Wednesday, July 20, 2016
The Delaware Court of Chancery imposed significant sanctions for destruction of evidence and lying under oath in a partnership dispute
Elizabeth Elting and Philip Shawe are the co-founders and co-CEOs of TransPerfect Global, Inc. (“TPG” or the “Company”). As chronicled in a post-trial decision issued last year, their management of the corporation devolved into a state of dysfunction. Emblematic of the deep divisions and fundamental distrust between them, virtually every aspect of this litigation has been turbulent, with each side filing motions for sanctions against the other. This decision resolves the sanctions motion Elting filed against Shawe based on an evidentiary hearing that was held earlier this year.
As explained below, clear evidence adduced at the sanctions hearing establishes that Shawe acted in bad faith and vexatiously during the course of the litigation in three respects: (1) by intentionally seeking to destroy information on his laptop computer after the Court had entered an order requiring him to provide the laptop for forensic discovery; (2) by, at a minimum, recklessly failing to take reasonable measures to safeguard evidence on his phone, which he regularly used to exchange text messages with employees and which was another important source of discovery; and (3) by repeatedly lying under oath—in interrogatory responses, at deposition, at trial, and in a post-trial affidavit—to cover up aspects of his secret deletion of information from his laptop computer and extraction of information from the hard drive of Elting’s computer.
Shawe’s actions obstructed discovery, concealed the truth, and impeded the administration of justice. He needlessly complicated and protracted these proceedings to Elting’s prejudice, all while wasting scarce resources of the Court. Accordingly, Elting’s motion for sanctions is granted. Shawe will be required to pay a significant portion of her attorneys’ fees and expenses...
In October 2013, Elting hired Kramer Levin Naftalis & Frankel LLP to try to negotiate a resolution of the increasingly acrimonious disputes that had been brewing between Shawe and Elting for some time over their management of the Company. This enraged Shawe. Rather than hire his own counsel and engage in a mature dialogue, Shawe undertook a campaign to spy on Elting in pursuit of what had become a personal battle in which Shawe was determined to get his way over Elting at all costs, even if (to use Shawe’s words) it meant “shutting down” or “dismantling” the Company.
Shawe initially directed employees to intercept Elting’s regular mail, including her correspondence with Kramer Levin, and to monitor her phone calls. By the end of December 2013, Shawe’s surreptitious monitoring of Elting had expanded to include her private emails, including those with her counsel.
What follows is a tale of corporate espionage that is almost cinema-worthy and which, among other things, led to improper access to over 12,000 privileged emails.
The record also shows that Shawe has a demonstrated propensity to use subordinates firmly under his control to do dirty work for (and with) him in secret, off the grid, and usually late at night. He turned to Wudke late on New Year’s Eve (and other occasions) to extract files from Elting’s hard drive and told him not to document what he was doing even though he insists it was part of a legitimate “corporate” investigation. He hired Richards as his “personal paralegal” at the princely rate of $30,000 per month despite having a number of reputable law firms with vast resources at his disposal, and immediately tasked him with photographing Elting’s office and removing documents from it in the wee hours of the morning. When it came to his iPhone, he turned to another trusted subordinate, Campbell, who sits next to him in the same office in New York. Given Shawe’s modus operandi and Campbell’s farcical explanation of what happened to the phone when Elting was pressing for discovery of Shawe’s text messages, it is more likely that Shawe told or otherwise made it clear to Campbell to get rid of the phone. In any event, whether Shawe did so or not is of no moment because, at a bare minimum, he recklessly failed to take appropriate measures to preserve the phone so that genuine efforts to recover information from it could have been utilized.
One rather notable aspect of this mess
Shawe is the co-CEO of a company specializing in e-discovery, which employs personnel qualified to conduct forensic recovery of damaged devices, and which has relationships with other professionals who can assist if needed. Shawe was represented by an able team of counsel, who engaged a forensic computer expert and who easily could have engaged an expert in data recovery if Shawe had been genuinely interested in trying to recover evidence on his phone. Faced with an embarrassment of riches in terms of professionals to whom he could turn to recover data from his phone, Shawe instead inexplicably chose to give the phone to a subordinate under his control who had no forensic training in retrieving data from a phone. Campbell’s sole experience is that his own phone once fell into a toilet and it worked after he let it dry. To top it off, Shawe gave the phone to Campbell without providing him even minimal instructions about why he wanted him to attempt to revive the phone, the need to preserve the evidence given the pending litigations, or even about ensuring an appropriate chain of custody.
Crain's New York Business provides details on the co- CEO relationship and its fallout, which they called The TransPerfect Storm
Shawe and Elting started the company in 1992 in their New York University dorm room. In 1996, the pair got engaged, but Elting called it off a year later and married someone else in 1999. (Shawe married in 2011.) The two split their business 50-50 and built one of the nation’s leading translation companies, with 92 offices in 86 countries housing 3,500 full-time employees, plus a network of 10,000 translators, editors and proofreaders working in about 170 languages.
All was sweetness and light in public between Shawe and Elting, but behind the scenes the former lovers came to loathe one another. They frequently cursed each other out in f-bomb-laden emails, and Elting once ended a meeting by dumping a pitcher of water onto Shawe. "Don't call me in ... and start f--king with me for no reason!" Shawe growled in one email to Elting, who fired back, "If sharing feedback on a potential acquisition is no reason, you’re a f--king idiot." People who know them say Elting and Shawe cursed each other out as their way of communicating.
Monday, July 11, 2016
The Virgin Islands Supreme Court vacated an order appointing the Chief Territorial Public Defender as counsel in a complex criminal case. The trial court may appoint the Office to a case but may not designate the particular attorney assigned.
The defendant initially had retained counsel
In 2008, Miller was charged with a litany of offenses, including violations of the Criminally Influenced and Corrupt Organizations Act, 14 V.I.C. § 600 et seq. (“CICO”). Miller’s trial on these crimes commenced in May 2011, in which he was represented by the law firm of Dudley Clark & Chan, LLP. Following five days of deliberations, the jury was unable to reach a unanimous verdict, which resulted in the trial court declaring a mistrial on June 24, 2011.
The firm was thereafter permitted to withdraw for nonpayment of fees.
A public defender was appointed but withdrew due to a claimed conflict of interest.
The court did not find an actual conflict of interest, but nevertheless relieved Attorney Leycock from the case because it concluded that there existed a potential for a conflict of interest which warranted Attorney Leycock’s withdrawal. The court simultaneously ordered, “Chief Public Defender Samuel Joseph, Esq., is appointed to personally represent Defendant Miller.” (JA at 154.) Lastly, the court directed Attorney Joseph to create an “ethical wall” within the Office of the Territorial Public Defender to ensure that Miller received conflict-free representation.
At the beginning of the following year, on January 27 and 28, 2014, Attorney Joseph filed two motions to be relieved as counsel, raising substantially the same two issues. First, Attorney Joseph challenged the legal efficacy of the “ethical wall” which had been ordered by the court. Attorney Joseph argued that members of the Public Defender Administration Board and employees of the Office of the Territorial Public Defender had relationships with related defendants which gave rise to conflicts of interest, and he posited that those conflicts were imputed to the entire office. Attorney Joseph also contended that, under 5 V.I.C. § 3503(a), the Superior Court lacked the requisite authority to select an individual public defender to represent an indigent defendant, adding that such an order was disruptive to the operation processes of the Office of the Territorial Public Defender.
The court decided the appeal on its merits
In his brief, Attorney Joseph informs that Attorney Leycock is no longer employed by the Office of the Territorial Public Defender, and concedes that the conflict-of-interest issue pertaining to Attorney Leycock’s representation of Miller is now moot. (Appellant’s Br. at 15.) Therefore, we proceed to address the sole remaining issue submitted for this Court’s review: whether the Superior Court exceeded its authority by specifically assigning Attorney Joseph to represent Miller in the criminal proceedings attendant to this appeal.
The trial court exceeded its authority by appointed the Chief rather than the Office
Admittedly, the trial court was justified in being concerned about the history of counsel involved in the representation of Miller, and we acknowledge the Superior Court’s emphasis on providing conflict-free representation for Miller. Nevertheless, choosing a specific public defender was not the appropriate solution for addressing the court’s concerns, as the order superseded the role of the Chief Public Defender and violated the separation of powers doctrine. See State ex rel. Robinson, 48 S.W.3d at 69-70 (while the trial court had a legitimate interest in “break[ing] the chain of continuances made by withdrawing defenders,” and ensuring that defendant’s case proceeded to trial without further delays, “[t]he trial court acted in excess of its authority” when it appointed specific public defenders to represent the defendant). It is the Chief Public Defender—and not the court—who possesses statutory managerial authority, and is best positioned to assess the Office’s resources and experience of its lawyers, in achieving effective case management...
Upon a finding of a defendant’s indigence, the Superior Court may appoint the Office of the Territorial Public Defender as counsel. However, the court lacks the statutory authority to order that a specific public defender be assigned to represent a defendant. Accordingly, we vacate the court’s orders appointing Attorney Joseph to represent Miller in the underlying criminal proceedings and remand this case so that the Superior Court may appoint the Office of the Territorial Public Defender, leaving the determination as to the specific attorney to be assigned to Miller to be made within the discretion of the Chief Public Defender.
The Connecticut Appellate Court upheld judgment against a law firm LLC but not an individual attorney in an action brought by a court reporting services for non-payment of its bill for three depositions in a federal court action.
The court expressed concern over the defendant attorney's reliance on purported New York law
Perhaps more troubling than the lack of legal analysis is the apparent mischaracterization of New York law. According to the defendants, in all judicial departments of the Appellate Division of the New York Supreme Court, with the exception of the First Department, the law is that the client is responsible for court reporting costs unless those costs are specifically acknowledged and assumed by the attorney. In the First Department, the defendants state that the responsibility for payment lies with the attorney unless disclaimed. The case relied on by the defendants, however, in support of their proposition that, in all but the First Department, an attorney’s client generally is responsible for paying for court reporting services, Sullivan v. Greene & Zinner, P.C., 283 App. Div. 2d 420, 723 N.Y.S.2d 869 (2001), is no longer good law. Its holding has been superseded by New York General Business Law § 399-cc (McKinney 2012), which is now the applicable law in all New York jurisdictions. Section 399-cc provides in relevant part: ‘‘Notwithstanding any other provision of law to the contrary, when an attorney of record orders or requests either orally or in writing that a stenographic record be made of any judicial proceeding, deposition, statement or interview of a party in a proceeding or of a witness related to such proceeding, it shall be the responsibility of such attorney to pay for the services and the costs of such record except where . . . the attorney expressly disclaims responsibility for payment of the stenographic service or record in writing at the time the attorney orders or requests that the record be made.’’ (Emphasis added.) As previously discussed, the court found that the defendants failed expressly to disclaim responsibility for payment at the time services were requested. Accordingly, even if the court had applied New York law as the defendants requested, it is unlikely to have altered the court’s decision in this case.
But only the firm is liable
Our review of the record and the findings of the trial court reveals no evidence indicating that [attorney] Lovejoy acted in his individual capacity rather than as a member of the law firm. Although each of the deposition notices was signed by Lovejoy, his signature appears after the name of the law firm, which is identified as the entity representing Ensign Yachts and, therefore, the law firm noticing the deposition. Accordingly, to the extent that the deposition notice represents an offer to enter into a contractual agreement, the evidence tended to show that offer was extended to the plaintiff by the law firm, not by Lovejoy individually. The court in its decision makes no factual findings on which it could have imposed individual liability. The court’s decision is completely silent as to whether the court believed that Lovejoy had acted in such a way as to suggest he was contracting in his individual capacity or that it was appropriate under the facts of this case to somehow ‘‘pierce the corporate veil.’’ The plaintiff states that Lovejoy is a sole practitioner and that he and the law firm are ‘‘one and the same.’’ That fact alone, however, simply cannot support the imposition of individual liability in contravention of § 34-133. Because there appears to be insufficient evidence to support the court’s decision to hold Lovejoy personally liable for acts taken on behalf of his law firm, that decision cannot stand.
Thursday, June 23, 2016
The Washington State Supreme Court today held that a convicted juvenile defendant who continued to maintain his innocence can be compelled to write a letter of apology to the victim.
A letter of apology demonstrates a recognition and acceptance of responsibility for harmful actions. Such a condition is reasonably necessary for K.H.-H. to recognize what he did was wrong and to acknowledge his behavior.
Additionally, an apology letter recognizes the victim's interest in receiving an apology from the perpetrator. An apology allows the victim to hear an acceptance of responsibility from the very person who inflicted the harm. This is particularly important where both the victim and perpetrator are juveniles, and demonstrates to both the significance of giving and receiving an apology for wrongful acts. This further advances the rehabilitative goals of the statute.
The outward manifestation of accepting and apologizing for the consequences of one's actions is a rehabilitative step that attempts to improve K.H.-H.'s character and outlook. Such a condition is reasonably related to the purpose of K.H.-H. 's rehabilitation and the crime here.
One must face the consequences of a conviction, which often include the loss or lessening of constitutional rights. There is a whole range of constitutional rights that can be affected by a conviction, not the least of which is a loss of liberty. There may be a limitation on the degree to which First Amendment rights may be restricted for those convicted of crimes, but an apology letter condition does not approach that limit. We affirm.
There is a dissent from Justice McCloud
The juvenile court's forced apology condition fails under any First Amendment test other than the majority's highly deferential, rational-relationship test borrowed from language in Clark. Under the Supreme Court's test in Martinez, the government cannot restrict the content of a prison inmate's speech in this context unless the restriction "further[ s] an important or substantial governmental interest" and is narrowly tailored so that it infringes on "no greater [speech] than is necessary or essential to the protection of the particular governmental interest involved." 416 U.S. at 413. The compelled confession and apology in this case fails that narrow tailoring requirement. Under the test we articulated in Bahl, the condition must be '"reasonably necessary to accomplish the essential needs of the state and public order."' Bahl, 164 Wn.2d at 757 (internal quotations marks omitted) (quoting Riley, 121 Wn.2d at 37-38). The compelled confession and apology in this case fails that requirement also. In fact, under controlling Supreme Court precedent, compelled speeches and pledges are probably the worst ways to teach remorse or anything else: "A person gets from a symbol the meaning he puts into it, and what is one man's comfort and inspiration is another's jest and scorn." Barnette, 319 U.S. at 632-33. I respectfully dissent.
Tuesday, June 21, 2016
The Ohio Supreme Court weighs in on the seemingly endless saga of Stanley Chesley
The Boone County, Kentucky, Circuit Court has entered a multimillion dollar judgment against former attorney Stanley M. Chesley. Denied relief from the judgment by the Kentucky courts, Chesley has turned to the courts of Ohio to thwart collection of the judgment and relitigate the case. And Chesley has found a receptive audience in the respondent, Hamilton County Common Pleas Court Judge Robert Ruehlman. In Chesley v. Ford, Hamilton C.P. No. A1500067, Judge Ruehlman has repeatedly acted to shield Chesley and his assets from creditors, despite a patent lack of jurisdiction.
Relator, Angela M. Ford, seeks a writ of prohibition to preclude Judge Ruehlman from continuing to exercise jurisdiction over the Hamilton County case. Chesley and his former law firm, as intervenors, oppose this request on the merits and also based on a claim of mootness. We grant a peremptory writ of prohibition and order Judge Ruehlman to vacate his orders. We deny Ford’s request for a writ of mandamus.
The court was highly critical of the Ohio judge's pro-Chesley rulings
Chesley’s complaint asked the court to impose conditions on Ford, as attorney for the judgment creditors, for domesticating the Kentucky judgment that far exceed the statutory requirements. The Ohio Enforcement of Foreign Judgments Act does not require judgment creditors to calculate and disclose their respective shares of the judgment, detail the amounts and dates on which they recovered money from other sources, or disclose the amount of money retained by their attorney. But Chesley requested all these disclosures and more as a precondition to allowing Ford and her clients to even file their judgment in Ohio. And whereas the act provides a 30-day grace period after the foreign judgment is filed, Chesley demanded a 90-day halt to collection efforts after all these reports were provided. There is no statutory authority for any of this relief.
Despite his patent lack of authority, Judge Ruehlman granted this relief and more. Whereas Chesley sought to impose preconditions on the filing of the foreign judgment, Judge Ruehlman’s preliminary injunction order barred Ford and the creditors from filing the judgment in Ohio altogether, with no mention at all of any conditions that, if satisfied, would lift the prohibition.
We see no basis whatsoever for Judge Ruehlman’s assertion of jurisdiction to inject himself into the collection process. A common pleas court has jurisdiction over a foreign judgment “once that judgment is filed in accordance with R.C. 2329.022.” Doser v. Savage Mfg. & Sales, Inc., 54 Ohio App.3d 22, 560 N.E.2d 782 (8th Dist.1988), syllabus. But the Abbott creditors had not yet filed the judgment in Ohio; in fact, they were forbidden to do so by Judge Ruehlman. And now that this court has stayed Judge Ruelhman’s order, the claimants have domesticated their judgment and the case has been assigned to Judge Martin.
Justice Pfeifer dissented
I dissent because there were two more appropriate remedies available to relator, Angela M. Ford.
First, she could have filed an affidavit of disqualification against Judge Ruehlman with Chief Justice O’Connor. Second, having failed to do that, she should have been required to seek a remedy by way of appeal after a final, appealable order had been rendered.
The court's order is linked here.
Saturday, June 18, 2016
The web page of the District of Columbia Courts announces
The District of Columbia Judicial Nomination Commission (JNC) has designated Judge Robert E. Morin to serve as Chief Judge of the Superior Court of the District of Columbia. Judge Morin will assume the office on October 1, 2016.
In addition to Judge Morin, the Commission considered four other candidates, including Judge Judith Bartnoff, Judge Erik P. Christian, Judge Hiram Puig-Lugo, and Judge Lee F. Satterfield, who currently serves as the D.C. Superior Court chief judge.
Judge Morin's career has been diverse, serving both in private practice as well as in numerous public interest organizations, including D.C. Law Students in Court Program, the Southern Center for Human Rights, and the Office of the Public Defender for the State of Maryland. In 1996 he was nominated by President Clinton and appointed to the D.C. Superior Court.
During his 20 years on the court, Judge Morin has served in the criminal division, civil division, and family court, and was the presiding and deputy presiding judge of the criminal division. He was responsible for the reform and management of the Criminal Justice Act Panel of attorneys, which helped significantly improve the quality of legal representation of indigent persons. In addition Judge Morin served on and led numerous court committees.
In making the designation, the JNC reviewed the results of background investigations, interviews, public comments, and each candidate’s statement of interest, experience, qualifications, and judicial temperament. It also considered interest and experience in court administration, ethics, commitment to diversity, leadership skills, ability to advocate for and promote confidence in the court system, intellectual leadership, and their visions for the court, including plans for addressing the challenges facing the court in the next four years.
The JNC received an unprecedented 700-plus letters, evaluations, and calls from a diverse group of members from the bench, bar, and public on the fitness of the candidates.
There are a number of significant changes in personnel about to take place in the District of Columbia Bar (more to follow on this subject).
In my view, Judge Morin will perform his duties as Chief Judge in a manner that will reflect great credit on the city judiciary. A great choice. (Mike Frisch)
Thursday, May 26, 2016
"With some dismay." the District of Columbia Court of Appeals has remanded and directed mediation of a FOIA claim by the Fraternal Order of Police ("FOP") against the District that had been dismissed as fulfilled by the trial judge.
On September 24, 2010, FOP submitted a FOIA request to both the Metropolitan Police Department ("MPD") and the Office of the Chief Technology Officer ("OCTO"). FOP requested three categories of documents in the possession, custody and/or control‖ of either entity: (1) all email sent to or from Mark Tuohey, including, but not limited to, all email sent to or from his email addresses at two law firms, Brown Rudnick LLP and Vinson & Elkins LLP, and one email address at the Washington D.C. Police Foundation; (2) all email sent to or from Eric Holder, including, but not limited to, all email sent to or from his email address at the law firm Covington & Burling LLP; (3) all email referencing or mentioning the Washington D.C. Police Foundation. FOP stated that it sought documents from these categories generated over a four-year period, from November 1, 2006 to present.
And even though MPD ultimately produced two sets of responsive documents, it did so in a manner apparently designed to ensure defects in production. MPD claimed that its initial production comprised 1,400 pages of documents, but it presented no records to substantiate this claim, even when FOP asserted that MPD had turned over only a few hundred pages. And MPD‘s second production inexplicably took paper form, even though all responsive documents were electronic and could have been produced in that form (as they ultimately were). MPD then divided these hard copies—some 16,000 pages of documents into 25 to 35 envelopes,which it mailed to FOP without advance notice, tracking, delivery confirmation, or proof of mailing. Actions like these suggest that the District, like FOP, is more interested in gamesmanship than in FOIA compliance.
While the text of the D.C. FOIA statute does not require the District and frequent FOIA requesters like FOP to consult in good faith, the course of this litigation illustrates the imperative to do so. We cannot order FOP and the District to end their FOIA feuds, but we can require them to engage in mediation so that they might determine whether settlement is possible, or at least narrow the areas of dispute, before resuming litigation. See D.C. Code § 17-306 (2013 Repl.) (authorizing this court, in the disposition of an appeal, to direct the entry of such appropriate order, judgment, or decision, or require such further proceedings to be had, as is just in the circumstances).
The court rejected the District's interpretation of its FOIA obligations
we reject the District‘s argument that FOP could not challenge in court the adequacy of the District‘s search and production because FOP‘s FOIA request was "void for volume." Instead we conclude that FOP submitted a request that reasonably described the documents it sought, triggering MPD‘s and OCTO‘s obligations under D.C. FOIA to identify and produce responsive material.
And held insufficient the effort to comply
Turning to OCTO, we know even less—nothing, actually—about its steps to fulfill FOP‘s FOIA request, and thus we cannot evaluate the reasonableness of its efforts in this case... Given the paucity of information provided by the District about its searches, we conclude that the District has failed to carry its burden to win summary judgment with respect to the adequacy of its search.
Associate Judge Easterly authored the opinion, joined by Associate Judge Fisher and Senior Judge Nebeker. (Mike Frisch)
Friday, May 20, 2016
The Maryland Court of Appeals has issued its opinion in the Freddie Gray matter
On April 12, 2015, Freddie Gray suffered an injury while in police custody; one week later, he died from those injuries. The State charged six Baltimore City police officers with crimes in connection with the events leading up to Mr. Gray’s death—Officer William Porter, Officer Caesar Goodson, Sergeant Alicia White, Lieutenant Brian Rice, Officer Edward Nero, and Officer Garrett Miller. The first of those officers to face trial was Officer Porter. His trial began on November 30, 2015, and, after the jurors could not reach a verdict, it ended in a mistrial on December 16, 2015. At the heart of this appeal is whether Officer Porter, who the State has indicated it will retry, can now be compelled by the State, before his retrial, to provide immunized testimony against the remaining officers. In the cases of Officer Goodson and Sergeant White, the trial court granted the State’s motion to compel Officer Porter’s testimony. In the cases of Lieutenant Rice, Officer Nero, and Officer Miller, the trial court denied that same motion.
On March 8, 2016, we issued two Per Curiam Orders affirming the judgments of the Circuit Court in Officer Goodson’s and Sergeant White’s cases; reversing the judgments of the Circuit Court in the cases of Lieutenant Rice, Officer Nero, and Officer Miller; and lifting the stays in each case to allow the trials to move forward. We now explain our reasons for those Orders. We hold that the State’s compelling Officer Porter to testify in the trials of his fellow officers, under the grant of use and derivative use immunity, does not violate Officer Porter’s privilege against compelled self-incrimination under the Fifth Amendment to the United States Constitution and Article 22 of the Maryland Declaration of Rights. We further hold that the trial court lacks the discretion to deny a properly pled motion to compel immunized testimony and that the denial of such a motion constitutes a final judgment from which the State can appeal immediately. ..
To summarize, we hold that Officer Porter is the proper party to the State’s appeal because he, not the defendants in the underlying trials, is the party interested in the subject matter of the State’s motion to compel the witness’s immunized testimony. Accordingly, we hold that, because a motion to compel immunized testimony concerns only the State and the witness whose testimony is sought, the denial of the State’s motion constitutes a final appealable order. We further hold that a trial court is required to grant a motion to compel immunized testimony that complies with the statutory pleading requirements; consequently, the court lacks the discretion to question the State’s Attorney’s public interest determination. Finally, we hold that compelling Officer Porter’s testimony in exchange for use and derivative use immunity is coextensive with the scope of his Fifth Amendment privilege against compelled self-incrimination, as well as that privilege also guaranteed by Article 22 of the Maryland Declaration of Rights. For these reasons, we entered Per Curiam Orders on March 8, 2016, affirming the judgments of the Circuit Court in the cases of Officer Goodson and Sergeant White and reversing the judgments of the Circuit Court in those of Lieutenant Rice, Officer Nero, and Officer Miller.
The opinion is authored by Judge Judge Barbera. (Mike Frisch)
Wednesday, March 30, 2016
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.
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)
Monday, March 28, 2016
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.
Tuesday, March 15, 2016
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 —
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.
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.
Wednesday, March 16, 2016
Doors open at 7 p.m., Tip-off at 8:00 p.m.
Gonzaga College High School
19 I Street, NW
Washington, D.C. 20001
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 firstname.lastname@example.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)
Friday, March 11, 2016
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.
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.
Friday, March 18, 2016
Gewirz Student Center
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.
Monday, March 7, 2016
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 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.
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)
Saturday, March 5, 2016
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.
...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)
Saturday, February 27, 2016
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.
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.
Tuesday, January 19, 2016
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 _______.
Thursday, January 7, 2016
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.
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)