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)

Friday, January 6, 2017

Let The Lady Sing In A Personal Injury Claim

An effort by the Metropolitan Opera to invoke workers' compensation law in a matter involving a rather unique occupation led to a decision of the New York Appellate Division for the First Judicial Department

Defendant Metropolitan Opera Association, Inc. (the Met) operates the Metropolitan Opera House at Lincoln Center. Plaintiff, Wendy White, is a renowned opera singer who has been featured in more than 500 performances at the Met over the course of 23 years. This personal injury action arises from plaintiff's fall from an elevated platform while performing at the Met...

Plaintiff alleges that, on December 17, 2011, during her performance of the role of Marthe in the Met's production of the opera Faust, she fell and was seriously injured while walking from a backstage staircase to an on-stage elevated platform. She alleges that the accident was caused by a defect in the set's design or construction resulting from the Met's negligence. She further alleges that she performed at the opera house pursuant to a standard contractor's agreement between the Met and her corporation, Wendy White, Inc. (WW, Inc.), and that neither she nor WW, Inc. were the Met's "employees."

The Met moved to dismiss the complaint pursuant to CPLR 3211(a)(1) and (7), arguing that documentary evidence conclusively established that plaintiff was an employee engaged in the performing arts, as defined by WCL § 2(4), or, alternatively, a special employee of defendant, since the Met controlled the manner in which she performed her work, and that therefore her claim was barred by the exclusive remedy provision of WCL § 11.

The star responds

Plaintiff submitted her own affidavit, in which she averred that she was not employed by the Met but, instead, by WW, Inc. She explained that she was always paid by WW, Inc., and that WW, Inc. only received 1099's, not W-2's, from the Met. She also did not receive any employment benefits from the Met, and was in fact told that she did not qualify for the Met's health insurance plan because she was not an employee.

Plaintiff asserted that she was a "star" and that, as such, she had "full artistic control" over her performance, including choosing "the timbre, the volume, the projection, and all of the artistry in the form of nuance, inflection and the acting." She claimed to have received no training, supervision, or direction from the Met with respect to how to perform her role, and explained that her voice lessons and coaching were paid for by WW, Inc. She admitted, however, that the Met provided her make-up, costumes, and wigs, told her "where and when to attend rehearsals and performances," and "blocked out the basic staging with entrances and exits" - although she purported to have veto power even with respect to staging decisions.

Additionally, plaintiff stated that she was not aware that the Met purchased workers' compensation insurance for her, and never consented to any claim being filed thereunder. She explained that she only found out later that certain medical bills had been paid by the Met's insurance carrier, and rejected any subsequent offers of payment. Instead, she filed a claim in New Jersey under WW, Inc.'s workers' compensation insurance policy.

Plaintiff also submitted statements by Assemblyman Roger J. Robach and New York State Senator James J. Lack, the sponsors of the 1986 amendment to the WCL that added section 2(4), addressing the employment status of performing artists. Robach explained in a letter to the Governor's Counsel that the amendment was intended to clarify that "the vast majority [of musicians and performers] who are not in the star' category" were employees entitled to workers' compensation benefits, without having to litigate their status. In an affirmation submitted with the motion, Lack explained that "[t]he bill was not intended to compel star' performers, who are independent professionals able to negotiate the terms of their engagements, to become employees' of the venues at which they perform."

The court agreed that Ms. White was not an employee covered by workers' compensation law. (Mike Frisch)

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

Law Of Pimping Criminal Liability Clarified

The Washington State Supreme Court has held that pimps are subject to multiple counts of promoting prostitution per the number of prostitutes in their employ

At issue in this case is whether a pimp can be convicted on multiple counts of promoting prostitution when multiple prostitutes are involved. We have not previously considered the unit of prosecution for second degree promoting prostitution. In light of the statute's plain language and prior decisions of this court, we affirm the Court of Appeals and hold that the legislature expressed its clear intent to authorize multiple convictions when one pimp exploits multiple individuals.

The facts

Shacon Barbee was a pimp that made money from prostitutes working under his supervision. Three young women that Barbee "supervised" during 2010 were SE, BK, and CW.

SE met Barbee when she was 13 and began working for him as a prostitute when she was 16. Along with posting ads on websites such as, SE would also work "the track" (a slang term for working on the streets) in popular Seattle-area prostitution locations including Aurora Avenue and Pacific Highway South. SE thought that Barbee cared about her and that they would spend their lives together. She testified at trial that she was expected to make $1,000 a day or stay up at night until she met that quota. All of her earnings went to Barbee. Barbee required SE to recruit other girls or young women to work for him as prostitutes. SE would peruse websites like MySpace or Facebook, looking for attractive girls who might be interested in "escorting." During 2010, two of the women she recruited on Barbee's behalf were two 18-year-olds, BK and CW.

He claimed that multiple punishments for promoting BK and CW violated double jeopardy.

Divisions One and Two of the Court of Appeals have come to different conclusions regarding whether the statute evinces a clear legislative intent to impose multiple punishments when one individual employs two or more prostitutes in the same time frame.

Resolving the division split

...the text of the statute is clear. The legislature authorized charges premised on either operating a prostitution enterprise or promoting individual prostitutes. Although not necessary to resolve the issue, an examination of the statute's legislative history also confirms that a defendant may face multiple convictions when he or she "promotes" multiple prostitutes. The history of Washington's promoting prostitution statute indicates that the statute is "victim-centered" and focused on criminalizing the promotion of prostitution as it related to each individual exploited.

...while the plain language of the statute is unambiguous, the legislative history also clearly reflects that the legislature intended the crime to be, in part, a crime against individual persons.

In sum, in light of the plain language of the statute and consistent with our prior construction of similarly worded statutes, we hold that the legislature, by use of the language "a person," unambiguously authorized a unit of prosecution for each person promoted. When a defendant promotes prostitution of more than one individual, he or she may be prosecuted for more than one count.

(Mike Frisch)

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

Tuesday, January 3, 2017

Katten Muchin Prevails In Charging Lien Litigation

The Delaware Supreme Court has ruled in favor of the Katten Muchin law firm in a case involving application of the law of charging liens.

The case was a complex fight over the client's ouster from a family business

Martha reacted to her ouster by, among other things, litigating. She first retained plaintiff Katten Muchin Rosenman LLP to represent her in a § 220 books and records request of the Sutherland Lumber Companies.  Although Martha and Katten disagree over whether they entered into a written fee agreement, the parties agree that Katten was not providing its services on a contingency fee basis and was instead entitled to fees on an hourly rate basis and to reimbursement of its expenses.   Indeed, Katten sent Martha monthly invoices based on hourly billing, which Martha paid for several years.

In 2006, Martha, with Katten as her counsel, filed a derivative and double derivative action against Perry, Todd, and Mark alleging, among other things, that Perry‘s and Todd‘s employment agreements with the Sutherland Lumber Companies were a result of self dealing...

Some benefits were realized with respect to the employment agreements at issue but 

By 2011, [client] Martha accrued $766,166.75 in unpaid attorney‘s fees for services that Katten provided in this litigation between 2009 and 2011. In the spring of 2011, Katten withdrew as counsel. One of Martha‘s attorneys from Katten, Stewart Kusper, left the firm and continued to represent her.

After Martha‘s litigation concluded in 2012—without her securing any additional relief on behalf of the Sutherland Lumber Companies—she sought an award of attorney‘s fees from the Sutherland Lumber Companies for all of her fees arising from the § 220 action and from overcoming the special litigation committee‘s investigation and recommendation to terminate the litigation, plus $25,000 in fees for defending against the summary judgment argument aimed at the employment agreement claim. In total, Martha asked for $1.4 million in attorney‘s fees and, in doing so, she used Katten‘s invoices that detailed the services it provided to her and its expenses incurred on her behalf while it represented her as a reasonable basis for the fees she should be awarded.  Indeed, in Martha‘s petition for an award of attorney‘s fees, she argued that the $1.4 million in attorney‘s fees she incurred from Katten were "fair and reasonable."

...Relying on Katten‘s invoices, the Court of Chancery awarded Martha $275,000 in fees for the minor benefits that she obtained on behalf of the Sutherland Lumber Companies in 2007 when, as a result of Martha‘s and Katten‘s efforts, the Sutherland Lumber Companies amended Perry‘s and Todd‘s employment agreements.

The firm intervened and asserted a lien on the fee award.

The court here reversed the Court of Chancery

Although Delaware does not have a statute governing charging liens, Delaware has a long lineage of cases recognizing charging liens as a matter of common law.  Two recent Delaware cases address charging liens.   In Doroshow,  this Court confirmed that Delaware recognizes the long-standing common law right of charging liens. In Zutrau, the Court of Chancery adopted the definition provided by Corpis Juris Secundum that a charging lien is "an equitable right to have costs advanced and attorney‘s fees secured by the judgment entered in the suit wherein the costs were advanced and the fee earned." Today, we also endorse that definition of a charging lien.

Here, the modifications to Perry‘s and Todd‘s employment agreements— which are the basis for Court of Chancery‘s fee award—were adopted as a result of Martha‘s and Katten‘s efforts in the derivative and double-derivative action. Furthermore, Katten‘s unpaid fees arose from the same litigation that produced the benefits for the Sutherland Lumber Companies and which led to the Court of Chancery‘s award of attorney‘s fees. Therefore, based on our definition of a charging lien, Katten is entitled to a lien on the entire fee award of $275,000. The historical rationale for a charging lien—to promote justice and equity by compensating the attorney for her efforts and thus encouraging attorneys to provide legal services to clients—also supports this conclusion.

In its decision, the Court of Chancery seemed to read Doroshow as standing for a rule that an attorney may only seek a charging lien for fees the attorney incurred that were directly connected to her client‘s recovery. The Court of Chancery cited Doroshow‘s finding that, because the law firm in that case represented its client on a contingent fee basis, it was entitled to a charging lien because "the law firm had not been compensated before its work produced the funds." The Court of Chancery reasoned that because Katten had already been paid for the services that led to the benefits for the Sutherland Lumber Companies, it was not entitled to a charging lien. But, Doroshow dealt with a charging lien based on a contingency fee, and we held that the law firm was entitled to its agreed 40% contingent fee. Our decision in Doroshow did not limit the scope of charging liens in general. Rather, Doroshow demonstrates the application of this equitable right to a particular type of fee arrangement, and one fundamentally different than the one between Martha and Katten.

Here, Katten billed Martha regularly for its services based on the amount of time Katten‘s attorneys spent on the case and the attorneys‘ hourly rates. Katten billed Martha for approximately $3.5 million, of which Martha paid roughly $2.7 million. That Katten‘s services underlying the unpaid fees did not result in any benefit to the Sutherland Lumber Companies does not matter. In the case of hourly billing, unlike with a contingency fee, the total amount that the client is required to pay her lawyer is not based on the client‘s recovery. In Zutrau, the Court of Chancery considered the scope of a charging lien in the context of hourly billing and explained that "[i]t is no secret that litigation is expensive and that the costs of prosecution easily can exceed the recovery." The Court of Chancery found, "that the cost of prosecution conceivably could exceed the recovery does not excuse Zutrau from paying those fees." If, as here, an attorney has unpaid fees that are greater than the client‘s recovery, the attorney is entitled to a charging lien on the entire recovery. Moreover, the client remains obligated to pay her attorney any remaining unpaid fees. Martha was required to pay Katten its reasonable fees in accordance with their agreement whether she won or lost. Because Martha did not pay Katten for all of its services stemming from the litigation in which Katten produced the only benefits, Katten is entitled to the equitable right of a charging lien on the entire $275,000 fee award. Finding otherwise would lead to an inequitable result where attorneys with a claim for unpaid fees from litigation— where work had been billed on an hourly basis—could use the equitable right of a charging lien only to recover fees relating to the services that were directly connected to the litigation‘s beneficial results.

Like other contracts, contracts for the provision of legal services create incentives for parties, including clients. When a party, such as Martha, agrees to pay hourly fees to prosecute a complex case, she is assuring her counsel that it will not suffer the commercial damage of uncompensated services if it presses her claims as aggressively as she demands and as the law permits. To permit a client who is a party to such an agreement to escape a charging lien as if she made a strict contingency fee agreement limiting fees to a percentage of recovery is to judicially rewrite the contract at the expense of the attorney and to undermine the traditional purpose of a charging lien.

(Mike Frisch)

January 3, 2017 in Billable Hours, Clients, Current Affairs, Hot Topics | Permalink | Comments (0)

Monday, January 2, 2017

The Most Important Year In D.C. Bar History

The year 2017 will be one of the most consequential in the history of the District of Columbia Bar with the retirement and replacement of the most influential actors in the regulation and administration of the legal profession. 

The ultimate responsibility for the regulation and direction of the D.C. Bar rests with the highest court of the jurisdiction - the Court of Appeals.

From the Court's Rule I creating the unified Bar

The purposes of the Bar shall be to aid the Court in carrying on and improving the administration of justice; to foster and maintain on the part of those engaged in the practice of law high ideals of integrity, learning, competence in public service, and high standards of conduct; to safeguard the proper professional interest of the members of the Bar; to encourage the formation and activities of volunteer bar associations; to provide a forum for the discussion of subjects pertaining to the practice of law, the science of jurisprudence and law reform, and the relations of the Bar to the public, and to publish information relating thereto; to carry on a continuing program of legal research and education in the technical fields of substantive law, practice and procedure, and make reports and recommendations thereon; to the end that the public responsibility of the legal profession may be more effectively discharged.

Chief Judge Eric Washington will step down this March. 

The court not only administers the attorney discipline system but also must work with the organized Bar on a wide array of issues including budget, i.e., the spending of mandatory dues. 

The next Chief  Judge will play a key role in the uncertain future.

The Bar's longtime Chief Executive Officer is also retiring at the end of March and  "brings to a close a remarkable career that spans 34 years of continuous service to the D.C. Bar. "

With the new building in the works, it has never been more important to have an independent leader with a fresh approach and superb managerial skills who has no loyalty to any bar faction other than its membership in the broadest sense.

I do not know who hires the next Chief Executive Officer (I assume that the task falls to the Bar's Board of Governors) but the process should be as transparent as possible and give the largest possible voice to the membership.

 Finally, there will be a new Disciplinary Counsel this year, replacing one who has been in discipline for a like period as the Chief Executive Officer has been running the Bar.

The replacement will be chosen by the Board on Professional Responsibility. 

It has been widely (if not publicly) recognized that there is room for considerable improvement in the operation of every aspect of the attorney discipline process in D.C.

The choice of the new Disciplinary Counsel is the key decision that will determine the future of attorney regulation in the District of Columbia. 

The Executive Attorney of the Board on Professional Responsibility - also a bar careerist - retired and was replaced in 2016.

I am confident that the decisionmakers responsible for the public trust that the Bar offices embody will bring in fresh blood to invigorate  a Bar that for far too long has been an inside job.

As George Allen (the coach not the politician) once said:

The Future is Now!

(Mike Frisch)

January 2, 2017 in Bar Discipline & Process, Current Affairs | Permalink | Comments (0)

Wednesday, December 28, 2016

Suits For Criminal Act Damages Permitted In Ohio

Dan Trevas has a summary of an Ohio Supreme Court decision permitting a damages claim against an attorney/conservator

Civil lawsuits can be filed based on claims of being victimized by a criminal act, even when financial compensation is not specifically authorized by law, the Ohio Supreme Court ruled today.

The Supreme Court addressed whether the current version of an Ohio statute permits a civil lawsuit based on any criminal act, or if the law simply reinforces a long-standing legal principle that limits lawsuits based on the type of criminal act committed. Writing for the Court majority, Justice William M. O’Neill indicated that R.C. 2307.60 is “plain and unambiguous” and allows for a civil action for  damages that result from any criminal act, unless a suit is specifically prohibited by law.

The decision resolves conflicting interpretations among Ohio courts, and reverses a ruling by the Summit County Common Pleas Court that decided Jessica Jacobson could not file a civil lawsuit against Akron Children’s Hospital, Cleveland Clinic Children’s Hospital for Rehabilitation, and attorney Ellen C. Kaforey, who was an appointed conservator to Jacobson’s mother. Jacobson’s lawsuit alleged the crimes of unlawful restraint, kidnapping, and child enticement by Kaforey and the hospitals when Jacobson was 7 years old.

Justice Sharon L. Kennedy issued a concurring opinion, finding R.C. 2307.60 is ambiguous. She explained the 1985 legislative history that accompanied the statute shows that the General Assembly authorized civil lawsuits based on criminal acts.

In a dissenting opinion, Justice Terrence O’Donnell maintained that R.C. 2307.60 is simply an update in the Ohio Revised Code that continues to permit only lawsuits for specific crimes, and he supported his position by noting the General Assembly has passed several statutes that expressly permit victims of certain crimes to file civil lawsuits.

Jacobson Sent to Live with Relative
Kaforey, an attorney and registered nurse, was appointed by the Summit County Probate Court as a conservator to assist Jacobson’s mother in making medical decisions for Jacobson in her youth. Jacobson alleged in her lawsuit that in 2001, when she was 7, Kaforey kept her mother from visiting her when she was hospitalized. She alleged that Akron Children’s and Cleveland Clinic Children’s aided Kaforey in kidnapping her by arranging without authority to have her live with a relative in Florida, and that Kaforey, in concert with the hospitals, enticed her onto a plane and was flown to Florida without the legal permission from her mother.

As an adult, Jacobson, acting without an attorney, filed the lawsuits against Kaforey and the hospitals based on the three criminal code sections of the crimes she alleged. The trial court granted Kaforey’s and the hospitals’ request to dismiss the case, and the trial court observed that “Ohio courts have established that civil actions for damages may not be predicated upon alleged violation of a criminal statute.”

Jacobson appealed to the Ninth District Court of Appeals, which allowed Gary Kirsch, Jacobson’s stepfather and legal guardian, to substitute himself for her in the appeal, and he hired an attorney to represent him. A divided Ninth District in 2015 reversed the trial court and found the current version of R.C. 2307.60 authorizes Jacobson to file her civil lawsuit.

At the request of Kaforey and the hospitals, the Ninth District certified that its opinion was in conflict with several other courts of appeals. The Ninth District asked the Supreme Court to resolve the conflict, and the Court agreed to hear the case.

Statute Interpreted
Justice O’Neill explained the provision at the heart of the dispute is R.C. 2307.60(A)(1), which provides: “Anyone injured in person or property by a criminal act has, and may recover full damages in, a civil action unless specifically excepted by law, may recover the costs of maintaining the civil action and attorney’s fees if authorized by any provision of the Rules of Civil Procedure or another section of the Revised Code or under the common law of this state, and may recover punitive or exemplary damages if authorized by section 2315.21 or another section of the Revised Code.”

He noted the Court reviews a statute to determine if it is ambiguous, which means it is “capable of bearing more than one meaning,” and if the language is unambiguous, the Court is prevented from digging deeper into the legislature’s intent or public policy issues.

Justice O’Neill wrote the General Assembly explicitly chose the words “any person injured ... by a criminal act has ... a civil action unless a civil action is specifically excepted by law.” And he noted the preamble to the original legislation enacting R.C. 2307.60, which became effective in 1985, “demonstrates that the General Assembly specifically sought to create a civil cause of action for damages resulting from any criminal act.”

“These legislative statements are crystal clear. We need not dig further into the meaning of the statute than the language that was signed into law. Although R.C. 2307.60 has been amended a number of times since 1985, current R.C. 2307.60(A)(1) continues to specifically authorize a civil action for damages based on the violation of any criminal statute, unless an exception applies,” he concluded.

He added that the Court makes no ruling on how the statute operates and what a plaintiff must do to prove a claim. The Court remanded the case to the trial court for further proceedings.

Chief Justice Maureen O’Connor and Justices Paul E. Pfeifer and Judith Ann Lanzinger joined Justice O’Neill’s opinion.

Concurrence Finds Law Ambiguous
Justice Kennedy concurred in judgment only, noting that she finds the language is ambiguous “because the phrase ‘has ... a civil action’ in R.C. 2307.60(A)(1) is reasonably susceptible of more than one meaning.” Because the statute is ambiguous, she examined the legislative history that accompanied the bill when the statute was amended in 1985 and all subsequent amendments to the statute through 2014.

In 1985, the Legislative Service Commission explained what the proposed changes to the statute would mean in a bill analysis, Justice Kennedy noted. While the Court is not bound by this analysis, she explained that the Court may refer to it if it is helpful in determining the meaning of an ambiguous statute.

“Based on the circumstances surrounding the original amendments that became effective in 1985, the former statutory provisions, and the compelling legislative history, it becomes clear that when the General Assembly recodified former R.C. 1.16 as R.C. 2307.60, it intended to create an independent civil cause of action for any crime victim injured in person or property,” Justice Kennedy concluded.

Justice Kennedy noted that the lower courts have been citing each other’s opinions relying on pre-1985 decisions that did not recognize the legislature changed the law in 1985 when it enacted R.C. 2307.60, and none of the opinions cited after 1985 “engaged in a meaningful analysis” of the law. She explained the legislature has amended the code section six times since 1985, even during “significant tort-reform measures” but has not disturbed the right to sue based on a criminal act.

Allowing victims of only certain criminal acts to sue while barring others would create a disparity in treatment, Justice Kennedy wrote. Following the interpretation suggested by the appellants would mean that a victim of a theft offense enjoys a statutory right of full recovery and under certain conditions a presumption of liability against the criminal perpetrator, but a rape victim must bring a common-law-tort cause of action and thereafter re-prove during the civil trial the existence of the assault and battery and that the rapist was responsible for the assault and battery, she noted.

Sixth District Court of Appeals Judge James J. Jenson, sitting for Justice Judith L. French, joined Justice Kennedy’s opinion.

Dissent Argues Against Lawsuits Based on any Crimes
Justice O’Donnell argued as the appellate court held, that the statute only codified common law and only claims that authorize the pursuit of civil damages based on a criminal act can be pursued.

He explained that while Jacobson cannot sue based on the three criminal violations she selected, common law causes exist for false imprisonment, assault and battery, and “it is not necessary for the General Assembly to create civil actions for violating unlawful restraint, assault, and battery statutes.”

Justice O’Donnell noted that the legislature is presumed to be aware of prior judicial interpretations of a statute when enacting amendments, and that during the times R.C. 2307.60 has been amended since 1985 lawmakers never expressed an intent to enact a separate cause of action for a violation of a criminal act.

He referenced several specific statutes created that allow civil lawsuits based on specific criminal statutes, including ones for the victims of hazing, child stealing, trafficking in persons, forced abortion, identity theft, and theft of cable television services.

Justice O’Donnell concluded as follows: “Accordingly, if the position asserted by the majority were correct, i.e., that R.C. 2307.60 creates an independent civil cause of action for damages resulting from a criminal act, then there would be no need for the General Assembly to have specifically statutorily authorized any of the listed causes of action to recover damages resulting from those criminal acts.”

Justice O’Donnell would reinstate the trial court’s judgment.

2015-1340. Jacobson v. Kaforey, Slip Opinion No. 2016-Ohio-8434.

Video camera icon View oral argument video of this case.

(Mike Frisch)

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

Tuesday, December 20, 2016

Tweet Admissibility

The New Jersey Appellate Division affirmed a simple assault conviction of a defendant alleged to have hit her ex-boyfriend's successor girlfriend with a shoe.

[Girlfriend] Edwards and [ex-boyfriend] Blake went to the police station to report the incident and then went to the hospital, where Edwards received nine stitches. After the assault, defendant and Edwards had communications "back and forth" on Twitter. On December 28, 2012, Edwards saw defendant posted a tweet saying "shoe to ya face bitch."

The court affirmed its standards for authenticating tweets

The municipal court and the Law Division each admitted as Exhibit S-4 the following tweet allegedly posted by defendant on December 28, 2012: "No need for me to keep responding to ya stupid unhappy fake mole having ass.. how u cring2 in a corner with a shoe to ya face bitch." The tweet displayed defendant's profile photo and defendant's Twitter handle, "@cirocgirl25."

Edwards testified she recognized the tweet as being written by defendant because it displayed defendant's picture. She also was familiar with defendant's Twitter handle, "@cirocgirl25." Moreover, Edwards testified the tweet was posted "in response to things that [Edwards] was saying" and they were communicating "back and forth." On December 28, 2012, Edwards went onto defendant's Twitter page, saw the posted tweet, and captured it as a screenshot.

Defendant testified the Twitter page displayed a picture of her and her Twitter handle. However, she testified she did not author the tweet.

The court considered the varying approaches to tweet admissibility adopted in Texas and Maryland and came out with a "low burden" threshold 

We need not create a new test for social media postings. Defendant argues a tweet can be easily forged, but so can a letter or any other kind of writing. The simple fact that a tweet is created on the Internet does not set it apart from other writings. Accordingly, we apply our traditional rules of authentication under N.J.R.E. 901...

Defendant's Twitter handle, her profile photo, the content of the tweet, its nature as a reply, and the testimony presented at trial was sufficient to meet the low burden imposed by our authentication rules...

 The Law Division, like the municipal court, provided sufficient reasons for finding the tweet authentic, relevant, and admissible. Defendant's remaining arguments regarding authentication lack sufficient merit to warrant discussion. R. 2:11-3(e)(2). Accordingly, we find no abuse of discretion in admitting the tweet.

 (Mike Frisch)

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

Tuesday, December 13, 2016

Conviction Affirmed; Victim's Purported Interest In Bondage Inadmissible

The New Hampshire Supreme Court affirmed a murder conviction

The central disputed issue at the defendant’s trial concerned the circumstances of the victim’s death. The State contended that the defendant, enraged by the victim’s refusal to participate in a sexual encounter with him and his girlfriend, attacked the victim from behind while she was watching a movie, strangling her with a rope. The State further asserted that, after the victim had died, the defendant sexually assaulted her.

By contrast, the defense theory was that the victim died during a consensual sexual encounter with the defendant and his girlfriend. According to that theory, the victim allowed the defendant and his girlfriend to put a "harness" around her and then had consensual sexual intercourse with the defendant, while his girlfriend accidently smothered her. The defense theory was based upon the story that the defendant’s girlfriend had initially told the defense team in October 2012.

Before trial, the defendant filed a motion to introduce evidence alleging that the victim, then a 19-year-old college student, had previously expressed interest in bondage-related sexual activities. The defense sought to admit evidence alleging that the victim had expressed interest in such activities to her prior sexual partner in May 2010, approximately two and one-half years before her murder. The defense also sought to admit evidence alleging that she had expressed the same interest more recently to her then-current sexual partner.

The defendant argued that, without the evidence alleging that the victim had previously expressed interest in bondage-related sexual activity, "any claims that [the victim] would consent" to bondage-related activities with the defendant and his girlfriend "would seem objectively counterintuitive and implausible." The defendant’s pretrial motion also sought to introduce evidence of specific instances of the victim’s alleged prior sexual conduct. However, at the trial court hearing on the motion, defense counsel clarified that counsel sought only to introduce evidence of the victim’s alleged "openness" to bondage-related sexual activities and would not seek to introduce evidence alleging specific instances of her prior consensual sexual conduct.

The trial court denied the motion, pursuant to New Hampshire Rule of Evidence 412. See N.H. R. Ev. 412. The court explained that, under Rule 412, "inquiry into the prior consensual activities of victims is generally prohibited," but that "[i]n certain instances, . . . protection of the victim and her privacy rights must yield to a defendant’s right to due process and to confront accusers." (Quotation and brackets omitted.) "Thus," the court further explained, "a defendant must be given the opportunity to demonstrate that due process requires admission of a victim’s prior sexual conduct," by  demonstrating that the evidence "is relevant" and that "its probative value outweighs its prejudicial effect on the victim." (Quotations omitted.)

The court first found that the evidence alleging the victim’s prior expressions of interest in bondage-related sexual activities was not relevant to show that the victim consented to engage in such activities with the defendant and his girlfriend. The court also determined that, even if it were to accept the defendant’s theory that the evidence had some relevance to show that the victim would consent to engage in bondage-related sexual activities with the defendant and his girlfriend, its probative value was outweighed by prejudice to the victim and her family.

On four occasions during the trial, the defendant argued that the State had opened the door to the evidence alleging that the victim had previously expressed interest in bondage-related sexual activities. On each occasion, the trial court disagreed and precluded the defendant from introducing the challenged evidence. Ultimately, the jury convicted the defendant on both alternative theory first degree murder charges, and he was sentenced on one. This appeal followed.


Based upon our review of the record, we conclude that the trial court was not compelled to interpret the evidence as the defendant interprets it. Rather, it was reasonable for the trial court to have found, in each of the instances upon which the defendant relies, that the State did not create the misimpression that the victim was repelled by bondage-related activities. Accordingly, we uphold the trial court’s determination that the State did not open the door to the challenged evidence. All issues that the defendant raised in his notice of appeal, but did not brief, are deemed waived.

48 Hours covered the crime. (Mike Frisch)

December 13, 2016 in Current Affairs | Permalink | Comments (0)

Monday, December 5, 2016

Standing By: The Ethics Of Standby Counsel

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

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

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

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

The analysis

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

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

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

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

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

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

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

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

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

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

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

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

(Mike Frisch)

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

Tuesday, November 29, 2016

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

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

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

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

As to case law

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


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

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

The majority opinion is linked here. Mike Frisch)

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

Monday, November 21, 2016

Ad For Clients May Use Name And Logo Of Potential Defendant

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

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

The color ad is reprinted in the court's opinion

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

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

(Mike Frisch)

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

Thursday, November 17, 2016

Notre Dame Defeats ESPN

A decision issued yesterday by the Indiana Supreme Court

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

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

(Mike Frisch)

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