Wednesday, May 24, 2017

Ohio Rules Ethnic Intimidation Charges Barred By Double Jeopardy

Dan Trevas on the web age of the Ohio Supreme Court

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Chief Justice Maureen O’Connor concurred in judgment only.

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

Video camera icon View oral argument video of this case.

(Mike Frisch)

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

Wednesday, May 17, 2017

Former Firm May Sue Successor Firm For Failure To Honor Lien

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

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

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

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

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

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

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

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

On the merits

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

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

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

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

 (Mike Frisch)

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

Tuesday, May 16, 2017

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

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

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

The claim

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

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

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


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

(Mike Frisch)

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

Wednesday, May 3, 2017

Vermont Bar Counsel Has A Blog Worth Reading

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Monday, May 1, 2017

Education Or Entertainment On Las Vegas Law?

A decision last Thursday from the Nevada Supreme Court

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

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

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


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

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

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

Consent of defense counsel is not required

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

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

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

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

Tuesday, April 4, 2017

New York Declines To Consider Merits Of Facebook Appeal

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

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

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

Judge Rivera concurred

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

Judge Wilson dissented

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

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

(Mike Frisch)

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

Thursday, March 30, 2017

Records Of Officer In Eric Garner Case Shielded From Disclosure

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

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

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

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

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


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

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

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

(Mike Frisch)

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

Tuesday, March 21, 2017

No Rule 3.7 Exception For Fee Collection Actions

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

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

The story

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

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

The issue

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

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

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

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


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

(Mike Frisch)

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

Tuesday, March 14, 2017

No Standing

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

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


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

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

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

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


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

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

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

Circuit Judge Griffith authored the opinion. (Mike Frisch)

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

Saturday, March 11, 2017

State Bar Proposes Sex With Client Rule In California

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

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

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

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

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

Still, California's proposal was divisive.

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

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

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

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

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

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

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

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

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

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

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

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

(Mike Frisch)

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

Friday, March 10, 2017

Unethical Agreement Enforceable Against Attorney In D.C.

A memorandum opinion issued by Judge John Bates of the United States District Court for the District of Columbia denies a defendant attorney's motion to dismiss and addresses an unresolved issue of D.C. law with respect to fee-sharing agreements with non-attorneys

Allan Gerson, the defendant and an attorney, contracted with Zvi Shtauber, the plaintiff, for Shtauber to provide services to assist Gerson in a lawsuit. Their contract specified a fee-sharing arrangement, where Gerson would share with Shtauber a portion of any contingency fee he earned from the lawsuit. Shtauber alleges that Gerson failed to pay, and now sues for enforcement of that contract, or alternatively for recovery in quantum meruit, and for a declaratory judgment that he is entitled to a portion of Gerson’s fees in the future. Gerson moves to dismiss, arguing that the contract is unenforceable as contrary to public policy because a fee-sharing contract between a lawyer and a non lawyer violates the D.C. Rules of Professional Conduct, and that Shtauber cannot pursue a claim for quantum meruit when there is a contract between the parties. The Court will deny Gerson’s motion.

The court notes that many facts were not in dispute

In 2004, Gerson explored the possibility of suing Arab Bank and other financial institutions “on behalf of victims of genocide and terrorism in Israel and in territories administered by the Palestinian Authority.” Id. Gerson hired Shtauber to assist in the lawsuit. Id. ¶ 6. Shtauber, a resident of Israel, has experience in relevant fields of national security and has served as both the Foreign Policy Advisor to the Israeli Prime Minister and as Israel’s Ambassador to the United Kingdom. Id. Shtauber connected Gerson to an Israeli attorney, David Mena, to help litigate the case against Arab Bank, and provided additional “consulting services” in connection with Gerson’s suit. Id. ¶ 7. 

As to fee sharing

Gerson argues that the fee sharing arrangement is forbidden by the D.C. Rules of Professional Conduct (“Rules”) in effect at the time, and therefore is unenforceable as against public policy. Shtauber responds that the Agreement is not contrary to the Rules, but even if it is, it’s still enforceable.

The Agreement was signed in 2005. At the time, Rule 5.4(a) of the D.C. Rules of Professional Conduct stated: “A lawyer or law firm shall not share legal fees with a nonlawyer” and then provided four exceptions.  See also D.C. Code § 11-2501 (attorneys admitted to the D.C. bar are subject to the Rules). The first two exceptions concern payments to an attorney’s estate after death. The third exception states a “lawyer or law firm may include nonlawyer employees in a compensation or retirement plan, even though the plan is based in whole or in part on a profit sharing arrangement.” Rule 5.4(a)(3). The fourth states that fee sharing “is permitted in a partnership or other form of organization” that meets specified requirements, as laid out in Rule 5.4(b), for a nonlawyer to exercise managerial authority over the firm or have a financial interest in the firm. Id. 5.4(a)(4)...

Rule 5.4(a) clearly prohibits the fee sharing arrangement described here. The Agreement between Shtauber and Gerson states that “Dr. Shtauber’s fees under this Agreement shall be 20% of any and all contingent legal fees” due to the Gerson Group for claimants referred to them by Mena. Agreement ¶ 4. In addition to this arrangement being forbidden by the plain language of Rule 5.4(a), the D.C. Bar has issued an ethics opinion explicitly stating that “[a] payment by a lawyer to another person for the referral of legal business, which is contingent on the lawyer’s receipt of fees from the referred legal business and is tied to the amount of those fees” constitutes fee sharing that is prohibited by Rule 5.4(a). See D.C. Legal Ethics Op. 286 (1998). This does not describe the exact situation here: Shtauber is not being paid directly for referring clients, rather he is being paid a contingent fee with respect to clients referred to Gerson by another attorney, Mena. Nonetheless, Shtauber is being paid “for the referral of legal business” (through an intermediary) that is “contingent on [Gerson’s] receipt of fees from the referred legal business and is tied to the amount of those fees.” Thus the Agreement is likely covered by Ethics Opinion 286, in addition to being forbidden by the plain language Rule 5.4(a).

But the agreement is enforceable

This case raises an open question of District of Columbia law. In light of existing D.C. Court of Appeals precedent, this Court believes that although the Agreement violates the D.C. Rules of Professional Conduct, it is nonetheless enforceable in this particular instance. Moreover Shtauber may seek recovery in quantum meruit as an alternative to damages on the contract. 

The Bar ethics opinion cited is linked here. (Mike Frisch)

March 10, 2017 in Bar Discipline & Process, Billable Hours, Current Affairs | Permalink | Comments (0)

Monday, March 6, 2017

Delaware Court Orders Indemnification And Legal Fee Award

The Delaware Court of Chancery has held that a former corporate officer is entitled to indemnification and legal fees in litigation involving his company

The Company opposes Horne’s demand for indemnification. Specifically, the Company contends that certain of the claims in the underlying litigation did not arise by reason of Horne’s service as an officer of the Company and also that certain of the fees charged by Horne’s counsel are unreasonable. Horne disagrees and seeks summary judgment on his claims for: (i) fees and expenses incurred in successfully defending the underlying litigation, (ii) fees and expenses incurred prosecuting this action, and (iii) pre- and post-judgment interest on all amounts. For the reasons that follow, the motion is GRANTED.

The background

The sordid factual background that gave rise to the underlying litigation was described in considerable detail in the Trial Opinion. My focus here is on the facts necessary to inform the indemnification analysis. In September 2012, a Company employee [Geller] reported to Waite that she and Morelli had engaged in a sexual relationship over a period of time and that she believed Morelli had sexually harassed her. This report prompted a series of responses from Horne and the Director Defendants that ultimately led to Morelli’s removal as CEO. In the underlying litigation, Morelli contended that the defendants had been looking to remove him for years and that the reported sexual misconduct with an employee was merely a pretext to allow the defendants to seize to control of the Company.  He alleged that the defendants bribed and coaxed the female employee to make a false claim of sexual harassment as the first step of their plan and then initiated a bogus investigation of the report to provide cover for the challenge they knew would follow his removal as CEO.

In the Trial Opinion, the Court summarized Horne’s very limited involvement in the sexual harassment investigation and subsequent attempt to remove Morelli as CEO. In essence, Horne gave statements to lawyers charged with leading the investigation and pointed out to the lawyers that a stockholders agreement would have to be amended if the Board decided to remove Morelli in order to prevent Morelli from simply replacing the majority of directors as controlling stockholder and then reinstating himself as CEO. When the Board met to consider Morelli’s removal, Horne was not present and did not otherwise participate.

Morelli sued Horne and others

While the Morelli Complaint named Horne in several counts, the claims actually presented against Horne during the six-day trial were much more limited. Indeed, the trial court recounted how the Plaintiffs had either abandoned or waived nine of the claims they alleged in the Morelli Complaint.  As to Horne, the court noted that the primary claim prosecuted against him at trial was that he aided and abetted the Director Defendants in their alleged breaches of fiduciary duty.  The Trial Opinion characterized the Plaintiffs’ claims as “a shifting target and impossible to defend against without enormous expense” and rejected each claim against against Horne out of hand.

Horne then sued for indemnification and his legal expenses

When determining whether fees are reasonable under Section 145(c), the court considers whether: (1) the expenses were actually paid or incurred, (2) the services were in good faith thought prudent and appropriate by competent counsel, and (3) the rates or charges were comparable to those charged in similar circumstances.  The Company does not dispute that Horne incurred fees. Nor does the Company challenge the rates charged by Horne’s counsel. Instead, the Company challenges certain strategic decisions made by Horne’s counsel during the underlying litigation, including the decision to rely upon a witness declaration that was later deemed to be unreliable and the decision to depose a witness who Defendant alleges did not provide relevant testimony, both of which Defendant alleges “were the product of meritless litigation strategies that Horne abandoned prior to trial, but not before racking up considerable expense.”  The Company’s invitation to nitpick counsel’s strategic decisions in this hotly litigated case where Horne ultimately prevailed on every claim is offered with little grace.

This court will review litigation strategy decisions only if they are “unmistakably unreasonable” and constitute “clear abuse.”  The Company has fallen well short of making this showing. Nor has the Company justified its requests for discovery into the fees or that the Court engage in a line-by-line review of counsel’s bill.  Given the complexity of the issues, the duration and scope of discovery, the extensive pre-trial motion practice and the lengths to which Horne was forced to go to defend himself—at trial and post-trial appeal—it is clear that the requested fees are reasonable on their face.

The earlier opinion is linked here. 

In this action, the CEO and the company return to this Court alleging that the four defendants engaged in a long-running and wide-ranging conspiracy that involved, essentially, everyone who disagreed with the CEO‘s management of the company. The plaintiffs seek approximately $50 million in damages, as well as equitable relief in the form of an extension of the stockholders agreement in order to cement the CEO‘s control for another two years. The alleged wrongs range from nebulous breaches of fiduciary duty based on undermining the company‘s strategic vision to breach of contract claims. After extensive pre-trial proceedings, I tried this matter for six days in February 2015. This Memorandum Opinion ("Opinion") reflects my post-trial findings of fact and conclusions of law, as well as my rulings on certain ancillary motions. Because of the far-ranging claims advanced by the plaintiffs and the number of non-party actors who figure in their narrative, the recitation of the facts is unusually lengthy.

Overall, the plaintiffs seek damages and equitable relief for breach of the duty of loyalty, breach of contract, and tortious interference, and they advance secondary liability theories of aiding and abetting and conspiracy. The defendants deny liability on all counts, argue that there was and is no conspiracy, and contend that the CEO is a paranoid narcissist. The defendants also accuse the plaintiffs of having undermined the integrity of the litigation process by engaging in conduct akin to bribing and tampering with witnesses.

The court found that the plaintiffs engaged in serious litigation misconduct

I recognize that parties have a right to vigorously pursue their claims. I also assume that, misguided as I consider it to be, Morelli and his counsel believe their rhetoric regarding a vast conspiracy to take control of Optimis away from Morelli for the alleged insurgents‘ own self-serving motives. But, even so, the conduct I have described here is beyond the pale. Specifically, I find that Plaintiffs‘ conduct was  "prejudicial to the administration of justice" and has undermined the integrity of these proceedings by materially impacting the Court‘s ability reliably and accurately to find the facts. The crucial allegation underlying Plaintiffs‘ breach of loyalty claims is that Defendants used Geller as a pretext to take over the Company. When deposed, she demolished the reliability of the key statements in the Final Geller Declaration that might support a finding that Defendants engaged in a takeover conspiracy and used Geller‘s sexual harassment claims as a pretext. I, therefore, find it appropriate to disregard, in their entirety, all of the documents in the Geller Settlement and to reject any attempt by Plaintiffs to use those documents affirmatively to impeach Geller or any other witness. Relying on those documents is impossible based on the cynical context and manner in which they were created. As a result of Plaintiffs‘ improper conduct, I instead find credible and reliable what Geller said at her deposition and resolve any doubts about her credibility in favor of Defendants. 

Forward Forensics reported on issues of corporate governance at the company. (Mike Frisch)

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

Tuesday, February 28, 2017

Justice Wisconsin-Style

A majority of the Wisconsin Supreme Court overruled precedent and reversed the Court of Appeals  in order to deny an application to test DNA evidence for exoneration purposes.

The defendant was convicted of murder in 1982 and sentenced to life in prison.

Justice Zeigler for the majority

We conclude that the circuit court did not err in denying Denny's postconviction motion for forensic DNA testing of certain evidence. Consequently, we reverse the decision of the court of appeals.

Chief Justice Roggensack concurred and dissented

Although the majority opinion correctly overrules Moran's interpretation of Wis. Stat. § 974.07(6), in which portion of the opinion I concur and join, I dissent from the part of the majority opinion that concludes that Jeffrey Denny is not entitled to DNA testing of evidence collected at the crime scene. I conclude that Denny met the statutory requirements of Wis. Stat. § 974.07(7)(a); and therefore, the circuit court was required to grant Denny's motion for forensic DNA testing. Accordingly, I respectfully concur in part and dissent in part with, and from, the majority opinion.

Justice Ann Walsh Bradley dissented

[The majority]  now overrules Moran and runs roughshod over the fundamental doctrine of stare decisis. To justify overturning unanimous precedent, the majority unearths a heretofore unknown test which it labels "principles of policy." Majority op., ¶71. Apparently not very convinced of the legitimacy of its own discovery, the majority obscures the application of the new test by tucking it away in a footnote. Id., ¶70 n.16.

In overruling Moran, not only does the majority apply a test that courts have never before used, it also attempts to justify its action by relying on an "imagine[d]" purpose that the legislature never stated. Garnering a trifecta of "nevers," it then embarks upon rewriting the plain meaning of Wis. Stat. § 974.07 by inserting a limitation that the legislature never created...

The rights and interests of crime victims are undeniably important considerations, which the legislature has already addressed through the notice provisions in Wis. Stat.§ 974.07(4). However, relying on an "imagined" policy reason to limit the availability of DNA testing strays too far from subsection (4)'s victim-notification mandate. See State ex rel. Kalal v. Cir. Ct. for Dane Cty., 2004 WI 58, ¶48, 271 Wis. 2d 633, 681 N.W.2d 110. There is nothing in the text of the statute that suggests the legislature intended to limit post-conviction DNA testing due to the speculative concerns the majority identifies here.

Contrary to the majority's assertions, allowing DNA testing does not undermine finality or lead to "the possibility of 'inequitable results'" due to "open[ing] up cases that have long been thought by everyone, including crime victims, to be final." Majority op., ¶70 n.16 (citation omitted). Performing DNA testing on relevant evidence is only the first step in a process where the defendant must next demonstrate that the results of the testing support his claim. See Moran, 284 Wis. 2d 24, ¶47 (allowing DNA testing does not guarantee a new trial or even an evidentiary hearing).

If the DNA test results do not support a defendant's claim, the case is not reopened. And if the DNA testing results do support a defendant's claim of innocence, victims will have little interest in finality if the true criminal perpetrator is still at large. See majority op., ¶70 n.16...

Contrary to the majority, I would adhere to this court's unanimous decision in Moran. The plain meaning of Wis. Stat. § 974.07(6) gives the defendant the right to test, at his own expense, evidence containing biological material that is relevant to the investigation or prosecution that resulted in his conviction. Additionally, the majority errs when it denies Denny the opportunity to test potentially exculpatory evidence by failing to acknowledge how the witness testimony could be undermined by exonerating DNA-evidence.

Justice Abrahamson joined the dissent and wrote separately to raise procedural issues with the majority opinion.

Dare to Think has a post about the underlying criminal case and the potential value of the DNA evidence. (Mike Frisch)

February 28, 2017 in Current Affairs | Permalink | Comments (0)

Saturday, February 25, 2017

Company Needs A Lawyer To Go To Court

The South Carolina Supreme Court held that certain activities of a management business violated proscriptions against the unauthorized practice of law.

The Court accepted this declaratory judgment action in our original jurisdiction to determine whether Community Management Group, LLC; its president, Stephen Peck; and its employee, Tom Moore, engaged in the unauthorized practice of law while managing homeowners' associations. We find Community Management Group engaged in the unauthorized practice of law...

We find Community Management Group engaged in the unauthorized practice of law when it (A) represented associations in magistrate's court, (B) filed judgments in circuit court, (C) prepared and recorded liens, and (D) advertised that it could perform the services we now clarify constitute the unauthorized practice of law.


Rogers Townsend asks that we permanently enjoin Community Management Group from any actions we find were the unauthorized practice of law. An injunction is a drastic remedy, which courts should apply with caution. Hampton v. Haley, 403 S.C. 395, 409, 743 S.E.2d 258, 265 (2013). An injunction should be issued only "where no adequate remedy exists at law." Id. After we issued the temporary injunction, Community Management Group stopped representing associations in magistrate's court, filing judgments in circuit court, and preparing and recording liens without an attorney. Additionally, Peck testified Community Management Group has no interest in resuming these activities. We decline to issue a permanent injunction in this situation.

(Mike Frisch)

February 25, 2017 in Current Affairs | Permalink | Comments (0)

Friday, February 24, 2017

Wisconsin Denies Access To Sheriff Clarke's Immigration Detainer Records

A majority of the Wisconsin Supreme Court reversed the unanimous Court of Appeals and denied access to immigration detainer records sought from Fox News' favorite sheriff David Clarke.

We conclude that I-247 forms are statutorily exempt from disclosure according to the terms of Wisconsin public records law, and therefore, we need not reach common-law exemptions or the public interest balancing test. Stated more fully, under Wis. Stat. §§ 19.36(1)-(2),3 any record specifically exempted from disclosure pursuant to federal law also is exempt from disclosure under Wisconsin law. Federal regulation 8 C.F.R. § 236.6 (2013) precludes release of any information pertaining to individuals detained in a state or local facility and I-247 forms contain only such information.

There is a dissent from Justicxe Ann Walsh Bradley

Wisconsin's Public Records Law "serves one of the basic tenets of our democratic system by providing an opportunity for public oversight of the workings of government." Majority op., ¶17 (citations omitted). Relying on this basic tenet, Voces de la Frontera requests unredacted copies of federal immigration detainer forms issued to Milwaukee County Sheriff David Clarke by Immigration and Customs Enforcement ("ICE").

The circuit court determined that Wisconsin's Public Records Law requires the release of unredacted copies of the detainer forms. It explained that Voces de la Frontera made a compelling case and that Sheriff Clarke offered no good reason to justify any redaction.

The court of appeals affirmed. Noting uncontested facts, it rejected Sheriff Clarke's newly raised argument that an obscure federal regulation, 8 C.F.R. § 236.6, precluded release of the detainer forms

Sheriff Clarke now contends that no detainer forms should be released. He asserts that the forms are statutorily exempt from disclosure and that his office erred when it previously released redacted detainer forms to Voces.

Reneging on previously uncontested facts and relying on a belatedly cited obscure federal regulation——never before applied to state or local detainees——Sheriff Clarke tosses a "hail mary" pass to the Wisconsin Supreme Court.

The majority catches the pass and runs with it, but unfortunately makes no forward progress for the people of this state. Instead, a majority of this court loses ground, yet again chipping away at Wisconsin's long-standing commitment to open government. See, e.g., Democratic Party of Wisconsin v. Wisconsin Dep't of Justice, 2016 WI 100, 372 Wis. 2d 460, 888 N.W.2d 584.

Once more a majority of this court reverses a unanimous court of appeals decision affirming a circuit court order requiring the release of records to the public, further undermining the principle that Wisconsin Public Records Law be construed "in every instance with a presumption of complete public access." Wis. Stat. § 19.31.

This time the majority rewrites a federal regulation by deleting the phrase "on behalf of the Service" from the regulatory language in order to reach its conclusion that yet another public records request must fail. Given the cumulative effect of the majority's approach, one wonders if a day will come when we awake to find that this continuous "chipping away" has substantially gutted Wisconsin's commitment to open government.

Contrary to the majority, I agree with the circuit court that Clark offers no good reason to counter the strong presumption of open access to these public records. I likewise agree with the unanimous court of appeals that the federal regulation does not statutorily exempt immigration detainer forms from release under Wisconsin's Public Records Law. Both the plain language of the federal regulation and its promulgation history establish that it applies only to detainees in the custody of the federal government.

Accordingly, I respectfully dissent

Justice Abrahamson joined the dissent. (Mike Frisch) 

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

Thursday, February 23, 2017

No Suit For Plaintiff Allegedly Tortured For Converting To Christianity

The dismissal of a lawsuit against a church was affirmed by the Oklahoma Supreme Court

The story

This appeal originates from a lawsuit filed by Plaintiff/Appellant John Doe (a pseudonym for Plaintiff) (hereinafter, "Appellant") against Defendants/Appellees The First Presbyterian Church of U.S.A. of Tulsa, Oklahoma, and James D. Miller (hereinafter, "Appellees") alleging breach of contract, negligence, and outrage. Appellant alleges he was born in Syria into the Muslim Faith, but for most of his adult life has resided in the United States. As part of what he refers to as his westernization, Appellant made the decision to convert from Islam to Christianity.

The precise relationship between Appellant and Appellees is disputed, but it is undisputed that Appellant was baptized at his own request at The First Presbyterian Church U.S.A. of Tulsa, Oklahoma (FPC) by James D. Miller (Miller). Appellant alleges he made Appellees aware of the need for confidentiality throughout the conversion process, as he was planning to return to Syria shortly thereafter. Appellant's baptism took place on December 30, 2012, during a service that was open to members and guests of the church, but was not televised. It is undisputed that Appellant was not and never became a member of FPC, before or after his baptism.

Appellant alleges he travelled to Syria almost immediately after his baptism, arriving in Damascus on January 2, 2013. Appellant asserts he was confronted by radical Muslims in Damascus in mid-January, 2013, who had heard of his conversion on the internet. Appellant alleges he was kidnapped, and informed by his kidnappers they were going to carry out his death sentence as a result of his conversion from Islam.

Appellant alleges he was tortured for several days before he was able to escape captivity, killing his paternal uncle in the process. As a result, he asserts he is now wanted for murder in Syria. Appellant alleges he was able to clandestinely make it back to the United States, where he faces continuous death threats. Appellant asserts he suffered numerous physical injuries and psychological damage, all proximately caused by Appellees' publication of his baptism, in contravention of promises they supposedly made to him that it would be kept confidential.

The suit was filed after he returned to the United States.

The court

Recognizing the importance of the autonomy of religious institutions within the framework of the United States legal system, the courts must refrain from undue interference with religious beliefs and practices. Appellant exercised his right to convert to Christianity and accord his religious beliefs with the demands of his conscience. Similarly, Appellees exercised their right to perform the sacrament of baptism in accordance with the doctrine and a custom of the Church. It is not the role of the courts to adjudicate a dispute between Appellant and Appellees over the publication of Appellant's baptism in accord with Church practice, even if Appellant was harmed by his baptism and its subsequent publication. Per the church autonomy doctrine, the courts lack subject matter jurisdiction over the matter. Accordingly, the decision of the trial court is affirmed.

 (Mike Frisch)

February 23, 2017 in Current Affairs | Permalink | Comments (0)

Tuesday, February 14, 2017

Stettiner's Art

The New York Appellate Division for the First Judicial Department affirmed the conclusion that New York has jurisdiction to consider claims related to Nazi art theft

The genesis of this litigation was in 1939, when, with the Nazi invasion imminent, decedent Oscar Stettiner, a Jewish art collector, abruptly fled Paris, leaving his art collection behind. His art collection was later sold by the Nazis, including an early twentieth century painting by the Italian artist Amedeo Modigliani, which Stettiner's heir seeks to recover. The issue before this Court is whether petitioner International Art Center, S.A. (IAC), which purchased the painting in 1996 for $3.2 million, has standing to challenge the ancillary letters of administration issued to the heir's representative for purposes of commencing litigation to recover the painting. We hold that petitioner lacks standing, and that, in any event, the limited ancillary letters were properly issued.

In the immediate aftermath of World War II, the United States and its allies took on the task of locating and returning the many great works of art systematically looted by the Nazis. While millions of works were recovered and returned to the rightful owners, individual Holocaust victims and their heirs have struggled for decades to obtain restitution.

The efforts to recover these treasures have been recently popularized in movies including 2014's "Monuments Men," and 2015's "Woman in Gold," which chronicled Maria Altmann's pursuit of her family's paintings looted in Austria, including Gustav Klimt's "Portrait of Adele" (1907), of which Altmann won restitution following litigation that reached the United States Supreme Court (see Republic of Austria v Altmann , 541 US 677 [2004]).

While this great theft may have taken place more than 70 years ago, a resolution was not possible until a combination of scholarship and technology allowed for the creation of databases compiling lists of missing works, and until nations agreed to international guidelines on art restitution such as those laid out in the 1998 Washington Principles on Nazi-Confiscated Art. Even at the tail end of 2016, the United States Congress felt it necessary to pass additional legislation to aid victims of Holocaust-era persecution and their heirs to recover works of art confiscated or misappropriated by the Nazis, and to ensure that claims to artwork and other property stolen or misappropriated by the Nazis are not unfairly barred by statutes of limitations but are resolved in a just and fair manner. This legislation became law on December 16, 2016 (see Holocaust Expropriated Art Recovery Act of 2016 (Pub L 114-308, 130 US Stat 1524, amending 22 USC § 1621 et seq. ).

The painting at issue is known as "Seated Man With a Cane" (1918) and is currently owned by petitioner. It is alleged to have been confiscated by the Nazis from decedent, who resided in Paris in the 1930s.

Respondents, the Estate of Oscar Stettiner (Estate), Philippe Maestracci, and George W. Gowen, as Limited Ancilliary Administrator of the Estate of Oscar Stettiner, contend that in 1930 decedent Oscar Stettiner purchased a painting, which he subsequently loaned to the 1930 Venice Biennale, a world-famous art exhibition. The painting was listed as number 35 in the exhibition, and, according to respondents, a label on the back of the painting by the Venice Biennale establishes it is the same painting as the one at issue in this case.


IAC also challenges whether the Surrogate's Court had jurisdiction to entertain this matter. SCPA 206(1) provides that the Surrogate's Court has jurisdiction over the estate of any nondomiciliary decedent who leaves property in the state. The Surrogate's Court should decline to exercise jurisdiction only when the controversy in no way affects the affairs of a decedent or the administration of the estate (see Matter of Piccone , 57 NY2d 278, 288 [1982]).

Significantly, although the authority of the Surrogate's Court over a nondomiciliary's estate in an ancillary proceeding is generally limited to estate assets within New York (see Matter of Obregon , 91 NY2d 591, 601 [1998]), property includes a "chose in action," e.g. a cause of action in New York (see SCPA 103[44]).

Accordingly, contrary to IAC's contention, SCPA 206(1) does not require the physical presence of the subject property in New York at the time the proceeding for ancillary letters was commenced. It is sufficient that the Estate had a valid "chose in action" against two New York domiciliaries (the Nahmads), a New York corporation (the Gallery), and IAC, a foreign entity alleged to be owned and controlled by New York residents and doing business in New York.

IAC's reliance on cases where, unlike the "chose in action" here, the estate property was not located in New York is misplaced (see e.g. Leve v Doyle, 6 AD2d 1033 [1st Dept 1956]). IAC similarly misplaces reliance on Obregon which involved the estate pursuing claims against parties and trust assets in the Cayman Islands and not in New York.

Nor is there merit to IAC's personal jurisdiction claim. Initially, Surrogate's Court did not require personal jurisdiction over IAC in order to determine whether or not to revoke the grant of ancillary letters of administration since ICA was not a respondent in that proceeding. In any event, a court may exercise personal jurisdiction over any nondomiciliary who, in person or through an agent, transacts any business within the state or contracts anywhere to supply goods or services in the state or commits a tortious act within the state or regularly does or solicits business or engages in any other persistent course of conduct (CPLR 302[a][1] and [2]). The commission of some single or occasional acts of an agent in a state may be enough to subject a corporation to specific jurisdiction in that state with respect to suits relating to that in-state activity (see International Shoe Co. v Washington , 326 US 310, 318 [1945];Daimler AG v Bauman , __US__, __, 134 SCt 746, 754 [2014]; see also LaMarca v Pak-Mor Mfg. Co. , 95 NY2d 210, 214-216 [2000]).

In this case, personal jurisdiction was acquired based on IAC's admitted agreement with Sotheby's to act as its agent to sell the painting in New York in 2008. Further, personal jurisdiction over IAC may be based on respondents' allegations that IAC transacted business in New York through the Nahmads at the Gallery's office in Manhattan.

(Mike Frisch)

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

Thursday, February 9, 2017

Fees Rules Are Shield Not Sword

The New York Court of Appeals resolved a dispute among attorneys over fees in a case involving an $8 million settlement

In February 2009, Menkes engaged Manheimer to act as co-counsel and provide advice in the action.  Their written agreement provided that Manheimer would receive 20% of net attorneys' fees if the case settled before trial and 25% once jury selection commenced. Neither attorney informed the clients of Manheimer's involvement, although Manheimer believed Menkes had done so.

The co-counsel relationship fell apart

In August 2009, Menkes wrote to Manheimer unilaterally discharging him and advising him that his portion of the fees would be determined on a quantum meruit basis. Manheimer did not respond to Menkes; he did no further work on the case.

The court here affirmed the Appellate Division for the First Department.


We conclude that Menkes's agreements with Manheimer are enforceable and entitle Manheimer to 20% of net attorneys' fees. Menkes's attempt to use the ethical rules as a sword to render unenforceable, as between the two attorneys, the agreements with Manheimer that she herself drafted is unavailing. Her failure to inform her clients of Manheimer's retention, while a serious ethical violation, does not allow her to avoid otherwise enforceable contracts under the circumstances of this case (see Samuel v Druckman & Sinel, LLP, 12 NY3d 205, 210 [2009]). As we have previously stated, "it ill becomes defendants, who are also bound by the Code of Professional Responsibility, to seek to avoid on 'ethical' grounds the obligations of an agreement to which they freely assented and from which they reaped the benefits" (Benjamin v Koeppel, 85 NY2d549, 556 [1995] [citation omitted]). This is particularly true here, where Menkes and Manheimer both failed to inform the clients about Manheimer's retention, Menkes led Manheimer to believe that the clients were so informed, and the clients themselves were not adversely affected by the ethical breach.

The court applied general contract principles in allocation of fees. (Mike Frisch) 

February 9, 2017 in Billable Hours, Current Affairs, Economics | Permalink | Comments (0)

Monday, January 23, 2017

Discovery Of Work Done For Other Clients Permitted In Legal Malpractice Case

The Rhode Island Supreme Court decided a case where the court had granted review of the following question

“May a former client in a legal malpractice action against his former attorney properly compel discovery from his former attorney and law firm related to documents the attorney prepared for the attorney’s other clients in order to gain evidence to prove subsequent remedial measures in the legal malpractice action?”

The unhappy client sued and sought discovery

This case came before the Supreme Court on November 2, 2016, on certiorari from the Superior Court, seeking review of a discovery order entered on October 2, 2014, compelling production of any antenuptial or postnuptial agreements drafted, prepared, or negotiated by the defendant, Richard A. Boren (Attorney Boren), from 2005 through 2009 and in 2013, while he was employed at the defendant law firm, Visconti, Boren & Campbell, Ltd. (VBC), (collectively, defendants). Before this Court, the defendants contend that the documents sought exceed the scope of permissible discovery, as provided by Rule 26 of the Superior Court Rules of Civil Procedure, and are protected under the attorney-client privilege, the marital privilege, and the work product doctrine. For the reasons discussed herein, we affirm the discovery order in its entirety.

The story

In 2000, plaintiff, Sergio A. DeCurtis (plaintiff or DeCurtis), retained Attorney Boren to draft an antenuptial agreement. DeCurtis and his then-fiancée, Michelle Tondreault (Tondreault), executed the antenuptial agreement on March 22, 2000, and were married on March 28, 2000. They did not live happily ever after, and Tondreault filed for divorce in 2005.

The divorce petition was dismissed in a negotiated settlement that required DeCurtis and Tondreault to execute a postnuptial agreement. Attorney Boren drafted the postnuptial agreement for the couple, which was executed in November of 2005. The marriage nonetheless failed.

The plaintiff claims that the six antenuptial and postnuptial agreements drafted by Attorney Boren are discoverable under Rule 26(b)(1) because they are relevant to demonstrate if and when Attorney Boren undertook subsequent remedial measures in the drafting of antenuptial and postnuptial agreements. Unlike many other jurisdictions, subsequent remedial measures are admissible in Rhode Island to prove negligence “[w]hen, after an event, measures are taken which, if taken previously, would have made the event less likely to occur...

In the case before us, plaintiff initially retained Attorney Boren in 2000, and the antenuptial agreement between plaintiff and Tondreault was drafted in that same year. In 2005, Attorney Boren drafted a postnuptial agreement, which affirmed the terms stated in the prior agreement. The instant malpractice suit arises out of language that was included in both documents. As a result, we are of the opinion that the triggering “event” for purposes of Rule 407 is the drafting of the later document, the 2005 postnuptial agreement. Accordingly, any measures taken after 2005 would be relevant under Rule 407 and, therefore, discoverable under Rule 26(b)(1)

The attorney-client, work product and marital privileges did not prevent discovery

we are of the opinion that defendants do not have standing to assert the attorney-client privilege on behalf of their clients in this context. In this case, the documents are not confidential communications such that third parties were privy to the discussions surrounding the documents and their execution, thus vitiating the privilege. We conclude that the Superior Court justice amply placed safeguards on the order by requiring redaction and limiting the purpose for which the documents could be used. Adequate redaction will eliminate any sensitive or identifying information and prevent the disclosure of any confidential interests contained in the documents...

The defendants’ argument that the marital privilege applies in this context is unavailing. The parties to the six agreements are not testifying, and the production of executed contracts is not testimonial in any way. Furthermore, the parties were not married at the time the antenuptial agreements were executed. The marital privilege focuses on communications between a husband and wife, such that the communications must occur “during [the] marriage.”


In complying with this discovery order, the defendants are directed to adequately redact all confidential information and take any additional steps they deem reasonably necessary to ensure confidentiality, including contacting their clients should that be deemed necessary. To the extent that the clients wish to assert the attorney-client privilege, the Superior Court should welcome those motions and use our discussion herein as guidance in rendering a decision.

Finally, we anticipate that the trial justice will act as an additional gatekeeper and conduct an in camera review of the documents after adequate redaction by the defendants, in order to ensure that all confidential and identifying information has been removed.

The court thus affirmed the discovery order. (Mike Frisch)

January 23, 2017 in Clients, Current Affairs, Privilege | Permalink | Comments (0)

Wednesday, January 18, 2017

Chemical Reaction

The Massachusetts Supreme Judicial Court rejected both prosecution and defense positions in the ongoing fallout from a dishonest chemist

We once again confront the tragic legacy of the misconduct of Annie Dookhan when she was employed as a chemist at the William A. Hinton State Laboratory Institute (Hinton lab)...

We instead adopt a new protocol for case-by-case adjudication, which will occur in three phases, and order its implementation by the single justice in the form of a declaratory judgment. In the first phase, the district attorneys shall exercise their prosecutorial discretion and reduce the number of relevant Dookhan defendants by moving to vacate and dismiss with prejudice all drug cases the district attorneys would not or could not reprosecute if a new trial were ordered. In the second phase, new, adequate notice shall be approved by the single justice and provided to all relevant Dookhan defendants whose cases have not been dismissed in phase one. In the third phase, CPCS shall assign counsel to all indigent relevant Dookhan defendants who wish to explore the possibility of moving to vacate their plea or for a new trial. If the number seeking counsel is so large that counsel cannot be assigned despite CPCS's best efforts, the single justice will fashion an appropriate remedy under our general superintendence authority for the constitutional violation, which may include dismissing without prejudice the relevant drug convictions in cases where an indigent defendant is deprived of the right to counsel.

The opinion was reported by Justice Botsford. (Mike Frisch)

January 18, 2017 in Current Affairs | Permalink | Comments (0)