The Lawyers Weekly - August 20, 2010

JEFFREY
MILLER
We like to think that when we
wed we don’t marry our spouse’s
family. But under British canon
law, you hitched yourself to the
whole clan. By a legal fiction,
marriage made man and woman
one flesh, such that, in law, your
spouse’s family was yours, too.
In family law, they call this rela-
tion by affinity, as opposed to
blood (consanguinity), and it’s
why the Catholic Church for-
bade Henry VIII from marrying
his brother’s widow, Katharine
of Aragon. Despite the Reforma-
tion, this legal position lives on
at least rhetorically in the con-
vention of having “in-laws.”
Then again, very recent U.S.
law seems to take the King
Henry view, holding that when
Henny Youngman said, “Take
my wife, please,” it was safe to
add, “and the whole racist bunch
she calls family.” The words are
not actionable, at least if they
form part of a comic’s schtick.
That, anyway, is the upshot of
Edelman v. Croonquist, decided
Apr. 30 in New Jersey’s U.S.
District Court. The defendant,

MATT SAYLES / THE CANADIAN PRESS
Sunda Croonquist is being sued by her mother-in-law after making her the
punchline of too many jokes.

comedian Sunda Croonquist, is half African-American and half Swedish. She grew up in New Jersey, attending Irish Catholic schools under what she calls a Hindu first name. She later earned a bachelor’s degree in criminal justice, worked as a probation and parole review officer in Newark, and performed surveillance for a private investigator. A few years ago she married Jewish lawyer Mark Zafrin, converted to Judaism, and started incorporating her in-laws into her act.

She posted videos of the rou-
tines on her website, and cutting
descriptions of her in-laws (or a
comic version of them) in her
blog. Although her brother-in-
law, his wife, and her mother-in-
law sued Croonquist over
material in her routines, a video
with the impugned mother-in-
law jokes remains available on
her website. There, using a
thick, loud Brooklyn accent,
Croonquist puts remarks in
Ruth Zafrin’s mouth such as,
“‘OK, now that we know you’re
[Croonquist and Zafrin are]
having a little girl, I want to
know what you’re naming that
little tchotchke. Now I realize
there’s a difference in the back-
ground with the African-Amer-
ican, coloured, black, whatever
you people call yourselves these
days. Seriously, I just don’t want
a name that’s difficult to pro-
nounce like Shaniqua. Because
in my mind I’m thinking of a
name short but delicious. Like
Hadassah or Goldie.’”
Croonquist adds that she
“hates the bitch,” recounting
their first (alleged) meeting: In
the car on the way over to Ruth
Zafrin’s house for a Passover
seder, Croonquist jokes, her
husband “leans over and he says,
‘Look we’re not going to tell
Mommy you’re black.’ I said,
‘Well, that’s smart, she’ll never
notice.’ But she noticed, and
that’s when I noticed that Jews
can’t whisper ... Cause I met her
and I said, ‘It’s such a pleasure
meeting you,’ and she said, ‘Have
a seat [here, Croonquist puts
her hand up to shield her
mouth], Eliot put my pocket-
book away.’”
Croonquist’s sister-in-law
Shelley Edelman was the first to
sue, along with her husband
(Mark Zafrin’s brother, Neil),
over Croonquistian schtick
claiming Shelley is a racist (in a
broad New Jersey accent: “Oh
my God, Neil, look at her. She’s
got light eyes and light hair,
what kind of black person is
she?”) who has a voice “like a cat
in heat.” Ruth Zafrin then joined
the action, with Croonquist
alleging she was added just to
keep the matter out of Federal
Court (where it landed because
Croonquist’s residence is Cali-
fornia, while her in-laws live in
New York and New Jersey). The
stated causes of action: false
light, defamation, intentional
infliction of emotional distress,
negligent infliction of emotional
distress and unjust enrichment.

Proposed rule would leave it up to individual lawyers to decide

Harm
Continued From Page 3

merely because of an American initiative born out of the failure to regulate other industries. However we recognized that in some rare circumstances, pure financial injury could have devastating consequences for individuals,” the committee explains.

“Current ethical rules allow
lawyers to disclose confidential
information where necessary to
protect the lawyer’s financial
interests in fee collection. In the
rare case where a lawyer could
prevent very significant financial
harm by limited disclosure, but
was ethically prohibited from
doing so, the public interest
would not be served. Further the
public’s perception of lawyers
and the role we occupy in the
legal system might suffer if we
are seen to rank our own inter-
ests above the public interest.”
Notably the proposed model
rule would leave it up to individ-
ual lawyers to decide whether to
disclose confidential client infor-
mation in order to prevent finan-
cial harm. Whether disclosure
should be mandatory or permis-
sive was contentious, with the
committee splitting 4-1 in favour
of leaving it “to the lawyer’s exer-
cise of discretion and good judg-
ment.”
The draft FLSC model rule is,
in one sense, narrower than the
ABA model rule which endorses
disclosure not only to prevent,
but also to mitigate or rectify,
financial harm. However, the
committee also chose not to limit
its proposed rule to situations
involving “fraud” or “crime”,
instead setting the threshold at
preventing substantial financial
injury from an “unlawful act”
which “may include criminal,
quasi-criminal or fraudulent acts
that are contrary to criminal,
regulatory or civil law.”
The committee stipulates that
the exception to the normal con-
fidentiality requirements would
kick in only when the potential
financial harm would affect an
“individual,” rather than corpor-
ate entities or governments.