Saturday, July 22, 2017

Up In Not Smoking

A divided United States Court of Appeals for the District of Columbia Circuit upheld an interpretation of the airplane smoking ban prohibiting inflight use of electronic cigarettes. 

Underlying petitioners’ arguments and those of the dissent is the point that e-cigarettes did not exist in 1987 when Congress first made it unlawful “to smoke” on certain flights under two hours, nor did e-cigarettes exist in 2000 when Congress extended the prohibition. Although this means the legislators did not have e-cigarettes in mind when passing those statutes, that does not resolve the interpretive question. The text itself, rather than the subjective intentions of legislators, governs our review. See Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 79 (1998). We must ask whether the term “smoking” in a statute enacted before modern e-cigarettes existed covers these devices.

Petitioners maintain that “smoking” in § 41706 requires lighting or burning and does not encompass the heating that occurs with e-cigarettes. The statutory text alone offers no support for that position.

The majority delves into what "smoking" means

So here is where we are. Although the statute does not define “smoke,” some dictionary definitions, some state laws, and some characterizations of smoking by the e-cigarette industry itself support the Department. But other dictionary definitions and other state laws support petitioners. We therefore cannot say that Congress spoke to the precise question at issue.

The application of the ban was not arbitrary.

Circuit Judge Kavanaugh concurred

I join the majority opinion and add these brief comments. Even without affording Chevron deference to the Department’s interpretation of the statute, I would still reach the same result in this case. In my view, although it is a close call, the better interpretation of the term “smoking” in this statute covers ecigarettes as well as conventional tobacco cigarettes. Judge Ginsburg’s fine dissent rests in part on the notion that those who drafted or read the statute in 1987 would not have understood the term “smoking” to encompass e-cigarettes because e-cigarettes did not exist at that time. I am not convinced by that line of analysis, for reasons that the majority opinion persuasively explains.

Senior Circuit Judge Ginsberg in dissent

Today this Court departs from this principle to redefine “smoking” from conventional tobacco consumption, as it was commonly understood in 1987, to prohibit the use of electronic cigarettes, a new technology with a substantially different nicotine delivery process and likely different secondhand effects as well. Just as some people will, no doubt, “find ambiguity even in a ‘No Smoking’ sign,” Int’l Union v. Gen. Dynamics Land Sys. Div., 815 F.2d 1570, 1575 (D.C. Cir. 1987), the Court manufactures ambiguity from the lack of a statutory definition and some abstract dictionary definitions of “smoking” even though the Congress that adopted the statute and the public it represented would have found the term unambiguous when relating to passenger aviation...


I cannot accept the Court’s ahistorical reinterpretation of a purportedly ambiguous statutory term that was well-understood when enacted in 1987.

The challenge was brought by The Competitive Enterprise Institute, the Consumer Advocates for Smoke-Free Alternatives Association, and Gordon Cummings. (Mike Frisch)

July 22, 2017 in Current Affairs | Permalink | Comments (0)

Friday, July 21, 2017

Is Accepting A Pardon A Confession Of Guilt?

Well, it would appear that the nature and extent of the Presidential power to pardon has become somewhat newsworthy.

I had the opportunity to delve into the issue when President George H.W. Bush pardoned Elliott Abrams a few days after a disciplinary hearing that I prosecuted was held based upon his guilty plea to charges brought by Independent Counsel Lawrence Walsh. 

A divided District of Columbia Court of Appeals held that the pardon did not preclude professional discipline for the underlying conduct, although a bar prosecutor may no longer rely on the fact of the conviction itself.

Mr. Abrams (through his counsel Charles Cooper) sought certiorari review and did not garner a single vote.

One of the cases I came across was a 1915 Supreme Court decision in United States v. Burdick, where the court stated

Indeed, the grace of a pardon, though good its intention, may be only in pretense or seeming; in pretense, as having purpose not moving from the individual to whom it is offered; in seeming, as involving consequences of even greater disgrace than those from which it purports to relieve. Circumstances may be made to bring innocence under the penalties of the law. If so brought, escape by confession of guilt implied in the acceptance of a pardon may be rejected, preferring to be the victim of the law rather than its acknowledged transgressor, preferring death even to such certain infamy.

Acceptance of a pardon thus would appear to at least "imply" a confession of guilt. (Mike Frisch)

July 21, 2017 in Current Affairs | Permalink | Comments (1)

Wednesday, July 19, 2017

Quicken Loans Not Engaging In Unauthorized South Carolina Practice

The South Carolina Supreme Court absolved Quicken Loan on civil allegations of unauthorized law practice

We accepted this declaratory judgment matter in our original jurisdiction to determine if Respondents/Petitioners Quicken Loans, Inc. (Quicken Loans) and Title Source, Inc. (Title Source) have engaged in the unauthorized practice of law (UPL). In their complaint, Petitioners/Respondents Vance L. and Thelma Boone, Travis G. and Theresa S. Messex, and Brian and Kelli Johnson (collectively "Homeowners"), alleged the residential mortgage refinancing model implemented by Quicken Loans and Title Source in refinancing the Homeowners' mortgage loans constitutes UPL. In addition to seeking declaratory relief, Homeowners' complaint also sought class certification and requested class relief.

We referred this matter to a Special Referee to take evidence and issue a report containing proposed findings of fact and recommendations to the Court regarding the UPL issue, as well as on the issues of class certification and class relief. Following an evidentiary proceeding during which the parties submitted extensive testimony and documentary evidence, the Special Referee issued a report proposing various factual findings and recommending this Court declare that Quicken Loans and Title Source engaged in UPL but opining that neither class certification nor class relief were appropriate under the circumstances. Quicken Loans and Title Source took exception to the Special Referee's proposed findings of fact and UPL recommendation. Homeowners took exception to Special Referee's recommendation that class certification and class relief were unwarranted under the circumstances.

No UPL

We find the record in this case shows licensed South Carolina attorneys were involved at every critical step of these refinancing transactions, as required by our precedents. We also find that requiring more attorney involvement would not effectively further our stated goal of protecting the public from the dangers of UPL. We therefore respectfully reject the Special Referee's conclusion that Quicken Loans and Title Source committed UPL. Because we reject the finding of UPL, we need not address the parties' ,remaining exceptions, including Homeowners' request that we declare their mortgages void and certify this case as a class action.

...we believe requiring more attorney involvement in cases such as this would belie the Court's oft-stated assertion that UPL rules exist to protect the public, not lawyers...we do not believe requiring more attorney involvement would appreciably benefit the public or justify the concomitant increase in costs and reduction in consumer choice or access to affordable legal services. Cf. In re Unauthorized Practice of Law Rules, 309 S.C. at 306, 422 S.E.2d at 124–25 (recognizing the strict licensing requirements for becoming a Certified Public Accountant (CPA) and holding "that allowing CPAs to practice in their areas of expertise, subject to their own professional regulation, will best serve to both
protect and promote the public interest").

(Mike Frisch)

July 19, 2017 in Bar Discipline & Process, Current Affairs | Permalink | Comments (0)

Federal Appeals Court Holds "Significant Romantic Relationship" Unduly Vague; Overturns Penile Test As Release Condition

The United States Court of Appeals for the District of Columbia Circuit has held that certain conditions cannot be imposed on a released convicted sex offender.

The opinion was authored by Senior Circuit Judge Sentelle

Appellant Brandon Rock was sentenced to 172 months’ imprisonment and 10 years of supervised release after pleading guilty to distribution of child pornography. He appeals the length of his sentence and the conditions of his supervised release. For the reasons stated below, we affirm his sentence length but vacate two of the release conditions.

Prior to June 2011, appellant Brandon Rock was involved in a romantic relationship with a woman who had an 11-year-old daughter. Rock installed a hidden camera in the child’s bedroom at the woman’s house. Over the course of six months, Rock captured numerous video segments of the child in her bedroom, some of which showed the child completely naked from the front and back. From these videos Rock made still pornographic images. Subsequently, Rock entered an internet chat room where, unbeknownst to him, he began communicating with undercover Metropolitan Police Department Detective Timothy Palchak. Palchak was posing as an individual who had access to a fictional 12-year-old girl.

He was arrested and his computer searched after he sent images to the officer.

He is properly prohibited from computer use but

Another imposed condition of supervised release, the only preserved objection in the district court, under the heading “Additional Standard Conditions of Supervision,” states that Rock “shall notify the U.S. Probation Office when he establishes a significant romantic relationship and then shall inform the other party of his prior criminal history concerning the sex offenses.” Rock argues that this condition should be vacated because such a condition is unconstitutionally vague, not reasonably related to the goals of sentencing, and constitutes a greater restriction on liberty than necessary.

The condition was vague in light of the difficulty in quantifying matters of the heart

We cannot agree with the government’s proposition that people of common intelligence would share a conclusion as to whether the affairs of two people constituted a “significant romantic relationship.” Indeed, we think it likely that in many cases, the two persons involved might not agree as to whether they had such a relationship. In short, we agree with Rock that the vagueness of this condition is problematic.

Finally

Another condition of supervised release imposed upon Rock is that he “shall submit to penile plethysmograph testing as directed by the United States probation office as part of your sexual offender therapeutic treatment.” Rock contends that when the district court ordered him to submit to penile plethysmograph, there was no demonstration of what such testing actually required or if it is effective, and no discussion of why it is necessary.

The court concluded that the testing was not appropriate

The dissenter [in an earlier case] would have stricken the penile plethysmograph testing condition on the grounds that the procedure “implicates significant liberty interests and would require, at a minimum, a more substantial justification than other typical conditions of supervised release.” Id. at 566. We agree with the Malenya dissent and order this condition vacated as well.

The Malenya decision is linked here. 

Wikipedia describes the test. (Mike Frisch)

July 19, 2017 in Current Affairs | Permalink | Comments (0)

Monday, July 17, 2017

Claims When Employee Terminated For Lawful Use Of Medical Marijuana

The Massachusetts Supreme Judicial Court holds

In 2012, Massachusetts voters approved the initiative petition entitled, "An Act for the humanitarian medical use of marijuana," St. 2012, c. 369 (medical marijuana act or act), whose stated purpose is "that there should be no punishment under state law for qualifying patients . . . for the medical use of marijuana." Id. at § 1. The issue on appeal is whether a qualifying patient who has been terminated from her employment because she tested positive for marijuana as a result of her lawful medical use of marijuana has a civil remedy against her employer. We conclude that the plaintiff may seek a remedy through claims of handicap discrimination in violation of G. L. c. 151B, and therefore reverse the dismissal of the plaintiff's discrimination claims. We also conclude that there is no implied statutory private cause of action under the medical marijuana act and that the plaintiff has failed to state a claim for wrongful termination in violation of public policy, and therefore affirm the dismissal of those claims.

(Mike Frisch)

July 17, 2017 in Current Affairs | Permalink | Comments (0)

Sunday, July 16, 2017

Attorney's Whistleblower Suit Against Virgin Islands Governor Survives

The Supreme Court of the Virgin Islands affirmed and reversed in part in a suit brought by an attorney against the Governor

After Governor Mapp assumed office in January 2015, he hired Randolph Knight as his  Chief of Staff and Emile Henderson, Esq., as his Chief Counsel. Shortly after the election, Henderson recruited [plaintiff] Mills-Williams to join his staff as a Deputy Attorney. Purportedly, Henderson told Mills-Williams that the Mapp administration “was going to be unlike other administrations and that it was going to be ethical, do all actions by the book and be a reputable administration.” Mills-Williams accepted the job offer, and began her employment in the Office of the Governor, where Henderson served as her supervisor.

At some point, the St. Croix Avis newspaper submitted a request to the Government of the Virgin Islands under the territory’s Freedom of Information Act, title 3, sections 881-884 of the Virgin Islands Code, for information related to Knight, Henderson, and Governor Mapp. The matter was assigned to Mills-Williams, who determined that Governor Mapp, Knight, and Henderson must be “walled off” from the request because it concerned them. (J.A. 181). However, after learning that Governor Mapp wished to review the documents before they were sent to the St. Croix Avis, Mills-Williams told her supervisor, Henderson, that doing so would be unlawful. Henderson indicated that he would advise the Governor.

Mills-Williams provided the documents to the St. Croix Avis on September 14, 2015. Afterward, Henderson informed her that Governor Mapp and Knight were upset that the documents were transmitted without providing them with an opportunity to review and redact them. It was also made clear to Mills-Williams that she was to stonewall any further Freedom of Information Act requests and not produce any more documents. (J.A. 182). On September 30, 2015, Henderson advised Mills-Williams that Governor Mapp had decided to transfer her from the Office of the Governor to the Virgin Islands Department of Justice, and that she should report to work there beginning on October 5, 2015. Mills-Williams received an official letter of termination from the Office of the Governor on October 7, 2015. After becoming informed that she was being transferred to the Virgin Islands Department of Justice, Mills-Williams was directed to report to the Department of Property and Procurement, Office of the Solicitor General, and the Department of Labor. No Notice of Personnel Action (“NOPA”) was ever received or signed reflecting any of the assignments to the various executive agencies nor was Mills-Williams ever paid for work performed since October 2, 2015. (J.A. 183).

Mills-Williams was transferred and sued as a whistleblower and on other grounds

On November 13, 2015, Governor Mapp published a press release stating that Mills-Williams associated with a convicted criminal—her attorney—and as being untrustworthy with confidential information. Around the same time, Governor Mapp also appeared on local radio talk shows and repeated the same information. Governor Mapp also terminated Mills-Williams’s employment with the Department of Justice. 

She appealed from the Superior Court's dismissal of the suit

The court

The Superior Court correctly applied the plausibility standard, and committed no error when it dismissed the misrepresentation cause of action in the November 4, 2015 second amended complaint and denied leave to plead a defamation claim in the proposed third amended complaint. While the Superior Court committed no error when it dismissed the whistleblower claims against Knight and Walker and denied leave to raise a whistleblower claim against Henderson, it erred when it dismissed the whistleblower claim against Governor Mapp and the Office of the Governor and denied leave to amend to assert the claim against the Office of the Attorney General. Accordingly, we affirm in part and reverse in part the Superior Court’s August 31, 2016 opinion, and remand the case to the Superior Court for further proceedings with respect to the whistleblower claims against Governor Mapp, the Office of the Governor, and—if properly served and found to have legal capacity to be sued—the Office of the Attorney General.

The Virgin Islands Consortium  had this earlier coverage of the controversy. (Mike Frisch)

July 16, 2017 in Current Affairs | Permalink | Comments (0)

Tuesday, July 11, 2017

Dash Cam Footage Is A Public Record

The New Jersey Supreme Court has held that a police dash-cam recording is a  public records under the circumstances of the case

The Attorney General’s interest in the integrity of investigations is strongest when it comes to the disclosure of investigative reports, witness statements, and other comparably detailed documents. In those areas, the State’s interest outweighs NJMG’s. The balance can tip in favor of disclosure, however, for materials that do not contain narrative summaries and are less revealing. Footage of an incident captured by a police dashboard camera, for example, can inform the public’s strong interest in a police shooting that killed a civilian. It can do so without placing potential witnesses and informants at risk and without undermining the integrity of an investigation. Based on its in camera review of the certifications the State submitted in this case, the Court notes that the State advanced only generic safety concerns. Under the circumstances of this case, the public’s substantial interest in disclosure of dash-cam recordings warranted the release of those materials under the common law right of access. 

The case

On September 16, 2014, a North Arlington resident called 9-1-1 to report an attempt to break into a car. The police tried to stop the suspect’s car, but the driver—later identified as Kashad Ashford—eluded them and led police on a high-speed chase. At one point, Ashford tried to ram a patrol car head-on. Ashford ultimately lost control of his vehicle and crashed it into a guardrail at an overpass. According to the Attorney General’s press release, Ashford tried to get free of the barrier by accelerating, which caused the car to “jerk[] in a rear and forward motion.” An unidentified officer said that he thought the SUV might strike and possibly kill him and another officer. Both of those officers—as well as others fired at Ashford, who was pronounced dead hours later.

Within days of the shooting, a reporter from The Record and another from the South Bergenite filed requests for records under OPRA and the common law right of access. The records custodians gave varied responses. None of them produced any materials before plaintiff North Jersey Media Group, Inc. (NJMG) filed a complaint and order to show cause. At the time, NJMG owned The Record and the South Bergenite. The two-count complaint alleged violations of OPRA and the common law right of access. NJMG sought release of the requested records, or their review in camera, along with fees and costs.

(Mike Frisch)

July 11, 2017 in Current Affairs | Permalink | Comments (0)

Tuesday, July 4, 2017

The Fourth Of July

I have been a citizen of this nation for 67 years. My parents generation fought for freedom against the fascists. As Jews, my parents always felt that America was the last best hope for the future.

I never thought I would live to see the day when people would have to consider leaving this country due to racial and religious discrimination as well as unrestrained violence.

This to me is a day for reflection and renewed dedication to the principle of equal justice under law, not celebration.

 Mike Frisch

July 4, 2017 in Current Affairs | Permalink | Comments (1)

Thursday, June 15, 2017

Hail To The Chief

It's not every day that a former student and present colleague of mine becomes a Bar President

Today attorney Matt Kaiser, founding partner of KaiserDillon, PLLC, was formally sworn in as President of the Bar of the District of Columbia (BADC), the oldest private voluntary association representing lawyers practicing in the nation’s capital.

“It is my honor to be elected as President of the Bar Association of the District of Columbia,” said Kaiser. “Washington, D.C. is a lawyers’ town. We have the nation’s highest density of courts, and the largest and most diverse body of practicing attorneys of any city in the world. I look forward to continuing my work with BADC’s officers, staff, and committees as we work to serve the needs of the lawyers in this city.”

Kaiser continued, “This year’s theme is ‘The Role of Lawyers in a Constitutional Democracy.’ We will recognize and celebrate that role, as we foster and promote relationships among members of the bar.”

In his private practice, Matt Kaiser focuses on white collar defense and legal ethics. He has represented companies and individuals in white-collar criminal matters, and in connection with claims against their prior lawyers, advised lawyers on how to comply with their ethical obligations, and litigated law firm dissolutions.

Kaiser also teaches legal ethics at Georgetown University Law Center as an adjunct professor. He serves on the Board on Professional Responsibility, a nine-member board appointed by the D.C. Court of Appeals that adjudicates cases of attorney misconduct and is responsible for administering D.C.’s disciplinary system for attorneys. Prior to being elected President of BADC, Kaiser served the organization in various capacities.

Founded in 1871, the Bar Association of the District of Columbia is one of the oldest bar associations in the nation. The BADC and its members have a proud history of working closely with the judiciary, courts, the D.C. Council, and the U.S. Congress on the administration of justice. As D.C.’s voluntary bar it lobbies on behalf of its members, provides the only lawyer referral service in D.C., and mentors young lawyers. This year marks the 146th year the BADC has promoted civility, justice, and collegiality among members of the legal profession in the capital through advocacy, education, and social events.

View source version on businesswire.com: http://www.businesswire.com/news/home/20170606006247/en/

KaiserDillon, PLLC
Media Contact:
Penny Paul, 973-687-4830
penny@knappmarketing.net

Congratulations Matt. (Mike Frisch)

June 15, 2017 in Current Affairs | Permalink | Comments (0)

Tuesday, June 6, 2017

The Silence Of The Chickens

No mandamus lies for relief sought on behalf of slaughtered chickens, according to a decision today from the New York Appellate Division for the First Judicial Department

The individual plaintiffs reside, work or travel within Brooklyn neighborhoods where the non-City defendants engage in the Kaporos ritual every year before Yom Kippur. Plaintiff the Alliance to End Chickens as Kaporos, of which some individual plaintiffs are members, is associated with nonparty United Poultry Concerns, a non profit organization promoting compassionate and respectful treatment of domestic fowl. The non-City defendants are individual Orthodox Jewish rabbis, members of yeshivas or other Orthodox Jewish religious institutions, and several Orthodox Jewish religious institutions, all based in Kings County.

Kaporos is a customary Jewish ritual practiced by the non-City defendants, who are ultra Orthodox. It dates back to biblical times and occurs only once a year, the few days immediately preceding the holiday of Yom Kippur. Adherents of Kaporos believe this ritual is required by religious law and that it brings atonement and redemption. The ritual entails grasping a live chicken and swinging the bird three times overhead while saying a prayer that symbolically asks God to transfer the practitioners' sins to the birds. Upon completion of the prayer, the chicken is killed in accordance with the kosher dietary laws, by slitting the chicken's throat. Its meat is then required to be donated to the poor and others in the community. Each year thousands of chickens are sacrificed in furtherance of this ritual and the practice takes place outdoors, on public streets in Brooklyn, and in full public view.

Plaintiffs allege that the manner in which Kaporos is practiced is a health hazard and cruel to the animals. They decry the practice as "party-like" and having a "carnival" atmosphere. They contend the practice involves the erection of makeshift slaughter houses in which "[d]ead chickens, half dead chickens, chicken blood, chicken feathers chicken urine, chicken feces [and] other toxins . . . consume the public streets" (amended complaint ¶ 168). They also allege that there is blatant animal abuse and cruelty (id. at ¶ 174). It is plaintiffs' contention that Kaporos is a public nuisance to all those who, like them, pass through these locations for day to day activities, including going home, to work, or to shop. Their goal is to stop this practice. They argue that there are other, better ways for Kaporos adherents to practice their faith and express their devotion, including by using coins instead of live chickens. They denounce Kaporos as "a far cry from a solemn religious ritual." These claims are disputed by the non-City defendants, who otherwise claim that they have a constitutional right to practice Kaporos.

Nope

Mandamus is generally not available to compel government officials to enforce laws and rules or regulatory schemes that plaintiffs claim are not being adequately pursued (see e.g. Jones v Beame, 45 NY2d 402, 409 [1978], citing People ex rel. Clapp v Listman, 40 Misc 372 [Sup Ct, Onondaga Special Term 1903] [mandamus does not lie to compel enforcement of Sunday "blue" laws]; Matter of Walsh v LaGuardia, 269 NY 437 [1936] [no right to compel Mayor and Police Commissioner to prohibit operators of nonfranchised bus routes]; Matter of Perazzo v Lindsay, 30 AD2d 179 [1st Dept 1968], affd 23 NY2d 764 [1968] [no right to compel enforcement of laws governing operation hours of coffee houses]; Matter of Morrison v Hynes, 82 AD3d 772 [2d Dept 2011] [cannot compel the initiation of a prosecution]; Matter of Bullion v Safir, 249 AD2d 386 [2d Dept 1998] [no mandamus to compel police to make arrests]). This reflects the long-standing public policy prohibiting the courts from instructing public officials on how to act under circumstances in which judgment and discretion are necessarily required in the fair administration of their duties.

We hold that the laws which plaintiffs seek to compel the City defendants to enforce in this action involve the judgment and discretion of those defendants. This is because the laws themselves implicate the discretion of law enforcement and do not mandate an outcome in their application. With the exception of Agriculture and Markets Law § 371 (addressed separately below), there is nothing in the plain text of any of the laws and regulations relied upon by plaintiffs to suggest that they are mandatory. Nor is there anything in the legislative history supporting a conclusion that any of the implicated laws and regulations are mandatory. There is no express provision designating Kaporos as a prohibited act. There are disputes about whether the conduct complained of is in violation of the implicated laws and regulations. There are disputes about whether and to what extent the implicated laws can be enforced without violating constitutional rights belonging to the non-City defendants. Rituals involving animal sacrifice are present in some religions and although they may be upsetting to non adherents of such practice, the United States Supreme Court has recognized animal sacrifice as a religious sacrament and decided that it is protected under the Free Exercise Clause of the Constitution, as applied to the states through the Fourteenth Amendment.

Earlier coverage of this disagreement from the New York Daily News is linked here. (Mike Frisch)

June 6, 2017 in Current Affairs | Permalink | Comments (0)

Wednesday, May 24, 2017

Ohio Rules Ethnic Intimidation Charges Barred By Double Jeopardy

Dan Trevas on the web age of the Ohio Supreme Court

When two Portsmouth men accused of felony ethnic intimidation agreed to plead no contest to misdemeanor aggravated menacing crimes, the constitutional protection against double jeopardy barred the state from subsequently pursuing ethnic intimidation convictions, the Ohio Supreme Court ruled today.

Writing for the Supreme Court majority, Justice Sharon L. Kennedy concluded that the Scioto County Common Pleas Court was correct to dismiss charges against Melvin and Buddy Mutter after they were prosecuted in Portsmouth Municipal Court for misdemeanors, which were lesser included offenses of ethnic intimidation that stemmed from the same October 2014 incident.

The Court relied on a test developed by the U.S. Supreme Court in 1932 to determine if two separate crimes are essentially the same for the purpose of determining if the double jeopardy protection of U.S. and Ohio constitutions apply. Justice Kennedy noted the U.S. Supreme Court used “the Blockburger test” in a 1977 Ohio case, and the charges against the Mutters followed a similar pattern.

City Reduces Charges
The Mutters  originally were charged in Portsmouth Municipal Court with ethnic intimidation, a fifth-degree felony, and aggravating menacing, a first-degree misdemeanor. The city of Portsmouth dismissed Melvin Mutter’s ethnic intimidation charge and brought a new charge of “menacing by stalking” against him. Two weeks after the October 14 incident, Melvin Mutter pleaded no contest to both misdemeanor charges of aggravated menacing and menacing by stalking. He was sentenced to 180 days in jail with 150 days suspended, fined, and placed on probation.

In exchange for a guilty plea, Buddy Melvin’s charge of ethnic intimidation was reduced in municipal court to menacing by stalking. He pleaded no contest to both menacing by stalking and aggravated menacing, and  was sentenced to an entirely suspended 180-day jail sentence and placed on probation.

Less than a week after the Mutters concluded their municipal court cases, a Scioto County grand jury indicted the two for ethnic intimidation alleging they violated the aggravated menacing statute, R.C. 2903.21 “by reason of race, color, religion, or national origin of another person.”

The Mutters claimed the indictment violated their constitutional rights against double jeopardy. The common pleas court determined the misdemeanors the Mutters pleaded no contest to and felony charges brought by the state stem from the same incident and dismissed the case.

The Scioto County Prosecuting Attorney’s Office appealed the decision to the Fourth District Court of Appeals, which reversed the trial court’s ruling. The Fourth District ruled there was no evidence in the municipal court’s publicly available record to conclude the convictions for aggravated menacing and the indictments for ethnic intimidation arose from the same incident.

The Mutters appealed the decision to the Ohio Supreme Court, which agreed to hear the case.

No Second Prosecutions Allows After Convictions
The Mutters argue that the Fifth Amendment, applicable to the state’s charges through the Fourteenth Amendment, and the nearly identically worded double jeopardy clause in Article I, Section 10 of the Ohio Constitution, barred the felony indictment. The Mutters argue the state is attempting a second prosecution for the same offense after conviction.

They maintained they negotiated pleas of no contest because they believed their pleas in municipal court would eliminate the prosecution of a greater offense for the same incident in common pleas court.

The state argued that the Portsmouth Municipal Court did not have the right to reduce Buddy Mutter’s felony ethnic intimidation charge to a misdemeanor, and that under the Blockburger test, ethnic intimidation and aggravating menacing are distinct crimes that can be prosecuted separately even if they stem from the same incident.

The Court ruled the U.S. Supreme Court has stated the double jeopardy clause protects against three abuses: 1) a second prosecution for the same offense after acquittal, (2) a second prosecution for the same offense after conviction, and (3) multiple punishments for the same offense.

The opinion stated the Blockburger test determines if two crimes contain the same “elements” and that a person’s conviction for the lesser included offense bars prosecution for the greater offense.

Ethnic intimidation, R.C. 2927.12, contains two elements, the Court explained. A person must be found to have violated one of five state laws: aggravated menacing, menacing, criminal damaging, criminal mischief, or telecommunications harassment. The second element is that one of those crimes was committed “by reason of race, color, religion, or national origin of another person.”

The opinion found that regardless of a lack of information in the municipal court records, the state conceded at oral argument before the court that the ethnic intimidation and aggravated menacing charges arose from the same incident.

Under the Blockburger test, a lesser included offense is considered to be the same as the greater offense if the lesser offense had no additional element that required additional proof for a conviction. The proof required to charge and convict a person with ethnic intimidation is enough to charge and convict someone of aggravated menacing. As a result, in this case, ethnic intimidation and aggravated menacing are the same crime when considering double jeopardy, the Court concluded.

The opinion explains the U.S. Supreme Court applied Blockburger in the 1977 Brown v. Ohio case in which Ohio attempted to prosecute a defendant for the greater offense of auto theft after he had already pleaded guilty to the lesser offense of joyriding. All the proof gathered to charge the defendant for auto theft could be used to convict for joyriding and no additional proof was needed to convict for joyriding, making them the same crime for the purposes of double jeopardy.

The Ohio Supreme Court found the facts in the Mutters claim closely mirror those in Brown. It concluded the same way joyriding was the lesser included offense of auto theft, aggravated menacing and ethnic intimidation are the same crime.

“Relying on the analysis in Blockburger and Brown, we conclude that in this case, aggravated menacing is a lesser included offense of ethnic intimidation as charged in the indictments. Therefore, we find that the Mutters’ aggravated-menacing convictions are the same offenses as those charged in the indictments brought against them in the Scioto County Court of Common Pleas.”

The Court reinstated the trial court’s ruling to dismiss the charges.

Justices Terrence O’Donnell, Judith L. French, William M. O’Neill, Patrick F. Fischer, and R. Patrick DeWine joined the majority opinion.

Chief Justice Maureen O’Connor concurred in judgment only.

2016-0440 and 2016-0441. Sate v. Mutter, Slip Opinion No. 2017-Ohio-2928.

Video camera icon View oral argument video of this case.

(Mike Frisch)

May 24, 2017 in Current Affairs | Permalink | Comments (0)

Wednesday, May 17, 2017

Former Firm May Sue Successor Firm For Failure To Honor Lien

The New Hampshire Supreme Court has reversed and remanded the dismissal of a claim of one law firm against another alleging conversion

The plaintiff was retained by a client to pursue a personal injury action. In connection with the representation, the client signed the plaintiff’s standard engagement contract, which states, in relevant part:

If I discharge my attorney or he withdraws from representation, I agree to pay him at the rate of $350.00 per hour, $175.00 per hour for his legal assistant(s), quantum meruit, or thirty-three and one-third percent (33-1/3%) of the last settlement offer, whichever is greater, from any recovery obtained on my behalf. I do further agree that my attorney will be entitled to the full contingency fee identified in this contract if he substantially performs under the contract. I grant my attorney a lien for his fees and costs on any recovery I receive in my case.

The plaintiff worked for the client for two years before being discharged without cause. The client subsequently hired the defendants, who filed an action (underlying action) on behalf of the client. The defendants ultimately settled the underlying action on the client's behalf.

Prior to settlement, the plaintiff filed a motion to intervene in the underlying action, asserting that he possessed a contractual lien for fees and costs incurred during his representation of the client. The client objected to the motion, claiming, among other things, that: (1) intervention would be inappropriate because of the possibility of juror confusion and because the plaintiff retained the ability to bring a separate quantum meruit claim; and (2) the plaintiff had "neither a lien nor a contractual claim" and was limited to recovery in quantum meruit. The court denied the plaintiff’s motion "for the reasons stated in the [client’s] objection," without further elaboration. According to the defendants, the plaintiff subsequently filed a motion to vacate the court’s order, which the court denied, ruling that it was "an untimely motion to reconsider."

After the settlement of the underlying action, the client filed a motion to order that the settlement check be made "payable solely to [the client] and her counsel, R. James Steiner." The court granted the motion.

On the same day, the plaintiff filed a series of motions in the underlying action, including a second motion to intervene wherein he again asserted that he possessed a contractual lien, a motion for interpleader, and a motion to foreclose lien. The client objected to all these motions, and the court denied all of them without explanation.

The plaintiff then initiated this action against the defendants, again alleging that he had an enforceable contractual lien for fees against the defendants. The defendants moved to dismiss the action for failure to state a claim. In its order granting the motion, the court noted that the plaintiff’s contractual lien claim was "arguably barred by the doctrine of collateral estoppel." Nonetheless, the court found that the plaintiff’s claim failed on the merits because he had not submitted any evidence of his contract with the client, and, thus, failed to allege "facts that c[ould] be reasonably construed to meet the elements of an enforceable contract containing the lien term."

On the merits

 Having thus established that the plaintiff may have a valid lien for the reasonable value of his services, we next consider whether that lien is enforceable against the defendants. The plaintiff asserts that the contract signed by the client is enforceable against the defendants because the defendants were aware of the lien at the time they were retained, and because the client should not be required to pay both lawyers’ fees. The defendants’ position is that, if the plaintiff has any claim for fees, the claim lies only against the client. Under the particular circumstances of this case, we are persuaded by the plaintiff’s argument.

Because the defendants do not argue that they were unaware that the client had discharged a prior attorney before retaining their services, we conclude that the lien for fees claimed by the plaintiff may be enforceable against the defendants. In so holding, we follow the view espoused by the Indiana Supreme Court in Galanis v. Lyons & Truitt, 715 N.E.2d 858 (Ind. 1999). As that court aptly explained:

In a system of professional responsibility that stresses clients’ rights, it is incumbent upon the lawyer who enters a contingent fee contract with knowledge of a previous lawyer’s work to explain fully any obligation of the client to pay a previous lawyer and explicitly contract away liability for those fees. If this is not done the successor assumes the obligation to pay the first lawyer’s fee out of his or her contingent fee. [The successor lawyer] was in the best position to evaluate and to reach an agreement as to a reasonable fee for the value of the work already done in [the client’s] case. "Lawyers almost always possess the more sophisticated understanding of fee arrangements. It is therefore appropriate to place the balance of the burden of fair dealing and the allotment of risk in the hands of the lawyer in regard to fee arrangements with clients." In the Matter of Myers, 663 N.E.2d 771, 774-75 (Ind. 1996). [The successor lawyer] also had the option to discuss with [the client] the need for someone to pay [the prior lawyer’s] fee and to refuse to accept the case if [the client] could not resolve any open issues with [the prior lawyer]. [The successor lawyer] neither advised [the client] of the need to pay the fee nor contracted away that responsibility for himself. Under these circumstances, [the successor lawyer], not [the client], should bear the burden of his silence. Accordingly, [the prior lawyer] is entitled to recover the compensation due [him] from [the successor lawyer’s] contingent fee...

We find the Galanis court’s reasoning persuasive, and, therefore, hold that the trial court erred in dismissing the plaintiff’s amended complaint. Accordingly, we reverse the trial court’s judgment and remand for further proceedings consistent with this opinion. In so doing, we emphasize that, for purposes of this appeal, we have accepted the plaintiff’s allegations as true. See Coyle, 147 N.H. at 100. On remand, the plaintiff will bear the burden of establishing the reasonable value of his services, which, as the Galanis court observed, is to be measured by the benefit conferred upon the client –– an amount that may or may not be commensurate with the time or effort expended by the plaintiff. See Galanis, 715 N.E.2d at 862. Also relevant to the plaintiff’s entitlement to fees will be the issue of whether he was, as he alleges, discharged without cause. See First National Bank of Cincinnati v. Pepper, 454 F.2d 626, 633 (2d Cir. 1972) (stating that "attorney discharged for cause. . . has no right to payment of fees"); cf. People ex rel. MacFarlane v. Harthun, 581 P.2d 716, 718 (Colo. 1978) (en banc) (stating that attorney discharged or removed "for professional misconduct in the handling of his client’s affairs" has no right to assert a statutory attorney’s lien).

 (Mike Frisch)

May 17, 2017 in Current Affairs, Law & Business, Law Firms | Permalink | Comments (0)

Tuesday, May 16, 2017

Oklahoma: High-Res License Photo Does Not Burden Religious Beliefs

The Oklahoma Supreme Court has held that an applicant's religious beliefs did not trump state requirements for a photo drivers license

This Court granted certiorari in this case to consider whether Appellant, Kaye Beach, sufficiently established that her "religiously motivated practice has been substantially burdened," because she was required to submit to a high-resolution facial photograph to renew her drivers license, despite her belief that doing so violated her religion. The Court of Civil Appeals held in her favor. We reverse the Court of Civil Appeals and affirm the district court's ruling.

The claim

 Appellant contends that her sincerely held religious beliefs forbid her from participating in a global-numbering identification system, using the number of man, and eternally condemn her for participating in any such system. Appellant believes that the biometric photo and fingerprint that Department requires for renewal of a license is the enrollment process for the identification system that is forbidden in the Bible. Appellant contends that Department's system takes measurements off facial points, from the biometric photo, to determine a number that is specific to her,  for use with facial recognition technology; Appellant believes the resulting number is the "number of a man" referred to in Revelation 13:16-18 thus Appellant objects to the measurements of her body being used to identify her. Appellant states that the government intends to use the biometric photo to tie our bodies to our ability to buy and sell in order to permit or deny access to goods, services, places, and things needed to live everyday.

Appellant contends she is forbidden by her sincerely held religious beliefs from allowing a biometric photo, compliant with international standards for formatting, to be taken and placed into a database even potentially accessible by international entities or shared with other entities and jurisdictions. Appellant states that the crux of the issue is the global information sharing; noting that the industry standards used by Department are compliant with international standards and the database is maintained by a subsidiary of an international company, on behalf of Department.

Appellant detailed the substantial burden on her religious exercise by noting issues she has faced without having a valid drivers license. Appellant has been ticketed for driving without a license. Appellant is sometimes unable to complete debit card transactions, has been unable to book a hotel room, rent a private company's postal box, pick up her own prescriptions, and a variety of other inconveniences because of being unable to show a valid drivers license when asked for identification. Finally, Appellant notes that she is unlikely to find a job in the future due to requirements on employers to verify identification.

Holding

It is undisputed that Appellant has submitted biometric photos and fingerprints to Department at least two to three times under Department's current system such that Appellant is already in Department's system. Even if Appellant adduced evidence to show that Department's biometric photo requirements are a substantial burden on Appellant's religious exercise of abstaining from participation in a global-numbering identification system, a court could still not grant Appellant effective relief because Appellant is already "enrolled" in the system with her biometric photo and fingerprints in Department's database. Because Department already has Appellant's biometric photo and fingerprints in its system, the matter presented is moot. There are no facts present here to allow application of an exception to this jurisdictional bar. As such, we need not address the other related issues brought before this Court.

(Mike Frisch)

May 16, 2017 in Current Affairs | Permalink | Comments (0)

Wednesday, May 3, 2017

Vermont Bar Counsel Has A Blog Worth Reading

While attempting to navigate recent changes in the web page of the Vermont Supreme Court, I came across an interesting ethics blog I had not previously encountered.

The Vermont Bar Counsel Michael Kennedy is blogging at  Ethical Grounds: The Unofficial Blog of Vermont's Bar Counsel

This blog is chock-full of useful and thoughtful information. It is great to see a Bar Counsel engaged with the broad topics of legal ethics as opposed to a narrow focus on discipline.

Here's a sample from the commentary on the D.C. bar complaint against Kellyanne Conway.

It’s rare that the filing of an ethics complaint makes the news.  However, that’s exactly what happened last week when a group of law professors filed an ethics complaint against Kellyanne Conway.  And, I found a way to relate the complaint to Vermont.  Bear with me.

The complaint alleges that Ms. Conway violated Rule 8.4(c) of the D.C. Rules of Professional Conduct.  The rule states that “[i]t is professional misconduct for a lawyer to [e]ngage in conduct involving dishonesty, fraud, deceit or misrepresentation.”  By way of summary, the complaint alleges that Ms. Conway violated the rule by:

  • in an interview with MSNBC, justifying President Trump’s executive order on immigration by referring to the “Bowling Green Massacre” when she knew there was no such massacre; and,
  • in the same interview, falsely stating that President Obama had “banned” Iraqi refugees for 6 months following the “Bowling Green Massacre”; and,
  • putting forth “alternative facts” about the size of the crowd at President Trump’s inauguration.

Finally, the complaint alleges that Ms. Conway violated the federal government’s conflict of interest rules by using her position to endorse Ivanka Trump’s products during an interview conducted in the White House briefing room.

Addressing the allegations in reverse order, the New York Times ran this piece on Conway’s endorsement of Ms. Trump’s product line.  Fashionista, a sister-site to Above The Law, posted a blog calling the endorsement “pretty illegal.

The federal government’s internal ethics rules, however, are not my bailiwick. So, back to the allegations that Conway violated Rule 8.4(c).

The National Law Journal suggests that the investigation of the complaint against Conway might take a long time.  Regardless of how long it takes to investigate the complaint, at least 2 law professors have voiced strong opinions that it should not result in discipline.

Over at Slate, Steven Lubet, wrote that “[a]s a liberal Democrat, I have no sympathy for Conway’s habitual disregard for truth. As a professor of legal ethics, however, I think this complaint is dangerously misguided and has the potential to set a terrible precedent.”  His rationale is here.

Jonathan Turley, a law professor at George Washington, wrote that he  “fail[s] to see the basis for a formal ethics charge based solely on the product endorsement and view[s] the other references as bordering on frivolous as the foundation for an ethics complaint.” His entire blog entry is here.

  • Disclosure: I attended GW Law. Professor Turley taught my property law class. As he notes, he also taught Ms. Conway.  I did not know her. Professor Turley’s blog indicates that she graduated in 1995.  However, a classmate told me that she was a year ahead of us. I graduated in 1993. And, per her Wikipedia page, she graduated in 1992.

Vermont’s Rule 8.4(c) is identical to D.C.’s.  Interestingly, in their complaint against Ms. Conway, the professors noted that “[g]enerally speaking, we do not believe that lawyers should face discipline under this Rule for public or private dishonesty or misrepresentation unless the lawyer’s conduct calls into serious question his or her ‘fitness for the practice of law.’ ”  (emphasis added).  

Why is this “interesting”?  Because it’s almost exactly what the Vermont Supreme Court has said. Bear with me some more.

In addition to Rule 8.4(c)’s prohibition of conduct involving dishonesty, fraud, deceit and misrepresentation, Rule 4.1 states that “[i]n the course of representing a client a lawyer shall not make a false statement of material fact or law to a third person.” If a lawyer vioalates Rule 4.1 by making a false statement of material fact, the lawyer must also violate Rule 8.4(c) by engaging in conduct involving dishonesty, deception, and misreprentation, right?

As regular readers of the Five for Friday ethis quiz know, WRONG!  See, Week 59, Question 3.

The Vermont Supreme Court has addressed the question.  The Court’s decision is here.  It appears at 2009 VT 115.  The Court stated:

  • “If Rule 8.4(c) is interpreted to automatically prohibit ‘misrepresentations’ in all circumstances, Rule 4.1 would be entirely superfluous.  There must be some meaning for Rule 8.4(c) independent of Rule 4.1 –  for we presume that the drafters meant every rule to have some meaning.”  (emphasis in the original).

Thus, the Court limited Rule 8.4(c) to misrepresentations that “reflect adversely on a lawyer’s fitness to practice law.”

Sound familiar? It should.  It’s exactly what the law professors said in the complaint that they filed against Ms. Conway.  And I think I know why they said it.

In reaching its decision that Rule 8.4(c) is limited to misrepresentations that adversely reflect on a lawyer’s fitness to practice, the Vermont Supreme Court cited to, among other sources, an advisory ethics opinion from, that’s right, the District of Columbia.

It’s D.C. Bar Ethics Opinion 323.  Here’s the conclusion:

  • “Lawyers employed by government agencies who act in a non-representational official capacity in a manner they reasonably believe to be authorized by law do not violate Rule 8.4 if, in the course of their employment, they make misrepresentations that are reasonably intended to further the conduct of their official duties”

To their credit, the professors who filed the complaint against Ms. Conway cited to Ethics Opinion 323.  However, citing to the ABA Model Rules, the professors stated that they filed the complaint as a result of their belief that “lawyers in public office – Ms. Conway is Counselor to the President – have a higher obligation to avoid conduct involving dishonest [sic], deceit, fraud, deceit or misrepresentation than other lawyers.”

Where am I going with all this? Nowhere. Just thought I’d fill you in on the world’s most famous ethics complaint and its connection, however slight, to Vermont.

This blog deserves support. Good to see another Mike in the arena. (Mike Frisch)

May 3, 2017 in Bar Discipline & Process, Current Affairs | Permalink | Comments (0)

Monday, May 1, 2017

Education Or Entertainment On Las Vegas Law?

A decision last Thursday from the Nevada Supreme Court

In this petition, we are asked to interpret Supreme Court Rules governing media in the courtroom. The writ petition arises from My Entertainment TV (MET) filming petitioner Michael Solid's first-degree murder trial for use in the television show Las Vegas Law. Solid contends that (1) MET is not a "news reporter" under these rules; (2) MET's footage will not be used for solely educational or informational purposes, but may instead be used for unrelated advertising purposes; (3) the district court erred by allowing MET to film the trial; and (4) the terms of MET's television series agreement with the Clark County District Attorney require the Special Public Defenders assigned to Solid's case to give written consent to allow filming.

We conclude that (1) MET is a "news reporter" under Supreme Court Rule (SCR) 229, (2) MET is using the footage for educational or informational purposes pursuant to SCR 241, (3) the district court did not err in allowing MET to film Solid's trial under SCR 230, and (4) the television series agreement does not require the consent of Solid's trial counsel. For these reasons, we deny Solid's writ petition.

The court considered the issues even though the trial has concluded.

Analysis

Solid argues MET's intention to create an "entertaining" television show runs afoul of SCR 241, which requires the footage be used only •for "educational or informational purposes," but not "unrelated advertising" purpose...

First, the show focuses on criminal justice in Clark County, which, although potentially entertaining, satisfies the requirement for the recording to be used for informational or educational purposes. Such a conclusion comports with the above determination that MET is a news reporter, as that requires MET to provide either news or information to the public. Additionally, the determination of the relative entertainment of an otherwise informational or educational news program is outside the scope of this court's analysis. Indeed, "Mlle line between the informing and the entertaining is too elusive" for a court to decide when assessing the protections for a free press. Winters v. New York, 333 U.S. 507, 510 (1948). Thus, we conclude Las Vegas Law's footage is used for an educational or informational purpose in compliance with SCR 241(1).

Second, we conclude any footage used in relation to the creation of the show would be used for a related advertising purpose and, thus, satisfies the second prong of SCR 241(1). Indeed, even advertisements about the show would be related to the show's central educational or informational purpose and, therefore, within the purview of SCR 241(1). Thus, unless the footage is used in a context entirely outside of the filming and production of Las Vegas Law, we conclude the recording at issue here complies with SCR 241(1).

Consent of defense counsel is not required

When all sections are read together, the television series agreement does not require written consent from Solid's trial counsel Section 1 discusses an agreement between Clark County and MET to "enter the [Clark County District Attorney's Office] . . . for the purpose of" conducting MET's "Filming Activity." Sections 1(a) and 1(a)(i) of the television series agreement further clarify the consent requirements for county employees pursuant to MET's filming activity. We conclude the consent requirements of Section 1(a) and 1(a)(i) apply only to the filming activity occurring in the district attorney's office, as described in Section 1. To require consent of any county employee outside the scope of filming activities within the district attorney's office would make the provisions of Section 1 meaningless.

Thus, we conclude the television series agreement does not require the consent of counsel because its provisions should be read together and should be read to comport with this court's rules on electronic coverage of court proceedings.

There may be an issue with the link. The case is Solid v. Eighth Judicial District Court. (Mike Frisch)

May 1, 2017 in Current Affairs | Permalink | Comments (0)

Tuesday, April 4, 2017

New York Declines To Consider Merits Of Facebook Appeal

The New York Court of Appeals (per Judge Stein) has issued a decision declining a merits review of Facebook's failed motions in response to a criminal investigation

In this matter, we are asked to determine the appealability of two Supreme Court orders. The first order denied Facebook, Inc.'s motion to quash certain warrants, issued pursuant to the federal Stored Communications Act, that sought the account information and communications of various Facebook subscribers in connection with a criminal investigation. The second order denied Facebook's motion to compel disclosure of the affidavit supporting the warrant application. 

This case undoubtedly implicates novel and important substantive issues regarding the constitutional rights of privacy and freedom from unreasonable search and seizure, and the parameters of a federal statute establishing methods by which the government may obtain certain types of information. Nevertheless, while it may be tempting for this Court to address those issues, we must -- in this case as in every other case -- first ascertain whether we possess the necessary jurisdiction to do so under our own constitution and statutes. This presents equally important issues regarding the separation of powers among our three branches of government. With these principles in mind, because the orders resolving Facebook's motions relate to warrants issued in a criminal proceeding, and the Criminal Procedure Law does not authorize an appeal from either order, we are constrained by law to affirm the Appellate Division order dismissing Facebook's appeals to that Court.

Judge Rivera concurred

I concur with the majority that the order denying Facebook's motion to quash the warrant is not appealable, but on the narrower basis that Facebook did not assert the grounds provided for under 18 USC § 2703 (d), and, thus, pursuant to section 2703 (a), the order is subject to our state rules and unreviewable. However, I fully agree with and adopt my dissenting colleague's comprehensive and well-reasoned analysis that the Stored Communications Act permits Facebook to appeal the denial of a motion to quash or modify the SCA warrants (dissenting op at §§ I[a], III[a]).

Judge Wilson dissented

The Fourth Amendment to the U.S. Constitution, urged on the nation by the New York ratifying convention in 1788 (William J. Cuddihy, The Fourth Amendment: Origins and Original Meaning, 602- 1791, 695 [1st ed 2009]), secures us against unreasonable searches and seizures by our government. It reflects the American consensus that the general warrants and writs of assistance popular among British officials in colonial government -- orders that licensed their possessors to scour homes and businesses for anything of potential interest to the Crown, and that were a significant provocation to the revolutionary sentiment then taking hold in New England -- had no place in a nascent republic that so deeply abhorred arbitrary power...

Constitutional and Congressional words of promise were given to our ear, and I would not break them to our hope. I respectfully dissent, and would remand this case to the Appellate Division to resolve the motion to quash or modify the warrants, as well as the pendant matters involving the permissibility of an indefinite gag order and the disclosure of the underlying affidavit. As one of the delegates to the 1938 convention urged his fellow representatives, "let us decide this thing on the merits" (Revised Record at 462).

(Mike Frisch)

April 4, 2017 in Current Affairs | Permalink | Comments (0)

Thursday, March 30, 2017

Records Of Officer In Eric Garner Case Shielded From Disclosure

The New York Appellate Division for the First Judicial Department reversed  an order giving access to records of the officer who caused the death of Eric Garner.

The issues before us stem from the extensively publicized arrest and death of Eric Garner on July 17, 2014. Intervenor Police Officer Daniel Pantaleo was depicted in a bystander video applying a choke hold to Mr. Garner during the incident. An investigation followed, and on December 2, 2014, a grand jury declined to indict Officer Pantaleo in connection with Mr. Garner's death.

Petitioner submitted a Freedom of Information Law (FOIL) letter request to respondent Records Access Officer, Civilian Complaint Review Board (CCRB), dated December 18, 2014, seeking eight categories of records concerning Officer Pantaleo, dating from 2004 to the date of Mr. Garner's death. Petitioner sought: (1) the number of complaints filed against Officer Pantaleo; (2) the number of allegations contained within each complaint; (3) the outcome of CCRB's investigation of each allegation; (4) any prosecution by CCRB in response to such finding; (5) the outcome of any prosecution by CCRB; (6) any charges and specifications filed by the New York City Police Department's (NYPD) Department Advocate Office; (7) the outcome of any Department Advocate Office proceedings; and (8) any other agency actions in response to the above requests.

On December 24, 2014, CCRB denied the request, citing the statutory exemption from disclosure provided for police personnel records contained in Public Officers Law § 87(2)(a) and Civil Rights Law § 50-a. In addition to the statutory exemptions, CCRB noted that the request for records relating to unsubstantiated matters would constitute "an unreasonable invasion of privacy." Finally, CCRB noted that it was not possible to redact any responsive records "in a way that will disassociate allegations against [Officer Pantaleo] given the nature of" petitioner's request. Petitioner appealed to the CCRB on December 29, 2014, but received no response.

This article 78 proceeding was commenced on February 17, 2015, and sought an order directing the CCRB to produce "a summary of the number of allegations, complaints and outcomes brought against" Officer Pantaleo. Much of petitioner's broader initial request was thus abandoned. During the proceedings, petitioner further narrowed its FOIL request, seeking only information as to "whether the CCRB substantiated complaints against Officer Pantaleo and, if so, whether there were any related administrative proceedings, and those outcomes, if any." Officer Pantaleo applied for and was granted intervenor status as a party respondent. His opposition papers alleged, among other things, that even the requested summary of the CCRB records was exempt from disclosure because it would endanger his life and the lives of his family members. In support, he referenced online, unsubstantiated reports of alleged misconduct on his part that resulted in the arrest of a Michigan man in February 2015 for posting Facebook death threats against him. Officer Pantaleo also stated that the NYPD's Threat Assessment Unit had assigned police officers to watch over him and his family 24 hours a day, 7 days a week, and implemented other security measures as well. He also agreed with the CCRB that the requested documents constituted "personnel records" within the meaning of Civil Rights Law § 50-a(1) and were therefore exempt from disclosure.

Disposition

Here, in light of the widespread notoriety of Mr. Garner's death and Officer Pantaleo's role therein, and the fact that hostility and threats against Officer Pantaleo have been significant enough to cause NYPD's Threat Assessment Unit to order around-the-clock police protection for him and his family, and notwithstanding the uncertainty of further harassment, we find that the gravity of the threats to Officer Pantaleo's safety nonetheless demonstrate that disclosure carries a "substantial and realistic potential" for harm, particularly in the form of "harassment and reprisals," and that nondisclosure of the requested records under Civil Rights Law § 50-a is warranted (see Daily Gazette, 93 NY2d at 157, 159).

The points raised in the various amici briefs can be summarized, in the main, as raising various public policy concerns. However, with all due respect to the seriousness of those concerns, we take no position on whether the statute should be amended to address those concerns. We are bound to apply the law as it exists, and as interpreted by controlling Court of Appeals precedents (Matter of New York Civil Liberties Union v New York City Police Dept., __ AD3d __ [1st Dept 2017]). Such policy and public interest arguments have been found to be inconsistent with the legislative history of Civil Rights Law § 50-a (see Daily Gazette, 93 NY2d at 154-155). Petitioner's remedies, under our tripartite system of government, rest with the Legislature as the policy making branch of government, not the courts, which are tasked with interpretation of the laws.

 ...the order and judgment (one paper), of the Supreme Court, New York County (Alice Schlesinger, J.), entered July 27, 2015, directing respondent to produce to petitioner, pursuant to the Freedom of Information Law (FOIL), a summary of CCRB's records indicating (a) the number of substantiated complaints brought against intervenor before the July 17, 2014 death of Eric Garner and (b) any CCRB recommendations made to the Police Department based on such complaints, should be reversed, on the law, without costs, the judgment vacated, the petition denied, and the proceeding brought pursuant to CPLR article 78 dismissed.

(Mike Frisch)

March 30, 2017 in Current Affairs | Permalink | Comments (0)

Tuesday, March 21, 2017

No Rule 3.7 Exception For Fee Collection Actions

An opinion of the North Carolina Court of Appeals affirms a disqualification order based on the witness-advocate rule. 

This case presents the question of whether a categorical exception to the applicability of Rule 3.7 of the North Carolina Rules of Professional Conduct exists in fee collection cases. Harris & Hilton, P.A. (“Harris & Hilton”) appeals from the trial court’s order disqualifying Nelson G. Harris (“Mr. Harris”) and David N. Hilton (“Mr. Hilton”) from appearing as trial counsel in this action based on their status as necessary witnesses. Because this Court lacks the authority to create a new exception to Rule 3.7, we affirm the trial court’s order.

The story

On 10 June 2015, Harris & Hilton filed the present action in Wake County District Court against James C. Rassette (“Defendant”) to recover attorneys’ fees for legal services the firm had allegedly provided to Defendant prior to that date. The complaint asserted that Harris & Hilton was entitled to recover $16,935.69 in unpaid legal fees. On 13 November 2015, Defendant filed an answer in which he asserted various defenses, including an assertion that no contract had ever existed between the parties.

On 10 June 2016, a pre-trial conference was held before the Honorable Debra S. Sasser. During the conference, Judge Sasser expressed a concern about the fact that Harris & Hilton’s trial attorneys — Mr. Harris and Mr. Hilton — were also listed as witnesses who would testify at trial on behalf of Harris & Hilton. After determining that Mr. Harris and Mr. Hilton were, in fact, necessary witnesses who would be testifying regarding disputed issues such as whether a contract had actually been formed, Judge Sasser entered an order on 20 June 2016 disqualifying the two attorneys from representing Harris & Hilton at trial pursuant to Rule 3.7. On 27 June 2016, Harris & Hilton filed a notice of appeal to this Court.

The issue

Harris & Hilton does not dispute the fact that (1) Mr. Harris and Mr. Hilton will both be necessary witnesses at trial; (2) their testimony will encompass material, disputed issues; and (3) none of the three above-quoted exceptions contained within Rule 3.7 are applicable. Nor does it contest the fact that a literal reading of Rule 3.7 supports the trial court’s ruling. Instead, it asks this Court to adopt a new exception based on its contention that Rule 3.7 should not be applied in fee collection actions to disqualify counsel from both representing their own firm and testifying on its behalf.

 Harris & Hilton argues that permitting a law firm’s attorney to serve both as trial counsel and as a witness in a fee collection case is no different than allowing litigants to represent themselves pro se. It is true that litigants are permitted under North Carolina law to appear pro se — regardless of whether the litigant is an attorney or a layperson. See N.C. Gen. Stat. § 1-11 (2015) (“A party may appear either in person or by attorney in actions or proceedings in which he is interested.”); N.C. Gen. Stat. § 84-4 (2015) (“[I]t shall be unlawful for any person or association of persons, except active members of the Bar . . . to practice as attorneys-at-law, to appear as attorney or counselor at law in any action or proceeding before any judicial body . . . except in his own behalf as a party thereto[.]” (emphasis added)). 

However, the present case does not involve the ability of Mr. Harris or Mr. Hilton to represent themselves on a pro se basis. Instead, they seek to represent their law firm — a professional corporation — in a suit against a third party while simultaneously serving as witnesses on their firm’s behalf as to disputed issues of fact. It is well established that an entity such as Harris & Hilton is treated differently under North Carolina law than a pro se litigant. See LexisNexis, Div. of Reed Elsevier, Inc. v. Travishan Corp., 155 N.C. App. 205, 209, 573 S.E.2d 547, 549 (2002) (holding that under North Carolina law, a corporation is not permitted to represent itself pro se).

Harris & Hilton also makes a policy argument, contending that the current version of Rule 3.7 is archaic and fails to take into account the disproportionate economic burden on small law firms that are forced to hire outside counsel to litigate fee collection cases. However, in making this argument, Harris & Hilton misunderstands the role of this Court given that it is asking us not to interpret Rule 3.7 but rather to rewrite it — a power that we simply do not possess.

Thus

we cannot say that the trial court abused its discretion by applying Rule 3.7 as written as opposed to creating a new exception that neither appears within the Rule itself nor has been recognized by North Carolina’s appellate courts. Accordingly, we affirm the trial court’s disqualification order.

(Mike Frisch)

March 21, 2017 in Clients, Current Affairs, Economics, Law & Business, Law Firms | Permalink | Comments (0)

Tuesday, March 14, 2017

No Standing

The United States Court of Appeals for the District of Columbia Circuit affirmed dismissal of a claim brought by an attorney against the Department of State.

The plaintiff is a law firm that advises clients on U.S. law that regulates the international arms trade. Concerned that the State Department might enforce arms-control regulations against it in a way that would force disclosure of confidential client information, the law firm seeks declaratory and injunctive relief. The district court dismissed the action for lack of standing and ripeness. We affirm on the ground that the plaintiff lacks standing to bring a preenforcement challenge because it faces no credible threat of enforcement.

Background

Matthew A. Goldstein is the principal attorney in a law firm that bears his name and specializes in providing legal advice to clients involved in transactions subject to the [International Traffic in Arms Regulation Act] . Goldstein attests that his firm “regularly represents clients in the preparation of the terms and conditions of sale, user agreements, vendor certifications, and other legal documents” for ITAR-related transactions. J.A. 51-52. According to Goldstein, his firm’s clients often have not identified the foreign parties that will be involved in prospective transactions at the time the firm provides its legal advice.

Soon after the State Department promulgated its 2013 regulation explicitly excluding legal services from the ITAR’s definition of brokering activities, Goldstein sought an advisory opinion from the Department pursuant to 22 C.F.R. § 126.9(a), asking whether six categories of services his firm provides were regulated or exempt. These services include advising clients on how to structure sales of defense articles, preparing sales contracts for these items, drafting technical-assistance agreements, advising on the availability of financing, advising on and preparing sales proposals, and corresponding and meeting with U.S. government officials. However, Goldstein offered the State Department no details about any past or contemplated transactions.

Goldstein asserts that, nearly a year after he requested an advisory opinion, the head of compliance at the State Department called him to say that the services described in his request would not be subject to Part 129 so long as his clients did not pay his firm a contingency fee or a commission. Relying on this advice, Goldstein withdrew his request. The State Department responded with a letter, advising Goldstein that his initial request and the phone conversation “lacked sufficient detail for the Department to make an official determination as to whether the activities discussed constituted brokering activities.” J.A. 36 (emphasis added). The letter also referred him to the Frequently Asked Questions page on the State Department’s website.

The attorney's subsequent suit was dismissed on standing grounds.

Here

The question before us is whether the law firm has standing to seek to enjoin the State Department from enforcing its regulations governing arms brokering. The firm has failed, however, to demonstrate its standing to seek pre-enforcement relief: it has not “suffered an ‘injury in fact[]’ that is (a) concrete and particularized and (b) actual or imminent . . . .” Sabre, Inc. v. U.S. Dep’t of Transp., 429 F.3d 1113, 1117 (D.C. Cir. 2005) (quoting Friends of the Earth, Inc. v. Laidlaw Envtl. Servs., Inc., 528 U.S. 167, 180-81 (2000)). It is true that a plaintiff is not required “to expose himself to liability before bringing suit to challenge the basis” for an enforcement action by the government...

But here, we have no facts from which to conclude that the law firm risks incurring any liability by failing to register with the State Department. Indeed, Goldstein offers only vague and general descriptions of legal activities that the firm intends to undertake, none of which the State Department views as brokering, as the Department has made abundantly clear on its website and, more particularly, at oral argument before this court. Unsurprisingly, then, the State Department has shown no intention of enforcing the brokering regulations against Goldstein’s law firm...

As long as the firm merely provides the legal services Goldstein describes, it faces no material risk of enforcement from the State Department. His firm therefore need not fear that it will have to disclose confidential client information or otherwise take steps to register.

Circuit Judge Griffith authored the opinion. (Mike Frisch)

March 14, 2017 in Current Affairs | Permalink | Comments (0)

Saturday, March 11, 2017

State Bar Proposes Sex With Client Rule In California

The State Bar of California approved an ethics rule that would subject lawyers to discipline for having sex with their clients.

California currently bars attorneys from coercing a client into sex or demanding sex in exchange for legal representation.

But voluntary sex between attorneys and clients is not prohibited as long as it does not cause the lawyers to "perform legal services incompetently."

The new rule would completely ban sex between lawyers and clients with some exceptions.

As of May 2015, 17 states had adopted a blanket sex ban drafted by the American Bar Association, according to an ABA committee that looked at implementation of the group's ban.

Still, California's proposal was divisive.

Supporters said the relationship between a lawyer and client is inherently unequal, so any sexual relationship is potentially coercive. But some attorneys said the blanket ban was an unjustified invasion of privacy.

The bar's Board of Trustees passed the rule Thursday as part of a long-awaited overhaul of attorney conduct standards that revised or crafted 70 ethics rules. The new rules approved Thursday will now go before the California Supreme Court, which has final say over them.

The bar's ethics rules for attorneys were last fully revised in 1987. Lawyers who violate the regulations are subject to discipline ranging from private censure to loss of their legal license.

James Ham, an attorney on a state bar commission that worked on the rules, said it's not a good idea for lawyers to have relationships with clients, but he objected to disciplining attorneys for consensual relationships "where there was no harm."

"The real issue is a philosophical, constitutional one about how intrusive government can be in people's lives," he said.

Daniel Eaton, another member of the commission, said the existing client sex rule wasn't working. He pointed to a lack of disciplinary action against attorneys.

Between September 1992 and January 2010, the state bar investigated 205 complaints of misconduct under the current sex restriction, according to an analysis of data that accompanied the proposal. It imposed discipline in only one case.

"It is important that the California State Bar prohibit as an ethical matter attorneys from exploiting their clients sexually," Eaton said.

He said the only way to accomplish that is with a blanket sex ban that removes uncertainty for attorneys and the challenge of proving exploitation for investigators.

The revisions commission modified the proposal at its meeting in October to create an exception from the sex ban for a lawyer who is representing a spouse or registered domestic partner. It also required the state bar to consider whether a client would be "unduly burdened" by an investigation of sexual misconduct if someone other than the client filed the complaint.

The rule also allows sex between a lawyer and client when the sexual relationship preceded the professional relationship.

Other approved changes would allow the state bar to discipline attorneys for discrimination even without a separate finding of wrongdoing. The current rule requires a final determination of wrongful discrimination in a lawsuit or other proceeding before the state bar can take action.

(Mike Frisch)

March 11, 2017 in Bar Discipline & Process, Current Affairs | Permalink | Comments (0)