Tuesday, December 15, 2015
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.
Wednesday, December 9, 2015
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.
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.
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.”
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.
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.
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.”
Monday, September 28, 2015
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)
Thursday, September 24, 2015
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.
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)
Wednesday, September 23, 2015
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 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.
Friday, September 11, 2015
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.
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)
Tuesday, September 1, 2015
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.
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.
Wednesday, August 19, 2015
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)
Thursday, July 23, 2015
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.
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)
Friday, July 17, 2015
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.
Thursday, July 16, 2015
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)
Monday, June 29, 2015
There is an interesting post with comments by Professor Stephen Gillers over at Legal Ethics Forum on civility and the recent dissents of Justice Scalia.
For an example of what I believe is the appropriate tone of a dissent when the author perceives an injustice perpetrated by a majority of the Supreme Court, let's quote the first Justice Harlan in Plessy v. Ferguson
I am of opinion that the statute of Louisiana is inconsistent with the personal liberty of citizens, white and black, in that State, and hostile to both the spirit and letter of the Constitution of the United States. If laws of like character should be enacted in the several States of the Union, the effect would be in the highest degree mischievous. Slavery, as an institution tolerated by law would, it is true, have disappeared from our country, but there would remain a power in the States, by sinister legislation, to interfere with the full enjoyment of the blessings of freedom to regulate civil rights, common to all citizens, upon the basis of race, and to place in a condition of legal inferiority a large body of American citizens now constituting a part of the political community called the People of the United States, for whom and by whom, through representatives, our government is administered. Such a system is inconsistent with the guarantee given by the Constitution to each State of a republican form of government, and may be stricken down by Congressional action, or by the courts in the discharge of their solemn duty to maintain the supreme law of the land, anything in the constitution or laws of any State to the contrary notwithstanding.
For the reasons stated, I am constrained to withhold my assent from the opinion and judgment of the majority.
Perhaps the most significant dissent in court history (and which, to its discredit, endorses the idea of the permanent supremacy of the white race) did not include any references to fortune cookies or hiding the author's head in a paper bag.
And I admit a bit of shock over the Chief Justice's references to the views of five lawyers.
Understand well what this dissent is about: It is not about whether, in my judgment, the institution of marriage should be changed to include same-sex couples. It is instead about whether, in our democratic republic, that decision should rest with the people acting through their elected representatives, or with five lawyers who happen to hold commissions authorizing them to resolve legal disputes according to law. The Constitution leaves no doubt about the answer.
Surely he understands that every Supreme Court decision does no more than reflect the views of five or more such lawyers, whether it is Bush v. Gore, Citizens United, Shelby County, Heller or Town of Greece.
I thought he had more respect for his own institution.
I also think that these decisions show that the rule limiting criticism of judges by lawyers should be abolished. Something about sauces, gooses and ganders.
The rules that govern an attorney's ethical obligations in the conduct of litigation are quite adequate without Rule 8.2(a). (Mike Frisch)
Monday, June 8, 2015
The United States Court of Appeals for the Second Circuit has vacated and remanded a conviction in a high-profile tax prosecution based on findings that a juror lied extensively about her background in order to get on the jury.
Parse and several others were indicted in 2009 and were ultimately charged with one count of conspiracy to defraud the United States and to commit mail fraud, wire fraud, and tax evasion, in violation of 18 U.S.C. § 371, and with multiple substantive counts of tax evasion and other tax-related offenses in connection with the creation of a series of tax shelters "designed and marketed by [a law firm and an accounting firm] to take advantage of Internal Revenue Code . . . loopholes so taxpayers could claim non-economic tax losses to avoid taxes they otherwise would have owed" (Parse brief on appeal at 7).
Parse was a broker employed by an investment banking firm that executed transactions for implementation of the shelters. In the spring of 2011, Parse was tried along with four of his codefendants: Paul Daugerdas and Donna Guerin, who were attorneys at the law firm; Denis Field, a member of the accounting firm; and Craig Brubaker, a broker at the investment bank that employed Parse.
He was convicted of mail fraud and attempting to interfere with the administration of the federal tax laws.
The lies included the juror concealing the fact that she was a suspended attorney. Indeed, she created a fictitious persona in order to get on the jury.
Further, she concealed the fact that she was on probation for shoplifting at the time of the trial.
As the district court later found. the juror was "a pathological liar and utterly untrustworthy."
The investigation into the juror's lies began after she wrote a post-verdict letter to the prosecutors "praising its performance at trial but lamenting the acquittals of Parse."
The letter was turned over to defense counsel and the court about a month after receipt.
The circuit court found no waiver based on information that the defense had at the trial
although the court stated that Parse's attorneys' "suspicion that Juror No. 1 was not the person she represented herself to be during voir dire . . . . leavened into tangible evidence that Conrad was a monstrous liar," id. at 484 (emphasis added), that leavening did not occur until Conrad sent her May Letter to the government after the verdicts were returned. It was that post verdict letter that first disclosed the juror Conrad's (claimed) street address (against which one of the addresses in the Westlaw Report could be matched) and her telephone number (against which the telephone number shown for the suspended lawyer Catherine M. Conrad on the New York attorney registration website could be matched). And the monstrosity of her deliberate and purposeful voir dire deceit came to light in her statements to the court in the hearings conducted thereafter. As Conrad had "lied about virtually every detail of her life," id. at 473, almost none of the Westlaw Report information cited by the district court about the suspended lawyer matched the information Conrad had provided under oath during voir dire. The information in that Report did not support a finding that Parse's attorneys knew that Conrad the juror was the same person as Catherine M. Conrad the suspended lawyer.
Bloomberg Business reported that the juror testified that she had lied to "make [herself] more marketable" to serve as a juror.
Bloomberg further reported on the trial court hearing
Conrad also admitted she didn’t tell the judge that her husband had been convicted of crimes including check fraud, weapons possession, harassment and burglary. He served seven years and seven months in prison for auto theft, Conrad testified.
“Your husband is a career criminal, isn’t he,” [Daugerdas attorney Chris] Gair asked Conrad.
“So are most attorneys,” she answered, prompting laughter from some in the courtroom.
The district and circuit court did not join in the laughter.
Alison Frankel at Reuters has an interesting take on the implications of this decision.
Thanks to a reader for sending the opinion. (Mike Frisch)
Friday, May 29, 2015
The Massachusetts Supreme Judicial Court decided a divorce case involving the widow of John Belushi.
In late December, 1988, the husband, who had previously been married, and the wife, a widow, "agreed to marry and discussed that a premarital agreement was necessary to protect various assets each had acquired, including intellectual property rights they intended to exploit or continue to develop in the future and that each wanted to protect in the event of divorce, separation or death." The wife had valuable real property located in Martha's Vineyard as well as an interest in her parents' house in New Jersey. The wife also had valuable intellectual property rights, including rights she inherited from her late husband, the actor/comedian, John Belushi. While the wife had achieved some success in her own right as an author, writer, producer, and speaker, her income was derived primarily from royalties and residuals from the intellectual property rights she inherited from Belushi.
The husband is involved in the entertainment industry and, prior to the marriage, had, among other things, written, produced and co-directed a successful television miniseries, produced a concert television special, and written scripts or concepts for several full length screenplays, one of which was sold to a studio. The husband had also negotiated various business transactions regarding production, residual rights, and intellectual property and royalty payments for himself and his production company.
The great comedian may be gone but the money stream continues
The wife stated that her right to receive the royalties and residuals, as well as her right to exploit the name and likeness of her late husband and the Blues Brothers, represent valuable assets, albeit assets that are difficult to value as it is "impossible to predict with any degree of accuracy what income stream they might generate in the future." Although there was fluctuation in the amounts of income received by the wife from her intellectual property interests, the amounts were substantial.
The court here affirmed the enforcement of the prenuptial agreement over the husband's objections and dismissed his request for sanctions. (Mike Frisch)
Thursday, May 28, 2015
The Mississippi Supreme Court has held that an out-of-state paramour had insufficient contacts with the state to permit long-arm jurisdiction over an alienation of affections suit.
This is an alienation-of-affections lawsuit brought against a nonresident paramour over whom our courts have personal jurisdiction under the Mississippi long-arm statute. But because the paramour did not make purposeful minimum contacts with Mississippi that were sufficient to satisfy the Due Process Clause of the Fourteenth Amendment, we reverse the circuit court’s denial of the paramour’s motion to dismiss for lack of personal jurisdiction and we render judgment dismissing the plaintiff’s complaint and this action for lack of personal jurisdiction over the paramour.
Phillip was married to Paige and had an affair with Francesca as well as with an unnamed fitness instructor.
Francesca could not be sued because she was under the mistaken impression that Phillip was from Tennessee
The record in this case includes no evidence whatsoever that Francesca ever purposefully made any contact—minimum or otherwise—with Mississippi. She had an affair (never in Mississippi) with a man (a) who worked in Memphis for a Memphis-based corporation; (b) whose cell phone had a Tennessee area code; (c) who sent her packages using a Tennessee return address; (d) who drove a truck with a Louisiana license plate; and (e) who asked her to meet him in “MEM” so they could disclose the affair to his wife...
It is uncontroverted that Francesca never knew of Phillip’s home in Mississippi. There is no evidence in the record to suggest that Francesca knew or should have realized her calls and texts to Phillip’s Tennessee telephone number would be received in Mississippi. And while Francesca certainly should have known her affair with a married man might break up a marriage somewhere, there is nothing in the record to suggest she knew or should have known the marriage would break up in Mississippi.
Presiding Justice Randolph disagreed and would find that Francesca's conduct was sufficiently purposeful to invoke the power of Mississippi
Were the contacts between [Francesca]... and Phillip purposeful? Yes. Were [Francesca's] contacts with a resident of Mississippi? Yes. Did the complaint allege that a tort was committed, in whole or in part, in Mississippi? Yes. Our law requires no more to exercise in personam jurisdiction, other than to conduct a due process analysis of fair play and substantial justice. Today’s outcome achieves neither...
Today’s case presents a claim of injury which arose out of and is related to communications through cell phone calls, text messages, and emails. Considering the contacts have been admitted, Paige has a right to seek redress for damages related to those contacts.
Justice Pierce joined the dissent.
Paige divorced Phillip and has moved to Texas.
This 2012 Mississippi College Law Review article discusses the tort. David Neil McCarty correctly predicted
Recent rulings from the Mississippi Supreme Court make clear that the tort is here to stay and is evolving to meet the digital contours of the twenty-first century.
The article also favors adoption of the tort beyond the six states that recognize the action. (Mike Frisch)
Incurred and future legal fees to defend criminal charges against former Massey Energy chief Don Blankenship must be paid by the company that acquired Massey, according to a Delaware Court of Chancery decision issued today.
This advancement action involves some unusual facts but an all too common scenario: the termination of mandatory advancement to a former director and officer when trial is approaching and it is needed most.
Plaintiff Donald L. Blankenship is the former Chief Executive Officer and Chairman of Massey Energy Company, which is now known as Alpha Appalachia Holdings, Inc. (“Massey”). Blankenship held those positions when there was a tragic explosion at a Massey subsidiary’s coal mine in West Virginia in April 2010, killing 29 miners. In June 2011, after Blankenship had retired from Massey, Alpha Natural Resources, Inc. (“Alpha”) acquired Massey. For several years after the explosion, Massey and Alpha (together, the “Defendants”) honored Blankenship’s rights to advancement and paid his legal expenses relating to various civil proceedings and a federal criminal investigation that had been launched as a result of the explosion.
Alpha paid his fees until he was indicted. The decision to stop paying counsel's bills came after Alpha had sought advice from Cleary Gottlieb
In the wake of the indictment, Alpha stopped paying Blankenship’s legal fees. Alpha management, with approval from Alpha’s board of directors, then initiated a process to review the company’s indemnification and advancement obligations to Blankenship. Alpha focused on an unusual undertaking Blankenship had signed in April 2011 (the “Undertaking”), which states, in relevant part, that Massey’s indemnification and advancement obligations to Blankenship are “contingent upon [certain] factual representations and undertakings,” including a representation that, in performing his duties as a director and officer of Massey, Blankenship “had no reasonable cause to believe that [his] conduct was ever unlawful.” In late January 2015, after a process described below, Philip Cavatoni, an Alpha officer and Massey director, determined that Blankenship had breached that representation (the “Determination”). Based on the Determination, Alpha asserts that Blankenship is no longer entitled to advancement of any of his legal expenses from Massey.
Alpha must pay
Defendants must (1) advance Blankenship’s unpaid legal expenses incurred in connection with the federal criminal investigation and the Criminal Proceeding and (2) pay his reasonable expenses of litigating this action. Counsel shall confer and submit an implementing order within five business days, providing for the foregoing payments to be made within ten business days of entry of judgment.
Defendants have not advanced any substantive argument that the aggregate fees that have not been paid (approximately $5.8 million as of April 1, 2015) are unreasonable. Nor have they identified, in my view, any “gross problem” or other legitimate reason that would warrant injecting a special master to “perform the task of playground monitor, refereeing needless and inefficient skirmishes in the sandbox.” Disputes over the reasonableness of Blankenship’s expenses in the Criminal Proceeding can ultimately be resolved when any determination on indemnification is made
Blankenship is represented by the Zuckerman Spaeder firm. (Mike Frisch)
Monday, May 11, 2015
The case was described in this post by Alyson Palmer of the Daily Report
As recounted in briefs for both sides, the advertisement said the government had cited a nursing facility, Heritage Healthcare of Toccoa, "for failing to assist those residents who need total help with eating/drinking, grooming and personal and oral hygiene." The ad rhetorically asked whether readers' loved ones had suffered bedsores, broken bones, unexplained injuries or death. Providing the firm's contact information, the ad invited anyone concerned that a loved one was being "neglected or abused" at the facility to call McHugh Fuller.
The day after the ad ran, the owner of the facility, PruittHealth-Toccoa, sued the law firm in the Mountain Circuit Superior Court. Beside citing Georgia legal ethics rules on advertising and contacting prospective clients, the complaint alleged the ad had violated Georgia's version of the Uniform Deceptive Trade Practices Act because it was false and misleading. The nursing home company initially requested damages but later amended its complaint to seek only injunctive relief.
Superior Court Judge B. Chan Caudell promptly granted PruittHealth's request for a temporary restraining order prohibiting the law firm from running similar advertisements, then set the case for a hearing a little less than a month later.
In its defense, the firm pointed to a 2012 inspection report by the Department of Health and Human Services' Centers for Medicare & Medicaid Services. That report listed multiple deficiencies at the site under the heading "Assist those residents who need total help with eating/drinking, grooming and personal and oral hygiene." In particular, the document referred to one resident not having access to mouthwash in her room and another resident's long, dirty fingernails.
At the close of the hearing, Caudell found the ad was misleading and deceptive because it said the nursing facility had been cited "for failing to assist" residents in certain areas, while the government report did not use that "failing to" language in its report. He later issued a written order prohibiting McHugh Fuller from publishing or causing the ad to be published in the future and giving the firm 20 days to make sure any electronic posting of the ad by the newspaper was removed.
The law firm appealed to the Georgia Supreme Court, raising several arguments. The firm says that Caudell abused his discretion in finding the ad false and misleading. But the law firm also raises a procedural argument, saying it didn't have advance notice that the judge was going to make a final decision in the case based on the May 2014 hearing. McHugh Fuller later filed a separate appeal complaining that Caudell had excluded from the appellate record materials that the law firm thought should be included.
The court found that the trial court had erred in granting a permanent injunction without clear notice to the law firm that such an order was contemplated. (Mike Frisch)
Tuesday, April 28, 2015
The Maryland Court of Special Appeals has held that the litigation privilege requires dismissal of an action brought by a party ("OBG") who had settled a claim with a mutual non-disparagement clause.
After the settlement, the other party went to trial against another defendant.
This claim was based on OBG's contention that the plaintiff's attorney violated the provision in opening statement by accusations against the defendant who had settled.
Well over 100 years ago the Court of Appeals recognized in Maryland common law an absolute litigation privilege that immunizes litigation participants from liability in tort for words spoken or written in the course of a judicial proceeding. It crafted an absolute litigation privilege for Maryland that is a hybrid of the English and American versions of that privilege. Lawyers are protected by the American version, which immunizes them from liability in tort for words spoken or written in the course of a judicial proceeding so long as the words are relevant to the proceeding... (citations omitted)
Lawyers are duty bound by the Maryland Lawyer’s Rules of Professional Conduct to zealously advocate for their clients, which includes introducing evidence that supports their clients’ positions and presenting argument in furtherance of their clients’ claims or defenses. See Preamble to MRPC (“as advocate, a lawyer zealously asserts the client’s position under the rules of the adversary system.”). The specter of civil liability for words spoken or written in the course of a judicial proceeding will inhibit lawyers from abiding by their professional obligation to advocate zealously, imperiling the rights of their clients. See T. Leigh Anenson, “Absolute Immunity from Civil Liability: Lessons for Litigation Lawyers,” 31 Pepp. L. Rev. 915, 922 (2004); see also Greenberg Traurig, LLP v. Frias Holding Co., 331 P. 3d 901, 903 (Nev. 2014) (explaining that “[t]he policy behind the [litigation] privilege, as it applies to attorneys participating in judicial proceedings, is to grant them as officers of the court the utmost freedom in their efforts to obtain justice for their clients.”) (internal quotation marks and citations omitted) (alteration in Greenberg).
Thus, the contentions at the trial were immunized from the assertion that they violated the non-disparagement clause.
The court also affirmed the trial court's denial of a motion to disqualify counsel as a necessary witness.
Judge Nazarian dissented
The ultimate question...is whether the City agreed, as part of settling its differences with OBG, not to disparage OBG in the Plant Upgrade Case. The outcome of that question depends in the first instance on what the parties intended the non-disparagement clause to cover. The circuit court erred in dismissing the case in the face of that looming factual dispute, and I would reverse and remand on that basis. From there, I would hold that the City could well have agreed to limit its litigation positions in the ongoing litigation, whether viewed as a positional or tactical decision or as a waiver of the litigation privilege, and direct the circuit court on remand to address OBG’s claims against that backdrop. And for those reasons, I respectfully dissent.
Monday, March 30, 2015
The New Jersey Appellate Division has held that a corporation convicted at trial and declared indigent by the trial judge is not entitled to a public defender on appeal at public expense.
Western World, Inc. was indicted for crimes arising from a shooting during a reenactment of a gunfight at Wild West City. The corporation was represented at trial by private counsel, who negotiated a plea deal.
The plea deal preserved an appeal issue.
The Office of the Public Defender noted the appeal but sought to be relieved, citing its limited resources.
The defendant had opposed the motion.
The court did reaffirm a corporation's right to be represented by counsel under federal and New Jersey law. (Mike Frisch)
Wednesday, February 11, 2015
Appeal Dismissed: Dissent Contends Dismissal Encourages Discovery Violations Against Law School Clinic Clients
The Ohio Supreme Court has dismissed an appeal and, according to a dissent, endorsed the proposition that fees for discovery violations cannot be awarded to law school clinics as such clinics charge no fees to their clients.
Justice Pfeifer's dissent
As can happen, something we said in one context, where it made sense, is being applied in another context, where it does not. In State ex rel. Citizens for Open, Responsive & Accountable Govt. v. Register, 116 Ohio St.3d 88, 2007-Ohio-5542, 876 N.E.2d 913, we stated that “an award of attorney fees as a sanction for a discovery violation must actually be incurred by the party seeking the award.” In that case, there was an ongoing dispute involving compensated attorneys, and an award of attorney fees made sense only if additional fees had actually been incurred. Nothing in that opinion suggests that we were deciding the issue with respect to every situation involving discovery sanctions that might possibly arise in Ohio.
Legal services can be rendered in Ohio by legal interns, including, as here, those working for a law-school clinic. Gov.Bar R. II. In that special context, legal fees are not allowed. Gov.Bar R. II(6) (“A legal intern shall not ask for or receive any compensation or remuneration of any kind from a financially needy client * * *.”)
The lower court’s opinion, as allowed to stand, holds that discovery sanctions can never be granted when the prevailing party is represented by a law-school clinic because attorney fees cannot be incurred by a clinic’s client. Such a conclusion reads too much into Register, an opinion that had nothing to do with law-school clinics and legal interns. Moreover, the holding allows parties to commit discovery violations with some level of impunity. It is also contrary to Gov.Bar R. II(6), which states that a law-school clinic “may be awarded attorney fees for services rendered by the legal intern consistent with the Ohio Rules of Professional Conduct and as provided by law.” Attorney fees as sanctions for discovery violations are attorney fees “provided by law.”
By dismissing the appeal as improvidently accepted, this court is implicitly endorsing a decision that allows attorneys opposing law-school clinics to commit discovery violations without fear of economic sanctions, subverting Gov.Bar R. II(6), and devaluing the efforts of hundreds of legal interns and licensed attorneys who provide pro bono legal services throughout this state.
I would reach the merits of the case before us and reverse the judgment of the court of appeals. I dissent.
Justices French and O'Neill joined the dissent. (Mike Frisch)