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)

Monday, March 28, 2016

New Status For Ohio Lawyers

Stephanie Beougher has a story on the Ohio Supreme Court web page

Ohio will soon have a new attorney registration status. The Ohio Supreme Court announced today new rules that will allow non-active attorneys to engage in limited legal practice to provide pro bono service.

The changes to Rule VI of the Rules for the Government of the Bar of Ohio will take effect on Sept. 15, and come from recommendations made by the Supreme Court Task Force on Access to Justice, which was charged with identifying gaps in and obstacles to accessing the civil justice system in Ohio.

After taking public comments into consideration, the Supreme Court revised the original proposal, including:

  • Eliminating the requirement that an attorney be 65 years or older in order to qualify for emeritus status and instead only require he or she have practiced for a minimum of 15 years
  • Adding a biennial registration requirement and a $75 registration fee
  • Requiring an emeritus pro bono attorney, upon expiration or revocation of the attorney’s status, to file for either active or inactive attorney status.

The emeritus pro bono status will be available to an attorney admitted to practice law in Ohio and associated with a law school clinic, legal aid, approved legal services organization, public defender’s office, or other legal services organization. The attorney will be required to have supervision from an active-status attorney to appear before a court, administrative board, or agency. Routine legal services won’t require supervision. The emeritus attorney won’t be allowed to receive compensation beyond reimbursement for expenses from the pro bono organization.

(Mike Frisch)

March 28, 2016 in Current Affairs | Permalink | Comments (0)

Tuesday, March 15, 2016

Don't Go By Metro But Please Join Us

In a shameless plug for an event that helps fund the Washington Legal Clinic for the Homeless, please feel free to enjoy basketball between Members of Congress and Georgetown Law faculty tomorrow evening.  

Game information from Georgetown Law's web page:

29th Annual Home Court Charity Basketball Game

February 25, 2016 —

WHAT

Hill’s Angels vs. Hoya Lawyas: 29th Annual Home Court Charity Basketball Game, with members of Congress facing off against Georgetown Law faculty and staff. 

WHO

The 2016 Congressional team, the Hill’s Angels, will be led by Sen. Robert P. Casey (D-Pa.), Rep. Tim Huelskamp (R-Kan.) and Rep. Ben Ray Luján (D-NM). The Hoya Lawyas will be led by Georgetown Law Dean William Treanor, Dean of Students Mitch Bailin and Adjunct Professor and Ethics Counsel Michael Frisch. 

WHEN

Wednesday, March 16, 2016

Doors open at 7 p.m., Tip-off at 8:00 p.m.

WHERE

Gonzaga College High School

19 I Street, NW

Washington, D.C. 20001

NOTE

Started by a group of Georgetown Law students in 1988, Home Court has grown into the most significant fundraiser for The Washington Legal Clinic for the Homeless. In 28 years, the event has raised more than $7 million. For more information, please visit www.facebook.com/homecourtdc or contact info@homecourtdc.org

Tickets are $15, or $20 with a t-shirt. They will be sold at the door or can be reserved in advance here.

The student leaders - Amanda June Gargus, Genevieve Fugare and Stephanie Ritter - have done a great job managing the event. Thanks also to Andy Kaplan for setting up and helping run the practices. (Mike Frisch)

March 15, 2016 in Current Affairs | Permalink | Comments (0)

Friday, March 11, 2016

See You Next Friday

I encourage any interested ethicists, practitioners and other warm bodies to attend next Friday's Georgetown Journal of Legal Ethics symposium. 

As set forth in this invite, the event promises to be address fundamental issues facing the legal profession.

WHAT:

The legal profession faces a steady stream of criticisms and suggestions for change. Two of the most significant calls for change are the specialization of the legal ethics codes and the commercialization of the legal profession. The Georgetown Journal of Legal Ethics cordially invites you to attend its Volume XXIX Symposium, "Remaining Ethical Lawyers in a Changing Profession." The symposium will consist of three panels. The morning panelists will focus on whether specialized ethics codes are necessary, the afternoon panelists will delve into the ethics of the commercialization of the legal profession, and the lunch panelists will bridge these two topics by proposing that the profession focus on being not only ethical but also relational.

WHEN:

Friday, March 18, 2016

WHERE: 

Gewirz Student Center

12th Floor

120 F. St. NW

Washington, DC 20001

The journal staff has done excellent work in putting this together. As co-advisor with my colleague Mitt Regan, I am grateful for their efforts. 

Mitt has a new textbook coming out with John Villa that will be of great interest to legal ethics professors focusing on entity clients.

This unique professional responsibility textbook is focused upon the practical and ethical challenges of representing modern business organizations. All topics are organized around problems that require the exercise of sophisticated professional judgment. While the text covers the ethical standards addressed in typical professional responsibility courses, it also gives particular attention to the increasingly important interaction of ethical rules and other sources of law that define the lawyer’s duties in representing business organizations in an increasingly complex world. In addition, the book serves as the first major casebook that can be used for a course on in-house legal practice, which one of the authors has taught for fifteen years. Chapters that can be used in such a course include those that cover communicating outside the company, dealing with employees and auditors, shareholder derivative demands, whistleblowers, multinational regulation, employment rights of inside counsel, overseeing the defense of criminal investigations, selection of outside counsel, and other topics. A detailed Teacher's Manual provides guidance on how to organize and teach the material in a two- or three-credit course, as well as instruction on how to use a hands-on exercise organized as a moot board meeting as the basis for the final exam. The book is co-authored by a nationally recognized litigator who is experienced in legal ethics and a leading scholar in the field.

(Mike Frisch)

March 11, 2016 in Conferences & Symposia, Current Affairs | Permalink | Comments (0)

Monday, March 7, 2016

More Whistling In The Wind

The District of Columbia Bar has dedicated much of the February 2016 issue of its Washington Lawyer magazine to congratulating itself for its wonderful decision to build a building and charge it off to the membership.

Without a hint or recognition of the irony, the Bar leadership has also posted a short Youtube video on the building move with the title Giving Members What They Want.

If they actually cared about what dues-paying members think and want, they would have put this hugely consequential building issue to a vote of the membership. 

My friend Paul Pearlstein commented recently on a post in which I questioned this grossly inappropriate and dangerous use of mandatory bar dues. 

I fear that the next generation of District of Columbia lawyers will pay a steep price for the Bar's ill-founded confidence in itself as an investor in downtown Washington real estate.

The core purpose of mandatory dues is to fund the operation of the disciplinary system. We justify self-regulation through the process of rigorous investigation of complaints alleging misconduct and, where appropriate, prosecution of attorneys who fail to meet minimum standards of competence and integrity.

The Bar's 2015-16 budget shows a cost of $8,883, 500 allocated to the D.C. disciplinary system.

One nice piece of transparency is the Bar's disciplinary decisions web page. There one can easily take a snapshot to evaluate the efficiency of the dues-funded system.

In just a few clicks, I was able to review every Board on Professional Responsibility report in original (non-reciprocal) matters from March 4, 2015 to March 4, 2016.

The results:

The BPR issued 15 reports in the past  year.

Seven of the 15 were simple approvals of consents to disbarment.

Two had involved referrals in criminal convictions.

Six involved  original prosecutions initiated through  a petition filed by the Office of Disciplinary Counsel.

It apparently costs more than a million dollars to generate a single disciplinary prosecution. 

The Office of Disciplinary Counsel employs 17 full-time attorneys. The Board on Professional Responsibility's Office of the Executive Attorney employs six.

Go to the web pages of the Illinois and North Carolina disciplinary systems to gauge the comparative productivity of other disciplinary offices.

As of today, North Carolina is prosecuting 28 active matters. Illinois files more charges in a month than D.C. does in a year.

Are D.C. lawyers just far more ethical than those in other jurisdictions?

Functioning adults know the answer to the question.  (Mike Frisch)

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

Saturday, March 5, 2016

Sanction Not Sustained For Limited Scope Representation

The Kentucky Supreme Court recently held  that sanctions imposed against attorneys who provided services but did not sign pleadings as part of a limited scope representation could not stand.

Sarah Jackson and David Thomas, of Owensboro, individually retained Appellants Persels & Associates, LLC (“Persels”) to defend them in their debt collection cases that were pending before the Daviess Circuit Court.  Persels is a national law firm organized in Maryland and engaged primarily in unsecured debt collection cases such as credit card debt.  Here, Persels attempted to negotiate with the credit card companies on behalf of its clients.  To assist in negotiations, Persels retained Kentucky attorneys K. David Bradley of Salt Lick, Kentucky, and Robert Gillispie of Leesburg, Virginia, to provide limited representation.  Mr. Bradley was assigned to “assist” Sarah Jackson;  and Mr. Gillispie was assigned to “assist” David Thomas.

The terms of Jackson's and Thomas's limited-representation agreements with Persels were confined to drafting and consultation services.  The agreements specifically provided that neither Kentucky lawyer was required to sign pleadings, enter an appearance, or attend court proceedings.  Therefore, it appears that the defendants were nominally pro se.  They either signed the documents that were prepared for them, or were at least instructed to do so by counsel.  In 2011, however, the Daviess Circuit Court ordered Attorneys Bradley and Gillispie to appear and show cause as to why they should not be held in contempt for their failure to enter their appearances and sign documents filed with the court.  The trial court consolidated the two cases and permitted Persels to intervene as a third party respondent.

Sanctions under Kentucky's Rule 11 were imposed and affirmed by the Court of Appeals.

The rationale behind CR 11 is to regulate the litigation process so that pleadings are valid for everyone – indigent or not. Second, pro se clients, indigent or not, must follow the rules of civil procedure, too. Unfortunately, the solution for providing legal service for indigent clients is much broader and more complex than this case. Undoubtedly, a decision to authorize limited representation through unbundled legal services in Kentucky would likely necessitate a review of the rules of practice, and perhaps, amendments to the civil rules. Such a course of action is not impeded or prevented by the actions of the Daviess Circuit Court in enforcing CR 11.

In conclusion, the trial court was not clearly erroneous in its findings nor did it abuse its discretion in the imposition of its sanction. In sum, we concur with the legal reasoning of the trial court and hold that pleadings prepared with the assistance of an attorney in the Commonwealth must be signed by the attorney.

The court here disagreed and considered the policy implications of limited scope representation agreements.

Kentucky Supreme Court Rule (“SCR”) 3.130 (Rule 1.2) governs the scope of representation and allocation of authority between client and lawyer. It provides in part:  “A lawyer may limit the scope of the representation if the limitation is reasonable under the circumstances and the client gives informed consent.” SCR 3.130(1.2)(c).  Comment 6 further defines the nature and scope of limited representation agreements and provides in part:

A limited representation may be appropriate because the client has limited objectives for the representation.  In addition, the terms upon which representation is undertaken may exclude specific means that might otherwise be used to accomplish the client's objectives.  Such limitations may exclude actions that the client thinks are too costly or that the lawyer regards as repugnant or imprudent...

There is a significant portion of the population comprised of individuals who are not indigent yet do not possess the means to afford full and rigorous representation of counsel.  See Cristina L. Underwood, Comment, Balancing Consumer Interests in a Digital Age:  A New Approach to Regulating the Unauthorized Practice of Law, 79 Wash. L.Rev. 437, 442 (2004) (“Many low- and moderate-income households simply cannot afford the cost of personal legal services.”). Indeed, “[s]ubstantial evidence indicates the existence of a latent marketplace for personal civil legal services to those of low and moderate incomes.”  Accordingly, many of our citizens cannot afford the full breadth of legal representation but are nevertheless in need of representation of some degree.

We encourage lawyers to take on cases that service the less fortunate.

The image of our profession is enhanced by these admirable efforts.  Therefore, it is clear that limited-representation agreements are necessary to some extent.  However, we acknowledge that these types of arrangements may be abused to the detriment of the litigants and the courts.

These policy concerns lead to this conclusion

In keeping with the letter and spirit of SCR 3.130 (Rule 1.2) and its accompanying commentary, we authorize agreements that limit the scope of legal assistance or that limit representation to discrete legal tasks, so long as they are reasonable under the circumstances and the client gives informed consent.  See Rochelle Klempner, Unbundled Legal Services in New York State Litigated Matters:  A Proposal to Test the Efficacy Through Law School Clinics, 30 N.Y.U. Rev. L. & Soc. Change 653, 654 (2006). This includes limitations on services provided in furtherance of traditional litigation as well as alternative dispute resolution methods.

Agreements that limit representation to distinct stages of litigation may also be reasonable under the circumstances.  The monumental increase in pro se and nominal pro se domestic filings provides a particularly apt example of the need for this unique type of limited-representation. For instance, family law practitioners may provide comprehensive representation during property division proceedings but not provide representation in any form during child custody proceedings, or vice versa.  However, these types of agreements must be carefully tailored to avoid abuse and confusion from the perspective of the client and the court.

To clarify, in addition to being reasonable under the circumstances, all agreements which limit representation must be in writing, require the informed consent of the client(s), and must comport with our rules, including the rules of professional conduct.

However, we do not adopt a strict rule requiring drafting attorneys to sign the documents they prepare pursuant to limited-representation agreements.  An attorney involved in the preparation of initial pleadings (complaint, answer, cross-claims and counter-claims), must indicate that the document has been prepared by or with the assistance of counsel by providing “Prepared By or With Assistance of Counsel” on the document concerned. See Bhojani, 65 SMU L.Rev. at 680 (“since the court is not being misled as to the fact of the drafting assistance, the attorney is not violating the duty of candor and not deceiving the court.”).  Of course, in cases where there is one or more attorneys of record, at least one attorney of record must sign documents presented to the court and provide their address in accordance with CR 11.  Pro se litigants must also satisfy the signature and address requirements of CR 11.

Furthermore, active assistance by counsel must be disclosed to the presiding tribunal and adversaries.  Active assistance includes drafting documents in furtherance of litigation that extend beyond initial pleadings. Notice of active assistance shall include the name, address, and telephone number of the attorney(s) working on the case, and the nature of the limited representation agreement at issue.  However, such disclosures do not constitute an appearance by counsel, nor do they require the drafting attorney to appear in court on behalf of the litigant receiving limited representation unless the court or the surrounding circumstances dictate otherwise.  For example, cases involving expedited or emergency relief may justify comprehensive representation, or at least a limited appearance of counsel, for the purpose of resolving the expedited matter.

In all cases, attorneys providing limited-representation are required to adequately investigate the facts to ensure that the pleadings or other documents drafted in furtherance of litigation are tendered in good faith.  See Rule 3.1.  Moreover, attorneys providing limited-representation of any kind may not deceptively engage in a more complete role.  See Rule 8.4.

Lastly, limited representation does not require proof of indigence.  Although the financial means of litigants pursuing limited-representation may be considered by courts as relevant to the overall reasonableness of the agreement, a litigant's financial status is not a dispositive factor.  On this issue, deference should be afforded in favor of the litigant seeking limited representation.

Here

...whether the agreement is reasonable also goes to the question whether it is ethical And because it is an agreement entered into by an attorney, if it is unreasonable, for example as to the fees charged, then the attorney may have committed an ethical violation by negotiating an unreasonable contract with his client.  Certainly, if a trial court becomes aware of such unreasonable aspects of a limited-representation agreement, then the court has a duty to file a bar complaint against the offending attorney, as does opposing counsel who may become aware of the situation.  Indeed, the party to the agreement may do likewise.  But collateral contract disputes or ethical violations are not proper issues for a trial court to address with CR 11 sanctions merely because a pleading is not signed by the attorney who drafted the document.

To clarify, we do not limit the authority of courts to impose other appropriate remedies that are necessary to maintain order and the integrity of the legal profession.  For example, if the court determines that a limited representation agreement is unreasonable, the court may order counsel to cease providing legal assistance of any kind to the client.  If an attorney continues to provide legal assistance for a client in violation of the court's order, the court may exercise its contempt authority in order to enforce its order.

The court remanded for a hearing on the reasonableness of the limited scope representation of the clients.

This is a decision of potential significance.  (Mike Frisch)

March 5, 2016 in Clients, Current Affairs, Law & Business, Law & Society | Permalink | Comments (0)

Saturday, February 27, 2016

Flat Fees In Ohio - More Ethics Opinions On The Way

The Ohio Board of Professional Conduct released an opinion on fees that is summarized on the Supreme Court's web page

The Ohio Supreme Court’s Board of Professional Conduct released an advisory opinion regarding the propriety of flat fee agreements related to a lawyer’s representation of a client and the manner in which such “paid-in-advance” fees must be accounted for by Ohio lawyers.

With the release of Advisory Opinion 2016-1, the board withdraws Advisory Opinion 96-4, which addressed the same topic under the former Code of Professional Responsibility.

Advisory Opinion 2016-1 addresses flat fee agreements paid in advance under the Rules of Professional Conduct. The board determined that under Prof.Cond.R. 1.15(c), a lawyer is required to deposit flat fees and expenses paid in advance for representation into a client trust account (IOLTA), unless the fee is designated as “earned upon receipt” or similarly, and may withdraw the funds only as the fee is earned or the expense is incurred. Regardless if the fee is designated “earned upon receipt,” “nonrefundable,” or similarly, the client must be advised in writing that the client may be entitled to a refund of any fee paid in advance, if the lawyer fails to complete the representation for any reason.

The opinion does not address a true retainer, which is a payment to a lawyer to secure availability of that lawyer’s services over a period of time and without regard to a specific matter.

In addition to addressing the propriety of flat fee agreements, Advisory Opinion 2016-1 provides guidance regarding other aspects of flat fee agreements. A flat fee must not be excessive, and a lawyer shall not provide financial assistance to a client – aside from advances in court costs and litigation expenses. Additionally, the flat fee agreement must not interfere with an attorney’s duties to provide competent and diligent representation to each client.

Advisory Opinion 2016-1 is the first in a series of opinions that will be reissued by the board during the next several months. The board is evaluating previously issued opinions that address often-asked questions from lawyers and judges and offer advice under the former Code of Professional Responsibility or former Code of Judicial Conduct. These opinions will be updated and reissued to provide guidance under the existing Rules of Professional Conduct and Code of Judicial Conduct.

(Mike Frisch)

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

Tuesday, January 19, 2016

Getting Mad And Even

sunEthics sunEthics has a report on a decision that will hearten lawyers who are trashed on line by former clients

 Lawyer Giustibelli represented Blake in a divorce from her husband, Birzon.  After a breakdown in the attorney-client relationship, Blake and Birzon posted negative online reviews regarding Giustibelli.  The reviews stated that Giustibelli charged Blake 4 times the amount of fees originally quoted, that she lacked integrity, and that she falsified a contract.  Alleging that the reviews were defamatory, Giustibelli sued Blake and Birzon for libel.  The trial court entered a judgment of $350,000 in punitive damages for Giustibelli.  Blake and Birzon appealed.

The Fourth DCA affirmed.  Blake and Birzon contended that “their internet reviews constituted statements of opinion and thus were protected by the First Amendment and not actionable as defamation.”  The appeals court disagreed.  “all the reviews contained allegations that Giustibelli lied to Blake regarding the attorney’s fee. Two of the reviews contained the allegation that Giustibelli falsified a contract. These are factual allegations, and the evidence showed they were false.”  Appellants’ reliance on Gertz v. Robert Welch, Inc. 418 U.S. 323 (1974), was misplaced.  Giustibelli was not a media defendant, and for non-media defendants libel per se still exists in Florida. Blake v. Giustibelli, __ So.3d __ (Fla. 4th DCA, No. 4D14-3231, 1/6/2016), 2016 WL _______.

(Mike Frisch)

January 19, 2016 in Clients, Current Affairs | Permalink | Comments (2)

Thursday, January 7, 2016

State Of The Profession

Georgetown Law's Center for the Study of the Legal Profession has an announcement of a significant report

Law firm leaders need to make bold, proactive changes in how legal services are delivered if firms are to thrive in the rapidly changing legal marketplace. That is among the findings of the “2016 Report on the State of the Legal Market” just issued by the Center for the Study of the Legal Profession at Georgetown University Law Center and Thomson Reuters Peer Monitor.

Two thousand fifteen saw a sixth consecutive year of largely flat demand, weakening pricing power and falling productivity. The report notes that since 2008, the law firm market “has changed in significant and fundamental ways.” Clients have assumed active control of the organization, staffing, scheduling and pricing of legal matters, where previously they had largely left those decisions in the hands of law firms. In addition, competitors such as alternative legal services providers, accounting firms and consultants, continue to grow market share.

The report suggests that law firms need to shift their focus from growth to market differentiation and profitability. But resistance to change can make it difficult for firms to adopt new strategies such as redesigning work processes, adopting new staffing models or setting new pricing strategies. In addition, many firms are locked into a “billable hour mentality” that inhibits creative alternate approaches to the delivery of legal services. 

The report is jointly issued on an annual basis by the Center for the Study of the Legal Profession at Georgetown University Law Center and Thomson Reuters Peer Monitor and reviews the performance of U.S. law firms and considers the changed market realities that drive the need for firms to take a longer-range and more strategic view of their market positions going forward.

“Fundamental shifts such as we have seen in the market for law firm services since 2008 require firms to take a hard look at the long-term viability of operating and pricing models that have worked well in the past but may be at risk in the newly developing market environment,” said James W. Jones, a senior fellow at the Center for the Study of the Legal Profession and one of the report's authors. “Firms that are able to redesign their models to better respond to the changing demands and expectations of their clients will have a substantial long-term competitive advantage.”

“A ‘buyer’s market’ for legal services is bringing increasing demands from clients, more nimble and leaner competitors and greater pressures for efficiency,” said Mike Abbott, vice president, Client Management & Global Thought Leadership, Thomson Reuters. “The good news is that some firms are already making strategic changes and performing strongly. The imperative is for firms to identify the best strategy for adapting to the rapidly evolving marketplace, given their unique strengths, talent, geographies and other assets.”

The “2016 Report on the State of the Legal Market” can be downloaded here.

(Mike Frisch)

January 7, 2016 in Current Affairs, Law & Business, Law Firms, The Practice | Permalink | Comments (0)

Tuesday, December 15, 2015

Spoliation Of Evidence In New York

The New York Court of Appeals has reversed an Appellate Division decision on spoliation of evidence.

A party that seeks sanctions for spoliation of evidence must show that the party having control over the evidence possessed an obligation to preserve it at the time of its destruction, that the evidence was destroyed with a "culpable state of mind," and "that the destroyed evidence was relevant to the party's claim or defense such that the trier of fact could find that the evidence would support that claim or defense" (Voom HD Holdings LLC v Echostar Satellite L.L.C., 93 AD3d 33, 45 [1st Dept 2012], quoting Zubulake v UBS Warburg LLC, 220 FRD 212, 220 [SD NY 2003]). Where the evidence is determined to have been intentionally or wilfully destroyed, the relevancy of the destroyed documents is presumed (see Zubulake, 220 FRD at 220). On the other hand, if the evidence is determined to have been negligently destroyed, the party seeking spoliation sanctions must establish that the destroyed documents were relevant to the party's claim or defense (see id.).

 On this appeal, we are asked to decide whether the Appellate Division erred in reversing an order of Supreme Court that imposed a spoliation sanction on the defendants. We hold that it did, and remand the matter to the trial court for a determination as to whether the evidence, which the Appellate Division found to be negligently destroyed, was relevant to the claims asserted against defendants and for the imposition of an appropriate sanction, should  the trial court deem, in its discretion, that a sanction is warranted.

Justice Stein dissented

 I part ways with the majority over its determination that the MP defendants' "culpable state of mind" amounted to, at most, simple negligence. I would hold that defendants acted with gross negligence in failing to preserve the ESI.

I further disagree with the majority's view that relevance is not to be presumed because the evidence was not intentionally or wilfully destroyed. The majority endorses the conclusion of the First Department in VOOM and the case upon which it relies -- Zubulake v UBS Warburg LLC (220 FRD 212, 220 [SD NY 2003] -- that, "[w]here the evidence is determined to have been intentionally or wilfully destroyed, the relevancy of the destroyed documents is   majority neglects to mention that VOOM further held that "destruction that is the result of gross negligence" also "is sufficient to presume relevance" (VOOM, 93 AD3d at 45). Inasmuch as, under VOOM, the MP defendants' gross negligence gives rise to a presumption of relevancy, I would remit to the Appellate Division for consideration of whether, in its discretion, a sanction is warranted.

 

 (Mike Frisch)

December 15, 2015 in Current Affairs, Hot Topics, Law Firms | Permalink | Comments (0)

Wednesday, December 9, 2015

Comings And Goings

From the web page of the Ohio Supreme court

The Ohio Supreme Court today issued a writ of mandamus to compel Cuyahoga County to release key-card-swipe data documenting when former county executive Edward FitzGerald entered and exited county parking facilities and buildings.

In a 4-3 decision, the Supreme Court concluded that while the records sought by the Ohio Republican Party (ORP) were “security records” exempt from release at the time of the request, circumstances have changed and there is no longer any basis to withhold the key-card-swipe data.

Background
On May 22, 2014, ORP’s communications director submitted a public-records request for the key-card-swipe data for five individuals, including FitzGerald. The communications director subsequently added a sixth person to the request. The ORP filed a mandamus action with the Supreme Court on July 9 alleging that the county had failed to respond to the requests.

Two days later, Cuyahoga County’s law director provided the data for all the individuals except FitzGerald, though he indicated the county did not have records of when employees exited buildings. He explained that he could not release FitzGerald’s data because of “verifiable security threats” confirmed by the sheriff’s department.

ORP’s communications director then requested key-card-swipe data back to January 2011. On July 31, the county law director emailed the requested data, but again excluded data relating to FitzGerald.

The Ohio Supreme Court granted an alternative writ on Sept. 24, and the parties submitted briefs and evidence.

On Jan. 7, 2015, the county’s director of communications released FitzGerald’s key-card-swipe data to the Cleveland Plain Dealer. The ORP then followed up on its public-records request. The county law director replied that the request had been properly denied when it was submitted but that the ORP could send a new request “based on the changed circumstances.”

Court’s Analysis
In today’s opinion, the Court explained that security records and infrastructure records are both exempt from disclosure under the state’s Public Records Act.

“At the time of the request, R.C. 149.433 exempted FitzGerald’s key-card-swipe data from disclosure because FitzGerald had received threats,” the Court stated in the per curiam opinion. “The undisputed evidence now demonstrates that the data are neither security records nor infrastructure records. Cuyahoga County’s website reflects that as of July 2014, its administrative offices are now located in a new building. … In addition, the old county administration building has been demolished …. Lastly, FitzGerald is no longer the county executive.”

“Thus, because FitzGerald is no longer the county executive, the key-card-swipe data are no longer security records, and because the old county administration building has been demolished, that data cannot disclose the configuration of its critical systems and are not infrastructure records.”

The Court also explained that the county’s January release of FitzGerald’s data to the press precludes the county’s assertion that the records are excepted from disclosure under the public-records law.

“Accordingly, FitzGerald’s key-card-swipe data are public records, and the county has failed to demonstrate they are exempt from disclosure pursuant to R.C. 149.433. Thus, we grant the requested writ of mandamus and order the release of the records,” the Court concluded. 

Votes
Joining the majority opinion were Chief Justice Maureen O’Connor, Justice Terrence O’Donnell, Judge Lisa L. Sadler of the Tenth District Court of Appeals, and Judge Arlene Singer of the Sixth District Court of Appeals. Justices Sharon L. Kennedy and Judith L. French recused themselves from this case. Judge Sadler was assigned for Justice Kennedy, and Judge Singer was assigned for Justice French.

Justices Paul E. Pfeifer, Judith Ann Lanzinger, and William M. O’Neill dissented in an opinion written by Justice O’Neill.

Dissent
Justice O’Neill reasoned that the Court should not issue a writ to force the county to release records based on a request that was correctly rejected at an earlier time.

“A proper public-records request was made,” Justice O’Neill wrote. “It was properly denied. Any action taken by anyone subsequent to that final denial is irrelevant, and the majority’s focus on those acts obfuscates the question before us. Does the subsequent demolition of the building in question, the departure from office of the official involved, or the Plain Dealer’s receipt of the records requested change anything for our legal analysis? No. The request was properly denied at the time, and respondents do not have a duty to examine old requests to determine whether the conditions that permitted denial of the request have subsequently changed.”

2014-1141. State ex rel. Ohio Republican Party v. FitzGerald, Slip Opinion No. 2015-Ohio-5056

(Mike Frisch)

December 9, 2015 in Current Affairs | Permalink | Comments (0)

Monday, September 28, 2015

Reforms Proposed For New York Bar Disciplinary System

A comprehensive series of reform proposals have been set forth in a recent report evaluating the New York State bar disciplinary system by the Commission on Statewide Attorney Discipline.

Two proposals strike me as particularly important and, in my view, should be adopted throughout these United States

Creation of a more easily accessible, searchable, consumer-friendly, statewide website geared toward the legal consumer. Critical information, such as where to file a grievance, should be available in languages in addition to English. Consideration should also be given to establishing a telephone “hot line” to accommodate individuals who do not have access to the internet.

Revision of court rules and procedures to allow “plea bargaining,” or discipline upon consent, to encourage prompt resolution of disciplinary charges, where appropriate.

A notable present flaw

The Subcommittee reviewed a survey conducted by the ABA Center for Professional Responsibility of all 50 states and the District of Columbia concerning the stage of a disciplinary proceeding at which the process becomes open to the public. Although the nuances may differ, the vast majority of jurisdictions open proceedings upon the filing of a formal charge following a finding of probable cause. New York is one of only 9 jurisdictions which do not permit public dissemination of information concerning disciplinary proceedings until, at the earliest, a recommendation that discipline be imposed, and usually upon a final adjudication.

While the Report does not advocate for a single enforcement mechanism to replace the present Departmental disciplinary apparatus, it does argue for uniformity of approach in proposing

Approval by the Administrative Board of the Courts, and by each Department of the Appellate Division, of statewide uniform rules and procedures governing the processing of disciplinary matters at both the investigatory and adjudicatory levels, from intake through final disposition, which strike the necessary balance between facilitating prompt resolution of complaints and affording the attorney an opportunity to fairly defend the allegations. These new rules and procedures should include uniform discovery rules and information-sharing for attorneys who are the subject of a disciplinary complaint. This recommendation is of the highest priority and a firm deadline for adoption should be established.

Also noteworthy is the singling out of one particular type of misconduct

It is the position of this Commission that the Administrative Board should take immediate action to ensure that judicial determinations of prosecutorial misconduct are promptly referred to the appropriate disciplinary committee. Of equal importance, given the perception or misperception, that claims of prosecutorial misconduct are routinely “swept under the rug,” the coordinator of attorney discipline, proposed earlier in this report, should compile, and release as part of an annual report, a statistical summary including, inter alia, the number of complaints of prosecutorial misconduct received and reviewed, the number resulting in public discipline and the number resulting in private discipline.

One final point re prosecutorial misconduct: It is abundantly clear from the public hearings and comments received by the Commission that there is a perception of rampant prosecutorial misconduct which is ignored by the disciplinary committees. As stated earlier, the Commission finds no support for that contention. However, given that prosecutors are public officials, and given that the public has every right to scrutinize the conduct of those it entrusts with public office, this Commission believes that in all cases in which a prosecutor is sanctioned for misconduct, even if the sanction is a private one, appropriately redacted details should be publicly released. The public must be able to make an informed judgment about whether the result of a complaint of prosecutorial misconduct is fair, whether the disciplinary committee did its job and whether the system is working.

Much to consider here but any effort to improve disciplinary process and make it more transparent is highly praiseworthy.

Will the District of Columbia ever get the message (eloquently stated by the Commission) that meaningful plea bargaining is the only way to escape its present logjam where virtually every case takes five to ten years to resolve?

I fear not. (Mike Frisch)

September 28, 2015 in Bar Discipline & Process, Current Affairs, Hot Topics, Professional Responsibility | Permalink | Comments (0)

Thursday, September 24, 2015

Back To The Lawyer Referral Drawing Board

The Florida Supreme Court has rejected proposed amendments to its rules governing for-profit lawyer referral services

We have carefully reviewed the final report of the Special Committee and conclude that the public is at significant risk from for-profit lawyer referral services that also refer clients to other businesses. We recognize that the anecdotes presented in the final report do not represent every non-lawyer-owned, for-profit referral service; however, the potential harm is too great for us to approve the amendments proposed by The Florida Bar. These amendments would not cure the multiple concerns highlighted by the Special Committee, but would allow the troubling incidents discussed in the final report to continue. The dangers that nonlawyer-owned, for-profit referral services pose to members of the public—who may be especially vulnerable after they suffer an injury, or when they face a legal matter that they never anticipated—leads us to conclude that much stricter regulations upon lawyer referral services are required than those proposed by the Bar.

Accordingly, we reject the current petition and instruct The Florida Bar to propose amendments to rule 4-7.22 that preclude Florida lawyers from accepting referrals from any lawyer referral service that is not owned or operated by a member of the Bar. We further instruct the Bar to review any other rules or regulations that address lawyer referral services to determine whether new rules are necessary to implement our direction today. Based upon this review, the Bar may conclude that amendments to, or repeal of, other rules are required. While the action we take today may be viewed by some as severe, we conclude it is absolutely necessary to protect the public from referral services that improperly utilize lawyers to direct clients to undesired, unnecessary, or even harmful treatment or services. Our action today will also prevent conflicts of interest, such as where a lawyer feels compelled or pressured to refer a client to another business operated or controlled by the owner of the referral service so that the lawyer may continue to receive referrals from that service.

Justice Canady

I concur with the majority’s rejection of the proposal submitted by the Board of Governors. But I dissent from the majority’s direction that the Bar propose amendments “that preclude Florida lawyers from accepting referrals from any lawyer referral service that is not owned or operated by a member of the Bar.” Majority op. at 6. Instead, I would direct that the Bar propose amendments incorporating the proposals recommended by the Special Committee on Lawyer Referral Services.

The Florida Bar is directed to file a new per ition by May 2016. (Mike Frisch)

September 24, 2015 in Bar Discipline & Process, Current Affairs | Permalink | Comments (0)

Wednesday, September 23, 2015

We Listen And We Care But We Can't Say We Win

An advisory  opinion from the Connecticut Statewide Grievance Committee concludes that a proposed logo violates advertising rules

The logo depicts a multi-point star enclosed in a circle. Underneath is the first listed partner name of the law firm followed by word "law." The proposed phrase is "we listen. we care. we win." Since this phrase will be used in various forms of undetermined future advertising material, the proposed phrase on its own does not contain the name of an attorney admitted in Connecticut responsible for its content as required by Rule 7 .2( d) of the Rules of Professional Conduct. This opinion assumes that the proposed phrase, when placed in the context of actual advertising material, will comply with that requirement when disseminated.

The problem

The proposed advertisement violates Rule 7 .1 of the Rules of Professional Conduct because the reference to the firm winning is likely to create an unjustified expectation as to success. Rule 7.1 prohibits communications that are false or misleading. It is misleading for a lawyer to make claims in an advertisement that cannot be substantiated. Id. In some instances, an appropriate disclaimer given equal weight could correct a statement that is likely to create unjustified expectations or otherwise mislead a consumer. Id.

 By stating, "we win" the firm is creating unjustified expectations for prospective clients. The firm is suggesting that it wins every case and that it will win a prospective client's case regardless of the merits. The statement is misleading. The firm could correct this misleading statement by including a disclaimer, explaining that results are based on the merits ofthe case and that success in the past does not guarantee success in the future.

(Mike Frisch)

September 23, 2015 in Bar Discipline & Process, Current Affairs, Ethics | Permalink | Comments (0)

Friday, September 11, 2015

Corporation Needs Attorney

A non-attorney may not represent his company in litigation, according to an opinion issued today by the Vermont Supreme Court

Plaintiffs Michael Bandler and MB&Co, Ltd. (“corporation”) bring an interlocutory appeal from the trial court’s ruling that Bandler, a nonattorney, may not represent corporation in this case. He argues that the trial court violated his due-process rights by ruling on the basis of the parties’ respective written submissions on the issue of representation without giving him prior notice of its concerns about his representation so that he could respond “by way of papers [or] argument” before the trial court issued its ruling. We disagree and affirm.

The facts

In December 2012, on behalf of Michael Bandler & Co., Inc., Bandler signed a
retainer agreement pursuant to which defendant Cohen Rosenthal & Kramer LLP (CRK) agreed to “assume representation of Michael Bandler & Company, Inc.” in connection with the classaction arbitration. Whether CRK also assumed any duty to Bandler individually appears to be a point of dispute between the parties. This agreement, and the subsequent course of CRK’s representation, gave rise to the present lawsuit in which Bandler and corporation have sued CRK, alleging fraud in the inducement, breach of contract, legal malpractice, and violation of Vermont’s consumer-protection law.

Before answering plaintiffs’ complaint, CRK filed a motion to dismiss, arguing
that Bandler does not meet the criteria for allowing a nonattorney to represent a corporation
under Vermont law. In particular, CRK detailed Bandler’s pro se litigation history and pointed
to an instance in which a court sanctioned Bandler for a frivolous lawsuit. CRK also referenced
this Court’s conclusion that an affidavit submitted by Bandler in an unrelated lawsuit was “too incredible to be believed by reasonable minds.”

...CRK argued that because of this past history, and because a self-represented litigant is not bound by the ethical rules of attorneys, allowing Bandler to represent corporation would be unduly burdensome to CRK and to the court.

The court concluded that the denial of pro se corporate representation did not violate due process. (Mike Frisch)

September 11, 2015 in Current Affairs | Permalink | Comments (0)

Tuesday, September 1, 2015

Deeply-Rooted Bias Requires Reversal

The New Jersey Appellate Division reversed a criminal conviction for carjacking and related offenses as a result of concerns about juror racial bias

...on the second day of deliberations, Juror 4 told Jurors 5 and 12 she was "concerned" and "nervous" because she had seen two African-American men that morning in the neighborhood where she lives. Juror 4 noted, "[t]hey certainly don't live around there, and they don't hang around there." Juror 5, who works in that area, agreed that this seemed strange because that area "mostly is Italian and White people. There really are no Black people around there." Because both defendants are African-American, Juror 4 feared the presence of two African-American men in her neighborhood may have had some kind of sinister connection to the trial.

Jurors 5 and 12 were sympathetic with juror 4's predicament and suggested she should report her concerns to the Sheriff's Officer who was assigned to secure the jury during deliberations. The Sheriff's Officer informed the trial judge, who then questioned each of the three jurors separately. The judge decided to allow all three jurors to remain on the jury and continue deliberating after they assured him this incident did not have an effect on their impartiality, they would follow the court's instructions on the law, and they would base their verdict only on the evidence presented at trial.

The court

 On these facts, we are compelled to reverse. When Juror 4 inferred a sinister conspiratorial purpose from a facially innocuous event, based only on the race of the participants, she revealed a deeply-rooted, latent racial bias that required her removal from the jury. The trial judge erred in permitting her to remain on the jury and continue deliberating merely based on the juror's self-serving denial of racial bias. Her initial instinctive, subliminal association of race with criminality or wrong-doing far trumped her subsequent assurances of impartiality.

(Mike Frisch)

September 1, 2015 in Current Affairs | Permalink | Comments (0)

Wednesday, August 19, 2015

New Trial Order Affirmed; Court Condemns Prosecutor Online Campaign

Legal Ethics Forum has posted a story on the Fifth Circuit's affirmance of the grant of a new trial to the Danziger Bridge defendants.

The court majority

That three supervisory-level prosecutors committed misconduct in connection with the Danziger Bridge prosecution is beyond dispute. Perricone’s comments spanned the entire prosecution and went directly to the guilt of the defendants, the collective guilt of NOPD, and the relative competence and integrity of defense counsel versus the USAO. Dobinski’s comments stirred the pot by encouraging commenters who were plainly familiar with the trial proceedings, one of whom was Perricone, to keep doing a “public service” with their biased reports. Mann’s comments, posted during post-trial sentencing proceedings, displayed partiality toward the prosecution and denigrated the district court and defense counsel in another Danziger Bridge case...

Most pernicious, these attorneys’ online comments knowingly contributed to the mob mentality potentially inherent in instantaneous, unbridled, passionate online discourse. These prosecutors created an air of bullying against the defendants whose rights they, especially Dobinski, were sworn to respect. That they were several among dozens of commenters, some of whom may have disagreed with their views, does not dissipate the effect of this online cyberbullying. Just as a mob protesting outside the courthouse has the potential to intimidate parties and witnesses, so do streams of adverse online comments. The impact is felt not only by the defendants but by codefendants pressed to plead guilty or defense witnesses dissuaded from testifying. Preventing mob justice is precisely the goal of prosecutorial ethical constraints. The government here should not be able to shelter under a banner of “no prejudice proved” while the prosecutors acted no better than, and indeed tried to inflame, the public. For all these reasons, we conclude that the district court did not err in finding that the defendants were prejudiced by the government’s misconduct. On this basis, too, the defendants are entitled to a new trial.

There is a dissent from Judge Prado that condemns the conduct but would deny the relief

The majority opinion, the district court’s order, and the defendant’s own briefing all stray far from Rule 33(b)(1)’s narrow standard. Perhaps this is because the defendants advance no credible argument that the newly discovered evidence in this case—the identity of the commenters on NOLA.com—would likely produce an acquittal. The defendants devote only six pages of their 105-page brief to arguing they were actually prejudiced by the government’s conduct; almost none of the contentions in those pages relate to newly discovered evidence. The defendants advance a “theory of government media manipulation,” leading to an “overriding tenor of guilt in the community long before trial” and a “prejudicial, poisonous atmosphere.” Although they assert that “[t]his ‘poisonous atmosphere’ and concerted government misconduct had a substantial deleterious effect on the fairness of appellees’ trial,” they fail to point to any indication of actual prejudice resulting from newly discovered evidence, citing instead to a student note for the proposition that “damaging media spin can . . . be used to manipulate negotiation before trial—potentially driving individuals to settle or accept a plea where they otherwise would pursue trial on the merits.” Fatally to the defendants’ claim, these arguments are not grounded in newly discovered evidence—i.e., the identities of the commenters. Indeed, it is difficult to see how this evidence could possibly have changed the outcome of the proceedings. The district court conducted an extensive voir dire: prospective jurors completed a lengthy questionnaire, and the district court questioned both the venire panel as a whole and individual jurors in chambers. Then, counsel for both parties questioned the jurors based on their answers to the questionnaires...

Most importantly, the truth about Perricone’s postings came to light long after judgment was entered in this case. Therefore, even if the jurors had disregarded the court’s instructions and read articles on NOLA.com during the trial (we must presume the contrary); even if they had bothered to read the user-generated comments on this public website; and even if they had paid particular attention to the comments posted under Perricone’s or Mann’s aliases, they still would not have known they were receiving impermissible information from a source within the U.S. Attorney’s Office. The post-verdict discovery of the posters’ identities does not change this conclusion, which proves fatal to the defendants’ claim...

It is a fundamental tenet of our legal system that neutral rules must be applied evenly to all. We do not—and indeed we cannot—interpret the Federal Rules of Criminal Procedure differently based on the character of the defendant or the circumstances surrounding his trial. The government attorneys acted deplorably in this case, and their punishment has been unconscionably mild. But a new trial is not the proper remedy on the record before us. I respectfully dissent.

The District Court's order is linked here. 

The Times-Picayune had a story on the bar discipline imposed  on two of the named attorneys.

A search of the D.C. Bar "find a member" function reveals that the third attorney was admitted in the District of Columbia in 1985.

The district court opinion lays out a rather compelling disciplinary case against that attorney starting at page 56.

So far as I am aware, no action has been taken with respect to her D.C. license.  

Perhaps the D.C. Bar Counsel is awaiting the outcome of the DOJ internal probe  reported by the Times- Picayune.

If so, my experience is that deferring the investigation of prosecutorial misconduct cases never serves the public interest.

Having had a number of such cases, I rarely found the work of the DOJ Office of Professional Responsibility sufficiently  helpful to justify the delay. (Mike Frisch)

August 19, 2015 in Current Affairs | Permalink | Comments (0)

Thursday, July 23, 2015

Contract Attorney V. Machine: Document Review Not Practice Of Law

An interesting decision of the United States Court of Appeals for the Second Circuit concludes that document review is not the practice of law under the facts of the case.

The litigation involves a contract attorney suing Skadden Arps and Tower Legal Staffing under the Federal Labor Standards Act

Lola, a North Carolina resident, alleges that beginning in April 2012, he worked for Defendants for fifteen months in North Carolina. He conducted document review for Skadden in connection with a multi‐district litigation pending in the United States District Court for the Northern District of Ohio. Lola is an attorney licensed to practice law in California, but he is not admitted to practice law in either North Carolina or the Northern District of Ohio.

Holding

We agree with the district court that: (1) state, not federal, law informs FLSA’s definition of “practice of law;” and (2) North Carolina, as the place where Lola worked and lived, has the greatest  interest in this litigation, and thus we look to North Carolina law to determine if  Lola was practicing law within the meaning of FLSA. However, we disagree with  the district court’s conclusion, on a motion to dismiss, that by undertaking the  document review Lola allegedly was hired to conduct, Lola was necessarily “practicing law” within the meaning of North Carolina law.

The court explains

The district court erred in concluding that engaging in  document review per se constitutes practicing law in North Carolina. The ethics  opinion does not delve into precisely what type of document review falls within  the practice of law, but does note that while “reviewing documents” may be  within the practice of law, “[f]oreign assistants may not exercise independent 10 legal judgment in making decisions on behalf of a client.” N.C. State Bar Ethics 11 Committee, 2007 Formal Ethics Op. 12. The ethics opinion strongly suggests that  inherent in the definition of “practice of law” in North Carolina is the exercise of at least a modicum of independent legal judgment...

The gravamen of Lola’s complaint is that he performed document review  under such tight constraints that he exercised no legal judgment whatsoever—he  alleges that he used criteria developed by others to simply sort documents into different categories. Accepting those allegations as true, as we must on a motion  to dismiss, we find that Lola adequately alleged in his complaint that he failed to  exercise any legal judgment in performing his duties for Defendants. A fair  reading of the complaint in the light most favorable to Lola is that he provided  services that a machine could have provided. The parties themselves agreed at oral argument that an individual who, in the course of reviewing discovery documents, undertakes tasks that could otherwise be performed entirely by a  machine cannot be said to engage in the practice of law.

Thanks to a faithful reader for sending this opinion. (Mike Frisch)

July 23, 2015 in Current Affairs | Permalink | Comments (0)

Friday, July 17, 2015

North Carolina: No Computer Tablet Giveaway In Client Solicitation

From the web page of the North Carolina State Bar

At its meeting on April 17, 2015, the State Bar Council adopted the ethics opinions summarized below:

2015 Formal Ethics Opinion 1
Preparing Pleadings and Other Filings for an Unrepresented Opposing Party

Opinion rules that a lawyer may not prepare pleadings and other filings for an unrepresented opposing party in a civil proceeding currently pending before a tribunal if doing so is tantamount to giving legal advice to that person.

2015 Formal Ethics Opinion 2
Preparing Waiver of Right to Notice of Foreclosure for Unrepresented Borrower

Opinion rules that when the original debt is $100,000 or more, a lawyer for a lender may prepare and provide to an unrepresented borrower, owner, or guarantor a waiver of the right to notice of foreclosure and the right to a foreclosure hearing pursuant to N.C.G.S. § 45-21.16(f) if the lawyer explains the lawyer’s role and does not give legal advice to any unrepresented person. However, a lawyer may not prepare such a waiver if the waiver is a part of a loan modification package for a mortgage secured by the borrower’s primary residence.

2015 Formal Ethics Opinion 3
Offering Prospective Client a Computer Tablet in Direct Mail Solicitation

Opinion rules that a lawyer may not offer a computer tablet to a prospective client in a direct mail solicitation letter.

(Mike Frisch)

July 17, 2015 in Current Affairs | Permalink | Comments (0)

Thursday, July 16, 2015

Wisconsin Decides John Doe Investigation Cases

The Wisconsin Supreme Court has issued its opinion in several consolidated cases dealing with the so-called John Doe investigation.

From Justice Gableman's majority opinion

To be clear, this conclusion ends the John Doe investigation because the special prosecutor's legal theory is unsupported in either reason or law.  Consequently, the investigation is closed.  Consistent with our decision and the order entered by Reserve Judge Peterson, we order that the special prosecutor and the district attorneys involved in this investigation must cease all activities related to the investigation, return all property seized in the investigation from any individual or organization, and permanently destroy all copies of information and other materials obtained through the investigation.  All Unnamed Movants are relieved of any duty to cooperate further with the investigation...

We hold that the special prosecutor has failed to prove that Reserve Judge Peterson violated a plain legal duty when he quashed the subpoenas and search warrants and ordered the return of all property seized by the special prosecutor.  In quashing the subpoenas and search warrants, Reserve Judge Peterson exercised his discretion under the John Doe statute, Wis. Stat. § 968.26, to determine the extent of the investigation.  Because the purpose of a supervisory writ does not include review of a judge's discretionary acts, Kalal, 271 Wis. 2d 633, ¶24, the supervisory writ sought by the special prosecutor is denied, and Reserve Judge Peterson's order is affirmed...

in Three Unnamed Petitioners, we hold that the Unnamed Movants have failed to prove that either Reserve Judge Kluka or Reserve Judge Peterson violated a plain legal duty by: (1) accepting an appointment as a reserve judge; (2) convening a multi-county John Doe proceeding; or (3) appointing a special prosecutor.  Although the circumstances surrounding the formation of the John Doe investigation raise serious concerns, and the appointment of the special prosecutor may well have been improper, such concerns do not satisfy the stringent standards of a supervisory writ.  Put another way, if we were to grant the supervisory writ in this case, we would risk "transform[ing] the writ into an all-purpose alternative to the appellate review process," which we cannot do.  Id.  Accordingly, we deny the supervisory writ and affirm the decision of the court of appeals.

There are concurring opinions. This from Justice Zeigler

During pre-dawn darkness in October 2013, several armed law enforcement officers wearing flak jackets, carrying battering rams, and using bright floodlights executed secret John Doe search warrants in the homes of Wisconsin residents.  What was the prosecution searching for?  The prosecution was in search of documents and electronic evidence, including personal computers and cell phones, to support alleged violations of Wisconsin's campaign finance law.  The warrants sought evidence that had been around for more than four years.  The warrants were executed shortly before morning, days after a judge signed them, while it was still dark outside.  Law enforcement certainly has, and should have, a great deal of discretion when it comes to how and when a warrant will be executed, but ultimately courts may review the reasonableness of that execution...

I join the majority opinion in all three cases.  I write separately to explain that even if the search warrants were lawfully issued, the execution of them could be subject to the reasonableness analysis of the Fourth Amendment to the United States Constitution and the Wisconsin Constitution's counterpart.  A totality of the circumstances analysis could include consideration of, among other things, the timing of the issuance and execution of the warrants, the manner in which the warrants were executed, whether public or officer safety concerns justified the manner of execution, and what type of evidence was being sought.

Justice Abrahamson concurred and dissented

The majority opinion and Justice Prosser's concurrence decide that the secrecy order does not bind the justices of this court. The secrecy order, in their view, binds only the parties and the public.

Because the majority of this court disregards its own secrecy order, Justice Prosser opines at length, without the benefit of briefs or facts, about allegedly overbroad search warrants and subpoenas.  Moreover, he  waxes eloquent about privacy and the limits that should be placed on search warrants seeking electronic material.  But he has previously waxed eloquent about privacy rights and has nevertheless upheld searches of electronic material that he recognized raise substantial privacy concerns.

Likewise, Justice Ziegler opines at length about the allegedly unconstitutional manner in which the search warrants were executed.  She does so without the benefit of briefs or facts.

Both justices opine about issues not previously raised by the parties or the court without giving the parties an opportunity to brief or argue the facts or law relevant to those issues...

I have repeatedly dissented to the excessive sealing and redactions this court has imposed in the John Doe trilogy and I have repeatedly dissented to this court's position that the John Doe secrecy order automatically binds this court, but I nevertheless conclude that the secrecy orders issued by this court (over my dissent) are binding on this court.  As explained above, it is settled law that a "magistrate" who issues a secrecy order is bound by that secrecy order.  The majority opinion and Justice Prosser's concurrence improperly ignore this principle...

n closing, I note that even if this court determined that the John Doe proceedings were procedurally defective and that a supervisory writ is warranted, only those Unnamed Movants who raised the objection before the John Doe judge may be entitled to any relief.  If not raised, these objections were waived (forfeited).  See Village of Trempealeau v. Mikrut, 2004 WI 79, ¶27, 273 Wis. 2d 76, 681 N.W.2d 190 (stating that "the common-law waiver [forfeiture] rule applies to challenges to the circuit court's competency" and explaining that a competency challenge is waived as a matter of right if raised for the first time on appeal); In re Commitment of Bollig, 222 Wis. 2d 558, 564, 587 N.W.2d 908 (Ct. App. 1998) (providing that a defect in the appointment of a special prosecutor is waived (forfeited) if raised for the first time on appeal).

Justice Crooks also concurred and dissented.

It is also imperative to note that the majority conveniently overlooks the special prosecutor's secondary argument of criminal activity in its effort to end this John Doe investigation.  Specifically, the special prosecutor seeks to investigate whether particular express advocacy groups coordinated their spending with candidates or candidate committees in violation of their sworn statement of independence under Wis. Stat. § 11.06(7).  Despite the fact that the special prosecutor utilizes a significant portion of his brief to present evidence of such illegal coordination, the majority determines, without explanation, that the John Doe investigation is over.

Has the majority abused its power in reaching this conclusion?  The majority's rush to terminate this investigation is reminiscent of the action taken by the United States District Court for the Eastern District of Wisconsin in O'Keefe v. Schmitz, 19 F. Supp. 3d at 875, an action that was both criticized and reversed by the United States Court of Appeals for the Seventh Circuit in O'Keefe, 769 F.3d at 942.  Although the focus of my writing lies elsewhere, the majority's error in this regard cannot be overlooked.

For these reasons, I respectfully dissent in State ex. rel. Two Unnamed Petitioners v. Peterson (Two Unnamed Petitioners). 

However, because I agree that the special prosecutor and certain Unnamed Movants have failed to meet their heavy burden of establishing that the John Doe judge violated a plain legal duty in either initiating these proceedings or quashing various subpoenas and search warrants related to the investigation, I respectfully concur with the majority in State ex. rel. Schmitz v. Peterson (Schmitz v. Peterson) and State ex. rel. Three Unnamed Petitioners v. Peterson (Three Unnamed Petitioners).  In concurring in Schmitz v. Peterson, it is significant for me that when an appellate court decides to issue a supervisory writ, it is a rare, discretionary decision.  Madison Metro. Sch. Dist., 336 Wis. 2d 95, ¶¶33-34.  Here, the John Doe judge also made a discretionary decision in deciding a complex legal issue.  Deference should be given where there is such discretion.

 

Justice Bradley did not participate.

Obviously, this complex series of opinions will be the subject of intensive commentary. We have not attempted to carefully evaluate the opinions but post them so that interested persons can begin that process. (Mike Frisch)

July 16, 2015 in Current Affairs | Permalink | Comments (0)