveal under MPRC.

see "proRo class 3: alton logan"

hypo. 

11 yr old goes missing on way to bible study. the father and friends

distribute pictures of the child to the community but no one has seen 

the child. the cops arrest a man for a botched kidnapping of a 12 yo 

and suspect the man also killed the 11 yo. the defendant confesses 

that he abducted the 11yo and buried her in a shallow grave, draws 

a crude map. public defender is aware the confession can be attacked 

collaterally and defendant is convicted. 

apply rule 1.6 - could the att have advised the client to disclose, 

or if he knew the location could he have disclosed?

proRo: class 3 - alton logan and model rules amendments

alton logan

from the ABA:
Alton Logan has been in prison 26 years for
the shotgun murder of Lloyd Wickliffe, a
crime [committed by Andrew Wilson].
Wilson’s lawyers faced a classic ethical dilemma:
What may a lawyer do when a client admits
to a crime for which another has been charged?

Wilson’s lawyers concluded that client confidentiality
bound them to silence, but they obtained their client’s
consent to reveal the information after his death.
Wilson’s lawyers also drew up an affidavit that confirmed
that they “obtained information through privileged
sources that a man named Alton Logan who
was charged in the fatal shooting of Lloyd Wickliffe
. . . is in fact not responsible for that shooting.” They
placed the affidavit in a sealed envelope in a metal
box in 1982, believing that revelation at a later date
would be more credible if supported by the affidavit.
They released the affidavit after their client’s death [in 2008].

The ABA is considering a draft proposal to amend
Rule 1.6 of the Model Rules of Professional Conduct
to allow disclosure in such situations. In this column
we review the draft proposal, and discuss whether
there should be a new exception to Model Rule 1.6’s
duty of client confidentiality to prevent the wrongful
incarceration of another. The purpose of this column
is both to analyze the issue and to encourage discussion
and comments from readers.

Draft Proposal
Although newly amended Rule 3.8 clarifies the
obligations of prosecutors regarding wrongful conviction,
nothing has yet been done either to require
or allow disclosure of confidential information by
defense counsel to prevent wrongful incarceration.
In response to this dilemma, Criminal Justice Section
Ethics, Gideon & Professionalism Committee
cochairs Bruce Green and Ellen Yaroshevsky have
drafted the following proposal to amend Rule 1.6:

(c) A lawyer may reveal information relating
to the representation of a deceased client to the
extent the lawyer reasonably believes necessary
to prevent or rectify the wrongful conviction
of another.

The draft proposes amending Comment [15] to
Model Rule 1.6 as follows:
Paragraph (c) recognizes the important societal
interest in preventing and rectifying wrongful
convictions, including both convictions of
factually innocent individuals and convictions
resulting from procedural improprieties. The
interests underlying the confidentiality obligation
are usually paramount in the case of living
clients because clients will not be as forthcoming
if there is a risk that their confidences will
be disclosed during their lifetimes. However,
the societal interest in disclosure may be paramount
when the client is deceased, particularly
when the client’s reputation and estate will not
be prejudiced by disclosure. In exercising discretion
under Paragraph (c), a lawyer should
consider the prior wishes of the deceased client
to the extent they are known, the likelihood
that a wrongful conviction will occur and can
be prevented or that a wrongful conviction
occurred and can be rectified by disclosure,
the extent of the ongoing harm caused by the
wrongful conviction, and the extent to which
disclosure will prejudice interests important
to the deceased client, including the deceased
client’s reputation and the financial interests of
the deceased client’s estate.

In evaluating the recommendation, it is important
to note some of its features and limitations:
First, disclosure under the proposal would be discretionary.
Second, the proposed amendment restrains the
lawyer’s discretion by limiting disclosure to situations
when the client is deceased. Further, the
Comment indicates that in exercising discretion the
lawyer should consider the prior wishes of the deceased
client and the extent to which disclosure will
prejudice interests important to the deceased client,
including the deceased client’s reputation and the financial
interests of the deceased client’s estate.

The preconditions for disclosure appear to narrow the
proposed exception to confidentiality so much that
the exception could rarely be used, especially when
one considers that disclosure would be discouraged
even when there is only reputational harm to a deceased
client.

Finally, amending the ethical confidentiality rule
in a jurisdiction does not resolve evidentiary issues
that could bar the information being used in court
proceedings. As discussed in the following section,
attorney-client privilege has been used in several
jurisdictions to prevent lawyers from revealing information
that could prevent the wrongful incarceration
of another. A confidentiality exception would
allow revelation to the prosecution, the press, and
lawyers representing the person the information
exonerates. Privilege becomes an issue when the
lawyer seeks to testify in court about what the lawyer
knows that may exonerate the accused. In addition,
limitations on the use of alternate perpetrator
evidence and hearsay would usually exclude this
type of testimony.

Massachusetts has already amended its ethics
rules to provide that “[a] lawyer may reveal . . . such
information . . . to prevent the wrongful execution
or incarceration of another.” (Mass. R. Prof’l Conduct
1.6(b)(1).) Comment [9A] explains that this
exception to confidentiality permits “a lawyer to
reveal confidential information in the specific situation
where such information discloses that an innocent
person has been convicted of a crime and has
been sentenced to imprisonment or execution.” The
Comment’s explanation that the exception applies
specifically when “an innocent person has been convicted
of a crime and has been sentenced to imprisonment
or execution” may be viewed as an example
of when the exception applies or as a limitation on
using the exception. Rather than clarifying the exception,
the Comment appears to create an ambiguity
in determining when the exception applies. We
could find no reported instances of a lawyer making
disclosure under this rule.

Attorney-Client Privilege
There are several well-documented examples of
confidential information being offered to exonerate
someone accused of a crime. In State v. Macumber,
544 P.2d 1084 (Ariz. 1976), William Macumber was
charged with murder. At Macumber’s trial, two attorneys
attempted to testify that their deceased client
had confessed to the crime. The trial court refused
to admit the evidence reasoning that attorney-client
privilege survived the death of a client and that disclosure
could only be made with the consent of the
client or someone authorized by law to speak for the
client. On appeal, the Arizona Supreme Court reversed
on other grounds, but upheld the trial court’s
decision to exclude the confession, holding that in
the absence of consent from the individual holding
the privilege, the privilege could be asserted by the
trial court itself to prevent disclosure. (Id. at 1086.)
Macumber illustrates the distinction between the
legal ethics rule of client confidentiality and the evidentiary
rule of attorney-client privilege. Both the
trial court and the Arizona Supreme Court refused to
permit the testimony from the lawyers on attorneyclient
privilege grounds even though the lawyers
had obtained an informal bar ethics opinion stating
that they were ethically permitted to reveal the
confidential information. (Id. at 1097 (Holohan, J.,
concurring).)

Other courts have also relied on attorney-client
privilege to prevent lawyers from testifying about
client statements exonerating someone charged with
a crime. (See, e.g., State v. Doster, 284 S.E.2d 218,
220 (S.C. 1981) (applying attorney-client privilege
to prevent lawyer from testifying about deceased
client’s statements that may have exonerated defendant);
State v. Valdez, 618 P.2d 1234, 1236 (N.M.
1980) (holding attorney-client privilege prevented
lawyer from testifying that a former client confessed
to robbery).)
In Morales v. Portunondo, 154 F.Supp.2d 706
(S.D.N.Y. 2001), though, the court permitted a lawyer
to disclose that his deceased client had confessed
to a murder for which another man had been convicted.
The court found the information covered
by attorney-client privilege, but ruled that in a habeas
action due process required admission of the
evidence to guarantee fundamental fairness to the
defendant. (Id. at 730-31.) In reaching its decision,
the Morales court relied on Chambers v. Mississippi,
410 U.S. 284, 302-03 (1973), which used a due process
analysis in holding that “the hearsay rule may
not be applied mechanistically to defeat the ends of
justice” to exclude statements of another admitting
to a crime for which the defendant is on trial.
These cases demonstrate that any change in a
state’s ethics rules to create an exception to confidentiality
to prevent wrongful incarceration needs to
be supplemented by changes in the law of attorneyattorney
client privilege if the confidential information
obtained from a client is to be used in a court
proceeding. Still, an exception to client confidentiality
would permit a lawyer to reveal the information
to the accused’s defense counsel, the prosecutor, and
the press. Such revelations might, in turn, lead to
other admissible evidence or information that could
prevent a wrongful conviction, incarceration, or
execution.
 
Should There Be an Exception?
Let’s consider some of the pros and cons of such a
proposal.
Against the exception. Confidentiality, a key aspect
of the attorney-client relationship, is essential
to building trust between client and lawyer. Confidentiality
encourages lawyers to seek and clients to
provide full information about the representation.
Confidentiality, it is argued, serves both clients and
society since open communication enables the lawyer
to represent the client effectively and gives the
lawyer the opportunity to counsel the client against
wrongful behavior. Exceptions to confidentiality
arguably erode both lawyer and client incentives to
seek and provide information, and thus threaten to
undermine the quality of legal representation and
the good it provides to society.

A separate argument against the exception that is
the focus of this column is that such an exception
is unlikely in reality to provide much benefit to the
wrongfully accused or convicted.
 If a lawyer were to reveal a deceased client’s confession
to a crime for which another had been convicted, there
are a number of serious evidentiary barriers to the
admission of such testimony in a court proceeding,
including attorney-client privilege, the hearsay rule,
and the alternate perpetrator doctrine. 

• The confession was not made under oath and there was no opportunity either for cross-examination or to observe the client’s demeanor. 
• If the confession was made to a lawyer in the belief that it was protected by confidentialityand attorney-client privilege, it would also not be an admission against interest. 

In short, such a confession may carry little weight
even if it were not barred by evidence law.

For the exception. One argument for such an
exception is that ethical confidentiality rules have
always recognized exceptions. Is one more, rather
narrow, exception likely to have a significant marginal
impact on the flow of information from client
to lawyer or the resulting quality of representation?
Some currently recognized exceptions, such as those
pertaining to future crime or harm, seem much more
likely to be triggered and thus more likely to impede
the full and frank communication confidentiality is
designed to facilitate than a wrongful conviction
exception.

In response to the argument that this exception
is unlikely to produce much benefit for someone
wrongly charged or convicted due to various evidentiary
barriers to admitting the client’s confession in
court, one can argue that revelation of the confession
may produce benefits other than its use as evidence
in a court proceeding. The revelation might help a
wrongfully charged or convicted person attract public
support, lead to other admissible evidence, or
simply prompt the prosecution to reexamine a case.
Perhaps the most appealing argument for such an
exception is that it helps address the need to remedy
the wrongful convictions that have attained
such prominence in today’s legal and popular culture.
These DNA exonerations illustrate the need for
more safeguards to ensure that the innocent are not
convicted and incarcerated. One such response is
the recent amendment to Model Rule 3.8 addressing
a prosecutor’s post-conviction obligations of
disclosure and investigation. An additional response
aimed at defense counsel is a wrongful incarceration
exception. Failure to recognize such an exception
is likely to attract public attention and undermine
public confidence both in lawyers and our criminal
justice system.

Finally, recognition of such an exception is consistent
with a recent trend to ease confidentiality
restrictions when doing so allows lawyers to serve
an important public purpose. The current version of
Mode Rule 1.6, for example, recognizes more exceptions
than did the original version of Model Rule
1.6. Many states have enacted exceptions more generous
than those currently found in the Model Rules.
Another example is Model Rule 1.13(c)’s “reporting
out” exception to confidentiality in organizational
representation the ABA adopted in response to the
Enron scandal and other corporate wrongdoing. This
trend expands a lawyer’s duty to act cooperatively in
preventing and remedying wrongdoing, emphasizing
the lawyer’s role as an officer of the court rather
than the lawyer’s role as a zealous advocate of the
client.
 
Conclusion
The issue of wrongful conviction is a serious one. Studies
of wrongful conviction reveal that both prosecutors
and defense counsel often contribute to wrongful
convictions. It would seem appropriate then, to look to
both prosecutors and defense counsel to help remedy
the problem. The current draft, very narrowly drawn
and discretionary rather than mandatory, seems unobjectionable.
Our view is that a more expansive exception
may possibly be justified, without the death and
reputational harm limits found in the current proposal.
If an exception to client confidentiality to prevent
or remedy wrongful convictions is to be enacted, a
robust exchange of views and discussion of the arguments
for or against it is warranted.

To that end,
we urge you to share your views with the cochairs
of the Ethics, Gideon & Professionalism Committee
of the Criminal Justice Section. Professors Bruce
Green (bgreen@law.fordham.edu) and Ellen Yaroshevsky
(yaroshef@yu.edu).

proRo: problem

You are a solo practitioner in New York. You mainly represent individual clients in personal injury, domestic relations, and estate matters. Some of your friend have found that a great way to get new clients is to visit Internet chat rooms and have casual conversations with people who need legal advice. You have started visiting chat rooms also, partly in the hopes of getting new clients and partly because you like helping people in need (public good, and all that).

Two or three evenings a week, you sign in to one of several Internet chat rooms. Your screen name is "GoPats11" (you are a New England Patriots fan and think that Rex Ryan may well be the devil). Sometimes you visit the Accident and Injuries Chat Room, where accident victims share their stories and grievances. This chat room gives participants the option to share their e-mail addresses with other participants. You have always disclosed your e-mail address.

Two months ago, the chat room added a "legal hour" on Thursday evenings to enable accident victims to chat with lawyers. To reach the screen for the legal hour, a user must first click through a screen on which the sponsor of the chat room has posted the following notice:

"This chat room is for informational purposes only. Participating in this chat room does not establish an attorney-client relationship. This is a free service. You do not need to pay any subscription or make payments of any kind to participate in this chat room. If you agree to these terms, click the 'I agree' button. You will not be able to proceed to the legal hour screen unless you click the 'I agree' button."

About a month ago, you started logging on to the legal hour as a lawyer. Each Thursday night, you and the two other lawyers in the chat room were deluged with legal questions. Most of the questions were very general in nature, and you and the two other lawyers answered them in general terms. However, a few weeks ago one question (from "EyesOnFire," who did not disclose his or her e-mail address) was quite specific:

EyesOnFire: "I live in Queens. Five years ago, I bought a can of Slickster hair spray. When I pressed the button on top, the pressurized can exploded. The spray and some of the metal spewed all over the place, some at my face. Something got in both of my eyes. I went to the doctor and he rinsed my eyes and gave me some treatments. I didn't need to go into the hospital, and the treatments ended within six months. My health insurance covered my medical expenses. A year later, I thought the whole thing was over, but in the last year, my sight has been failing. The doctors think that although they got out all the metal, something in the chemicals must have caused slow, long-term deterioration in both eyes. They think I will go blind. Can I sue someone?"

You did not want to give EyesOnFire any false hope, so you wrote back:

GoPats11: "EyesOnFire, I am sorry to say that you won't be able to sue anyone. In New York, the statute of limitations for tort cases is only three years. Since this accident took place five years ago and you knew then that you had been injured, you would have had to bring any lawsuit several years ago. Unfortunately, the law imposes these sometimes artificial barriers to a fair recovery. I wish that I could be more encouraging."

The week after you had this conversation, you stumbled across an article that explained that California has an unusually long statute of limitations for products liability cases. Therefore, if EyesOnFire's hairspray was manufactured in California, and if the SOL applied to a suit against the manufacturer regardless of where the injury occurred, EyesOnFire might still have a viable claim. EyesOnFire has not logged into the chat room since that night, so you haven't been able to correct or clarify the information you provided.

Questions:

1. Are you in potential trouble?
2. Should you be at risk of liability for your comments in the chat room? If so, is this one of those 'no good deed goes unpunished' situations?