Monday, December 5, 2016

Standing By: The Ethics Of Standby Counsel

The New Hampshire Bar Association has issued a thoughtful analysis of the role of "standby counsel" in a criminal case.

"Standby counsel" is not an advocate or "counsel" in any normal sense. If stand-by counsel acts as an advocate or in any way undermines the pro se defendant's control of that defendant's own case, the defendant's right to self-representation may be violated.

Except when the defendant consents, standby counsel is not in control of the case. Standby counsel must instead serve as a passive source of information, answering questions of law from the defendant when he/she chooses to ask such questions.

Serving as stand-by counsel is not per se unethical. However, stand-by counsel would be wise to seek instruction and guidance from the trial court on a case-by-case basis, to define those responsibilities which stand-by counsel must undertake, and to outline for the defendant the consequences of self-representation.

The analysis

A threshold question is whether service as a stand-by counsel creates an attorney-client relationship between that counsel and the pro se defendant. If, for example, the relationship of stand-by counsel and the pro se defendant is not an attorney-client relationship, then the analysis of the lawyer's ethical duties to that defendant ends there. The Committee believes that although the ethical responsibilities of stand-by counsel substantially depart from those in a typical attorney-client relationship, as noted below, such a relationship arises in spite of these limitations. Recognition of this determination is important because certain fundamental duties and rights such as the preservation of client confidentiality (NHRPC 1.6) and attorney-client privilege, and the duty to avoid conflicts of interest (NHRPC 1.7) remain as part of an attorney's responsibilities to an otherwise self-represented defendant.

From there, the ethical analysis grows murkier.  One ABA Standard for Criminal Justice attempts to provide some guidance on the role of stand-by counsel appointed to assist a pro se defendant. The applicable standard notes that the role of counsel may vary from case to case depending on the role specified by the appointing court. As a result, the standard envisions two types of stand-by counsel: A stand-by counsel appointed to actively assist a defendant and stand-by counsel appointed to assist only upon request from a defendant.

"(a) Defense counsel whose duty is to actively assist a pro se accused should permit the accused to make the final decisions on all matters, including strategic and tactical matters relating to the conduct of the case.

"(b) Defense counsel whose duty is to assist a pro se accused only when the accused requests assistance may bring to the attention of the accused matters beneficial to him or her, but should not actively participate in the conduct of the defense unless requested by the accused or insofar as directed by the court."

ABA Standards for Criminal Justice, Defense Function, Standard 4-3.9.

The underlying theme within the Standard actually provides some useful instruction when one is appointed as stand-by counsel. That is, the Standard envisions that the trial court should be asked to provide guidance on the ethical responsibilities and limitations on the role of stand-by counsel in a specific case. The concept of an attorney providing limited services is not new. The existing Rules of Professional Conduct contemplate that an attorney may provide a client with "unbundled" services - that is, limited and specific services - as long as those services are clearly defined. NHRPC 1.2(f) and (g).

In this vein, stand-by counsel may be wise to file a motion for instruction upon appointment as stand-by counsel. That motion may seek instruction from the trial court about whether, based on the circumstances of the case, counsel must:

  • Assist in any investigation of the case.
  • Identify or prioritize those issues on which the defendant should focus attention.
  • Develop a full understanding of the prosecution's records, documents, reports and other investigations pertaining to the case.
  • Attend all pre-trial hearings and conferences in the case.
  • Assist in specific areas or aspects of the case (e.g. – discovery), given the facts of the case.
  • Undertake research and render advice about specific areas of the law applicable to the case.
  • Interview, research or develop knowledge about witnesses, and/or assist the defendant in locating witnesses helpful to the defense, including expert witnesses.
  • Generally communicate with the pro se defendant to offer assistance versus responding to requests for assistance, only.
  • Bring to the attention of the defendant matters beneficial to the defendant.
  • Consistent with NHRPC 3.3(a)(3), reveal that evidence offered by the defendant is false, if stand-by counsel knows such evidence is false, or to affirmatively counsel the defendant if the defendant intends to commit a fraudulent or criminal act. See NHRPC 1.2(d).
  • Seek more defined guidance at specific points in a case, such as competency hearings, pre-trial discovery, trial and sentencing.

Given the constitutional principles described above, the instructions issued by the trial court will likely need to be developed through consultation between the court and the defendant, and not simply imposed.

It may also be wise for stand-by counsel to seek orders (consistent with the above), including clear statements that:

  • The defendant alone is responsible for the preparation and presentation of that defendant's defense.
  • Communications between the pro se defendant and stand-by counsel are privileged, and that information obtained in the limited representation of the defendant is confidential.
  • The professional conduct rules applicable to conflicts of interest govern the relationship between stand-by counsel and the defendant.
  • The rules governing frivolous claims, requests and defenses (NHRPC 3.1 and 3.4(d)) shall not apply absent advice from stand-by counsel to the defendant to undertake such conduct.
  • Stand-by counsel is not an advocate, and will play no advocacy role in hearings, pleadings, or at trial.
  • Stand-by counsel shall not assume the role of advocate should the defendant have a change of mind immediately before or during the trial. See State v. Ayer, 150 N.H. 14 at 28-29 (trial at which the defendant proceeds pro se for some portions and through counsel for others constitutes a "structural defect" requiring reversal).
  • The defendant does not have the option of withdrawing the request to represent himself/herself and requesting that standby counsel serve as counsel in the traditional sense, unless the court, in its discretion, grants a continuance of the trial.
  • During trial, stand-by counsel is appointed to answer the defendant's questions of law and courtroom procedure, but may not interject himself/herself into the case without the consent of the defendant.

In conclusion, despite the limitations which face stand-by counsel, serving as stand-by counsel is not per se unethical. However, stand-by counsel would be wise to seek instruction and guidance from the trial court on a case-by-case basis, to define those responsibilities which stand-by counsel must undertake, and to outline for the defendant the consequences of self-representation.

(Mike Frisch)

December 5, 2016 in Current Affairs, The Practice | Permalink | Comments (0)

Tuesday, November 29, 2016

A Ringing Defense Of The Right To Act Stupidly On One's Own Property

A dissent posted today by Justice Benjamin of the West Virginia Supreme Court of Appeals questions whether the state may make it a crime to drive an ATV drunk on your own property.

The most solemn duty of an American court lies in its pledge to protect the rights and liberties of private citizens from encroachment by the State. Here, the Majority not only badly misread applicable statutory law, it also sanctioned the infringement of two of our most basic natural rights: the right to do what one wants to do in the privacy of one’s estate so long as another is not harmed and the right to be left alone. As trustees of the wisdom and vision of our founders, this Court failed mightily.

It is unquestioned that Joshua Beckett’s use of his property was a matter of his own free choice. That it may be said that operating an all-terrain vehicle (“ATV”) exclusively on one’s private property, i.e., the family farm, after having consumed alcohol was a “stupid” use of the property misses the point. So long as Mr. Beckett did not infringe upon the rights of others or put others at risk, it was his choice to act “stupidly.”

As to case law

To support its expansive creativity, the Majority asserts that its research, listed in a footnoted string citation, shows that “nearly two dozen jurisdictions” support its logic. A careful review, however, reveals that none of the cited cases, save one, supports the Majority’s conclusions that the private use of an ATV by an individual on his private property while intoxicated is criminal conduct.

Irony

By no measure does the Majority opinion find legitimacy in constitutional, statutory, or common law. While the rights with which we are endowed are scarcely a topic of measured circumspection in our fast moving society, it falls to our courts to be vigilant that such natural rights are protected. This includes, as here, the importance of protecting the right to the private use and enjoyment of one’s private property.

In 1816, Jefferson wrote to his friend, Samuel Kercheval, a Virginia writer: “The true foundation of republican government is the equal right of every citizen, in his person and property, and in their management.” Letter of Thomas Jefferson to Samuel Kercheval, June 12, 1816, Writings, v. 10, p. 39. This quotation crowns the courtroom of the Supreme Court of Appeals of West Virginia. How ironic.

The majority opinion is linked here. Mike Frisch)

November 29, 2016 in Current Affairs | Permalink | Comments (0)

Monday, November 21, 2016

Ad For Clients May Use Name And Logo Of Potential Defendant

The Georgia Supreme Court has lifted an injunction entered against a Mississippi law firm based on an advertising campaign

In March 2015, McHugh Fuller Law Group, PLLC (“McHugh Fuller”) began running a month-long, statewide Georgia advertising campaign targeting PruittHealth, Inc. and its affiliated nursing homes (collectively, “PruittHealth”). PruittHealth filed suit against McHugh Fuller under Georgia’s trademark antidilution statute, OCGA § 10-1-451 (b), in the Superior Court of Colquitt County, and the trial court entered a permanent injunction prohibiting McHugh Fuller from running ads about PruittHealth that include the company’s trade names, service marks, or logos. As explained below, the single advertisement that PruittHealth challenges did not violate § 10-1-451 (b). Accordingly, we reverse the trial court’s injunction order.

The color ad is reprinted in the court's opinion

Contrary to PruittHealth’s assertion in the trial court, trademark law does not impose a blanket prohibition on referencing a trademarked name in advertising. “Indeed, it is often virtually impossible to refer to a particular product for purposes of comparison, criticism, point of reference, or any other purpose without using the mark.” New Kids on the Block v. News Am. Pub., Inc., 971 F2d 302, 306 (9th Cir. 1992). Moreover, interpreting OCGA § 10-1- 451 (b) expansively to prohibit the use of PruittHealth’s marks to identify its facilities and services in any way, as the company urges, would raise profound First Amendment issues. See Mattel, 296 F3d at 904 (explaining that reading the federal anti-dilution statute to prohibit all unauthorized use of trademarks “would . . . create a constitutional problem”)...

If PruittHealth believes that McHugh Fuller’s advertisements are untruthful or deceptive, the company must seek relief under some other statutory or common-law cause of action.

(Mike Frisch)

November 21, 2016 in Current Affairs | Permalink | Comments (0)

Thursday, November 17, 2016

Notre Dame Defeats ESPN

A decision issued yesterday by the Indiana Supreme Court

An ESPN reporter requested information from the Notre Dame Security Police Department regarding 275 student-athletes. The Department declined, claiming that Notre Dame is a private university and its police force is not a "law enforcement agency" subject to Indiana’s Access to Public Records Act. The trial court agreed, and dismissed ESPN’s suit. We too find that a private university police department is not a "public agency" for the purposes of APRA, and affirm the trial court...

We acknowledge the importance of an open government, as well as the broad access granted to government records by APRA. See Ind. Code § 5-14-3-1. However, the job of this Court is to interpret, not legislate, the statutes before it. Under APRA as it is currently written, the Department is not a "public agency" under any of the three subsections identified.

(Mike Frisch)

November 17, 2016 in Current Affairs | Permalink | Comments (0)

Thursday, October 27, 2016

Suing Yourself In Utah: Not An "Overwhelming Absurdity"

Interesting decision from the Utah Supreme Court involves an heir who negligently caused a death who was obligated to institute litigation against herself in a personal capacity

we hold that the court of appeals did not err when it concluded that the wrongful death and survival action statutes permit a person acting in the legal capacity of an heir or personal representative to sue him or herself in an individual capacity for negligently causing a decedent‘s death or injury. The plain language of both statutes permits such a lawsuit. Further, the literal terms of the statutes do not lead to an absurd result that would require us to modify the statutory text. And absent a statutory gap, we will not venture beyond the plain language of the statutes to rewrite them based upon public policy.

The sad story

Barbara Bagley is the common law wife of the decedent, Bradley Vom Baur. On December 27, 2011, Ms. Bagley and Mr. Vom Baur were travelling in a 2000 Range Rover. Ms. Bagley lost control of the Range Rover and flipped the vehicle. Mr. Vom Baur was thrown from the vehicle and sustained several severe injuries. Paramedics transported Mr. Vom Baur to a local hospital for treatment. Ten days later, on January 6, 2012, Mr. Vom Baur died from the injuries he sustained in the accident.

Ms. Bagley maintained a motor vehicle insurance policy with State Farm Insurance Company. To compel State Farm to indemnify her, Ms. Bagley, in her dual capacities as sole heir and personal representative of the estate of Bradley Vom Baur (Plaintiffs), brought this suit against herself as an individual (Defendant)...Plaintiff Bagley, as Mr. Vom Baur‘s heir, brought her first cause of action pursuant to Utah Code section 78B-3-106, Utah‘s wrongful death statute, alleging that Defendant negligently caused Mr. Vom Baur‘s death, thereby depriving his sole heir of Mr. Vom Baur‘s love, companionship, society, comfort, care, protections, financial support, pleasure, and affection. Plaintiff Bagley, as the personal representative of Bradley Vom Baur‘s estate, brought her second cause of action pursuant to Utah Code section 78B-3-107, Utah‘s survival action statute, alleging that Defendant negligently caused Mr. Vom Baur to experience pain and suffering prior to his death, which entitles Mr. Vom Baur‘s estate to damages such as funeral expenses and medical bills. 

The conflicts issue is dealt with in a footnote

The [Utah Defense Lawyers] Association submitted novel arguments about the impact this case could have on our adversarial system and our Rules of Professional Conduct. The Association argues, inter alia, that this lawsuit distorts the attorney-client relationship by creating a concurrent conflict of interest because "defense counsel‘s representation of the client as the defendant is directly adverse to defense counsel‘s representation of that same person who is also the plaintiff." This concurrent conflict, the Association further argues, strains an attorney‘s ability to communicate with his or her client, because "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." (quoting UTAH R. PROF‘L CONDUCT 4.2(a)). Conversely, communications in the other direction, from client to attorney, are also hampered, according to the Association, because the client knows that anything she reveals will be used against her. Relatedly, the Association raises concerns about jury confusion and the ability of an attorney to cross-examine his own client.

These arguments are not without merit but they must ultimately fail. This suit does not create a concurrent conflict. Plaintiffs and Defendant act in different legal roles. Any concern that Ms. Bagley will withhold information from defense counsel that is adverse to the estate‘s recovery is tempered by Ms. Bagley‘s requirement to cooperate with her insurer under their insurance agreement and the district court‘s inherent powers to manage discovery and ensure that defense counsel obtains relevant, probative evidence necessary to defend against Plaintiffs‘ causes of action. Similarly, concerns about jury confusion and cross-examination at trial are alleviated by the district court‘s ability to oversee the prosecution of this lawsuit in a manner that will mitigate these issues. Though this lawsuit raises novel issues regarding the attorney-client relationship and the prosecution of a lawsuit, these issues are manageable and do not create an overwhelming absurdity that requires us to rely on our absurdity doctrine to reform the wrongful death and survival action statutes.

The trial court had granted defendant's motion to dismiss.

The court here agreed with the Court of Appeals that the case can go forward. (Mike Frisch)

October 27, 2016 in Current Affairs | Permalink | Comments (0)

Friday, October 7, 2016

Virginia Considering Streamlining Advertising Rules

Also posted on the Virginia State Bar web page

September 30, 2016

VSB Seeking Comments on Proposed Amendments to Lawyer Advertising Rules

The Virginia State Bar’s Standing Committee on Legal Ethics is seeking comments from its membership on proposed amendments to Rules 7.1 - 7.5 of the Rules of Professional Conduct that govern lawyer advertising.

The proposed changes come from a study by a committee of the Association of Professional Responsibility Lawyers (APRL) that determined that current rules do not account for the rise of Internet marketing and advertising.  Additionally, the study found that although current rules generate a predominance of technical complaints by competing attorneys, they may not be necessary to protect the public. Lastly, a number of case decisions in the last ten years have struck down rules governing lawyer advertising and raised First Amendment as well as antitrust concerns when rules are carried out by lawyers who also have a competitive market interest.

The Committee decided based on all factors that the best option is to streamline lawyer advertising rules and to focus on those that prevent false and misleading speech.

The full report on proposed amendments as well as the current rule may be accessed here.

You are invited to comment on the topic by November 4, 2016 by e-mailing Karen A. Gould, the Executive Director of the Virginia State Bar, at publiccomment@vsb.org.

(Mike Frisch)

October 7, 2016 in Current Affairs | Permalink | Comments (0)

Client Perjury Rules Clarified In Virginia

A recent notice on the web page of the Virginia State Bar

September 30, 2016

Supreme Court of Virginia Approves Rule Changes and Legal Ethics Opinion 1884

The Supreme Court of Virginia has approved amendments to Rules 1.6: Confidentiality of Information and 3.3: Candor Toward the Tribunal, as well as Legal Ethics Opinion 1884.

Effective December 1, 2016, the Supreme Court of Virginia has approved amendments to Rules 1.6: Confidentiality of Information and 3.3: Candor Toward the Tribunal.

The amendments clarify a lawyer’s obligations when a client discloses an intent to commit perjury well in advance of trial, and when the lawyer can withdraw from the representation before the client’s intended perjury occurs. The order may be found here.

Effective immediately, the Supreme Court of Virginia has approved Legal Ethics Opinion 1884: Conflicts arising from a lawyer-legislator’s employment with a consulting firm owned by a law firm.

The opinion addresses a situation where a lawyer who is a member of the Virginia General Assembly joins a consulting firm. The lawyer asks whether the lawyers and non-lawyers in the consulting firm would be barred from lobbying the General Assembly and whether that bar would extend to members of the law firm as well. In this opinion, the Committee concluded that both lawyers and non-lawyers in the consulting firm, as well as the lawyers in the law firm that own the consulting firm, would be barred from representing clients or otherwise lobbying before the General Assembly. The order may be found here.

(Mike Frisch)

October 7, 2016 in Bar Discipline & Process, Clients, Current Affairs, Ethics | Permalink | Comments (0)

Thursday, September 1, 2016

Citing Costanza v. Seinfeld

Lindsay Lohan and Karen Gravano lost their attempt to sue a video game when the New York Appellate Division for the First Judicial Department affirmed dismissal

In these appeals, each plaintiff alleges that defendants violated her right to privacy under New York Civil Rights Law § 51 by misappropriating her likeness for use in the video game "Grand Theft Auto V." This video game takes place in the fictional city "Los Santos," which itself is in a fictional American state of "San Andreas." Players control one of several main characters at various points in the game, engaging in approximately 80 main story missions as well as many optional random events. Plaintiffs allege that during certain optional random events, the player encounters characters that are depictions of plaintiffs.

Gravano alleges that in one of the optional random events in the video game, the character Andrea Bottino is introduced, and that her image, portrait, voice, and likeness are incorporated in this character. Specifically, Gravano argues that the character uses the same phrases she uses; that the character's father mirrors Gravano's own father; that the character's story about moving out west to safe houses mirrors Gravano's fear of being ripped out of her former life and being sent to Nebraska; that the character's story about dealing with the character's father cooperating with the state government is the same as Gravano dealing with the repercussions of her father's cooperation; and that the character's father not letting the character do a reality show is the same as Gravano's father publicly decrying her doing a reality show.

Lohan alleges that defendants used a look-alike model to evoke Lohan's persona and image. Further, Lohan argues that defendants purposefully used Lohan's bikini, shoulder-length blonde hair, jewelry, cell phone, and "signature peace sign' pose" in one image, and used Lohan's likeness in another image by appropriating facial features, body type, physical appearance, hair, hat, sunglasses, jean shorts, and loose white top. Finally, Lohan argues that defendants used her portraits and voice impersonation in a character that is introduced to the player in a "side mission."

Both Gravano's and Lohan's respective causes of action under Civil Rights Law § 51 "must fail because defendants did not use [plaintiffs'] name, portrait, or picture'" (see Costanza v Seinfeld , 279 AD2d 255, 255 [1st Dept 2001], citing Wojtowicz v Delacorte Press , 43 NY2d 858, 860 [1978]). Despite Gravano's contention that the video game depicts her, defendants never referred to Gravano by name or used her actual name in the video game, never used Gravano herself as an actor for the video game, and never used a photograph of her (see Costanza at 255; see generally Wojtowicz at 860). As to Lohan's claim that an avatar in the video game is she and that her image is used in various images, defendants also never referred to Lohan by name or used her actual name in the video game, never used Lohan herself as an actor for the video game, and never used a photograph of Lohan (see Costanza at 255).

Even if we accept plaintiffs' contentions that the video game depictions are close enough to be considered representations of the respective plaintiffs, plaintiffs' claims should be dismissed because this video game does not fall under the statutory definitions of "advertising" or "trade" (see Costanza at 255, citing Hampton v Guare, 195 AD2d 366, 366 [1st Dept 1993], lv denied 82 NY2d 659 [1993] [stating that "works of fiction and satire do not fall within the narrow scope of the statutory phrases advertising' and trade'"]; see generally Brown v Entertainment Merchants Assn. , 564 US 786, 790 [2011] ["(l)ike the protected books, plays, and movies that preceded them, video games communicate ideas . . ." and deserve First Amendment protection]). This video game's unique story, characters, dialogue, and environment, combined with the player's ability to choose how to proceed in the game, render it a work of fiction and satire.

Further, Lohan's claim that her image was used in advertising materials for the video game should also be dismissed. The images are not of Lohan herself, but merely the avatar in the game that Lohan claims is a depiction of her (see Costanza at 255 [the "use of the character in advertising was incidental or ancillary to the permitted use[,]" and therefore was not commercial]).

In view of the foregoing, it is unnecessary to address defendants' remaining grounds for dismissal.

(Mike Frisch)

September 1, 2016 in Current Affairs | Permalink | Comments (0)

Sunday, August 21, 2016

No Class

An opinion from the United States  Court of Appeals for the Third Circuit affirms the denial of class certification to students suing Widener Law

This is an interlocutory appeal of a denial of class certification in a suit alleging that Widener University School of Law defrauded a putative class of law students by publishing misleading statistics about its graduates’ employment, which caused the students to pay “inflated” tuition. The District Court found, among other things, that the plaintiffs failed to meet the requirement in Rule 23(b)(3) of the Federal Rules of Civil Procedure that common questions predominate over individual questions in order for a class to be certified. We conclude that, although the District Court labored under a few misconceptions about the plaintiffs’ theory of the case, the errors were harmless and the court ultimately reached the correct result. Even when properly characterized, the plaintiffs’ theory is insufficiently supported by class-wide evidence, and therefore the plaintiffs have not established that common questions will predominate. For that reason, we will affirm.

The allegations

they allege the following. Between 2005 and 2011, Widener reported that 90-97% of its students were employed after graduation. These numbers were widely and deliberately advertised in print and online publications, along with oral presentations, targeting prospective students. But in reality, only 50-70% of Widener graduates ended up in fulltime legal positions, which Widener knew. The school was including non-legal and part-time positions in its published statistics without reporting the breakdown. When Widener did provide a breakdown in its materials, it was a breakdown by employer type (private firm, business and industry, etc.) within the category of full-time legal employment, further misleading prospective students into believing that the 90- 97% number represented full-time legal employment. Beginning in 2011, Widener improved its reporting somewhat, by including a breakdown that distinguished between full-time legal positions and other jobs. But, according to the plaintiffs, Widener continued to gather information about its graduates in a manner that distorted the statistics by, for example, crediting unreliable secondhand accounts of graduates’ employment and avoiding responses from unemployed graduates.

The plaintiffs claim that publishing misleading employment statistics enabled Widener to charge its students “inflated” tuition — that is, higher tuition than what Widener would have received if full and accurate statistics were published instead. Joint Appendix (“J.A.”) 90 (Amended Compl. ¶ 1). And they seek damages equal to the amount of tuition that students allegedly overpaid. Widener moved to dismiss the case, but the motion was denied on March 20, 2013. The parties then engaged in discovery related to class certification.

As to class action 

The plaintiffs have...failed to propose a cognizable theory of damages that is sufficiently supported by class-wide evidence. And because the fact of damages (an “ascertainable loss” having a “causal relationship” with Widener’s conduct) is a crucial issue in the case, the inability to resolve it in class-wide fashion will cause individual questions to predominate over common ones, which precludes class certification.

August 21, 2016 in Current Affairs | Permalink | Comments (0)

Friday, August 5, 2016

A Serendipitous Result: Jailhouse Lawyering Not Unauthorized Practice In Vermont

The Vermont Supreme Court rejected the contention that a "jailhouse lawyer" violated unauthorized practice restrictions

This case calls upon us to consider the applicability of the prohibition against the unauthorized practice of law to the activities of a “jailhouse lawyer.” In February 2016, the State filed an information in this Court against Serendipity Morales, an inmate at the Marble Valley Regional Correctional Center, alleging she engaged in the unauthorized practice of law by helping fellow inmates in their cases, including performing legal research and drafting motions. In this probable cause review, we consider whether there is probable cause to believe that defendant has committed the alleged offenses. We conclude that there is not and accordingly dismiss the State’s information without prejudice.

The evidence that led to criminal charges

In support of these charges, the State included an affidavit from Sergeant Lloyd Dean, an officer for the Bennington County Sheriff’s Department. In that affidavit, Sergeant Dean alleges that Morales prepared court filings for five fellow inmates. These inmates reported to Dean that: (1) they had heard Morales was familiar with the legal process; (2) they asked Morales for assistance in reviewing and preparing various legal filings on their behalf; (3) Morales assisted each of them, including drafting handwritten motions which the respective inmates reviewed and signed; and (4) Morales did not request or accept any payment for these services. Sergeant Dean further alleged that each of the five inmates was represented by counsel in the matters in question, and that Morales is not a licensed attorney in the State of Vermont. The State does not allege that Morales ever signed pleadings on behalf of the other inmates, held herself out as a licensed attorney, or received any payment for her services.

The court

This Court has historically defined the unauthorized practice of law broadly, to include not merely holding oneself out as an attorney, but also providing services that require legal knowledge or skill such as drafting legal documents and giving legal advice—at least when one charges a fee for those services. More recent social and legal developments reflect a trend toward a somewhat more purpose-driven approach to defining the scope of the unauthorized practice of law.

After a survey of relevant caselaw

Although the above caselaw articulates an expansive definition of the practice of law, as the Attorney General has argued in this case, “This decades-old definition does not reflect the reality of practice in Vermont and does not provide sufficient guidance to prosecutors, practitioners, and the public.” Notwithstanding the above broad definitions of the unauthorized practice, this Court has allowed nonlawyers to appear in court in certain specified circumstances, as have some administrative agencies. In its prosecutorial role, the Attorney General has likewise taken a narrower view of the unauthorized practice. These legal developments have tempered the breadth of the unauthorized practice prohibition, and reflect a recognition that the unauthorized practice prohibition should be applied consistent with its underlying purposes of public protection.

Jailhouse lawyering

we are guided in this case by two factors particular to the inmate context. First, “jailhouse lawyers” who give legal assistance to fellow inmates but are not themselves licensed or formally law trained, are a well-established fixture in the justice system. Second, incarcerated inmates face particular challenges in accessing legal advice, and those challenges raise serious public policy, and in some circumstances, constitutional concerns...

Vermont’s courts have not actively sought to discourage inmates from helping one another with legal issues. In fact, in this appeal, Morales provided us with a transcript of a hearing in which the trial court urged a defendant to seek the help of other inmates who have successfully filed motions on their own behalf while awaiting a decision from the Defender General as to whether counsel will be appointed.

In this context, although there may be some limits on the ways in which an inmate can give legal help to another, we are wary of adopting a definition of unauthorized practice of law that would subject individuals to a finding of criminal contempt for engaging in conduct that has been tolerated and arguably even supported by the State.

The second factor particular to the context of this case is that incarcerated inmates are especially disadvantaged in trying to get legal information and advice. The United States Supreme Court has recognized that “[j]ails and penitentiaries include among their inmates a high percentage of persons who are totally or functionally illiterate, whose educational attainments are slight, and whose intelligence is limited.” Johnson v. Avery, 393 U.S. 483, 487 (1969). A significant number of inmates do not have the wherewithal to determine their rights and advocate for themselves due to limited education and literacy, and in some cases language barriers. These constraints give rise to considerable policy concerns, and perhaps constitutional ones.

Given these considerations, the court found that Morales had not engaged in unauthorized practice. (Mike Frisch)

August 5, 2016 in Bar Discipline & Process, Current Affairs | Permalink | Comments (0)

Tuesday, July 26, 2016

Right To Appointed Counsel Upheld In Termination Of Parental Rights Case

The New Jersey Supreme Court has held that an indigent parent has the right to appointed counsel in a matter involving termination of parental rights.

From the headnotes

On August 1, 2013, with the agency’s consent, J.E.V. and D.G.V. filed a complaint for adoption. The court entered an order scheduling a hearing and directing that L.A. receive notice. The order stated, among other things, that L.A. had “the right to appear, object, file written objections, [and] have counsel or court-appointed counsel, if unable to afford counsel.” The notice advised L.A. as follows: “If you are unable to obtain an attorney, you may communicate with the New Jersey Bar Association by calling (732) 249-5000. You may also contact the Lawyer Referral Services of the Essex County Bar Association at (973) 533-6775, if you cannot afford an attorney, you may contact the Essex County Legal Aid Society at (973) 622-0063 or the Essex County Surrogate’s Court at (973) 621- 4900. If you qualify, the Court will appoint counsel for you free of charge.” On October 31, 2013, at the case management conference, the trial court briefly raised the topic of representation with L.A., but did not tell her that a lawyer would be appointed to represent her if she could not afford one.

The court presided over a two-day trial in February and March 2014. J.E.V. and D.G.V. were ably represented by counsel; L.A. appeared pro se. L.A. was confused about several aspects of the trial process, the role of expert psychologists, and the legal standards that applied to the case. Petitioners called eight witnesses to testify, including an expert psychologist; L.A. declined to cross-examine most of them. L.A. testified but did not call an expert or any other witnesses. L.A. also declined to make a closing statement. At the close of the trial, the court concluded that the statutory requirements had been met and terminated L.A.’s parental rights.

L.A. appealed, and the Appellate Division appointed counsel to represent her. The panel reversed and remanded for a new trial, holding “that L.A. had a constitutional and statutory right to court-appointed counsel beginning before trial, when the private adoption agency first determined to proceed with an adoption over her objection.” 442 N.J. Super. 472, 474-75 (App. Div. 2015)...

HELD: Indigent parents who face termination of parental rights in contested proceedings under the Adoption Act, N.J.S.A. 9:3-37 to -56, are entitled to counsel under Article I, Paragraph 1 of the State Constitution...

The Court holds that an indigent parent who faces termination of parental rights in a contested private adoption proceeding has a right to appointed counsel. A poor parent who seeks to protect the fundamental right to raise a child, at a contested hearing under the Adoption Act, is entitled to counsel under the due process guarantee of the New Jersey Constitution. In so holding, the Court draws on certain common principles from B.R. and the Mathews test to analyze the due process issue. The termination of one’s parental rights plainly “implicates a fundamental liberty interest.” B.R., supra, 192 N.J. at 305. When parental rights are terminated, the tie between parent and child is severed completely and permanently. That is true whether the State files a petition to terminate or a prospective adoptive parent proceeds under the Adoption Act. Without the assistance of counsel to prepare for and participate in the hearing, the risk of an erroneous outcome is high. The parties are best served when both sides present arguments with the help of able attorneys; the outcome not only protects the parent’s rights and the child’s welfare, but also helps bring finality to an adoption proceeding. (pp. 24-27)

(Mike Frisch)

July 26, 2016 in Current Affairs | Permalink | Comments (0)

Wednesday, July 20, 2016

E-Discovery Company Co-CEO Sanctioned For Gross E-Discovery Violations And Other Misconduct

The Delaware Court of Chancery imposed significant sanctions for destruction of evidence and lying under oath in a partnership dispute

 Elizabeth Elting and Philip Shawe are the co-founders and co-CEOs of TransPerfect Global, Inc. (“TPG” or the “Company”). As chronicled in a post-trial decision issued last year, their management of the corporation devolved into a state of dysfunction. Emblematic of the deep divisions and fundamental distrust between them, virtually every aspect of this litigation has been turbulent, with each side filing motions for sanctions against the other. This decision resolves the sanctions motion Elting filed against Shawe based on an evidentiary hearing that was held earlier this year. 

As explained below, clear evidence adduced at the sanctions hearing establishes that Shawe acted in bad faith and vexatiously during the course of the litigation in three respects: (1) by intentionally seeking to destroy information on his laptop computer after the Court had entered an order requiring him to provide the laptop for forensic discovery; (2) by, at a minimum, recklessly failing to take reasonable measures to safeguard evidence on his phone, which he regularly used to exchange text messages with employees and which was another important source of discovery; and (3) by repeatedly lying under oath—in interrogatory responses, at deposition, at trial, and in a post-trial affidavit—to cover up aspects of his secret deletion of information from his laptop computer and extraction of information from the hard drive of Elting’s computer.

Shawe’s actions obstructed discovery, concealed the truth, and impeded the administration of justice. He needlessly complicated and protracted these proceedings to Elting’s prejudice, all while wasting scarce resources of the Court. Accordingly, Elting’s motion for sanctions is granted. Shawe will be required to pay a significant portion of her attorneys’ fees and expenses...

Some background

In October 2013, Elting hired Kramer Levin Naftalis & Frankel LLP to try to negotiate a resolution of the increasingly acrimonious disputes that had been brewing between Shawe and Elting for some time over their management of the Company. This enraged Shawe. Rather than hire his own counsel and engage in a mature dialogue, Shawe undertook a campaign to spy on Elting in pursuit of what had become a personal battle in which Shawe was determined to get his way over Elting at all costs, even if (to use Shawe’s words) it meant “shutting down” or “dismantling” the Company.

Shawe initially directed employees to intercept Elting’s regular mail, including her correspondence with Kramer Levin, and to monitor her phone calls. By the end of December 2013, Shawe’s surreptitious monitoring of Elting had expanded to include her private emails, including those with her counsel.

What follows is a tale of corporate espionage that is almost cinema-worthy and which, among other things, led to improper access to over 12,000 privileged emails.

12,000!

The record also shows that Shawe has a demonstrated propensity to use subordinates firmly under his control to do dirty work for (and with) him in secret, off the grid, and usually late at night. He turned to Wudke late on New Year’s Eve (and other occasions) to extract files from Elting’s hard drive and told him not to document what he was doing even though he insists it was part of a legitimate “corporate” investigation. He hired Richards as his “personal paralegal” at the princely rate of $30,000 per month despite having a number of reputable law firms with vast resources at his disposal, and immediately tasked him with photographing Elting’s office and removing documents from it in the wee hours of the morning. When it came to his iPhone, he turned to another trusted subordinate, Campbell, who sits next to him in the same office in New York. Given Shawe’s modus operandi and Campbell’s farcical explanation of what happened to the phone when Elting was pressing for discovery of Shawe’s text messages, it is more likely that Shawe told or otherwise made it clear to Campbell to get rid of the phone. In any event, whether Shawe did so or not is of no moment because, at a bare minimum, he recklessly failed to take appropriate measures to preserve the phone so that genuine efforts to recover information from it could have been utilized.

One rather notable aspect of this mess

Shawe is the co-CEO of a company specializing in e-discovery, which employs personnel qualified to conduct forensic recovery of damaged devices, and which has relationships with other professionals who can assist if needed.  Shawe was represented by an able team of counsel, who engaged a forensic computer expert and who easily could have engaged an expert in data recovery if Shawe had been genuinely interested in trying to recover evidence on his phone. Faced with an embarrassment of riches in terms of professionals to whom he could turn to recover data from his phone, Shawe instead inexplicably chose to give the phone to a subordinate under his control who had no forensic training in retrieving data from a phone. Campbell’s sole experience is that his own phone once fell into a toilet and it worked after he let it dry. To top it off, Shawe gave the phone to Campbell without providing him even minimal instructions about why he wanted him to attempt to revive the phone, the need to preserve the evidence given the pending litigations, or even about ensuring an appropriate chain of custody.

Crain's New York Business provides details on the co- CEO relationship and its fallout, which they called The TransPerfect Storm

Shawe and Elting started the company in 1992 in their New York University dorm room. In 1996, the pair got engaged, but Elting called it off a year later and married someone else in 1999. (Shawe married in 2011.) The two split their business 50-50 and built one of the nation’s leading translation companies, with 92 offices in 86 countries housing 3,500 full-time employees, plus a network of 10,000 translators, editors and proofreaders working in about 170 languages.

All was sweetness and light in public between Shawe and Elting, but behind the scenes the former lovers came to loathe one another. They frequently cursed each other out in f-bomb-laden emails, and Elting once ended a meeting by dumping a pitcher of water onto Shawe. "Don't call me in ... and start f--king with me for no reason!" Shawe growled in one email to Elting, who fired back, "If sharing feedback on a potential acquisition is no reason, you’re a f--king idiot." People who know them say Elting and Shawe cursed each other out as their way of communicating.

(Mike Frisch)

July 20, 2016 in Current Affairs | Permalink | Comments (1)

Monday, July 11, 2016

Office, Not Chief, May Properly Be Appointed As Counsel

The Virgin Islands Supreme Court vacated an order appointing the Chief Territorial Public Defender as counsel in a complex criminal case. The trial court may appoint the Office to a case but may not designate the particular attorney assigned.

The defendant initially had retained counsel 

In 2008, Miller was charged with a litany of offenses, including violations of the Criminally Influenced and Corrupt Organizations Act, 14 V.I.C. § 600 et seq. (“CICO”). Miller’s trial on these crimes commenced in May 2011, in which he was represented by the law firm of Dudley Clark & Chan, LLP. Following five days of deliberations, the jury was unable to reach a unanimous verdict, which resulted in the trial court declaring a mistrial on June 24, 2011.

The firm was thereafter permitted to withdraw for nonpayment of fees.

A public defender was appointed but withdrew due to a claimed conflict of interest.

The court did not find an actual conflict of interest, but nevertheless relieved Attorney Leycock from the case because it concluded that there existed a potential for a conflict of interest which warranted Attorney Leycock’s withdrawal. The court simultaneously ordered, “Chief Public Defender Samuel Joseph, Esq., is appointed to personally represent Defendant Miller.” (JA at 154.) Lastly, the court directed Attorney Joseph to create an “ethical wall” within the Office of the Territorial Public Defender to ensure that Miller received conflict-free representation.

At the beginning of the following year, on January 27 and 28, 2014, Attorney Joseph filed two motions to be relieved as counsel, raising substantially the same two issues. First, Attorney Joseph challenged the legal efficacy of the “ethical wall” which had been ordered by the court. Attorney Joseph argued that members of the Public Defender Administration Board and employees of the Office of the Territorial Public Defender had relationships with related defendants which gave rise to conflicts of interest, and he posited that those conflicts were imputed to the entire office. Attorney Joseph also contended that, under 5 V.I.C. § 3503(a), the Superior Court lacked the requisite authority to select an individual public defender to represent an indigent defendant, adding that such an order was disruptive to the operation processes of the Office of the Territorial Public Defender.

 The court decided the appeal on its merits

In his brief, Attorney Joseph informs that Attorney Leycock is no longer employed by the Office of the Territorial Public Defender, and concedes that the conflict-of-interest issue pertaining to Attorney Leycock’s representation of Miller is now moot. (Appellant’s Br. at 15.) Therefore, we proceed to address the sole remaining issue submitted for this Court’s review: whether the Superior Court exceeded its authority by specifically assigning Attorney Joseph to represent Miller in the criminal proceedings attendant to this appeal.

The trial court exceeded its authority by appointed the Chief rather than the Office

Admittedly, the trial court was justified in being concerned about the history of counsel involved in the representation of Miller, and we acknowledge the Superior Court’s emphasis on providing conflict-free representation for Miller. Nevertheless, choosing a specific public defender was not the appropriate solution for addressing the court’s concerns, as the order superseded the role of the Chief Public Defender and violated the separation of powers doctrine. See State ex rel. Robinson, 48 S.W.3d at 69-70 (while the trial court had a legitimate interest in “break[ing] the chain of continuances made by withdrawing defenders,” and ensuring that defendant’s case proceeded to trial without further delays, “[t]he trial court acted in excess of its authority” when it appointed specific public defenders to represent the defendant). It is the Chief Public Defender—and not the court—who possesses statutory managerial authority, and is best positioned to assess the Office’s resources and experience of its lawyers, in achieving effective case management...

Upon a finding of a defendant’s indigence, the Superior Court may appoint the Office of the Territorial Public Defender as counsel. However, the court lacks the statutory authority to order that a specific public defender be assigned to represent a defendant. Accordingly, we vacate the court’s orders appointing Attorney Joseph to represent Miller in the underlying criminal proceedings and remand this case so that the Superior Court may appoint the Office of the Territorial Public Defender, leaving the determination as to the specific attorney to be assigned to Miller to be made within the discretion of the Chief Public Defender.

(Mike Frisch)

July 11, 2016 in Clients, Current Affairs, Hot Topics | Permalink | Comments (0)

Firm Liable For Unpaid Court Reporter Fee

The Connecticut Appellate Court upheld judgment against a law firm LLC but not an individual attorney in an action brought by a court reporting services for non-payment of its bill for three depositions in a federal court action.

The court expressed concern over the defendant attorney's reliance on purported New York law

Perhaps more troubling than the lack of legal analysis is the apparent mischaracterization of New York law. According to the defendants, in all judicial departments of the Appellate Division of the New York Supreme Court, with the exception of the First Department, the law is that the client is responsible for court reporting costs unless those costs are specifically acknowledged and assumed by the attorney. In the First Department, the defendants state that the responsibility for payment lies with the attorney unless disclaimed. The case relied on by the defendants, however, in support of their proposition that, in all but the First Department, an attorney’s client generally is responsible for paying for court reporting services, Sullivan v. Greene & Zinner, P.C., 283 App. Div. 2d 420, 723 N.Y.S.2d 869 (2001), is no longer good law. Its holding has been superseded by New York General Business Law § 399-cc (McKinney 2012), which is now the applicable law in all New York jurisdictions. Section 399-cc provides in relevant part: ‘‘Notwithstanding any other provision of law to the contrary, when an attorney of record orders or requests either orally or in writing that a stenographic record be made of any judicial proceeding, deposition, statement or interview of a party in a proceeding or of a witness related to such proceeding, it shall be the responsibility of such attorney to pay for the services and the costs of such record except where . . . the attorney expressly disclaims responsibility for payment of the stenographic service or record in writing at the time the attorney orders or requests that the record be made.’’ (Emphasis added.) As previously discussed, the court found that the defendants failed expressly to disclaim responsibility for payment at the time services were requested. Accordingly, even if the court had applied New York law as the defendants requested, it is unlikely to have altered the court’s decision in this case.

But only the firm is liable

Our review of the record and the findings of the trial court reveals no evidence indicating that [attorney] Lovejoy acted in his individual capacity rather than as a member of the law firm. Although each of the deposition notices was signed by Lovejoy, his signature appears after the name of the law firm, which is identified as the entity representing Ensign Yachts and, therefore, the law firm noticing the deposition. Accordingly, to the extent that the deposition notice represents an offer to enter into a contractual agreement, the evidence tended to show that offer was extended to the plaintiff by the law firm, not by Lovejoy individually. The court in its decision makes no factual findings on which it could have imposed individual liability. The court’s decision is completely silent as to whether the court believed that Lovejoy had acted in such a way as to suggest he was contracting in his individual capacity or that it was appropriate under the facts of this case to somehow ‘‘pierce the corporate veil.’’ The plaintiff states that Lovejoy is a sole practitioner and that he and the law firm are ‘‘one and the same.’’ That fact alone, however, simply cannot support the imposition of individual liability in contravention of § 34-133. Because there appears to be insufficient evidence to support the court’s decision to hold Lovejoy personally liable for acts taken on behalf of his law firm, that decision cannot stand.

(Mike Frisch)

July 11, 2016 in Billable Hours, Current Affairs | Permalink | Comments (0)

Thursday, June 23, 2016

Forced Apology In Juvenile Case Does Not Violate First Amendment

The Washington State Supreme Court today held that a convicted juvenile defendant who continued to maintain his innocence can be compelled to write a letter of apology to the victim.

A letter of apology demonstrates a recognition and acceptance of responsibility for harmful actions. Such a condition is reasonably necessary for K.H.-H. to recognize what he did was wrong and to acknowledge his behavior.

Additionally, an apology letter recognizes the victim's interest in receiving an apology from the perpetrator. An apology allows the victim to hear an acceptance of responsibility from the very person who inflicted the harm. This is particularly important where both the victim and perpetrator are juveniles, and demonstrates to both the significance of giving and receiving an apology for wrongful acts. This further advances the rehabilitative goals of the statute.

The outward manifestation of accepting and apologizing for the consequences of one's actions is a rehabilitative step that attempts to improve K.H.-H.'s character and outlook. Such a condition is reasonably related to the purpose of K.H.-H. 's rehabilitation and the crime here.

One must face the consequences of a conviction, which often include the loss or lessening of constitutional rights. There is a whole range of constitutional rights that can be affected by a conviction, not the least of which is a loss of liberty. There may be a limitation on the degree to which First Amendment rights may be restricted for those convicted of crimes, but an apology letter condition does not approach that limit. We affirm.

There is a dissent from Justice McCloud

The juvenile court's forced apology condition fails under any First Amendment test other than the majority's highly deferential, rational-relationship test borrowed from language in Clark. Under the Supreme Court's test in Martinez, the government cannot restrict the content of a prison inmate's speech in this context unless the restriction "further[ s] an important or substantial governmental interest" and is narrowly tailored so that it infringes on "no greater [speech] than is necessary or essential to the protection of the particular governmental interest involved." 416 U.S. at 413. The compelled confession and apology in this case fails that narrow tailoring requirement. Under the test we articulated in Bahl, the condition must be '"reasonably necessary to accomplish the essential needs of the state and public order."' Bahl, 164 Wn.2d at 757 (internal quotations marks omitted) (quoting Riley, 121 Wn.2d at 37-38). The compelled confession and apology in this case fails that requirement also. In fact, under controlling Supreme Court precedent, compelled speeches and pledges are probably the worst ways to teach remorse or anything else: "A person gets from a symbol the meaning he puts into it, and what is one man's comfort and inspiration is another's jest and scorn." Barnette, 319 U.S. at 632-33. I respectfully dissent.

June 23, 2016 in Current Affairs | Permalink | Comments (0)

Tuesday, June 21, 2016

Ohio Supremes Hold Chesley May Not Relitigate Kentucky Judgment

The Ohio Supreme Court weighs in on the seemingly endless saga of Stanley Chesley

The Boone County, Kentucky, Circuit Court has entered a multimillion dollar judgment against former attorney Stanley M. Chesley. Denied relief from the judgment by the Kentucky courts, Chesley has turned to the courts of Ohio to thwart collection of the judgment and relitigate the case. And Chesley has found a receptive audience in the respondent, Hamilton County Common Pleas Court Judge Robert Ruehlman. In Chesley v. Ford, Hamilton C.P. No. A1500067, Judge Ruehlman has repeatedly acted to shield Chesley and his assets from creditors, despite a patent lack of jurisdiction.

Relator, Angela M. Ford, seeks a writ of prohibition to preclude Judge Ruehlman from continuing to exercise jurisdiction over the Hamilton County case. Chesley and his former law firm, as intervenors, oppose this request on the merits and also based on a claim of mootness. We grant a peremptory writ of prohibition and order Judge Ruehlman to vacate his orders. We deny Ford’s request for a writ of mandamus.

The court was highly critical of the Ohio judge's pro-Chesley rulings

 Chesley’s complaint asked the court to impose conditions on Ford, as attorney for the judgment creditors, for domesticating the Kentucky judgment that far exceed the statutory requirements. The Ohio Enforcement of Foreign Judgments Act does not require judgment creditors to calculate and disclose their respective shares of the judgment, detail the amounts and dates on which they recovered money from other sources, or disclose the amount of money retained by their attorney. But Chesley requested all these disclosures and more as a precondition to allowing Ford and her clients to even file their judgment in Ohio. And whereas the act provides a 30-day grace period after the foreign judgment is filed, Chesley demanded a 90-day halt to collection efforts after all these reports were provided. There is no statutory authority for any of this relief.

Despite his patent lack of authority, Judge Ruehlman granted this relief and more. Whereas Chesley sought to impose preconditions on the filing of the foreign judgment, Judge Ruehlman’s preliminary injunction order barred Ford and the creditors from filing the judgment in Ohio altogether, with no mention at all of any conditions that, if satisfied, would lift the prohibition.

We see no basis whatsoever for Judge Ruehlman’s assertion of jurisdiction to inject himself into the collection process. A common pleas court has jurisdiction over a foreign judgment “once that judgment is filed in accordance with R.C. 2329.022.” Doser v. Savage Mfg. & Sales, Inc., 54 Ohio App.3d 22, 560 N.E.2d 782 (8th Dist.1988), syllabus. But the Abbott creditors had not yet filed the judgment in Ohio; in fact, they were forbidden to do so by Judge Ruehlman. And now that this court has stayed Judge Ruelhman’s order, the claimants have domesticated their judgment and the case has been assigned to Judge Martin.

Justice Pfeifer dissented

I dissent because there were two more appropriate remedies available to relator, Angela M. Ford.

First, she could have filed an affidavit of disqualification against Judge Ruehlman with Chief Justice O’Connor. Second, having failed to do that, she should have been required to seek a remedy by way of appeal after a final, appealable order had been rendered.

The court's order is linked here.

Cincinnati.com had this earlier report. They also had an editorial in March 2014 that took the judge to task in an unrelated matter. (Mike Frisch)

June 21, 2016 in Current Affairs | Permalink | Comments (1)

Saturday, June 18, 2016

New Chief Judge For D.C. Superior Court

The web page of the District of Columbia Courts announces

The District of Columbia Judicial Nomination Commission (JNC) has designated Judge Robert E. Morin to serve as Chief Judge of the Superior Court of the District of Columbia. Judge Morin will assume the office on October 1, 2016.  

In addition to Judge Morin, the Commission considered four other candidates, including Judge Judith Bartnoff, Judge Erik P. Christian, Judge Hiram Puig-Lugo, and Judge Lee F. Satterfield, who currently serves as the D.C. Superior Court chief judge.

Judge Morin's career has been diverse, serving both in private practice as well as in numerous public interest organizations, including D.C. Law Students in Court Program, the Southern Center for Human Rights, and the Office of the Public Defender for the State of Maryland. In 1996 he was nominated by President Clinton and appointed to the D.C. Superior Court.   

During his 20 years on the court, Judge Morin has served in the criminal division, civil division, and family court, and was the presiding and deputy presiding judge of the criminal division. He was responsible for the reform and management of the Criminal Justice Act Panel of attorneys, which helped significantly improve the quality of legal representation of indigent persons. In addition Judge Morin served on and led numerous court committees.

In making the designation, the JNC reviewed the results of background investigations, interviews, public comments, and each candidate’s statement of interest, experience, qualifications, and judicial temperament. It also considered interest and experience in court administration, ethics, commitment to diversity, leadership skills, ability to advocate for and promote confidence in the court system, intellectual leadership, and their visions for the court, including plans for addressing the challenges facing the court in the next four years.  

The JNC received an unprecedented 700-plus letters, evaluations, and calls from a diverse group of members from the bench, bar, and public on the fitness of the candidates.

Read the JNC's full statement on the designation of Judge Morin. 

There are a number of significant changes in personnel about to take place in the District of Columbia Bar (more to follow on this subject). 

In my view, Judge Morin will perform his duties as Chief Judge in a manner that will reflect great credit on the city judiciary. A great choice. (Mike Frisch)

June 18, 2016 in Current Affairs | Permalink | Comments (0)

Thursday, May 26, 2016

FOIA Feud Continues Over Attorney Emails

"With some dismay." the District of Columbia Court of Appeals has remanded and directed mediation of a FOIA claim by the Fraternal Order of Police ("FOP") against the District that had been dismissed as fulfilled by the trial judge.

On September 24, 2010, FOP submitted a FOIA request to both the Metropolitan Police Department ("MPD") and the Office of the Chief Technology Officer ("OCTO"). FOP requested three categories of documents in the possession, custody and/or control‖ of either entity: (1) all email sent to or from Mark Tuohey, including, but not limited to, all email sent to or from his email addresses at two law firms, Brown Rudnick LLP and Vinson & Elkins LLP, and one email address at the Washington D.C. Police Foundation; (2) all email sent to or from Eric Holder, including, but not limited to, all email sent to or from his email address at the law firm Covington & Burling LLP; (3) all email referencing or mentioning the Washington D.C. Police Foundation. FOP stated that it sought documents from these categories generated over a four-year period, from November 1, 2006 to present.

The court

And even though MPD ultimately produced two sets of responsive documents, it did so in a manner apparently designed to ensure defects in production. MPD claimed that its initial production comprised 1,400 pages of documents, but it presented no records to substantiate this claim, even when FOP asserted that MPD had turned over only a few hundred pages. And MPD‘s second production inexplicably took paper form, even though all responsive documents were electronic and could have been produced in that form (as they ultimately were). MPD then divided these hard copies—some 16,000 pages of documents into 25 to 35 envelopes,which it mailed to FOP without advance notice, tracking, delivery confirmation, or proof of mailing. Actions like these suggest that the District, like FOP, is more interested in gamesmanship than in FOIA compliance.

While the text of the D.C. FOIA statute does not require the District and frequent FOIA requesters like FOP to consult in good faith, the course of this litigation illustrates the imperative to do so. We cannot order FOP and the District to end their FOIA feuds, but we can require them to engage in mediation so that they might determine whether settlement is possible, or at least narrow the areas of dispute, before resuming litigation. See D.C. Code § 17-306 (2013 Repl.) (authorizing this court, in the disposition of an appeal, to direct the entry of such appropriate order, judgment, or decision, or require such further proceedings to be had, as is just in the circumstances).

The court rejected the District's interpretation of its FOIA obligations

we reject the District‘s argument that FOP could not challenge in court the adequacy of the District‘s search and production because FOP‘s FOIA request was "void for volume." Instead we conclude that FOP submitted a request that reasonably described the documents it sought, triggering MPD‘s and OCTO‘s obligations under D.C. FOIA to identify and produce responsive material.

And held insufficient the effort to comply

Turning to OCTO, we know even less—nothing, actually—about its steps to fulfill FOP‘s FOIA request, and thus we cannot evaluate the reasonableness of its efforts in this case... Given the paucity of information provided by the District about its searches, we conclude that the District has failed to carry its burden to win summary judgment with respect to the adequacy of its search.

Associate Judge Easterly authored the opinion, joined by Associate Judge Fisher and Senior Judge Nebeker. (Mike Frisch)

May 26, 2016 in Current Affairs | Permalink | Comments (0)

Friday, May 20, 2016

Freddie Gray Opinion Released

The Maryland Court of Appeals has issued its opinion in the Freddie Gray matter

On April 12, 2015, Freddie Gray suffered an injury while in police custody; one week later, he died from those injuries. The State charged six Baltimore City police officers with crimes in connection with the events leading up to Mr. Gray’s death—Officer William Porter, Officer Caesar Goodson, Sergeant Alicia White, Lieutenant Brian Rice, Officer Edward Nero, and Officer Garrett Miller. The first of those officers to face trial was Officer Porter. His trial began on November 30, 2015, and, after the jurors could not reach a verdict, it ended in a mistrial on December 16, 2015. At the heart of this appeal is whether Officer Porter, who the State has indicated it will retry, can now be compelled by the State, before his retrial, to provide immunized testimony against the remaining officers. In the cases of Officer Goodson and Sergeant White, the trial court granted the State’s motion to compel Officer Porter’s testimony. In the cases of Lieutenant Rice, Officer Nero, and Officer Miller, the trial court denied that same motion.

On March 8, 2016, we issued two Per Curiam Orders affirming the judgments of the Circuit Court in Officer Goodson’s and Sergeant White’s cases; reversing the judgments of the Circuit Court in the cases of Lieutenant Rice, Officer Nero, and Officer Miller; and lifting the stays in each case to allow the trials to move forward. We now explain our reasons for those Orders. We hold that the State’s compelling Officer Porter to testify in the trials of his fellow officers, under the grant of use and derivative use immunity, does not violate Officer Porter’s privilege against compelled self-incrimination under the Fifth Amendment to the United States Constitution and Article 22 of the Maryland Declaration of Rights. We further hold that the trial court lacks the discretion to deny a properly pled motion to compel immunized testimony and that the denial of such a motion constitutes a final judgment from which the State can appeal immediately. ..

To summarize, we hold that Officer Porter is the proper party to the State’s appeal because he, not the defendants in the underlying trials, is the party interested in the subject matter of the State’s motion to compel the witness’s immunized testimony. Accordingly, we hold that, because a motion to compel immunized testimony concerns only the State and the witness whose testimony is sought, the denial of the State’s motion constitutes a final appealable order. We further hold that a trial court is required to grant a motion to compel immunized testimony that complies with the statutory pleading requirements; consequently, the court lacks the discretion to question the State’s Attorney’s public interest determination. Finally, we hold that compelling Officer Porter’s testimony in exchange for use and derivative use immunity is coextensive with the scope of his Fifth Amendment privilege against compelled self-incrimination, as well as that privilege also guaranteed by Article 22 of the Maryland Declaration of Rights. For these reasons, we entered Per Curiam Orders on March 8, 2016, affirming the judgments of the Circuit Court in the cases of Officer Goodson and Sergeant White and reversing the judgments of the Circuit Court in those of Lieutenant Rice, Officer Nero, and Officer Miller.

The opinion is authored by Judge Judge Barbera. (Mike Frisch)

May 20, 2016 in Current Affairs | Permalink | Comments (0)

Wednesday, March 30, 2016

Basket Case Survives

A majority of the Wisconsin Supreme Court has held that the operator of a hot air balloon ride did not enjoy recreational immunity in a claim by a plaintiff injured in line waiting for a ride.

We conclude that Sundog is not entitled to recreational immunity pursuant to Wis. Stat. § 895.52 because it is not an owner under the statute. Sundog was not an "occupier" of the land and the hot air balloon was not "property" because it was not a "structure." Finally, we determine that Sundog's waiver of liability form violates public policy and is unenforceable as a matter of law. Accordingly, we reverse the court of appeals and remand to the circuit court for further proceedings.

The story

Patti J. Roberts was injured at a charity event sponsored by Green Valley Enterprises ("Green Valley"). Beaver Dam Conservationists, LLC ("the Conservationists") owned the shooting range where the charity event was held.

Sundog Ballooning, LLC was the owner and operator of a hot air balloon providing tethered rides at the event. Kerry and Jodi Hanson, the owners of Sundog, donated hot air balloon rides to promote Green Valley's charity event.

On the day of the event, Sundog set up a display, a sign-up table and a waiting area for the ride. The hot air balloon was tethered to two trees and a pick-up truck. During rides, the balloon operator raised the balloon to the length of the ropes and then lowered it back to the ground.

Patti Roberts and her family watched the balloon rides and then entered the line to take a ride. While in line, Sundog gave Roberts a waiver of liability form that she was required to sign prior to riding in the hot air balloon. Roberts signed the waiver form, but never returned it to Sundog. The signed waiver form was found on the event grounds after Roberts sustained her injuries...

 After signing the form, Roberts waited in line for 20 to 30 minutes. During this time, strong winds caused one of the balloon's tether lines to snap. As a result, the untethered balloon moved toward the spectators in line. Roberts was injured when she was struck by the balloon's basket and knocked to the ground.

Justice Ann Walsh Bradley wrote the opinion. It being Wisconsin, there are a concurring/dissenting and dissenting opinions. (Mike Frisch)

March 30, 2016 in Current Affairs | Permalink | Comments (0)