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R&K’s Dan Werner joins renowned civil rights attorney Ben Crump in racial discrimination lawsuit against SCAD

Radford & Keebaugh’s Dan Werner has been joined by renowned civil rights litigator Ben Crump in a racial discrimination lawsuit filed against the Savannah College of Arts & Design (SCAD) on behalf of an African-American fishing coach who was terminated after bringing issues of racial discrimination to his administration’s attention. The full press release is below. A copy of the judicial complaint is here.

FOR IMMEDIATE RELEASE
December 10, 2020

Media Contact:
press@bencrump.com

Attorneys Ben Crump and Daniel Werner Sue Prominent Arts College on Behalf of Former Coach for Racial Discrimination and Retaliation

Isaac Payne was routinely referred to as the N-word and threatened by students

Savannah, GA – Renowned civil rights attorneys Ben Crump and Daniel Werner today filed
a federal lawsuit alleging racial discrimination and retaliation by the Savannah College of Art
and Design (SCAD) against a former head coach.

The suit alleges that Isaac Payne, a prominent African American competitive fisherman,
former head men’s and women’s fishing coach at Savannah College of Art and Design
(SCAD), a magna cum laude SCAD graduate, and United States Marine, experienced the
discriminatory acts during his tenure as head coach of the men’s and women’s fishing teams
when he was referred to as the N-word and threatened by students.

Crump is known for his representation of the families of George Floyd, Breonna Taylor,
Trayvon Martin, and others, and has been dubbed in the Washington Post as “Black
America’s Attorney General.” Dan Werner is a recipient of Public Justice’s 2015 Trial Lawyer
of the Year Award for his work on a case for workers who were victims of human trafficking
that resulted in a $14 million jury verdict.

While at SCAD, Mr. Payne – who coached an all-white team and was the only head coach of
any athletic team at SCAD who was not white – was repeatedly subjected to acts of racism:

● A student on the team frequently referred to Mr. Payne as a “(N-word)” and a “piece
of sh*t (N-word)”, statements other team members greeted with laughter and
agreement.

● Mr. Payne was threatened by another student on the team who flew a large
Confederate flag on his truck, bragged about carrying a firearm to protect himself
from Black people in Savannah, threatened physical violence against LGBT people in
Savannah, and wore a large holstered knife to a meeting with Mr. Payne.

● Mr. Payne was the subject of a group of students’ “burn book,” a shared book used
for writing unpleasant information about others.

When Mr. Payne and students reported the team members’ abuse, acts of racism, and
threats to SCAD administrators, rather than disciplining any of the students and protecting Mr. Payne’s physical safety and emotional well-being, SCAD fired Mr. Payne and hired a white man to replace him. SCAD punished Mr. Payne for seeking protection of his fundamental civil rights.

“I join Isaac Payne and attorney Dan Werner in the fight for justice against SCAD because
there is no room in our society to tolerate acts of blatant racism, including calling your coach
the N-word, bringing a knife to a meeting with him, and creating a ‘burn book’ with his name
in it,” said Attorney Crump. “African Americans have been facing intimidation tactics by
White supremacists who burned crosses in front of their homes and churches for more than
a century, and we cannot allow this type of racism to flourish in our educational institutions.
SCAD may not have started the fire so to speak, but it certainly fanned the flames of racism
when it fired Isaac Payne instead of punishing the students who committed the acts of
racism.”

“I am filing this lawsuit against SCAD to enforce my civil rights,” Mr. Payne said. “As a
Marine, I vowed to protect and serve my country and its people without regard to race.
Today, I fight for my dignity, my family’s honor, and the civil rights of the Black faculty, staff,
and students at SCAD. They deserve protection against the blatant and systemic racism
permeating their campus.”

Attorney Werner of the law firm Radford & Keebaugh added, “SCAD holds itself out as
condemning racism and promoting diversity. Yet SCAD sent a message to its students and
employees that Black lives do not matter when it refused to address students’ racism and
instead fired Mr. Payne. After eight years of honorably serving our nation as a Marine, after
graduating from SCAD with honors, and after three years of honorably serving students as a
head coach, Isaac Payne is honoring this nation’s civil rights legacy by raising his voice
against racism and discrimination at one of Georgia’s most well-known educational and
cultural institutions.”

SCAD routinely forces all employees to sign an agreement submitting all disputes to secret
arbitration in an attempt to sweep discrimination under the rug, Werner said. Although SCAD has attempted to silence Mr. Payne by trying to force him into secret arbitration, he is filing this lawsuit publicly in federal court to enforce his civil rights and, as part of his case, is asking the judge to find that will argue that the arbitration agreement is unenforceable. He is mindful that arbitration has been a legal tactic used by the powerful to silence Black voices, and the voices of other workers suffering discrimination. As a former employee, he refuses to be silenced.

Augusta-Richmond County pays $300,000 to hip-hop producer “Dun Deal” after false warrant leads to arrest and imprisonment

The City of Augusta/Richmond County, Georgia, has paid $300,000 to settle a federal civil rights lawsuit brought by David Cunningham, also known as hip-hop producer “Dun Deal.” The suit arose from Mr. Cunningham’s arrest by FBI agents on July 17, 2014, after a deputy of the Richmond County Sheriff’s Office swore out a false warrant stating that Mr. Cunningham’s fingerprints had been found on a getaway vehicle from a jewelry theft in Augusta, Georgia. Mr. Cunningham in fact had no connection whatsoever to the crime.

The story began on July 16, 2014, when two men disguised as construction workers smashed the jewelry display case at the Costco in Augusta, Georgia. The thieves made off with more than $80,000 worth of jewelry. Deputies with the Richmond County Sheriff’s Office reviewed surveillance footage from inside and outside the store, and were able to identify the license plate on the men’s getaway vehicle. Investigators traced the vehicle to a rental contract, and made contact with the woman who had rented the car. The woman told the investigators that she had loaned the vehicle to a fictitious person named “David,” who she supposedly had met at a party.

The deputies gained access to the woman’s Facebook page. Richmond County Investigator Walter Garrison located men by the name of “David” in the woman’s “Friends List.” One of the profiles belonged to David “Dun Deal” Cunningham, who the woman “followed” because she was a fan of his music. The investigator asked her if Mr. Cunningham was the man to whom she had loaned the vehicle, and she responded that she was not sure, but that the fictitious “David” had darker skin.

Despite this lack of a positive ID, Investigator Ken Rogers swore out a warrant for Mr. Cunningham’s arrest. In the warrant application, Rogers falsely stated that Mr. Cunningham’s fingerprints had been found on the getaway vehicle. This was totally false, as Mr. Cunningham had no connection with the crime whatsoever, and no criminal record that would have placed his fingerprints in the system. Investigator Rogers also failed to put into the warrant application that Mr. Cunningham’s image had been included in photo “line ups” shown to numerous witnesses, and none had identified Mr. Cunningham as being involved in the crime.

Nonetheless, a warrant was issued for Mr. Cunningham’s arrest, something that the Richmond County investigators passed on to agents of the FBI, as they believed this to be part of a multi-state theft ring. And, on July 27, 2014, numerous FBI agents seized Mr. Cunningham in the ticketing area of the Dallas, Texas airport, where Mr. Cunningham had been attending a hip-hop awards show. Agents also raided and searched the recording studio, Urban Angels in Atlanta, Georgia, where Mr. Cunningham recorded. Mr. Cunningham was incarcerated, with little to no idea how he had been named a suspect in this crime, for ten days.

After Mr. Cunningham was finally released, and the charges dropped, he brought suit under the Fourth Amendment to the United States Constitution, due to the unlawful and false nature of his arrest and prosecution. The issuing of a warrant without a positive ID, the withholding of exculpatory evidence, and, most importantly, the false statement that his fingerprints were on the getaway vehicle, formed the basis for his claims. The lawsuit also settles claims that the Richmond County Sheriff’s Office unlawfully withheld documents regarding Mr. Cunningham’s arrest and prosecution, in violation of Georgia’s Open Records Act.

After several months of litigation and a day-long mediation, Augusta-Richmond County agreed to pay $300,000 to Mr. Cunningham, to issue him a formal apology, and to discipline the officers involved.

Mr. Cunningham was named in Complex Magazine’s 2014 “Producers to Watch For.” He has worked with prominent hip-hop artists including Young Thug, Migos, 2 Chainz, Gucci Mane, Usher, Trey Songz, Future, Drake, Rich Homie Quan, Kevin Gates, and others. He is perhaps best known for the hit songs “Stoner” by Young Thug and “Hannah Montana” by Migos.

A copy of the Complaint is below.

Mr. Cunningham was represented by James Radford and Caleb Gross of Decatur law firm Radford & Keebaugh. Please direct all inquiries to Mr. Radford at 678-271-0302, james@decaturlegal.com, or Mr. Gross at 678-271-0303, caleb@decaturlegal.com.

David Cunningham v. Richmond County Sheriff’s Office, et al. – Judicial Complaint by James Radford on Scribd

The First Amendment protects Georgia athletes right to kneel during the national anthem

Students at Garfield High School in Seattle kneeling for national anthem. Photo from Seattle Times newspaper.

We were disheartened to read this story today in the Atlanta Journal Constitution, in which the Superintendent of Cobb County Schools is quoted stating that, if one of his district’s athletes were to kneel during the national anthem, “their asses would be benched.” Such a comment is highly inappropriate for an individual whose job is to ensure young people have a full opportunity to learn about our civic rights–including the right to peacefully protest without fear of retaliation. His statement runs afoul of the values of the United States Constitution, which guarantees young people the right to speak or protest peacefully on issues on public concern.

In the famous case of Tinker v. Des Moines Independent School District, 393 U.S. 503 (1969), the United States Supreme Court held that the protections of the First Amendment extend to students in public schools. In Tinker, the Court overruled a public school’s ban on students wearing black armbands to protest the Vietnam War. The Court held, “Students in school . . . may not be confined to the expression of those sentiments that are officially approved.” Numerous federal courts within the Eleventh Circuit–of which Georgia is a part–have found that school officials may be held personally liable for punishing students for expressing their views. See Holloman ex rel Holloman v. Harland, 370 F.3d 1252 (11th Cir. 2004).

If a superintendent or other school official were to punish a student for protesting peacefully–including “benching” students who knelt during the National Anthem–this would be a violation of the First Amendment. It would also be a violation of our national values of free speech. It would be a violation of the very freedoms the National Anthem is meant to celebrate.

If you are a student who has been punished for, or prevented from, exercising your First Amendment rights, or the parents of such a student, we would like to hear from you. We are civil rights attorneys specializing in constitutional law, and we have brought numerous First Amendment cases to court. We know how to bring these cases in a respectful and professional manner and fight to defend your rights under the constitution. Please give us a call at 678-271-0300 or send us an email from our contact form.

$481,000 judgment after jury trial victory for disabled Georgia State University student

In the case of R.W. vs. Board of Regents of the University System of Georgia, we represented a student at Georgia State University (GSU) who has a diagnosis of schizophrenia, on the mild end of the spectrum. The university required the student to undergo its “mandated risk assessment” process, and evicted him from student housing, after he refused to answer a counselor’s questions about his illness. The university later notified the student that he could not remain enrolled at the university, and would not be eligible for student housing, unless he allowed the Dean of Student’s office to monitor his psychiatric health care and verify that he was complying with all recommended treatments, including the use of psychotropic drugs. The student had not been involved in any wrongdoing but, the university contended, his refusal to answer certain questions about his illness caused them to fear that he might pose a danger. The student had no disciplinary history and had not caused any disruption on campus.

We brought suit under Title II of the Americans with Disabilities Act (ADA) and the Rehabilitation Act, a law that prohibits discrimination on the basis of disability by recipients of federal funding.

On October 29, 2015, after a four-day trial, a federal jury found that GSU had discriminated against the student on the basis of his disability. Based on the evidence, the jury rejected GSU’s defense that the student posed a “direct threat” to the health or safety of others. The jury also found that GSU had acted with “deliberate indifference” to the student’s rights against discrimination and awarded him $75,000 in compensatory damages. The court also entered a permanent injunction requiring that GSU lift restrictions on the student’s eligibility for student housing. The court further ordered that the Board of Regents is liable for plaintiff’s attorneys’ fees and costs in the amount of over $406,000.

We are proud of this victory. We hope this case will have an impact on our culture’s conversation about mental illness. We hope it will encourage universities not to punish students for disclosing a mental illness and seeking treatment. Rather than improving campus safety, practices like this only isolate those with mental illness and discourages them from seeking help in the event of a crisis. We hope this result will help alleviate the fear and prejudice that is associated with mental illness.

You can view the court’s judgment below.

Judgment in R.W. v. Board of Regents of the University System of Georgia (GSU). October 30, 2015

And read the court’s order on attorneys fees and costs here:

Order Granting Attorneys Fees and Costs in R.W. v. Board of Regents of the University System of Georgia by James Radford on Scribd

Is Matt Murdock an Ethical Lawyer?

I am a huge fan of the superhero genre and the Marvel Cinematic Universe in particular. So, it should be no surprise that I binge-watched the Daredevil series on Netflix. Only by neglecting my parenting duties was I able to make it through the series in a weekend. Was it worth it? Yes, indeed! The series is true to the comic. It is gritty and violent (so violent!) and filled with adrenaline-inducing fight sequences as well as that signature Marvel wit.

Yet, the Daredevil character presents me with a nagging question: Is Matt Murdock an ethical lawyer? Murdock often takes cases only for the purpose of learning more about the criminal he is purportedly representing. Is this not a conflict of interest? Can a lawyer zealously advocate for his client, when his sole motivation is to work against that client’s interests? While the “criminal defense attorney in disguise” makes great narrative sense, in that it provides our hero with the perfect cover to learn about the inner workings of the criminal mind, it is almost certainly unethical. Unfortunately, the Daredevil story represents another example of how a layperson’s understanding of the legal profession digresses from actual practice.

To be sure, let’s do a little, shall we say, legal analysis. Let’s take a look at the Model Rules of Professional Responsibility, and decide for ourselves whether Murdock’s Daredevil persona has created an ethical quandary for his legal practice.

Karen Page is in no state to be solicited by a lawyer. — Karen Page is in no mood to be solicited by a lawyer.

The series actually begins with a classic violation of the professional rules regarding client solicitation. In the first episode, Foggy Nelson gets a tip from his cop friend about a potential criminal defense client, one Karen Page. Matt and Foggy then corner Karen in the interrogation room and pitch their services to her.

Let’s take a look at Model Rule 7.3

Rule 7.3 Solicitation of Clients

(a) A lawyer shall not by in‑person, live telephone or real-time electronic contact solicit professional employment when a significant motive for the lawyer’s doing so is the lawyer’s pecuniary gain, unless the person contacted:

(1) is a lawyer; or

(2) has a family, close personal, or prior professional relationship with the lawyer.

Now, one could argue that Matt Murdock was not, in soliciting Karen, “motivated by pecuniary gain.” He ultimately takes the case despite Karen’s lack of money. But, as you might recall, Foggy certainly was motivated by pecuniary gain. He almost walked out of the room when Karen said she could not pay. And, it would appear that Matt was initially motivated by the potential for a paying client; he agreed to represent Karen for free only after he realized, through his truth-detecting powers, that she had been framed for murder.

Let’s move on to what is perhaps Murdock’s most defining violation of the professional rules:

Rule 1.7 Conflict Of Interest: Current Clients

(a) Except as provided in paragraph (b), a lawyer shall not represent a client if the representation involves a concurrent conflict of interest. A concurrent conflict of interest exists if:

(1) the representation of one client will be directly adverse to another client; or

(2) there is a significant risk that the representation of one or more clients will be materially limited by the lawyer’s responsibilities to another client, a former client or a third person or by a personal interest of the lawyer.

(b) Notwithstanding the existence of a concurrent conflict of interest under paragraph (a), a lawyer may represent a client if:

(1) the lawyer reasonably believes that the lawyer will be able to provide competent and diligent representation to each affected client;

(2) the representation is not prohibited by law;

(3) the representation does not involve the assertion of a claim by one client against another client represented by the lawyer in the same litigation or other proceeding before a tribunal; and

(4) each affected client gives informed consent, confirmed in writing.

The highlighted text above should make the answer to our question clear. In episode three of the Netflix series, the law firm of Nelson & Murdock agree to represent John Healy, one of Wilson Fisk’s enforcers, who has murdered a rival gangster. Murdock, using his truth-detecting senses, knows from the beginning that Healy is guilty. In fact, it becomes clear during the jailhouse interview that Murdock’s sole motivation for taking on the representation is to learn more about Fisk’s criminal enterprise, so that he ultimately can bring down Healy’s employer. And, of course, as soon as Healy is acquitted, Murdock, as Daredevil, confronts Healy in an alley, beats him up, threatens his life, and ultimately causes Healy to commit suicide.

As a lawyer, did Murdock behave ethically? Decidedly not. He took on the representation of Healy even though there was a “significant risk” that his representation would be limited by his responsibilities to numerous third parties (i.e., everyone he is trying to protect from Kingpin) and a “personal interest.”

One might counter: but, Murdock did get Healy acquitted! He represented him well in the courtroom, and only beat him up once the representation was finished!

Yet, this does not absolve Murdock from his ethical quandary. The fact that one does not actually work against a client’s interest in the courtroom does not permit a lawyer to take on a client for whom there is a concurrent conflict.

The only way a “concurrent conflict” can be resolved is if all the elements of subsection (b) above are met. Even assuming elements (1) through (3) were met here, Healy was certainly not informed of Murdock’s conflict of interest and did not, according to (4), give “informed consent, confirmed in writing,” to the conflict.

But, you might say: once the representation was over, Healy was no longer a client! Murdock’s ethical obligation was over! He was free to go beat him up! I would have to point you to subsection (c) of Model Rule 1.9, to wit:

(c) A lawyer who has formerly represented a client in a matter or whose present or former firm has formerly represented a client in a matter shall not thereafter:

(1) use information relating to the representation to the disadvantage of the former client except as these Rules would permit or require with respect to a client, or when the information has become generally known; or

(2) reveal information relating to the representation except as these Rules would permit or require with respect to a client.

Ouch. This pretty clearly would prohibit Murdock from using information gathered during the representation to “disadvantage” Healy later by, you know, confronting him in an alley with the information and forcing Healy to disclose information.

Now, there may be questions as to whether, from an attorney-client privilege standpoint, under the “crime/fraud” exception, Murdock would be permitted to disclose to authorities information about criminal activities gathered through his legal representation. That, however, is an evidentiary question of privilege, and not strictly a question of professional responsibility. That’s a complicated distinction that I won’t discuss in-depth here (primarily because I have clients to represent, and ought not be spending my time writing about Daredevil!)

"We probably shouldn't be talking, we're on opposite sides of the tenement case." — “We probably shouldn’t be talking, we’re on opposite sides of the tenement case.”

Let’s look at two additional ethical issues presented by the program. First, the prohibition against “ex parte” communications between attorneys and represented parties.

Rule 4.2 Communication With Person Represented By Counsel

In representing a client, a lawyer shall not communicate about the subject of the representation with a person the lawyer knows to be represented by another lawyer in the matter, unless the lawyer has the consent of the other lawyer or is authorized to do so by law or a court order.

In several instances, Murdock (as Daredevil) engages in ex parte communications with Fisk, and members of Fisk’s organization, even though Fisk’s enterprise is represented by counsel in the tenement litigation, to which Nelson & Murdock are directly adverse. In episode 10, Nelson v. Murdock, Foggy confronts Murdock with this ethical quandary. Murdock had urged Foggy and Karen to refrain from trying to “take the laws into their own hands,” and instead to focus on using the legal system to take down Fisk. Rule 4.2 is a corollary to this “focus your dispute through the legal system” approach. When dealing with represented parties, lawyers are expected to deal only with the other lawyers. Lawyers should not side-step opposing counsel and attempt to bully, intimidate, or otherwise influence a represented party without that party having the benefit of counsel. By regularly communicating with Fisk and members of his organization, especially in an adversarial context, outside the presence of Fisk’s lawyers, Murdock runs afoul of Rule 4.2.

Finally, I have concerns regarding Murdock’s adherence to this basic rule:

Rule 1.3 Diligence

A lawyer shall act with reasonable diligence and promptness in representing a client.

One overarching question I’ve had while watching the series is: when does Matt Murdock actually practice law? He seems to spend the vast majority of his time fighting crime and hunting down Fisk’s allies. In the latter half of the series, nearly every shot in the law offices of Nelson & Murdock finds Karen Page sitting there by herself, wondering where Foggy and Matt are. Karen and Foggy are always looking for Matt, but he never seems to be around. The question presents itself: does Matt Murdock have any clients? And if so, is he acting with reasonable diligence in representing them? Can one maintain an effective law practice while also spending enormous time and energy dismantling a global crime syndicate?

In conclusion: while the “criminal-defense-lawyer-by-day / crime-fighter-by-night” theme makes great narrative sense, it forces our hero to run afoul of many of the most basic ethical rules guiding an attorney. Matt Murdock has chosen his “higher” ethical obligation as vigilante over his professional obligation as an attorney. While we may love him as a superhero, the State Bar of New York would have no choice but to scold him as an attorney.