Sunday, June 7, 2020

"The Past Is Never Dead. It's Not Even Past "

One of the highlights of my prior life as a disciplinary counsel was the opportunity to argue In re Abrams before the en banc District of Columbia Court of Appeals. 

At issue was the court's power to sanction a convicted but pardoned member of its Bar.  

The 5-4 decision authored by the late (and beloved) Associate Justice Frank Schwelb held that the pardon did not preclude professional discipline.

The Supreme Court denied certiorari without a dissenting vote. 

My preparation led me to an 1866 United States Supreme Court decision concerning the impact of a pardon bestowed on a member of the Confederate Congress by President Andrew Johnson. 

Ex parte Garland essentially restored the pardon beneficiary to full public life, including continuing membership in the Supreme Court Bar. 

Augustus Garland went on to become the Attorney General of the United States in the Grover Cleveland administration.

Garland was also a 5-4 decision. 

The single most useful source to me in understanding Garland (and the related case of Cummings v. Missouri) was Chief Justice Rehnquist's book. 

The present state of the country brings to mind the dissent of Justice Samuel Miller. 

I dissent from the opinions of the court just announced.

It may be hoped that the exceptional circumstances which give present importance to these cases will soon pass away, and that those who make the laws, both state and national, will find in the conduct of the persons affected by the legislation just declared to be void sufficient reason to repeal, or essentially modify it.

For the speedy return of that better spirit which shall leave us no cause for such laws all good men look with anxiety and with a hope, I trust, not altogether unfounded.

But the question involved, relating, as it does, to the right of the legislatures of the nation and of the state to exclude from offices and places of high public trust, the administration of whose functions are essential to the very existence of the government, those among its own citizens who have been engaged in a recent effort to destroy that government by force can never cease to be one of profound interest.

It is at all times the exercise of an extremely delicate power for this court of declare that the Congress of the nation, or the legislative body of a State, has assumed an authority not belonging to it, and, by violating the Constitution, has rendered void its attempt at legislation. In the case of an act of Congress, which expresses the sense of the members of a coordinate department of the government, as much bound by their oath of office as we are to respect that Constitution, and whose duty it is, as much as it is ours, to be careful that no statute is passed in violation of it, the incompatibility of the act with the Constitution should be so clear as to leave little reason for doubt before we pronounce it to be invalid.

Unable to see this incompatibility either in the act of Congress or in the provision of the constitution of Missouri upon which this court has just passed, but entertaining a strong conviction that both were within the competency of the bodies which enacted them, it seems to me an occasion which demands that my dissent from the judgment of the court, and the reasons for that dissent, should be placed on its records.

Justice Miller's prediction as to the "profound interest" in how history would regard Confederates was prescient.

Here we are 150 years later.

Note: I was unaware of litigation over the Faulkner quote in the title but learned that his estate had sued Woody Allen over its use in the movie Midnight in Paris.

The Jackson Clarion Ledger reported on the case and its aftermath.

Shooting has begun in Mississippi on a new documentary about legendary author William Faulkner — the first ever authorized by his estate.

It’s a documentary that might not have happened if Faulkner’s estate hadn’t decided to sue, alleging filmmaker Woody Allen had infringed on the author’s copyright.

In his 2011 movie “Midnight in Paris,” a writer played by Owen Wilson winds up being transported back to 1920s Paris, where he visits with F. Scott Fitzgerald and other literary greats.

When Wilson returns, he remarks to his fiancée, “The past is not dead! Actually, it’s not even past. You know who said that? Faulkner. And he was right. And I met him, too. I ran into him at a dinner party.”

Faulkner’s line appeared in his 1951 novel, “Requiem for a Nun.” (“The past is never dead. It’s not even past.”)

Perhaps no words are more relevant today than those in the Second Inaugural Address, in my opinion the greatest and most significant public address in American history

"Woe unto the world because of offences! for it must needs be that offences come; but woe to that man by whom the offence cometh!" If we shall suppose that American Slavery is one of those offences which, in the providence of God, must needs come, but which, having continued through His appointed time, He now wills to remove, and that He gives to both North and South, this terrible war, as the woe due to those by whom the offence came, shall we discern therein any departure from those divine attributes which the believers in a Living God always ascribe to Him? Fondly do we hope -- fervently do we pray -- that this mighty scourge of war may speedily pass away. Yet, if God wills that it continue, until all the wealth piled by the bond-man's two hundred and fifty years of unrequited toil shall be sunk, and until every drop of blood drawn with the lash, shall be paid by another drawn with the sword, as was said three thousand years ago, so still it must be said "the judgments of the Lord, are true and righteous altogether"

(Mike Frisch)

June 7, 2020 in Current Affairs | Permalink | Comments (0)

Wednesday, June 3, 2020

Minnesota Abolishes Champerty

The Minnesota Supreme Court has held that a litigation funder has an enforceable contract

This appeal arises from a contract between appellant Prospect Funding Holdings LLC and respondent Pamela Maslowski whereby appellant purchased an interest in respondent’s personal injury suit. When respondent settled her suit and did not abide by the terms of the contract, appellant sued respondent to enforce the contract. Both the district court and the court of appeals held that appellant could not enforce the contract because it violated Minnesota’s common law prohibition against champerty. We reverse and remand to the district court for further proceedings consistent with this opinion.

The respondent had settled a personal injury claim

This case concerns the common-law prohibition against champerty. Champerty is “an agreement to divide litigation proceeds between the owner of the litigated claim and a party unrelated to the lawsuit who supports or helps enforce the claim.” Champerty, Black’s Law Dictionary (11th ed. 2019). It is closely related to the concept of maintenance. See Maintenance, Black’s Law Dictionary (11th ed. 2019) (“Improper assistance in prosecuting or defending a lawsuit given to a litigant by someone who has no bona fide interest in the case; meddling in someone else’s litigation.”). The issue before us is whether we should affirm the court of appeals’ decision on the ground that the contract between Prospect and Maslowski is void as against public policy, or reverse the decision and abolish, under Minnesota law, the common-law doctrine that champertous agreements are unenforceable.

The common law’s disapproval of champerty and maintenance traces back many centuries.

The contract may be champertous but was not contrary to public policy

Under the rule of law articulated by these cases, the contract between Prospect and Maslowski is champertous because Prospect is a stranger to the lawsuit who agreed to provide Maslowski with financial support during her personal injury litigation in exchange for a right to recover from the proceeds of the settlement of her lawsuit. The lower courts therefore did not err in determining that, under our prior decisions, the contract was unenforceable.

We decline, however, to hold that the contract between Maslowski and Prospect is void as against public policy as we understand it today.


Our review of changes in the legal profession and in society convinces us that the ancient prohibition against champerty is no longer necessary.

We first recognized the prohibition against champerty in the years before we adopted formal rules of ethics  and before we adopted Minnesota’s Rules of Civil Procedure. Today, the rules of professional responsibility and civil procedure address the abuses of the legal process that necessitated the common-law prohibition. Although attorneys may advertise to the general public, there are strict limits on solicitation...

Along with the increase in regulation, another important development in the law has been the narrowing or abolition of other common law prohibitions based on concerns about champerty and maintenance. Although contingency fees were disfavored under early common law, all American jurisdictions now allow attorneys to take cases on contingency.

Societal attitudes

Societal attitudes regarding litigation have also changed significantly. Many now see a claim as a potentially valuable asset, rather than viewing litigation as an evil to be avoided. Radin, supra, at 72. The size of the market for litigation financing reflects this attitudinal change...

It is true that the rules of professional responsibility and civil procedure do not specifically regulate champertous agreements. But, as we have explained, the rules of professional responsibility and civil procedure prevent both attorneys and parties from profiting off of frivolous litigation—which is the type of behavior that we took issue with in Huber, Holland, and Gammons. It is also unlikely that companies like Prospect will fund frivolous claims because they only profit from their investment if a plaintiff receives a settlement that exceeds the amount of the advance—an unlikely result in a meritless suit. See David Tyler Adams, Note, Laissez Fair: The Case for Alternative Litigation Funding and Assignment of Lawsuit Proceeds in Georgia, 49 Ga. L. Rev. 1121, 1148–49 (2015). Litigation financing companies have claim valuation procedures to avoid this very problem. Id.

Professional responsibility professors may find this case useful  in teaching how ethics concepts and rules evolve with societal changes. (Mike Frisch)

June 3, 2020 in Current Affairs | Permalink | Comments (0)

Friday, May 22, 2020

Can't Buy Me Love (Or A Malpractice Cause Of Action)

The Iowa Supreme Court has held that a creditor cannot prosecute a legal malpractice action against the debtor's attorney

The narrow question presented in this appeal is whether judgment creditors can levy on their judgment debtor, obtain the judgment debtor’s chose in action for legal malpractice against the attorney representing the judgment debtor in the litigation giving rise to the judgment, and prosecute the claim for legal malpractice against the attorney as the successors in interest to their judgment debtor. For the reasons expressed below, we conclude the judgment creditors cannot prosecute the legal malpractice claim as successors in interest to their former litigation adversary.

The debtor was convicted of crimes

The facts of this case are not disputed. In 2013, James Hohenshell’s stepdaughter invited some of her girlfriends to the Hohenshell home for a party. One of the girls was thirteen-year-old J.G. Hohenshell provided alcohol to J.G. and the other girls. After J.G. became intoxicated and sick, Hohenshell carried J.G. to his bedroom and forcibly raped her. In November 2014, Hohenshell pleaded guilty to one count of committing lascivious acts with a minor and five counts of providing alcohol to a minor and was sentenced to incarceration. “At the guilty-plea proceeding, Hohenshell entered his plea with a smirk on his face and a chuckle.” Gray v. Hohenshell, No. 17–1100, 2019 WL 325015, at *2 (Iowa Ct. App. Jan. 23, 2019)

Civil litigation followed 

The parties tried the issue of damages to a jury. The jury awarded compensatory damages to J.G. in the amount of $50 million, loss of consortium damages to each parent in the amount of $1 million, and punitive damages in the amount of $75 million. The total verdict was $127 million.

It would be fair to say [attorney] Oliver did not vigorously defend the suit. The Grays offered to settle the suit for a confession of judgment in the amount of $2 million or for an amount “well into the six figure range” that included evidence of an ability to pay.

The court describes the lack of vigor in detail.

Defendant secured new counsel and appealed 

While the appeal from the Grays’ suit against Hohenshell was pending, the Grays caused to be issued a writ of execution on the $127 million judgment against Hohenshell.


The Grays purchased this right for $5000 at the sheriff’s sale. At the time the Grays executed on their judgment and purchased Hohenshell’s claims against Oliver, Hohenshell had not asserted any claim for legal malpractice against Oliver, nor has he ever, according to the record.

In November 2017, while the Grays were still defending the $127 million judgment against Hohenshell on appeal, they filed this malpractice claim against Oliver as successors in interest to Hohenshell.

This appeal involved summary judgment of the malpractice claim

The relevant cases identify a surfeit of reasons for concluding a claim for legal malpractice is not subject to assignment and prosecution by an assignee: (1) assignment divests the client of the decision to sue; (2) assignment imperils the sanctity of the attorney–client relationship; (3) assignment erodes the attorney–client privilege; (4) assignment compromises zealous advocacy and the duty of loyalty; (5) assignment degrades the legal profession and the public’s confidence in the court system by sanctioning an abrupt and shameless shifting of positions; (6) assignment restricts access to legal services by the poor or indigent; and (7) assignment creates a commercial market for legal malpractice claims.

These reasons apply with greater force where, as here, the assignment was involuntary and the claim arises out of the litigation in which the parties were adverse.


Given the uniquely personal nature of the claim, we conclude a chose in action for legal malpractice does not encompass the right for another to prosecute the claim as a successor in interest to the holder of the right where the successor obtained the chose in action through involuntary assignment. To conclude otherwise would allow the assignee to destroy the essential element of this peculiar species of property—the client’s right to prosecute or forego a claim of legal malpractice.

Justice Appel specially concurred

I do not completely agree with the majority’s analysis of the main issue in the case. For the second (integrity of the legal process), fourth (duty of loyalty), fifth (public confidence), and sixth (access to legal services) reasons listed in the majority opinion, I have reluctantly but firmly come to the conclusion that the transfer of a cause of action to a litigation adversary should not be permitted. I agree with the majority’s discussion of these specific points.

The majority opinion, however, offers not only the compelling rationale against the transfer of legal malpractice claims, which in my view pose unique problems, but piles on with further rationales that are not moored to the specific issue. It utilizes spill-over rationales—reasons one (only client determines malpractice), three (attorney–client privilege), and seven (commercial market)—that extend well beyond the specific context presented in this case and flood the legal plain off in the horizon. I view the second, fourth, fifth, and sixth reasons presented by the majority as wholly adequate to decide the issue before us.

(Mike Frisch)

May 22, 2020 in Current Affairs | Permalink | Comments (0)

Thursday, May 7, 2020

Corporate Integrity Agreements At Issue In South Carolina

The South Carolina Supreme Court has held that a prosecutor cannot appeal an accepted guilty plea

This appeal arises from special prosecutor David Pascoe's State House public corruption probe involving former South Carolina House Representative Rick Quinn, Jr., who pleaded guilty to a charge of statutory misconduct in office in February 2018. Following the plea hearing, the State grew concerned about the plea's validity because Quinn only admitted to a limited set of  facts supporting the indictment. Believing the plea lacked a sufficient basis, the State moved to vacate the guilty plea, reconsider the sentence, and for the court's recusal. The State appeals the order denying those motions. We dismiss the State's appeal of the guilty plea and affirm the trial court's order as to the sentence and recusal issues.

Justice Few wrote separately " primarily to address the actions of the State's representative" and issues that surfaced in oral argument

As an unsupervised prosecutor, free from any oversight or control by the Attorney General or the First Circuit voters, Pascoe has created a "prosecutive" mess. On one hand, by his own description, Pascoe allowed the most corrupt politician in Columbia (Quinn) and the most corrupt entity in politics (Richard Quinn & Associates) to go essentially scot free. On the other hand, Pascoe accepted hundreds of thousands of dollars from major South Carolina corporations on the promise not to prosecute them for conduct the State Grand Jury found probable cause to believe is criminal. These and other concerns demonstrate the risks and dangers article V, section 24 was designed to protect against.

While the propriety of allowing Quinn to plead guilty and avoid the most significant charges against him is beyond the review of this Court, the "corporate integrity agreements" are not. As the majority in this case indicates, this Court now plans to address the propriety, legality, and validity of the agreements in our upcoming oral arguments in State v. Harrison.

FITSnews reported on the controversy and decision

A controversial probationary sentence imposed on a former South Carolina legislative leader was upheld on Wednesday by the S.C. supreme court – although the real legal drama associated with this ongoing political/ prosecutorial soap opera was left unresolved.

In fact, justices explicitly declined to address the larger issue at hand – although one justice indicated it would be dealt with in the context of another case currently pending before the state’s judiciary.

First, the sentencing ruling: Former S.C. majority leader Rick Quinn will remain a free man after justices ruled unanimously that S.C. circuit court judge Carmen Mullen did not overstep her authority in giving the ex-politician a two-year probationary sentence in February of 2018.

That sentence had been challenged by S.C. first circuit solicitor David Pascoe – who repeatedly sparred with Mullen during his pursuit of plea agreements and/ or convictions tied to ProbeGate, a multi-year investigation into public corruption at the S.C. State House.

Actually, the court ruled that Pascoe had no right to bring the case in the first place because he failed to “make a contemporaneous objection to the plea” at the time it was filed.

“The state cannot appeal the guilty plea,” the justices ruled.

Beyond that, the court unanimously rejected Pascoe’s argument that Mullen showed bias in the case by allegedly instructing the prosecutor to “go light on the facts so the plea won’t blow up” during a December 2017 hearing at which Quinn copped to misconduct in office and resigned his office.

“The trial court did not abuse its discretion in sentencing Rick Quinn, Jr., and there is no evidence of judicial bias or prejudice requiring the court to recuse itself,” the justices ruled.

To recap: Quinn offered his guilty plea as part of a broader agreement to have conspiracy charges dropped against his father, once-powerful “Republican” political strategist Richard Quinn.

The elder Quinn has since been charged with perjury and obstruction of justice in connection with this ongoing investigation – which began in the fall of 2014 and yielded either guilty pleas or convictions of five former legislative leaders: Quinn, former S.C. speaker Bobby Harrell, former S.C. Senate president John Courson, former S.C. House majority leader Jimmy Merrill and former S.C. House judiciary committee chairman/ state code commissioner Jim Harrison.

According to Pascoe, Quinn was “the most corrupt lawmaker” of the bunch – a key cog in an elaborate pay-to-play network run by his father.

(More on that network in a moment …)

Given the alleged starring role Quinn played in his father’s empire, Pascoe asked Mullen to sentence the former lawmaker to a year in jail on the misconduct in office charge to which he pleaded guilty.

“I ask that he serve every day of that (sentence),” Pascoe urged the judge, saying that the court needed to “send a message” to other corrupt lawmakers.

Mullen declined to do so, though … and rightly or wrongly, the court has upheld her decision.

Left unresolved, though? The issue of accountability regarding the influential corporate entities who benefited from this pay-to-play corruption.

“Corporate entities retained Richard Quinn for the purpose of gaining access to and influence over public officials, and by failing to report Quinn’s services, influenced the outcome of legislative matters with no accountability or disclosure to the public,” the grand jurors who investigated Quinn and his cronies wrote in a report released in October of 2018.

Yet while the grand jury determined probable cause existed to charge these corporate defendants, they were able to avoid prosecution thanks to several “corporate integrity agreements” reached with Pascoe’s office.

These agreements consisted of more than $350,000 in monetary fines paid by the corporate defendants … directly to Pascoe’s office.

Those corporate integrity agreements always rubbed us the wrong way. Specifically, the entire ProbeGate investigation “left far too much meat on the bone as far as we are concerned – particularly with regard to the corporate clients implicated in this pay-to-play scandal,” we noted in December 2018.

More recently, we wrote that “allowing corporate entities to basically buy their way out of facing criminal charges is not ‘integrity,’ in fact some would argue it is no better than the sort of behavior Pascoe was prosecuting in the first place.”

Two months ago, supreme court justices challenged the legitimacy of these agreements in the context of Quinn’s appeal – putting the prosecutor on the spot regarding his authority to negotiate such deals and his decision to appropriate the proceeds from them unto his own office.

“The court’s decision to inject itself into this aspect of the case is clearly quite significant – threatening to flip the script on the entire ProbeGate narrative,” we noted at the time. “Up until this point, Pascoe has been portrayed as a crusading prosecutor looking to sweep the State House clean of corruption. Now he is the one on the defensive against similar allegations.”

After raising the issue of these agreements (rightfully, in our estimation) in the context of the Quinn appeal, though, justices declined to to address them in issuing a ruling on his sentence.

“We decline to address the issue of the state’s corporate integrity agreements, as it has no bearing on the resolution of this case, and we express no opinion as to the propriety of these agreements at this time,” justices wrote.

In a sharply worded concurring opinion, however, justice John Few (above) made it abundantly clear that the “propriety” of these agreements was something the court intended to take up in the future.

Few also pulled no punches in offering his assessment of such agreements.

“Pascoe uses the term ‘corporate integrity agreement’ to mean the payment of money to Pascoe’s First Circuit Solicitor’s Office by entities he has under investigation in exchange for a promise by Pascoe not to prosecute the entity, so Pascoe then has funds to prosecute entities or persons who either were not invited to pay or refused to pay.”

Ouch …

“On one hand, by his own description, Pascoe allowed the most corrupt
politician in Columbia (Quinn) and the most corrupt entity in politics (Richard Quinn & Associates) to go essentially scot free,” Few added. “On the other hand, Pascoe accepted hundreds of thousands of dollars from major South Carolina corporations on the promise not to prosecute them for conduct the State Grand Jury found probable cause to believe is criminal.”

Yeah … anyone care to guess how this is going to end for Pascoe?

Drilling down even deeper, Few expressed skepticism regarding Pascoe’s claims that his office needed the money to continue its investigation. This news outlet is curious as to those representations, too. In fact, we are mulling whether to submit a Freedom of Information Act (FOIA) request to the first circuit solicitor’s office in the hopes of obtaining the financial records of the investigation.

Bottom line? Nearly six years after it began, ProbeGate is continuing to generate headlines. Our hope? That this latest legal battle shines a light on the need for real accountability when it comes to those individuals and entities who are determined to have violated the public trust.

Absent real consequences for such behavior, we should not be surprised to see it continue in South Carolina … and as we noted earlier today the stakes are higher now than ever.

(Mike Frisch)

May 7, 2020 in Current Affairs | Permalink | Comments (0)

Virtual Ceremony For Ohio Bar Admission

Swearing in ceremony for the Ohio Supreme Court


May 11, 2020
1 p.m.

Broadcast live on the Ohio Channel. Streamed live on the Ohio Channel and Supreme Court websites.

View the complete list of names of the successful applicants.

(Mike Frisch)

May 7, 2020 in Current Affairs | Permalink | Comments (0)

Tuesday, May 5, 2020

The Law Of The Bird

The North Carolina Supreme Court has held that a car's passenger who had rendered a double middle finger salute passing by an officer did not create a basis for the charge of "resisting, delaying, or obstructing" the officer and that the ensuing stop was improper.

Th salute came as the trooper was rendering aid to a stranded motorist after a snowstorm. 

The following facts can be inferred from Trooper Stevens’ testimony: defendant was waving from the passenger window of an SUV and, a few seconds later, began to gesture with his middle finger; Trooper Stevens did not know whether defendant’s gesture was directed at him or at another driver; and, after pursuing the vehicle for approximately half a mile, Trooper Stevens did not observe any traffic violations or other suspicious behavior.

We conclude that these facts alone are insufficient to provide reasonable suspicion that defendant was engaged in disorderly conduct. The fact that Trooper Stevens was unsure of whether defendant’s gesture may have been directed at another vehicle does not, on its own, provide reasonable suspicion that defendant intended to or was plainly likely to provoke violent retaliation from another driver. Likewise, the mere fact that defendant’s gesture changed from waving to “flipping the bird” is insufficient to conclude defendant’s conduct was likely to cause a breach of the peace. Based on the facts in the record, we are unable to infer that, by gesturing with his middle finger, defendant was intending to or was likely to provoke a violent reaction from another driver that would cause a breach of the peace.

Thus, we conclude that it was error for the trial court to find that there was reasonable suspicion of disorderly conduct to justify the stop.

(Mike Frisch)

May 5, 2020 in Current Affairs | Permalink | Comments (0)

Monday, May 4, 2020

Text Messages Established "Dating Relationship" For Domestic Violence Purposes

The New Jersey Appellate Division affirmed the entry of a domestic violence restraining order.

In this case of first impression, we examine the meaning of a "dating relationship" under the Prevention of Domestic Violence Act, N.J.S.A. 2C:25-17 to -35, where the parties never experienced a traditional, in-person "date." Instead, their relationship was demonstrated by the intensity and content of their communications, including the exchange of nearly 1300 highly personal text messages. We conclude the proliferate and exceedingly intimate communications between the parties constituted a dating relationship within the meaning of the Act and supported entry of the final restraining order (FRO). We therefore affirm.

In the mid-summer of 2018, the parties met at a fitness center where plaintiff was employed as the general manager and defendant was a new member. Defendant had transferred his membership to that location when he moved to the area from Pennsylvania. Nearly every time he exercised at the gym – about three to five times per week – defendant sought plaintiff's attention, engaging her in intimate conversations about her personal life. Plaintiff was twenty-two years old; defendant was almost twenty years her senior.

At some point, defendant gave plaintiff his cellphone number, but plaintiff did not text him until the end of September. During the ensuing five weeks, the parties exchanged text messages at all hours of the day and night. Many of the messages were sexually explicit and suggestive in nature. The parties discussed in graphic detail: their sexual preferences; their prior dating experiences; their recreational drug and alcohol use; and the traits they desired in a partner. Plaintiff testified about a sampling of the text messages.

On October 20, defendant sent plaintiff a message, apparently declaring his romantic interest in her...

Later that day, defendant sent plaintiff a message stating, "you would/will be the youngest I've hooked up with." Plaintiff explained the phrase, "hooked up," meant an  [i]ntimate relationship, sex generally." Plaintiff did not discourage defendant's advances. Rather, the parties had several discussions about "meeting up," which plaintiff defined as getting together "[i]n person, outside of work, on a date."

On October 22, defendant cancelled their plans; the parties continued their discourse; four days later, plaintiff cancelled their date. Plaintiff testified she had other plans, but also "felt uncomfortable meeting up with him outside of work." Apparently, plaintiff did not share her feelings with defendant. The following day, the parties exchanged more than thirty text messages.

Plaintiff explained some of the messages, which she characterized as "flirting."


By November 1, the parties had exchanged 1097 text messages and continued to speak in person at the gym. On November 4 – after plaintiff sent defendant messages indicating she no longer "s[aw] the need for further communication" other than "as a friend" – the tenor of defendant's messages changed completely. What followed can only be described as a barrage of six rapid-fire messages from 11:37 p.m. to slightly before midnight, followed by several lengthy messages from 12:23 a.m. to mid-afternoon on November 5. Many of the messages contained vulgar, insulting, and threatening language, the details of which we need not recount here.

In essence, defendant threatened to contact plaintiff's employer in an effort to have her fired for taking – what he belatedly claimed was – an unauthorized photograph of him at the gym. Defendant also threatened to institute a civil lawsuit against plaintiff, knowing her finances prevented her from hiring counsel to defend it. In one particularly notable example, defendant wrote, "you really don't know who I am which is so shocking because I thought you would have known by now."

After awakening and reading defendant's barrage of harassing messages on November 5, plaintiff conducted an internet search of defendant's name. Among other things, plaintiff discovered defendant had been convicted of stalking and harassing a woman he dated in Pennsylvania...

That same morning, plaintiff reported the incident to the local police and her employer, who terminated defendant's gym membership. In doing so, plaintiff discovered someone had accessed defendant's electronic membership account earlier that morning and changed his address on file to her home address. At some point, the detective assigned to her case advised plaintiff to seek a restraining order. On November 17, plaintiff filed her initial complaint, upon which a TRO was granted that same day by a municipal court judge. A criminal complaint also was filed against defendant on that day.

At issue is the definition of a dating relationship

Where, as here, the nature of the parties' relationship is the pivotal prerequisite to acquiring jurisdiction under the Act, the trial judge should consider the factors identified in Andrews v. Rutherford, 363 N.J. Super. 252, 260 (Ch. Div. 2003), as adopted by our court in S.K. v. J.H., 426 N.J. Super. 230, 235 (App. Div. 2012). Those factors are:
1. Was there a minimal social interpersonal bonding of the parties over and above a mere casual fraternization?
2. How long did the alleged dating activities continue prior to the acts of domestic violence alleged?
3. What were the nature and frequency of the parties' interactions?
4. What were the parties' ongoing expectations with respect to the relationship, either individually or jointly?
5. Did the parties demonstrate an affirmation of their relationship before others by statement or conduct?
6. Are there any other reasons unique to the case that support or detract from a finding that a "dating relationship" exists?


We are satisfied the record contains sufficient credible evidence to support the judge's finding that the parties were involved in a dating relationship. As recounted by plaintiff, the parties regularly engaged in intimate communications, evidenced by the plethora of sexually explicit text messages over the course of several months. Plaintiff testified the relationship "started out" as a "friendship" then "progressed to an intimate level." Toward the end of their relationship, defendant sent messages, stating: "You feel things deeper than most and can't help but give your heart away . . . . I see you and like who I see." Thereafter, plaintiff acknowledged: "[Y]ou've figured out much more about me then [sic] most people do . . . ." Defendant also acknowledged his expectation that the parties intended to "hook up."

...although we agree with the trial judge that the parties' dating relationship was "peculiar" because they never experienced an in-person date, we also acknowledge the prevalence of virtual communications in the everchanging world. Text messaging and other forms of electronic communication enable rapid yet deep interactions at all hours. Those communications can form bonds that may be no less intimate than sharing a dinner or movie. Nor is the lack of sexual relations dispositive. Because we have recognized "dating is a loose concept" that changes "from one generation to the next," J.S., 410 N.J. Super. at 616, the volume and intensity of text message communications can establish a dating relationship, even in the absence of a traditional in-person date. 

The court disposed of the remaining contentions

the thrust of defendant's argument is that – even if he committed an act of harassment – an FRO was not required to protect plaintiff. To support his argument, defendant contends there was no history of domestic violence between the parties, and four months had elapsed between the parties' last contact and the entry of the temporary restraining order (TRO). Defendant's contentions are unavailing.


although plaintiff could not prove the continuing anonymous messages that were alleged in her April 15 amended domestic violence complaint were sent by defendant, the trial judge found plaintiff's testimony established the totality of defendant's conduct placed her in fear. We are satisfied the credible evidence in the record supports the judge's decision that the FRO was necessary to protect plaintiff from immediate danger or future abuse. See N.J.S.A. 2C:25-29(b); Silver, 387 N.J. Super. at 127.

(Mike Frisch)

May 4, 2020 in Current Affairs | Permalink | Comments (0)

Friday, May 1, 2020

Give Me Liberty (Bowl)

The Iowa Supreme Court affirmed the dismissal of a lawsuit on standing grounds

At the end of 2017, the Governor and her spouse traveled to Memphis, Tennessee, on a corporate jet. An individual donor to her campaign paid for the trip. While in Memphis, the Governor engaged in activities related to her 2018 election campaign and also attended the Liberty Bowl football game. Her campaign committee reported the trip as a $2880.00 campaign contribution from the individual, relying on an Iowa Ethics and Campaign Disclosure Board (Board) rule that requires a candidate who receives noncommercial air transportation from a corporation to reimburse the corporation at the rate of the undiscounted coach class airfare.

An attorney with campaign finance experience complained to the Board that the Governor had underreported the fair market value of the trip. When the Board dismissed the complaint, the attorney petitioned for judicial review pursuant to Iowa Code section 17A.19 (2017). The district court dismissed the petition for lack of standing, and the court of appeals affirmed.

On further review, we affirm the judgment of the district court and the decision of the court of appeals, substantially for the reasons set forth in their cogent opinions. We conclude the attorney is not an “aggrieved or adversely affected” party within the meaning of Iowa Code section 17A.19. While parties who allege they are missing information that the campaign laws require to be disclosed may have standing, see FEC v. Akins, 524 U.S. 11, 21, 118 S. Ct. 1777, 1784 (1998), this case is different. The attorney in this case does not allege he is lacking any relevant information and merely voices a disagreement over the reporting method used by the candidate committee.

Justice Appel dissented

I respectfully dissent. The sole issue raised in this case is whether the Iowa legislature in Iowa Code chapter 68B (2017) established the cause of action that Gary Dickey asserts in this action. I conclude that the best interpretation of the statute is that it establishes a statutory right to disclosure of accurate information and that when inaccurate information is allegedly provided and the Iowa Ethics and Campaign Disclosure Board (Board) takes no action, the statutory right may be enforced by Dickey or any other complainant under the Iowa Administrative Procedures Act (IAPA)...

I thus concede that the scope of the legal right created by the legislature when it enacted Iowa Code chapters 68A and 68B is not entirely clear. Of course, the legal right may be express, or it may be implied. See Lansing, 792 N.W.2d at 699. In my view, there is adequate indication that the legal right should be interpreted broadly enough to encompass Dickey’s complaint.

What is crystal clear, however, is that nothing in the majority opinion should be read as defeating the general proposition that the Iowa legislature has the plenary power to create substantive legal interest that citizens are generally entitled to enforce in the event the established legal right is not recognized by an administrative agency. The legislature has the right to create statutory causes of action that can be enforced by citizens generally. Any “prudential” considerations must give way to the legislature’s directive. When it enacts statutes that create statutory rights and enforcement mechanisms, the legislature holds the keys to the courthouse door that cannot be boarded up by the judiciary.

(Mike Frisch)

May 1, 2020 in Current Affairs | Permalink | Comments (0)

Sunday, April 19, 2020

Prosecutorial Ethics And Innocence

An argument held last week before the Missouri Supreme Court involves, among other issues, the ethical obligations of a prosecutor dealing with post-conviction evidence of innocence.

From the summary on the court;s web page

State of Missouri v. Lamar Johnson
St. Louis

Challenges to dismissal of prosecutor’s motion for new trial alleging an unjust conviction
Listen to the oral argument: SC98303 MP3 file
Johnson was represented during arguments by Lindsay J. Runnels of Morgan Pilate LLC in Kansas City; the circuit attorney was represented by Daniel S. Harawa, a professor at Washington University School of Law in St. Louis. The state was represented by Shaun J. Mackelprang of the attorney general’s office in Jefferson City.

In 1994, two masked assailants shot a man to death in St. Louis. Lamar Johnson and Phillip Campbell were charged with the murder. During Johnson’s trial, the assistant circuit attorney presented testimony from an eyewitness to the shooting and an informant who had been held near Johnson at the city jail. Despite failing to identify Johnson in two police lineups, the eyewitness identified Johnson at trial as one of the shooters, explaining he previously had been afraid to do so. The informant testified he overheard Johnson talking about committing a murder. The jury found Johnson guilty of first-degree murder and armed criminal action, and he was sentenced to life in prison without the possibility of probation or parole. While Johnson’s direct appeal was pending, Campbell – who pleaded guilty to voluntary manslaughter and was sentenced to seven years in prison – provided an affidavit stating Johnson was not involved in the shooting. He previously had written letters to Johnson explaining what happened the night of the murder, that Johnson was not involved, and that Campbell and James Howard committed the murder. Johnson moved for a new trial, contending Campbell’s statements constituted newly discovered evidence. The circuit court overruled the motion. Subsequently, Campbell, Howard and two of their associates signed affidavits explaining the circumstances leading to the murder and stating Johnson was not involved. The eyewitness recanted his identification of Johnson and signed an affidavit that he received monetary payments from the state. In 2018, the new circuit attorney’s conviction integrity unit began reviewing Johnson’s case. The circuit attorney determined there was credible evidence of Johnson’s innocence and of police and prosecutorial misconduct resulting in a wrongful conviction. In 2019, the circuit attorney filed a motion for a new trial in Johnson’s case. Johnson joined the circuit attorney’s motion. On its own motion, the circuit court appointed the attorney general to intercede in the case. Ultimately, the circuit court overruled the new trial motion, holding it lacked authority to consider it. The court found Johnson’s counsel improperly contacted jurors; the circuit attorney’s accusation of prosecutorial misconduct should have been investigated independently; and the reasons for the court’s appointment of the attorney general were moot. Johnson appeals; the circuit attorney was designated an intervenor in the appeal.

This appeal presents several questions for this Court. One involves whether the circuit court properly dismissed the circuit attorney’s motion for a new trial or even had authority to consider it. Related issues include whether only the defendant can file such a motion or whether the circuit attorney also can and, if so, whether Rule 29.11’s 15-day deadline for such motions applies to bar a new trial motion filed by the circuit attorney decades after the conviction. If the circuit court lacked authority to consider the circuit attorney’s new trial motion, another question involves whether extraordinary circumstances permit plain error review and warrant this Court granting relief. Related issues include whether this Court should determine that prosecutors always have the authority to file new trial motions when faced with evidence of wrongful conviction; if not, what alternative vehicle permits the circuit attorney to correct unjust convictions within her jurisdiction; and whether the circuit attorney’s motion convincingly demonstrates Johnson is actually innocent, his conviction was obtained through false or manufactured evidence, and the state concealed material exculpatory and impeachment evidence. A further question involves whether the circuit court erred in appointing the attorney general to represent the state in this case.

A number of individuals and organizations filed briefs as friends of the Court:

A group of 11 retired Missouri judges argues the state’s canons of judicial conduct and rules of criminal procedure required the circuit court to hold a hearing and reach a decision on its merits; prosecutors have a duty to pursue a remedy to set aside an unlawful conviction; the circuit court had inherent authority to prevent a miscarriage of justice or manifest injustice and abused its discretion by not considering and deciding the motion, even though it was untimely; and, if necessary, this Court should amend its rules to permit a prosecutor to file a motion for new trial in a case of manifest injustice or wrongful conviction.

The Missouri Association of Criminal Defense Lawyers and National Association of Criminal Defense Lawyers argue prosecutors, as a matter of law, should have the ability to exercise their statutory and ethical duty to assist in overturning wrongful convictions of innocent persons; Rule 91, governing habeas corpus, is inadequate to provide a remedy to innocent persons who are wrongfully convicted; and Rules 29.11 and 29.12 should be read to allow a prosecutor to file a motion in the circuit court to correct plain error to vacate the conviction of an innocent person.

The American Civil Liberties Union of Missouri, American Civil Liberties Union Foundation, The Innocence Project Inc., The Innocence Network and Miracle of Innocence argue substantive review of the issues raised in the circuit attorney’s motion for new trial is required to protect the integrity of the judicial system, is permitted by Missouri law under extraordinary circumstances such as in this case, is necessary under federal and state case law, and is in the public interest.

A group of 45 elected prosecutors from throughout the country argues the circuit court had authority to waive the standard time limitation and consider the circuit attorney’s new trial motion; the circuit attorney is a quasi-judicial officer elected by the citizens in her city to exercise her discretion in all criminal matters within the city, including wrongful convictions; the circuit attorney must have a legal mechanism to seek a new trial for a defendant when newly discovered evidence shows the conviction was tainted by constitutional violations; and the circuit attorney – not the attorney general – is the only authorized representative of the state in this matter absent a disqualifying conflict or other special basis to appoint the attorney general.

A group of nine legal scholars focusing on habeas corpus jurisprudence and postconviction remedies argues equity demands a judicial procedure by which prosecutors can fulfill their ethically and constitutionally mandated duty to seek justice in cases of actual innocence involving constitutional violations at trial; the circuit attorney is a quasi-judicial officer with the power to free the innocent, as historically accommodated by Missouri courts; and Missouri rules provide the procedural mechanism for the circuit court to exercise its equitable authority to correct a fundamental miscarriage of justice.

A group of 107 legal ethics scholars argues the circuit attorney acted in accordance with her duty to seek justice in seeking to rectify what she concluded, after her office’s investigation, was Johnson’s wrongful conviction.

A group of 30 elected Missouri prosecutors argues the circuit attorney’s office has no authority to file a motion for a new trial in a criminal case on the defendant’s behalf; the circuit court lacked authority to rule on the merits of an untimely successive new trial motion; a prosecutor’s legal and ethical obligations in wrongful convictions are satisfied by disclosure; a prosecutor must not litigate on a defendant’s behalf; and this Court should not amend its rules to permit a prosecutor to file a new trial motion decades after the circuit court exhausted its jurisdiction. 

This link takes the reader to the briefs. 

Bruce Green and Peter Joy authored the brief on behalf of 107 legal ethics scholars
The Circuit Court below expressed skepticism about whether, in filing a Motion for a New Trial in Lamar Johnson’s case, Circuit Attorney Gardner acted consistently with her ethical and professional obligations. The implication may have been that the Circuit Attorney’s obligation was to defend the conviction and to defend the propriety of the state’s conduct in securing it, even after concluding, based on a post-conviction investigation and the review of newly discovered evidence, that Johnson was innocent and his conviction was secured by procedural misconduct amounting to a denial of due process. While Amici recognize that the propriety of the Circuit Attorney’s conduct is not directly at issue in this appeal, and that the Supreme Court of Missouri is unlikely to share the Circuit Court’s concern, we write to make it plain that the Circuit Attorney
acted in the best traditions of her office. Prosecutors have a duty to seek justice, which includes a duty to seek to rectify wrongful convictions. The Circuit Attorney acted in accordance with this duty when she moved to set aside Johnson’s conviction after she concluded, based on her office’s post-conviction investigation of new evidence in Johnson’s case, that Johnson had been wrongly convicted due to prosecutorial misconduct and was innocent.
From the brief of elected Missouri Prosecutors
Amici are interested in this case as it is an attack upon the definition of the role of the prosecutor in the criminal justice system, and the constitutional and statutory allocation of appellate duties between the elected county prosecutor and the Missouri Attorney General.
Amici fully recognize and promote the role of the prosecutor and their ethical responsibilities as codified in Rule 4-3.8. This brief is provided, in part, to advocate for key tenets of our profession: the concepts of timely disclosure to opposition counsel, just litigation of the crimes committed by criminal defendants, and the honest representation of the citizens of the State of Missouri in the courts. Mostly importantly, as the role of a prosecutor has been questioned in this matter, amici ask this court to recognize that the local
elected prosecutor is a sworn constitutional officer and an impartial minister of justice, and not solely an advocate for the political needs of their own office.
The prosecutor’s client is the State of Missouri, not the defendant. The CAO and various amici advocate that this court should either craft a new law regarding exoneration practice in the State of Missouri or bend the current law to such an extent it is unrecognizable from its current form. The ramifications of bending existing criminal legal practice to allow unfettered motions for new trial would break the framework of fair adjudication, the civil rights of all defendants in the State, the constitutional rights of victims, erode the Governor’s pardon power, and create a whirlwind of new litigation in the criminal courts.
The State of Missouri has a long-standing, codified, legal framework which works to the benefit of its citizens by allocating to local elected prosecutors the duties of fairly prosecuting a criminal defendant in the criminal courts, and by the Missouri Attorney General representing the citizens in the appellate courts. The rights of all people are recognized by our federal and state constitutions. The Missouri Legislature further defines those rights into a unified code of laws. This Court supervises the procedure and
practice of the courts in this State. This Court must intervene to stop the conduct of appellate matters, and matters of pardon and clemency, in a local circuit court under the guise of a wrongful application of a post-trial motion in a criminal case.
Amici do not desire for this court to reallocate the appellate responsibilities of the Missouri Attorney General onto their already full shoulders. Neither does amici desire for an injustice to be done to Mr. Johnson – they desire only that the merits of his case be brought to the proper forum by the proper litigants in the proper manner.
(Mike Frisch)

April 19, 2020 in Current Affairs | Permalink | Comments (0)

Wednesday, April 15, 2020

Flawed Hair Evidence Tainted 1970 Murder Conviction

A 50 year old murder conviction was reversed by the United States Court of Appeals for the District of Columbia Circuit based on the use of discredited hair analysis testimony at the trial.

Almost fifty years ago, appellant Dennis Butler was convicted of murder. At his trial, an FBI forensic expert testified that hairs found on the victim were microscopically identical to Butler’s hair. The government recently acknowledged, though, that hair evidence of the kind introduced against Butler was false and exceeded the limits of science, and that the prosecution knew or should have known as much at the time of his trial.

Butler brought a motion to set aside his conviction and vacate his sentence based on the government’s admission that it had used false evidence against him. We examine a single question: whether the false hair evidence presented by the government was material. The district court found the evidence immaterial. In our view, however, there is a reasonable likelihood that the false hair evidence introduced against Butler could have affected the jury’s verdict. We thus reverse the judgment of the district court.

The majority opinion was authored Chief Judge Srinivasan joined by Circuit Judge Pillard.

For decades, the FBI Laboratory employed a form of forensic analysis dubbed “hair microscopy.” Hair microscopy called for forensic examiners to conduct side-by-side, microscopic comparisons of hair samples in an effort to ascertain whether hairs from a crime scene matched hairs from a suspect. The government used ostensible matches at trial as scientific evidence linking defendants to crimes.

There was, however, a significant problem with that field of analysis: science had not validated its foundational premises. Existing studies failed to support a trained  examiner’s ability to identify a “match” based on any objective system of visual hair comparison or to validly estimate the frequency of hair characteristics (and therefore of matches) in the general population.

Although those limitations were long known to the government, prosecutors continued to rely on hair evidence at trial. By 2009, however, multiple developments spurred the government to reassess its position on the evidentiary reliability of hair microscopy. First, the National Academy of Sciences published a groundbreaking report critical of the practice. The report confirmed that “[n]o scientifically accepted statistics exist about the frequency with which particular characteristics of hair are distributed in the population,” and noted the absence of any uniform standards for identifying how many characteristics must be shared between two hairs before they can be called a “match.” Nat’l Research Council, Strengthening Forensic Science in the United States: A Path Forward 160 (2009). Additionally, DNA testing exonerated several men who had been convicted using hair evidence, some of whom had been imprisoned for decades.

Those events prompted the federal government to undertake its largest postconviction review in history. Working in tandem with defendants’ rights groups, the government audited thousands of convictions from the pre-2000 period to identify cases in which the government made use of false hair evidence. This is one of the identified cases.

A dissent

KATSAS, Circuit Judge, dissenting:

My colleagues set aside a half-century-old murder conviction based on a few scraps of misleading testimony that were briefly given and immediately corrected. In so doing, they recast Napue v. Illinois, 360 U.S. 264 (1959), which permits relief only if there is a reasonable likelihood that false testimony caused a conviction, into a hairline trigger for setting aside convictions. And they downplay untainted evidence that overwhelmingly establishes the defendant’s guilt. For both reasons, I respectfully dissent.

(Mike Frisch)

April 15, 2020 in Current Affairs | Permalink | Comments (0)

Tuesday, April 14, 2020

Lesser Included Instructions To Grand Jurors

The New Jersey Supreme Court has rejected a motion to dismiss a first degree murder indictment for the failure of the prosecutor to explain lesser murder charges

Defendant moved to dismiss the indictment claiming that, because the grand jury asked about lesser-included offenses, the prosecutor should have explained the lesser included offenses for murder. The court denied the motion, finding that the grand jury was not requesting instructions on lesser-included offenses, but rather “clarification.” The Appellate Division denied defendant’s motion for leave to appeal. The Court granted leave to appeal. 236 N.J. 631 (2019).

HELD: The prosecutor did not impermissibly interfere with the grand jury’s investigative functions. As the trial court found, the grand jury here sought clarification rather than specific instructions on lesser-included offenses for murder. The Court provides guidance as to when such instructions should be given.

The court deemed the matter one of public importance and declined to rule the issue moot. 


Although no instruction as to lesser-included offenses was needed in this case, the Court notes that other cases may call for such instructions. When the grand jurors’ questions, considered in context, ask about lesser-included offenses and there is a rational basis for instructions on lesser-included offenses, the better practice for prosecutors is to provide them and advise the grand jury that the trial court may include instructions on lesser-included offenses whether or not the grand jury authorizes them. That will ensure that grand jurors are fully informed of the consequences of their decisions.

April 14, 2020 in Current Affairs | Permalink | Comments (0)

Monday, April 13, 2020

Mandamus Relief Denied To September 11 Defendants

The United States Court of Appeals for the District of Columbia has denied mandamus relief seeking to vacate all orders by the former presiding military judge

The petitioners are being tried before a military commission at Guantanamo Bay, Cuba, for their alleged roles in the September 11th terrorist attacks. They seek writs of mandamus vacating all orders issued by the former presiding military judge, Marine Corps Colonel Keith Parrella, because of the appearance of partiality that they claim was created by his earlier work at the United States Department of Justice (DOJ), his acquaintance with one of the military commission prosecutors, the possibility that he might seek a position with the DOJ in the future and his alleged lack of candor regarding potential grounds for disqualification. Because it was neither clear nor indisputable that Parrella was obligated to recuse himself, we deny the petitions.

The court reviewed the evidence 

Reviewing all of the grounds for recusal proffered by the Guantanamo defendants together—Parrella’s CTS fellowship, his relationship with Groharing, the possibility of future DOJ employment and his voir dire responses—we conclude that it is neither clear nor indisputable that Colonel Parrella should have recused himself. The circumstances of Parrella’s career and relationships do not constitute reasonable bases for the extraordinary remedy of mandamus.

For the foregoing reasons, we deny the petitions

The opinion was authored by circuit Judge Henderson, (Mike Frisch)

April 13, 2020 in Current Affairs | Permalink | Comments (0)

Tuesday, April 7, 2020

The Elephant In The Room

The North Carolina Supreme Court reversed the Court of Appeals and remanded a first degree murder conviction, holding that the prosecutor's references to race in closing argument did not prejudice the defendant.


Defendant testified that he was upset from having a bad day. He heard people arguing outside and yelled at them from his window. He yelled, “keep it the f--- down.” The group yelled back, “shut the f--- up; f--- you; go inside, white boy.” Defendant testified that he saw multiple people in the group with guns. Other witnesses testified that they did not see anyone with a gun at the party. Defendant’s two young daughters were in the house.

Defendant called 911. Before the operator answered, defendant was recorded saying “I’m going to kill him.” In his testimony, defendant admitted to having falsely reported there were “hoodlums racing up and down the street.” He said he was “locked and loaded” and going to “secure the neighborhood.” Defendant was not a police officer.

Defendant believed his son was part of the rowdy group outside and went to get him. When he got to his garage, which was furnished like a den, he found his son there. From his garage defendant yelled at the group to “leave the premises.”

According to witnesses who were at the scene that night, Kourey Thomas and his friends saw police blue lights from an unrelated traffic stop down the street. Thomas had a weed grinder on his person and did not want any trouble with the police, so he ran from Lewis’s house back to his friend’s car.  He cut across a small part of defendant’s yard on the way. Defendant saw a man running in his yard. Thomas was shot before he made it to his car. The force from the shot caused him to fall on the curb next to defendant’s mailbox. Someone screamed, “he just shot him through the window!” Defendant’s house was dark, his garage was closed, and one of the garage windows was broken. Thomas was African American. Defendant is white.

The victim died at the hospital.

Defendant was charged with first-degree murder. His case went to trial in February 2018. During closing arguments at trial, the prosecutor made the following statements which are at issue here:

MR. LATOUR [prosecutor]: I have at every turn attempted to not make this what this case is about. And at every turn, jury selection, arguments, evidence, closing argument, there’s been this undercurrent, right? What’s the undercurrent? The undercurrent that the defendant brought up to you in his closing argument is what did he mean by hoodlums? I never told you what he meant by hoodlums. I told you he meant the people outside. They presented the evidence that he’s scared of these black males. And let’s call it what it is. Let’s talk about the elephant in the room.

MR. POLK [defense counsel]: Objection.

THE COURT: Overruled.

MR. LATOUR: Let’s talk about the elephant in the room. If they want to go there, consider it. And why is it relevant for you? Because we talked about that self-defense issue, right, and reasonable fear. What is a reasonable fear? You get to determine what’s reasonable. Ask yourself if Kourey Thomas and these people outside were a bunch of young, white males walking around wearing N.C. State hats, is he laying dead bleeding in that yard? 

MR. POLK: Objection.

THE COURT: Overruled.

MR. LATOUR: Think about it. I’m not saying that’s why he shot him, but it might’ve been a factor he was considering. You can decide that for yourself. You’ve heard all the evidence. Is it reasonable that he’s afraid of them because they’re a black male outside wearing a baseball cap that happens to be red? They want to make it a gang thing. The only evidence in this case about gangs is that nobody knows if anybody was in a gang. That’s the evidence. They can paint it however they want to paint it, but you all swore and raised your hand when I asked you in jury selection if you would decide this case based on the evidence that you hear in the case, and that’s the evidence. Now, reasonableness and that fear, a fear based out of hatred or a fear based out of race is not a reasonable fear, I would submit to you. That’s just hatred. And I’m not saying that’s
what it is here, but you can consider that. And if that’s what you think it was, then maybe it’s not a reasonable fear.

The court examined possible prejudice in light of all the evidence

Given that the jury found beyond a reasonable doubt that defendant was guilty of first-degree murder based on the evidence it heard, and given defendant’s failure to argue persuasively that there is a reasonable possibility that the jury would have acquitted him absent the prosecutor’s challenged remarks, we cannot conclude that the inclusion of the remarks prejudiced defendant. Therefore, we are unable to conclude that he is entitled to a new trial.

Justice Earls concurred but noted the majority and dissenting opinions below left an unresolved question

The essential question is: was it improper, in light of the evidence in this case, for the prosecutor to argue to the jury that a fear based on race would not be a reasonable fear? That argument was proper in this case for two reasons. First, it was not an appeal to racial animosity. Second, statements made by jurors during jury selection, the evidence here concerning race-based statements made by individuals at the scene, and defendant’s assertion of self-defense all combine to suggest that jurors potentially might have been swayed by their own conscious or unconscious racial biases instead of the evidence in the case. In these circumstances the prosecutor properly argued that it would not be reasonable for defendant to fear Kourey Thomas, the victim in this case, if that fear was based on the fact that Kourey Thomas was black.

While explicit references to race are improper

Equally well established is the principle, followed by this Court in Williams, that “[n]onderogatory references to race are permissible, however, if material to issues in the trial and sufficiently justified to warrant ‘the risks inevitably taken when racial matters are injected into any important decision-making.’ ”

...The record in this case shows that the prosecutor’s references to race in his closing argument were non-derogatory, and that they were intended to ensure that the jury did not allow implicit stereotypes about the dangerousness of young black men to infect their determination of whether defendant established that he had a reasonable fear and acted lawfully in self-defense. In these circumstances, the statements were proper.

As to relevance 

The remaining inquiry under our precedents is whether the statements were relevant to the facts of the case. In this case, the prosecutor’s statements were relevant because jurors themselves had raised the issue of race during jury selection, defendant testified that the men outside his house had used racially charged language, and defendant asserted self-defense. The very first mention of any race related aspect of this case came during jury selection when defendant’s counsel asked a prospective juror “do you remember anything about comparisons to the famous George Zimmerman case in Florida?” At that point the prosecutor objected and the trial court sustained the objection.

(Mike Frisch)

April 7, 2020 in Current Affairs | Permalink | Comments (0)

Monday, March 30, 2020

Massachusetts Upholds Public Defender Ability To Limit Caseload

The Massachusetts Supreme Judicial Court has held that an order to provide appointed counsel after a 

Due to the volume of additional cases, the attorney in charge of the Springfield PDD office and CPCS's deputy chief counsel determined in June 2019 that the staff attorneys in the Springfield PDD office had exceeded their caseload capacity and they could not provide effective assistance to any additional clients. Accordingly, on June 11, the attorney in charge informed the First Justice of the Springfield District Court that CPCS staff attorneys in the Springfield PDD office could not handle any more duty days in that court.

In response, the district court ordered that the public defender continue to accept appointments.

The court here

We recognize that the First Justice was taking emergency action that he deemed necessary under the circumstances to protect indigent defendants' constitutional rights to counsel and to avoid halting proceedings in new criminal cases in the Springfield District Court. We conclude, however, that the June 12 order and the court's subsequent appointments of CPCS staff attorneys in the Springfield PDD office under that order were invalid. The June 12 order and subsequent appointments of CPCS staff attorneys improperly infringed upon CPCS's statutory authority to control assignments and to limit caseloads for its staff attorneys under G. L. c. 211D because the order and the appointments overrode CPCS's determination that the staff attorneys in its Springfield office had already reached their caseload capacity and could not accept any more cases, without any contrary findings by the court that put in doubt the validity of that determination. We also note our concern that, to the extent such an order may require CPCS staff attorneys to accept more appointments than they can reasonably handle, it risks interfering with their ethical obligations under the Massachusetts Rules of Professional Conduct to act with reasonable diligence and promptness in representing their clients, and thereby threatens to undermine the very right to counsel that the order seeks to protect.


The case is remanded to the county court to determine whether a hearing is required concerning the current availability of defense counsel to represent indigent defendants in Hampden  County and whether the Lavallee protocol imposed by the single justice is still required.

(Mike Frisch )

March 30, 2020 in Current Affairs | Permalink | Comments (0)

Tuesday, March 3, 2020

Is Smartphone Service Unauthorized Practice?

Two cases up for oral argument tomorrow are summarized on the web page of the Florida Supreme Court

Wednesday, March 4, 2020

SC18-149 The Florida Bar v. TIKD Services LLC, A Foreign Limited Liability Company & Christopher Riley, Individually and as Founder of TIKD Services, LLC

Starts at 9:00 a.m.

The Florida Bar filed a petition with this Court against TIKD Services LLC, a smartphone service used to challenge traffic tickets, and Mr. Christopher Riley, Executive Director of TIKD Services, for engaging in the unlicensed practice of law. Mr. Riley is not a member of the Bar and is not licensed to engage in the practice of law in Florida. Mr. Riley disputes the allegation and argues the services provided by TIKD do not constitute legal advice or services. The judge-referee appointed to review the case recommends that this Court dismiss the Bar’s petition with prejudice. The Florida Bar challenges the referee’s recommendation. 

Appearance for the Florida Bar: 
Chris W. Altenbernd of Banker Lopez Gassler P.A., Tampa, 813-221-1500

Appearance for Amici Curiae Florida Private Practice Lawyers: 
James J. McGuire of Thomas & LoCicero PL, Tampa, 813-984-3060

Appearance for Respondents: 
Christopher M. Kise of Foley & Lardner LLP, Tallahassee, 850-222-6100

SC19-673 Arch Insurance Company v. Kubicki Draper, LLP

Broward County – starts about 9:40 a.m.

Arch Insurance Company hired law firm Kubicki Draper to defend an insured party in an accounting malpractice case. The lawsuit settled within the policy limits. Arch Insurance Company then sued Kubicki Draper for legal malpractice, alleging that Kubicki Draper should have raised a statute of limitations defense in the original litigation and that the law firm’s failure to do so significantly increased the cost of the settlement. The trial court ruled that Arch Insurance Company did not have the legal standing to sue Kubicki Draper. On appeal, the Fourth District Court of Appeal agreed with the trial court but certified a question of great public importance to this Court regarding standing.

Appearance for Petitioner: 
Edward G. Guedes of Weiss Serota Helfman Cole & Bierman, P.L., Coral Gables, 305-854-0800

Appearance for Respondent: 
Christopher V. Carlyle of The Carlyle Appellate Law Firm, Orlando, 407-377-6870

(Mike Frisch)

March 3, 2020 in Current Affairs | Permalink | Comments (0)

Friday, February 28, 2020

Going Global

An announcement on the web page of the District of Columbia Bar

D.C. Bar Global Legal Practice Committee Seeks Public Comment on Rule of Professional Conduct 5.4

February 27, 2020

The D.C. Bar Global Legal Practice Committee (GLPC) is studying and seeking feedback on the changing models for obtaining and delivering legal services in the United States and abroad, including alternative business structures (ABS) and multidisciplinary practice (MDP). The deadline for comments is close of business Monday, March 9, 2020.

ABS is a legal service business model that is different from the traditional law firm structure and may include external investment in a law firm, nonlawyer ownership of a law firm, or other ways to offer legal services outside traditional models. ABS may allow for the provision of certain types of legal services by nonlawyers. Multidisciplinary practice is a type of ABS firm that provides both legal and non-legal services.

Several foreign countries permit ABS and/or MDP firms. However, in the United States each jurisdiction’s version of Rule 5.4(a) generally prohibits lawyers from sharing fees with nonlawyers, and Rule 5.4(b) restricts lawyers from forming partnerships with nonlawyers. The District of Columbia is the only jurisdiction in the United States that has adopted a modified Rule 5.4(b), which permits lawyers to form partnerships with nonlawyers in limited circumstances.

Under D.C.’s Rule 5.4(b), a lawyer may practice law in an organization with a nonlawyer partner, provided that: (1) the nonlawyer performs professional services which assist the organization in providing legal services to clients; (2) the organization’s sole purpose is providing legal services to clients; (3) the nonlawyer undertakes to abide by the Rules of Professional Conduct; (4) the lawyers who have a financial interest or managerial authority in the partnership or organization undertake to be responsible for the nonlawyer participants to the same extent as if nonlawyer participants were lawyers under Rule 5.1; and (5) the foregoing conditions are set forth in writing.

Currently, several U.S. jurisdictions are exploring potential changes to their respective Rule 5.4(b) that would either mirror that of the District’s rule or expand or eliminate the rule altogether to allow lawyers and nonlawyers to form ABS or MDPs.

As part of its study, the GLPC is requesting comment from Bar members about the following issues:

      • For those firms that have nonlawyer partners, how has D.C.’s existing Rule 5.4(b) permitting D.C. law firms to have nonlawyer owners been beneficial in providing services to clients? Has the option to offer partnership to nonlawyer professionals been beneficial in retaining skilled and experienced nonlawyer professionals such as mental health professionals, medical doctors or nurse practitioners, economists, lobbyists, accountants, and law firm managers and executive directors?


      • Are the circumstances under which a D.C. Bar member may practice with a nonlawyer partner under Rule 5.4(b) too restrictive? Have these restrictions prevented you from establishing a practice with a nonlawyer that you otherwise would have done?


      • How could your firm benefit if it were permitted to share fees with nonlawyers? Do you think that allowing for outside investment could increase capital or offer greater financial security for your firm? Would this lead to better or more efficient service to your clients or investment in innovation through technology?


      • Is there a demand from your clients for legal services that are integrated with other non-legal professional services? Would your firm collaborate with other professionals to form an MDP if Rule 5.4 were amended to allow it? Have you or your firm lost business or clients because of the inability to offer integrated professional services?


      • If your firm currently utilizes third-party litigation funding, or is interested in doing so, what would be the impact of a rule change that permits either fee-sharing with nonlawyers or a less restrictive ownership interest by nonlawyers?


      • If the fee-sharing and nonlawyer ownership provisions of Rule 5.4 were more permissive, should lawyer partners continue to be responsible for the actions of nonlawyer partners as set forth in existing Rule 5.4(b)? Should the Rules of Professional Conduct apply to the nonlawyer partners, including disciplinary prosecution and sanctions for violations of the rules? Or, should there be a different regulatory structure specific to nonlawyers?


      • If D.C.’s existing Rule 5.4 should not be changed, why not?


The Committee’s intention is that any publication referencing comments received in response to this request will paraphrase or summarize them and will not include details that would identify individual commenters, regardless of whether feedback is submitted in an individual’s capacity or on behalf of a group or organization.

Feedback, comments, and suggestions should be sent by mail or email by close of business on Monday, March 9, 2020, to:

Global Legal Practice Committee
District of Columbia Bar
901 4th Street NW
Washington, DC 20001
Attention: Adriana Goss-Santos

(Mike Frisch)

February 28, 2020 in Current Affairs | Permalink | Comments (0)

Friday, January 10, 2020

No Conversion In Handling Entrusted Funds; New Jersey Rejects Non-Client Claims

The New Jersey Supreme Court rejected claims arising from Fox Rothschild's handing of entrusted funds per the court's head note

This appeal involves claims of conversion and breach of fiduciary responsibility leveled at an attorney, Anthony Argiropoulos, Esq., and his then-law firm, Fox Rothschild LLP (collectively, “the firm”), regarding funds wire-transferred to the firm’s trust account.

As alleged in this matter, an intermediary entity wired funds for plaintiff Moshe Meisels, a London-based real estate investor, to the firm’s trust account in connection with a real estate deal in which Eliyahu Weinstein, the firm’s client, was engaged. Prior to the commencement of this litigation, the firm was admittedly unaware of Meisels’s  existence. It is undisputed that Meisels did not speak to, or otherwise communicate with, Argiropoulos or Fox Rothschild.

In his pleadings, Meisels alleges that he had Rightmatch Ltd., an entity located in London, transfer over $2.4 million to the attorney trust account of Fox Rothschild, Weinstein’s attorneys at the time. Rightmatch wired the money in two transfers, executed by Cambridge Mercantile Group. Confirmations for each transfer were sent, “[f]or and on behalf of Cambridge Mercantile Corp.,” to Rightmatch, with a single line indicating “Attn: Moshe Meisels.” The transfers themselves did not identify plaintiff as the funds’ owner or include any instructions regarding limitations or conditions.

Defendants distributed the funds as their client directed. Meisels alleges that Weinstein instructed the firm to distribute the funds for purposes other than the agreed upon real estate transaction. According to Meisels, the purchase of the Irvington property was never consummated; Weinstein defrauded Meisels and his related co-plaintiffs.

Plaintiff commenced this action in 2012 and, after discovery and the filing of an amended complaint, defendants sought summary judgment on the grounds that (1) plaintiff did not produce evidence to support ownership of the funds that Rightmatch wired to Fox Rothschild and therefore lacked standing to sue; and (2) plaintiff had no contact with anyone from Fox Rothschild and, therefore, could not establish the essential elements of any of the claims.

The motion court granted summary judgment to the firm and dismissed the amended complaint with prejudice. The Appellate Division affirmed as to the fiduciary duty claim but reversed as to the conversion claim, rejecting defendants’ argument “that Meisels was required to show that he demanded the return of his property.”

The Court granted defendants’ petition for certification, seeking review of the Appellate Division’s judgment reinstating the conversion claim. 236 N.J. 67 (2018). The Court also granted plaintiff’s cross-petition, seeking review of the Appellate Division’s judgment dismissing the breach of fiduciary duty claim. 236 N.J. 44 (2018).

HELD: The firm did not breach any fiduciary duty where the firm was not made aware, nor did it have any basis on which it reasonably should have been aware, of plaintiff or of a claim by plaintiff to the funds. As such, there was no relationship between the firm and plaintiff on which a fiduciary duty was owed. On that issue, the Court affirms the judgment of the Appellate Division. However, defendants cannot be found to have engaged in conversion in this matter. Where, as here, a law firm lawfully holds in trust wired funds for its client’s real estate transaction, which funds are received with no limiting direction or instruction and for which the firm receives no demand from the nonclient, the firm’s disposition of the trust funds in accordance with the client’s instructions does not give rise to a claim for conversion. The Court rejects the reasoning that under these circumstances the obligation to make a demand is excused and reverses as to the conversion claim.

  1. As officers of the courts, attorneys owe a duty of care that finds helpful benchmarks in the Rules of Professional Conduct (RPCs). Standing alone, a violation of the RPCs does not create a cause of action for damages in favor of a person allegedly aggrieved by that violation. In this matter, the RPCs provide relevant information for assessing the claimed violation of a fiduciary duty with which the firm is charged. RPC 1.15 addresses an attorney’s obligation to safeguard property in his or her possession, including property received from a non-client third party. (pp. 12-14)
  2. Here, RPC 1.15 does not provide a pathway for finding a fiduciary duty that was breached by the firm. Meisels maintains that an attorney “owes a fiduciary duty to persons, though not strictly clients, who he knows or should know rely on him in his professional capacity.” However, case law extending an attorney’s duty to a third party not in privity with the attorney has been approached with care so as to be fair to all; generally stated, it is cabined by considerations of reasonableness. Meisels admits that defendants had no knowledge of his existence, had no contact with him, possessed no knowledge about any purported agreement between him and Weinstein, and made no representations to Meisels. It is simply not reasonable to expect a lawyer to have fiduciary obligations to an individual under such circumstances. Meisels produced no evidence to show that he relied upon defendants in their professional capacity. The circumstances of this case, moreover, offer no indicia that defendants endeavored to induce Meisels to rely on the firm. Inducement of reliance cannot be ascribed to the firm simply because the funds for its client’s commercial real estate transaction were permitted to be wired to and held in the firm’s trust account. In these circumstances, the firm’s disposition of the funds held in its trust account in compliance with the client’s instructions, as required by RPC 1.2, was not a breach of fiduciary duty. No fiduciary duty was owed by the firm to Meisels. (pp. 14-18)
    3. The Court traces the history of the tort of conversion. To determine whether a conversion has occurred, there must first be an assessment into whether defendant has independent dominion and control over the subject property. Additionally, where the defendant lawfully acquired plaintiff’s property, the plaintiff must show that he demanded the return of the property and that the defendant refused compliance. The demand is the linchpin that transforms an initial lawful possession into a setting of tortious conduct, if the demand is refused. Accordingly, in such circumstances, a demand is essential; a claimant must make a demand at a time and place and under such circumstances as defendant is able to comply with if he is so disposed, and the refusal must be wrongful. There are circumstances, to be sure, where demand may be futile, but that is and must be viewed as an exception. (pp. 18-22)
    4. Funds held in an attorney’s trust account for its client are the client’s funds, not the firm’s. Here, with no knowledge of a competing claim to the funds -- and, indeed, no knowledge whatsoever about Meisels and his role in the transaction -- the firm acted appropriately in adhering to the client’s directions. Meisels cannot prove that the firm itself exercised independent dominion and control over his funds. That requirement for a conversion claim is lacking in this matter. The lack of independent dominion and control, moreover, renders more serious the lack of demand here. The demand would have been the means to alert the firm that a competing claim existed and would have triggered the firm’s obligation to reasonably inquire further, and perhaps seek judicial assistance, before embarking on fulfillment of a client’s direction. Violation of the demand might then create the tort of conversion. Only when an attorney misdirects or misappropriates funds, or when an attorney has acted contrary to a known, competing claim -- or a competing claim that reasonably should have been known -- can there be an independent dominion or control over the funds by the firm to the repudiation of the rights of the proper owner. (pp. 23-25)

The judgment of the Appellate Division is AFFIRMED IN PART and REVERSED IN PART, and the Court orders the conversion claim DISMISSED. CHIEF JUSTICE RABNER and JUSTICES ALBIN, PATTERSON, FERNANDEZ-VINA, SOLOMON, and TIMPONE join in JUSTICE LaVECCHIA’s opinion.

Oral argument linked here. (Mike Frisch)

January 10, 2020 in Clients, Current Affairs | Permalink | Comments (0)

Tuesday, November 19, 2019

Orioles Defeat Nationals

Not on the field but in the courts.

The dispute between the two teams arising from their broadcast agreements was sent back to arbitration by the New York Appellate Division for the First Judicial Department.

This dispute between petitioner WN Partner LLC (the Nationals) and respondent Baltimore Orioles Limited Partnership (the Orioles) arises under a September 2005 partnership agreement pursuant to which Mid-Atlantic Sports Network has the exclusive right to broadcast the games of the Baltimore Orioles and Washington Nationals baseball teams. The agreement sets forth a multi-step dispute resolution process. Under section 19.1, the parties must first mediate any dispute. Should mediation prove unsuccessful, section 19.2 provides that the "dispute shall be arbitrated before the Commissioner of Baseball pursuant to the provisions of the Major League Constitution; provided, that [Major League Baseball] MLB does not have any ownership or financial interest in a Partner or the Partnership at the time that the dispute that is the subject of the arbitration arose." If that is the case, the dispute is to be resolved pursuant to section 19.3, which provides that if MLB had such financial interest at the time the dispute arose, the parties must arbitrate "any disputes" under the Partnership Agreement before the American Arbitration Association (AAA), pursuant to AAA Rules of Arbitration, "[n]otwithstanding any provisions of the Major League Constitution or any MLB documents, rules or customs." The logic of this provision is clear; to permit otherwise would, as the motion court observed, allow MLB, a potentially conflicted party, to determine whether it itself had a financial interest in one of the parties to the dispute at the relevant time. The question on this appeal is whether it is for the Commissioner, the AAA, or a court to determine the gateway issue of whether MLB had such financial interest at the time the dispute arose.

The Nats sought to stay the arbitration

The Nationals unpersuasively argue that the Orioles "waived" their right to arbitrate before the AAA. It is undisputed that the Nationals attempted to initiate an arbitration before the Commissioner without first complying with section 19.1, which provides that mediation before AAA or JAMS must precede any arbitration. The Orioles objected and asked that the demand be dismissed, including on the ground that the parties had not first engaged in mediation as required by the agreement, and reserved all of their rights. When the mediation failed, the Orioles promptly filed a demand for arbitration before the AAA. The record thus shows that the Orioles did not consent to any arbitration before the Commissioner, much less waive their right to arbitrate before the AAA in accordance with section 19.3. There is no basis in the record to find that the Orioles participated in the Nationals' prematurely filed arbitration in any meaningful way so as to hold them bound to such proceeding (see Skyline Steel, LLC, 139 AD3d at 647; Rush v Oppenheimer & Co., 779 F2d 885 [2d Cir 1985]).

(Mike Frisch)


November 19, 2019 in Current Affairs | Permalink | Comments (0)

Wednesday, October 23, 2019

Relief Denied

The United States Court of Appeals for the District of Columbia Circuit denied relief to Roger Stone

Roger Stone and members of his family petition this Court for a writ of mandamus vacating the District Court’s orders modifying Stone’s conditions of release, arguing that the orders infringe on their First Amendment right to free speech. Where a mandamus petitioner has an adequate alternative remedy, however, we lack jurisdiction to grant the petition. In re Asemani, 455 F.3d 296, 299-301 (D.C. Cir. 2006) (dismissing mandamus petition for lack of jurisdiction). Here, because Stone and his family members failed to avail themselves of adequate alternative remedies, we dismiss their petition.

Circuit Judge Wilkins authored the opinion. (Mike Frisch)

October 23, 2019 in Current Affairs | Permalink | Comments (0)

Monday, October 7, 2019

Georgia, Guns And The Garden

The Georgia Supreme Court has apparently upheld the right to carry a firearm in the Atlanta Botanical Garden.

A firearms ban is only effective on private property

Contrary to the rulings below, we determine that for purposes of OCGA § 16-11-127 (c), property may be considered “private” only if the holder of the present estate in the property is a private person or entity. In this case, because the City is a public entity, if it is the holder of the present estate, then the leased premises is not private property within the meaning of the statute because property owned by a municipality is not “private property.” If the City thus owns the property, then the Garden has no right to exclude the carrying of firearms on the leased premises because it is not “in legal control of private property through a lease.” If, on the other hand, by the terms of the 50-year lease with the City, the Garden holds the present estate in the property, then the property is “private property,” the Garden is a “private property owner,” and it had the right to exclude Evans from carrying a firearm on the premises. However, because the lease is not in the record on appeal and because this determination requires an examination of its provisions to determine whether it granted an estate to the Garden, summary judgment should not have been granted in favor of the Garden under the theory it asserted in its motion for summary judgment. We therefore reverse the judgment of the Court of Appeals and remand the case for further proceedings.

(mike Frisch)

October 7, 2019 in Current Affairs | Permalink | Comments (0)