Wednesday, February 27, 2013

Not Yet

An attorney represented an organization in defense of several employment matters from 2002-2004. The relationship ended when the client sued the attorney for malpractice.

The organization moved for disqualification in a pending case in which the attorney represented a plaintiff suing it in an employment matter. The trial court denied a motion to disqualify.

The South Carolina Supreme Court held that interlocutory appeal of the denial is not an available remedy. The issue can be addressed on appeal of the judgment. (Mike Frisch)

February 27, 2013 in Clients, Current Affairs, Law Firms | Permalink | Comments (0) | TrackBack (0)

Friday, February 22, 2013

New Jersey Upholds Denial Of Handgun Carry Permit For Outside Home

The New Jersey Appellate Division has rejected an asserted Second Amendment violation in a case that involves the denial of a permit to carry a firearm outside his home.

The applicant sought to establish his justifiable need to carry because he received substantial cash payments in connection with his landscaping business. The trial court rejected his contention regarding his justifiable need.

Both trial and appellate court rejected the constitutional claim, as stated by the Appellate Division:

...given the presumption of constitutionality, the lack of clarity that the Supreme Court in Heller intended the extend the Second Amendment right to a state regulation of the right to carry outside the home, and the Second Circuit's explicit affirmation of a law similar to ours, we affirm [the trial court's] determination that [applicant's] rights were not infringed.

The State had appealed a police chief's decision to issue a permit to the applicant. (Mike Frisch)

February 22, 2013 in Current Affairs | Permalink | Comments (0) | TrackBack (0)

Friday, December 21, 2012

Jealousy Not Sex Discrimination

The question of the day comes from the Iowa Supreme Court:

Can a male employer terminate a female employee because the employer's wife, due to no fault of the employee, is concerned about the nature of the relationship between the employer and the employee?

The answer:

...we ultimately conclude the conduct does not amount to unlawful sex discrimination in violation of the Iowa Civil Rights Act.

The employee was hired in 1999 as a dental assistent in the employer's dental office. She worked there capably for over 10 1/2 years. However, the employer had complained that she dressed in a "too tight" and revealing manner.

During the last six months of her tenure, they "started texting each other on both work and personal matters outside the workplace." The employee denied that she flirted with the employer although there was some sexual banter between them.

When the employer was with his children for a Colorado Christmas, Mrs. Employer found the text messages.

There ensued a confrontation between them and pastoral counseling. As a result of the perceived ongoing threat to the marriage, the employee was terminated.

The court concluded:

...the issue is not whether [employer] treated [employee] badly. We are asked to decide only if a genuine fact issue exists as to whether [employer] engaged in unlawful gender discrimination when he fired [employee] at the request of his wife....we believe that this conduct did not amount to unlawful discrimination...

(Mike Frisch)

December 21, 2012 in Current Affairs | Permalink | Comments (0) | TrackBack (0)

Tuesday, December 18, 2012

To Live And Work In D.C.

The United States Court of Appeals for the District of Columbia Circuit reversed and remanded the dismissal of a claim brought against the Administrative Office of the United States Court ("the central administrative support organization for the federal judiciary" ) by a rejected applicant for an attorney position.

The plaintiff is an attorney who resides in Kentucky. She applied online for a position as an Attorney-Advisor. Her application did not meet a job requirement that she live and work in the D.C. area. She received an automated rejection letter because of her Kentucky home.

She then sued AO, arguing that the geographic limitation was unconstitutional.

The district court granted dismissal for both lack of subject matter jurisdiction and failure to state a claim due to sovereign immunity.

The remand directs the district court to explain its conclusion that the plaintiff had failed to state a claim. (Mike Frisch)

December 18, 2012 in Current Affairs, Hiring, Interviewing, Judicial Ethics and the Courts | Permalink | Comments (0) | TrackBack (0)

Thursday, December 13, 2012

Blogging Liability In Wawayanda

The New York Appellate Division for the Second Judicial Department has held that a sufficient cause of action for defamation was pled as a result of a blog post on a newspaper web page in Wawayanda:

Internet forums are venues where citizens may participate and be heard in free debate involving civic concerns. It may be said that such forums are the newest form of the town meeting. We recognize that, although they are engaging in debate, persons posting to these sites assume aliases that conceal their identities or "blog profiles." Nonetheless, falsity remains a necessary element in a defamation claim and, accordingly, "only statements alleging facts can properly be the subject of a defamation action Within this ambit, the Supreme Court correctly determined that the accusation on the newspaper site that the plaintiff was a "terrorist" was not actionable. Such a statement was likely to be perceived as "rhetorical hyperbole, a vigorous epithet." This conclusion is especially apt in the digital age, where it has been commented that readers give less credence to allegedly defamatory Internet communications than they would to statements made in other milieus. Accordingly, we conclude that this statement constitued an expression of opinion, and, as such, is nonactionable.

Turning to the other posting described in the fourth cause of action, it is not clear on the face of the posting whom the poster was accusing of dumping a horse head in Gail Soro's pool, as the posting is essentially just a cross-reference to the Wawayandafirst blogspot. Since the statements contained on the Wawayandafirst blogspot form the basis of the first and second causes of action, the mere reference to those statements is duplicative of those causes of action.Therefore, the Supreme Court correctly granted that branch of the Skinner defendants' motion which was for summary judgment dismissing the fourth cause of action insofar as asserted against them. (citations omitted)

The horse head allegation was actionable on this basis:

 The published allegation that the plaintiff put a severed horse head in a Town Board member's swimming pool constituted defamation per se under this standard and, therefore, did not require the plaintiff to plead special damages. Moreover, the accusation that the plaintiff placed a
horse head in a political rival's pool, if true, describes conduct that would constitute serious crimes. A false published allegation that a person committed a serious crime is also a ground for asserting a cause of action to recover damages for defamation per se, thus relieving the plaintiff from pleading special damages. (citation omitted)

(Mike Frisch)


December 13, 2012 in Current Affairs | Permalink | Comments (0) | TrackBack (0)

Tuesday, December 11, 2012

Loyalty Trumps Mobility In New Mexico Decision

In a case of first impression, the New Mexico Supreme Court has held that disqualification is mandatory when an associate who played a 'substantial role" in litigation and possesses confidential information moves to a firm involved in the litigation against her former client.

Both the moving associate and her new firm are barred from further representation.

The court noted that it had adopted a more restricted version of Rule 1.11than the ABA Model Rule, and that its rule does not permit screening to prevent imputed disqualification.

While the rule may have a chilling consequence for lawyer mobility, the court emphasized that the public policy considerations that underpin the loyalty to clients justifies the result:

In the practice of law, there is no higher duty than one's loyalty to a client.

(Mike Frisch)

December 11, 2012 in Clients, Current Affairs, Law Firms | Permalink | Comments (1) | TrackBack (0)

Thursday, October 25, 2012

Ethics Opinion On Confidentiality And In-House Counsel Claims Against Employer

A recently-issued opinion of the District of Columbia Bar Legal Ethics Committee concludes:

An in–house lawyer may not disclose or use her employer/client’s confidences or secrets in support of the lawyer’s claim against the employer/client for employment discrimination or retaliatory discharge unless expressly authorized by Rule 1.6. If the employer/client puts the lawyer’s conduct in issue, however (e.g., by lodging an affirmative defense or a counterclaim), the lawyer may disclose or use the employer’s confidences or secrets insofar as reasonably
necessary to respond to the employer/client’s contention. An in–house lawyer is not prohibited from bringing such a claim against her employer/client merely because the employer/client may find it necessary or helpful to disclose its confidences or secrets in defending against the lawyer’s claim.

(Mike Frisch)

October 25, 2012 in Clients, Current Affairs, General Counsel | Permalink | Comments (0) | TrackBack (0)

Sunday, September 30, 2012

"Living In Adultery" In Kentucky

A recent decision of the Kentucky Supreme Court turned on the interpretation of the phrase "living in adultery" in determing the disposition of an estate.

The phrase comes from the Statute of Westminster (1285) as adopted by Kentucky in 1796 and most recently codified in 1942.

The deceased was killed in a work-related accident. The only significant asset of his estate was the workers' compensation claim.

At the time of his death, he had been married for four months. His wife (the claimant here) sought a civil protection order and had filed for divorce. They were living apart.

The proofs at trial established that she had engaged in sexual intercourse the night before her husband died.

The trial court found that the single act established that the wife was "living in adultery" and awarded the estate to the deceased's mother.

Both the Court of Appeals and the Supreme Court disagreed, holding that the wife's single act did not constitute "living in adultery."

There are two dissents. Justice Cunningham stated the issue as whether the estate should go to the deceased "loving, nurturing mother" or the "adulterous and absent wife" and said: "Let's be sensible." The dissenters would hold that the marriage was clearly over.

The majority and dissents also disagree over the significance of the wife's post-widow continuing relationship with the person she had slept with on the night before her husband's death.

The majority found that the widow could no longer engage in adultery after her husband's death. The evidence thus was irrelevant. The dissenters would consider the evidence as proof that the marriage was over. (Mike Frisch)

September 30, 2012 in Current Affairs, Law & Society | Permalink | Comments (0) | TrackBack (0)

Thursday, August 23, 2012

How To Get To Carnagie Hall

The Maryland Court of Appeals has held that an injured former Washington Redskins football player is a "covered employee" entitled to workers compensation because he was regularly employed in Maryland.

The Redskins practice in Virginia but play their home games in Landover, Maryland. The court held that this fact establishes the employee's regular employment in the State:

...practice time is incidental to playing football games.

In a separate matter, the court yesterday held that a Redskins player (a punter) who was injured while warming up for a game suffered a compensable injury under workers compensation law.

(Mike Frisch)

August 23, 2012 in Current Affairs | Permalink | Comments (0) | TrackBack (0)

Thursday, July 12, 2012

Bankruptcy Non-Disclosure Bars Malpractice Claim

The New York Appellate Division for the Second Judicial Department has affirmed the dismissal of a legal malpractice counterclaim under the following circumstances:

... it is undisputed that the defendant did not disclose, in a bankruptcy petition
that he filed in September 2007, the existence of the causes of action he now
asserts as counterclaims. The plaintiff showed, prima facie, that at the time of
the filing of that petition the defendant knew or should have known of the
existence of those causes of action, and the defendant failed to raise a triable
issue of fact in opposition to that prima facie showing. Further, under the
circumstances of this case, the fact that the defendant's bankruptcy petition
was later dismissed does not change this result. Moreover, although the defendant stated in his opposition to the plaintiff's motion that, in 2010, he filed a second bankruptcy
petition in which he did disclose his malpractice cause of action, in support of
that claim he submitted only a single page of the Schedule of Assets from that
petition. He also submitted no evidence as to the ultimate disposition of the
second bankruptcy petition. He therefore failed to raise a triable issue of fact
as to whether he regained his capacity to assert his legal malpractice claims
against the plaintiff by filing the second bankruptcy petition. (citations omitted)

(Mike Frisch)

July 12, 2012 in Clients, Current Affairs | Permalink | Comments (0) | TrackBack (0)

Monday, July 9, 2012

E-Discovery And Ethics

A recent opinion of the D.C. Bar Legal Ethics Committee:

Discovery service vendors, such as e–discovery vendors, cannot both practice law
within the District of Columbia and be partially or entirely owned by passive
non–lawyer investors consistent with D.C. Rule 5.4(b). This Committee's
jurisdiction does not include the definition of the practice of law, but the
Committee on Unauthorized Practice of Law has recently issued a detailed opinion
explaining what activities by these vendors constitute the practice of law.

The Rules of Professional Conduct do not reach non–lawyer owners of discovery
service organizations; they are not subject to bar discipline. The Rules do
reach lawyers who co–own or manage such vendors with or on behalf of non–lawyer
passive investors. The Rules also could reach lawyer employees of such vendors
who know of facts that constitute a violation of Rule 5.4(b) or lawyers who,
with similar knowledge, retain such vendors.   

In addition, lawyers who own, manage, work for or retain a discovery service
vendor that engages in the practice of law in the District of Columbia and has
passive non–lawyer investment may violate the prohibition in Rule 5.5(b) against
assisting others in the unauthorized practice of law.

(Mike Frisch)

July 9, 2012 in Current Affairs | Permalink | Comments (0) | TrackBack (0)

Friday, March 23, 2012

No Relief

The Kansas Court of Appeals has affirmed the dismissal of a declaratory judgment action brought by a national law firm located in Maryland.

The law firm (and Kansas attorneys that it employs) offer debt relief services. They are the subject of complaints from several Kansas clients.  The complaints triggered an investigation by the state banking commissioner that the lawyers possibly have engaged in unregistered credit and debt management services.

They responded by filing the declaratory judgment action, contending that only the Kansas Supreme Court had the the authority to regulate the conduct of lawyers and law firms.

The court here agreed with the lower court that the law firm had failed to exhaust administrative remedies. (Mike Frisch)

March 23, 2012 in Current Affairs | Permalink | Comments (0) | TrackBack (0)

Monday, March 19, 2012

The Off Chance

A Delaware Superior Court judge imposed a $500 sanction on an attorney who sent an associate to conduct a deposition in a Delaware action prior to the pro hac vice admission of the associate.

The action involves allegations arising out of the death of an undergraduate who had attended a college fraternity function and died of acute alcohol poisening.

There have been numerous depositions. The deposition at issue had been difficult to schedule. The partner (who was admitted for the case)  had a conflicting obligation to appear before the Department of Homeland Security. The associate went in his stead.

The judge found that the associate could not properly participate without first being admitted. The court had "little doubt" that a timely motion for admission would have been granted and found no prejudice from the associate's participation.

The sanction was imposed on the supervising partner. The court declined to strike the associate's examination of the witness and closed with this thought:

On the off chance that counsel for any of the moving defendants wish to pursue this [unauthorized practice] issue, they should file an appropriate complaint with the Office of Disciplinary Counsel.

(Mike Frisch)

March 19, 2012 in Associates, Current Affairs, Professional Responsibility | Permalink | Comments (0) | TrackBack (0)

New York City's Indigent Representation Plan Approved

A decision from the New York Appellate Division for the First Judicial Department:

In this article 78 proceeding, we are called upon to judge the legality, not the wisdom or the prudence, of the City of New York's proposed revisions to its Indigent Defense Plan with respect to the assignment of counsel in cases in which the initial provider at arraignment is unable to represent the indigent person due to a conflict of interest. Upon our review of the record and relevant statutes, we conclude that the City's revised plan,and its proposed implementation pursuant to Chapter 13 of Title 43 of the Rules of the City of New York (43 RCNY 13-01 et seq.), is not arbitrary and capricious or irrational (see Matter of Pell v Board of Educ. of Union Free School Dist. No. 1 of Towns of Scarsdale & Mamaroneck, Westchester County, 34 NY2d 222, 230-231 [1974]), does not require the consent of the county bar associations (the County Bars), and does not violate section 722 of article 18-B of the County Law (as amended by L 2010, ch 56, pt E, § 3) or Municipal Home Rule Law § 11(1)(e).

The revised plan is a lawful "combination" plan under County Law § 722(4), providing indigent representation under the "private legal aid bureau or society" option of § 722(2), which, contrary to petitioner's contention, is not restricted to primary assignments, and the "plan of a bar association" option of  § 722(3), which, contrary to petitioner's contention, does not give the County Bars the exclusive right to provide "conflict counsel." Although the revised plan provides for the assignment of conflict cases to institutional providers under § 722(2), it continues to permit the assignment of conflict cases to private counsel serving on Criminal Defense Panels (see 43 RCNY 13-03) created under the authority of Executive Order 178 of 1965 and pursuant to the 1965 "Bar Plan," to be administered in accordance with the rules of the Appellate Division, First and Second Departments (Executive Order 136 of 2010), and does not improperly usurp the role of the County Bars. Nor does the plan either eliminate the judiciary's right under County Law § 722(4) to assign counsel when a conflict of interest prevents assignment pursuant to the plan or displace the judiciary's role in authorizing the appointment of experts (see 43 RCNY 13-05).

There is a dissent:

This proceeding challenges the plan of respondents Mayor Bloomberg, his Criminal Justice Coordinator (CJC) and the City of New York to make changes to the indigent defense system in New York City that has been in place since 1965. The core of the dispute is the manner in which the City proposes to assign so-called "conflict cases" - cases in which the primary provider at arraignment (The Legal Aid Society or another legal aid organization) is unable to accept representation due to a conflict of interest. Until recently, conflict defense counsel have been appointed through panels of individual attorneys created and administered by the County Bar Associations, Assigned Counsel Panels commonly referred to as 18-B Panels. However, in January 2010, the City revised Title 43 of the Rules of the City of New York by adding Chapter 13, which provides that in the case of a conflict, counsel may be appointed from either Assigned Counsel Panels or from one of the legal aid providers.

Subsequent to the commencement of this proceeding, through discovery and representations made at oral argument, it has become evident that the City's ultimate goal is to have Legal Aid serve as the primary provider of conflict defense counsel. Petitioners claim that the City's new plan violates County Law  § 722 and Municipal Home Rule Law § 11(1)(e). I agree.

(Mike Frisch)


March 19, 2012 in Current Affairs | Permalink | Comments (0) | TrackBack (0)

Wednesday, March 14, 2012

Live Streaming Court Proceedings And The First Amendment

A decision issued today from the Massachusetts Supreme Judicial Court:

On May 2, 2011, as part of a pilot project it has named "OpenCourt," WBUR-FM, a National Public Radio station in Boston, began to broadcast live by "streaming" over the Internet video and audio recordings of certain proceedings taking place in the Quincy Division of the District Court Department (Quincy District Court). We consider here three petitions for relief under G.L. c. 211, § 3, that relate to the OpenCourt project and were reported to this court by a single justice. Each petition challenges one or more orders of a judge in the Quincy District Court concerning the broadcasts and online posting of particular proceedings in two different criminal cases. In the first case, the Commonwealth appealed from the judge's order permitting OpenCourt to "post" to its public, online archives an audio and video recording of a criminal dangerousness hearing conducted pursuant to G.L. c. 276, § 58A.  The Commonwealth argues that the judge abused his discretion and failed to protect the alleged minor victim's privacy. OpenCourt has brought a separate petition for relief in the Barnes case, challenging the judge's orders that required OpenCourt to redact the alleged victim's name from the recording and to stay temporarily public access to the online archive. As explained infra, OpenCourt has an internal policy prohibiting publication of the names of minor victims of sexual assault and does not wish to publish the name, but objects to the court order; OpenCourt's argument is that any restriction on its right to publish the recordings constitutes a prior restraint that violates the First Amendment to the United States Constitution.

Charles Diorio brought the third petition for relief. He appeals from orders permitting the broadcasting and public online archiving of both his July 5, 2011, arraignment in the Quincy District Court, and a motion hearing held on July 25. Diorio contends that the judge abused his discretion and prejudiced Diorio's constitutional right to a fair trial by allowing the hearings to be broadcast and by not requiring the recordings to be removed from OpenCourt's online archives.

We conclude that any order restricting OpenCourt's ability to publish--by "streaming live" over the Internet, publicly archiving on the Web site or otherwise--existing audio and video recordings of court room proceedings represents a form of prior restraint on the freedoms of the press and speech protected by the First Amendment and art. 16 of the Massachusetts Declaration of Rights, as amended by art. 77 of the Amendments to the Massachusetts Constitution. Such an order may be upheld only if it is the least restrictive, reasonable measure necessary to protect a compelling governmental interest.

In the Barnes case, we vacate the order of the District Court judge requiring the redaction of the name of the minor alleged victim. We expect and anticipate that OpenCourt will continue to adhere to its policy of not publishing the name of the minor, but agree that on the record of this case, the judge's order was unconstitutional because the Commonwealth did not provide an adequate demonstration that this particular minor's privacy or psychological well-being would be harmed by publication of her name, or that a prior restraint was the least restrictive reasonable method to protect those interests. In the Diorio case, we conclude that Diorio has not met the heavy burden of justifying an order of prior restraint with respect to the specific proceedings at issue in his petition for relief. Finally, we exercise our discretion pursuant to G.L. c. 211, § 3, to request that the Supreme Judicial Court's judiciary-media committee submit for this court's approval a set of guidelines for the operation of the OpenCourt pilot project.

The case is Commonwealth v. Barnes. (Mike Frisch)

March 14, 2012 in Current Affairs | Permalink | Comments (0) | TrackBack (0)

Tuesday, March 13, 2012

Pennsylvania Limited Scope Arrangement Opinion

From the web page of the Pennsylvania Disciplinary Board:

The Pennsylvania Bar Association Committee on Legal Ethics and Professional Responsibility and the Professional Guidance Committee of the Philadelphia Bar Association have collaborated to produce Joint Formal Opinion 2011-100, regarding limited scope arrangements.

The Committees define “limited scope arrangements” to include two kinds of activities – unbundled legal services, in which a lawyer is engaged only to perform particular activities rather than undertake comprehensive representation of the client, and undisclosed representation, commonly referred to as “ghostwriting,” in which a lawyer prepares legal material for the client’s use but does not undertake direct representation of the client with a court or opposing party.

The opinion notes that limited scope arrangements are generally permissible under the Rules of Professional Conduct, and indeed are specifically contemplated in many of the rules.

The opinion notes that the comment to RPC 1.2 states that a limitation on representation must be reasonable under the circumstances. The fact that the representation is limited does not relieve the lawyer of the normal duty of competence and preparation under RPC 1.1. Second, the lawyer must be sure that the client has exercised informed consent to the limitation on representation. Informed consent is defined in RPC 1.0(e) as “consent by a person to a proposed course of conduct after the lawyer has communicated adequate information and explanation about the material risks of and reasonably available alternatives to the proposed course of conduct.” From the Restatement of the Law Governing Lawyers, the Committees drew five safeguards:

  • a client must be informed of any significant problems a limitation might entail, and the client must consent;
  • any contract limiting the representation is construed from the standpoint of a reasonable client;
  • the fee charged by the lawyer must remain reasonable;
  • any change made, an unreasonably long time after the representation begins must meet the more stringent test for post inception contracts or modifications; and
  • the terms of the limitation must be reasonable under the circumstances.

The Committees provide a list of Rules of Professional Conduct which the lawyer entering into a limited scope engagement should consider:

Finally, after an extensive examination of rules, court decisions, and ethics opinions nationwide, the Committees conclude that the lawyer engaged in limited scope representation is not under an obligation to disclose his or her role to either opposing parties or to a tribunal. The Committees note that there is quite a bit of divergent thought on these issues.

This short summary is no substitute for reading the 31-page analysis through which the Committees reach their conclusion, and the lawyer considering such employment would be wise to study the opinion firsthand.

(Mike Frisch)

March 13, 2012 in Current Affairs, Professional Responsibility | Permalink | Comments (0) | TrackBack (0)

You Can't Tell Them Your Address If You Don't Have One

The Wisconsin Supreme Court affirmed a decision of the Court of Appeals that reversed a conviction in a sex offender registration case.

Wisconsin requires a released offender to provide an address to authorities 10 days prior to release from prison. The defendant could not find housing within the time. 

From the majority opinion:

We begin by clarifying what is not at issue in this case. It is undisputed that Dinkins was required to register, and continues to be required to register, as a sex offender. It is undisputed that, as part of his registration, Dinkins is required to provide his address. This case is not about whether homeless registrants are "exempt" from registration requirements. They are not.

Rather, this case presents the narrow question of whether, under the circumstances where Dinkins attempted to comply with the registration requirements but was unable to find housing, he can be convicted of a felony for failing to notify the DOC of "[t]he address at which" he would "be residing" upon his release from prison. To resolve this question, we must interpret the sex offender registry statute. Statutory interpretation is a question of law, which we review independently of the determinations rendered by the circuit court and the court of appeals...

It is undisputed that Dinkins did not have a home of his own. The evidence in the record suggests that Dinkins made efforts to secure housing with relatives, but these efforts were unavailing. A DOC agent testified that, other than facilitating contact between Dinkins and his relatives, the DOC did not offer him additional assistance. The circuit court's finding that Dinkins was unable to provide the required information to the DOC because it did not exist, despite his attempt to provide the information, is not clearly erroneous.

There are concurring and dissenting opinions. (Mike Frisch)

March 13, 2012 in Current Affairs | Permalink | Comments (0) | TrackBack (0)

Thursday, March 8, 2012

Barbour Pardons Upheld

The Associated Press reports:

The Mississippi Supreme Court upheld the pardons issued by former Gov. Haley Barbour during his final days in office, including several that freed convicted killers.

The Republican pardoned 198 people before finishing his second term Jan. 10, including four convicted murderers and a robber who worked as inmate trusties at the Governor's Mansion. Of those pardoned, 10 were in jail at the time.

Democratic Attorney General Jim Hood challenged the pardons. Hood argued before the Supreme Court on Feb. 9 that some pardons didn't meet the requirements of the Mississippi Constitution, which says people seeking pardons must publish notices for 30 days in a newspaper.

In a 6-3 opinion, the justices wrote "we are compelled to hold that — in each of the cases before us — it fell to the governor alone to decide whether the Constitution's publication requirement was met."

The 10 people who were incarcerated when Barbour pardoned them had the most at stake. Among those, five have been held in prison on a temporary restraining order pending the outcome of Hood's legal challenge. It was not immediately clear whether they would not be released.

The other five had already been released by the time Hood persuaded a lower court judge to issue that restraining order.

At the heart of the pardon dispute was Section 124 of the Mississippi Constitution, which says "no pardon shall be granted" by the governor until the convicted felon applying for the pardon publishes notice of that application for 30 days in a newspaper in or near the county where the crime was committed.

Hood contended that if ads weren't run in daily papers every day for 30 days, or weekly newspapers once a week for five weeks, the pardons weren't valid.

Barbour, who once considered a 2012 White House run, was limited to two terms as governor. In addition to the pardons, he also granted medical release and conditional clemency to some inmates, but they weren't required to give public notice.

The opinion is linked here. (Mike Frisch)

March 8, 2012 in Current Affairs | Permalink | Comments (0) | TrackBack (0)

Wednesday, March 7, 2012

Untracked Changes

The Montana Supreme Court reversed a grant of summary judgment to an attorney and firm in a legal malpractice suit.

The attorney was retained to represent an individual client (and entities created on his behalf) in a boundary negotiation with a golf course. The client wished to develop adjacent property.

The attorney submitted a draft agreement to opposing counsel. The attorney for the golf course made a series of untracked changes in the agreement and returned it. The attorney did not review the changes and had the client sign it with the changes.

Thereafter, things went poorly for the client. The deal went south and the client lost his home. He filed a pro se suit against the attorney in the name of the entity. He then retained counsel, who filed suit in another county.

The key question was whether, for statute of limitations purposes, the suit initiated through counsel related back to the pro se suit. The court rejected the contention that the pro se suit in the name of the entity was a nullity. Rather, the remand directs the lower court to consider factors in resolving the "relate back" issue.

Practice pointer: Always make sure there are no untracked changes of opposing counsel in a document you have your client sign. (Mike Frisch)

March 7, 2012 in Current Affairs | Permalink | Comments (0) | TrackBack (0)

Tuesday, March 6, 2012

A Bad Odor

Another day, another dissent from the Wisconsin Supreme Court.

Today's case involves whether the stink from accumulated bat guano is covered by an insurance policy on a vacation home at Lake Tomahawk, Wisconsin.

 Justice Ziegler holds "no."

We conclude that the pollution exclusion clause in Auto-Owners' insurance policy excludes coverage for the loss of the Hirschhorns' home that allegedly resulted from the accumulation of bat guano. First, we conclude that bat guano falls unambiguously within the policy's definition of "pollutants." Second, we conclude that the Hirschhorns' alleged loss resulted from the "discharge, release, escape, seepage, migration or dispersal" of bat guano under the plain terms of the policy's pollution exclusion clause. Accordingly, the circuit court properly dismissed the Hirschhorns' complaint against Auto-Owners.

Justice Abrahamson, joined by Justice Bradley, dissents:

...instead of utilizing context to discern meaning, the majority uses a backward method. It first selects one dictionary definition from among many to define "'waste' [as] unambiguously includ[ing] feces and urine." Majority op., ¶35. The majority's selected dictionary definition ends the discussion of the meaning of "waste." The majority's approach fails in several respects. It fails to read words in the insurance policy in context to discern their meaning; it fails to read the insurance policy from the perspective of a reasonable insured; and it fails to construe ambiguities against the drafter and in favor of coverage.

(Mike Frisch)

March 6, 2012 in Current Affairs | Permalink | Comments (0) | TrackBack (0)