Tuesday, December 28, 2010

Group aims to help attorneys conquer addictions

Recovering alcoholic leads state version of Lawyers Concerned for Lawyers

Attorney Coe Swobe has been more than a successful lawyer. He spent a dozen years in the Nevada Legislature as both an assemblyman and state senator and negotiated a deal to save Lake Tahoe.

But saving himself proved a little harder.

Swobe is a recovering alcoholic whose drinking nearly destroyed his life and career. Swobe remembers feeling as if had nowhere to turn. So, now, a quarter of a century later, he has made sure other lawyers suffering from addictions can get confidential help.

Swobe, who is now 81, has been a force behind Lawyers Concerned for Lawyers, the state's version of the national group that provides help to attorneys who suffer from addictions. The organization counsels attorneys with alcohol, drug and gambling addictions and recently expanded into dealing with depressed lawyers.

Swobe recounted how a few drinks here and there evolved into a devastating problem.

"It started out in college drinking beer. I went to wine, then I went to hard liquor. I found out I drank more and more as time went on," Swobe recalled. "The other progression of the disease is denial."

When Swobe was 55, his family forced an intervention. After about a dozen years of sobriety, he discovered Lawyers Concerned for Lawyers, a group founded in 1985 by attorney and recovering alcoholic Ben Graham.

Graham found support for his new group from Michael Cherry, another lawyer recovering from alcoholism. Cherry is now a Nevada Supreme Court justice.

"Mainly the (State) Bar supported us with money," Cherry recalled. "They supported us from the beginning and we patterned this after what was going on (with a similar program) in Oregon."

The State Bar supports Lawyers Concerned for Lawyers financially, but does not receive any confidential information on those being counseled, Swobe said.

"We are an independent organization, because we are effective being independent of the Bar," Swobe said.

Cam Ferenbach talked about Lawyers Concerned for Lawyers shortly after he was named State Bar of Nevada president over the summer. He emphasized the need to keep the support system going and in the public eye.

"It's a place lawyers can go to get help without worrying about disciplinary action. Everything is kept confidential," Ferenbach said. "We want to see this program continue."

The idea of the State Bar learning of attorneys' problems terrifies lawyers with addictions. So, Swobe is quick to distance his group from the State Bar, which administers discipline.

"Lawyers are paranoid about the (State) Bar finding out," he said. "We had a phone line that went to the (State) Bar and attorneys hung up when they heard, 'State Bar.' So now we have a different number."

Swobe gained the support of Nevada's lawyers, judges and Supreme Court in 1994 as he worked to ensure that they were educated about substance abuse and other addictions in the legal profession. A few years ago, The Nevada Supreme Court adopted a rule allowing Lawyers Concerned for Lawyers to keep all client information confidential.

The support group has become important from both humanistic and business reasons, State Bar of Nevada officials said.

Addiction ramifications in the legal profession go beyond attorneys' suffering. Costly addictions such as compulsive gambling and drugs often factor in client complaints filed with the State Bar of Nevada, said Dave Clark, the bar's deputy council.

"When it comes to serious misconduct, (addictions) are a serious factor," Clark said. "Alcohol is the traditional favorite, but Nevada offers a variety of addictions. We see a few cases (of attorney misconduct) a month."

That misconduct often involves clients' money.

"They accept retainers from clients and never do the work because they are just funding their addictions," Clark added.

Cherry credits his 24 years of sobriety for allowing him to achieve career success and, more importantly, for saving his life.

"Had I not stopped drinking, there's no way I would have become a Supreme Court justice," he said. "It was killing me. I probably would have died."

By Valerie Miller, vmiller@lvbusinesspress.com, 702-387-5286

Source: Las Vegas Business Press

U.S. must provide incapacitated immigrants with lawyers, judge rules

Two mentally disabled immigrants must be given lawyers as they fight deportation, a U.S. district court judge has ruled.

Jose Franco-Gonzalez, 29, of Costa Mesa, and Guillermo Gomez-Sanchez, 48, of San Bernardino, are at the center of a case that marks one of the first instances in which a judge ordered representation for an individual in immigration proceedings, according to a coalition of advocacy lawyers arguing the men's cases.

The decision by U.S. District Court Judge Dolly Gee came last week just before Christmas. Both men have been free pending a bail hearing also ordered by Gee.

In a March lawsuit, the ACLU of Southern California and other advocates argued that the men's diminished mental capacities made them unable to voice their own interests.

Franco, who is moderately retarded, was convicted and served a year in jail on an assault with a deadly weapon charge for throwing a rock during a fight between rival gangs, his attorneys have said. He doesn't know his birth date or how to tell time, and has an IQ no higher than 55, according to his attorney.

Gomez is a paranoid schizophrenic who served one year of a two-year sentence for a 2004 assault conviction stemming from a scuffle over tomatoes he picked without permission. He has previous convictions, including for battery against a police officer, which his attorneys have attributed to his mental illness.

The lawsuit initially was filed only on behalf of Gomez and Franco. But the plaintiff's lawyers successfully petitioned the court to transform it into a class-action case on behalf of all detainees with mental disabilities, attorneys said

"Judge Gee's thorough opinion is a first step in ensuring that the rights of those who are rendered helpless by their mental illnesses are not ignored,'' said Michael Steinberg, a partner with Sullivan & Cromwell who is assisting in the litigation.

Both men are still facing possible deportation. Gomez is a legal resident and Franco has petitioned for a green card. Until they were freed in April, both had languished in detention centers and psychiatric hospitals for years because authorities considered them mentally incompetent, the plaintiffs' attorneys say.

By Catherine Saillant

Source: Los Angeles Times

Sunday, December 26, 2010

AG says access to juvenile court records limited

Wisconsin Attorney General J.B. Van Hollen says lawyers representing the public's interest in certain cases involving children may not have access to restricted information about juveniles.

Van Hollen says in the formal opinion released Wednesday that attorneys can't access the information in the online court database because technical limitations could result in them accessing private case information.

Van Hollen issued the opinion after being asked about the issue by the director of the state court system. The question pertains to cases involving a child in need of protective services or the termination of parental rights.

Van Hollen says the online system currently isn't set up to allow a subset of juvenile case information to be viewed without making all juvenile records available.

By Associated Press

Source: Chicagotribune.com

Lawyers say Hard Rock 'Rehab' canceled

Court documents filed in a Las Vegas trademark case indicate the truTV reality series "Rehab: Party at the Hard Rock Hotel" has been canceled.

Attorneys for the Las Vegas hotel and casino said in documents that the series was not coming back despite being a hit.

"Defendants believe the show was an enormous net benefit to the Hard Rock brand," the documents filed last week said.

The Las Vegas Sun Saturday the cancellation announcement contained in the documents came amid a court battle between the hotel and Hard Rock Cafe International, which controls the worldwide Hard Rock brand.

Hard Rock Cafe International went to court in September claiming that the raucous partying displayed in the series was tarnishing the company's good name. The hotel countered the series had actually improved business.

Source: UPI.com

Wednesday, December 22, 2010

Al-Haramain Islamic Foundation awarded damages

A federal judge ordered the government Tuesday to pay $40,800 in damages and $2.5 million in legal fees for wiretapping an Islamic organization without a warrant as part of President George W. Bush's secret surveillance program.

Although the government has classified Al-Haramain Islamic Foundation as a terrorist organization, the group's lawyers accomplished "a vindication of constitutional rights that serves the greater public interest" in challenging the wiretapping, said Chief U.S. District Judge Vaughn Walker.

Walker ruled in March that federal agents had illegally eavesdropped on Al-Haramain and two of its lawyers during a terrorism investigation in 2004. It was the only ruling in the nation against the surveillance program, which has been challenged in numerous cases.

Tuesday's order completes Walker's work on the case and allows the Obama administration to appeal the wiretap ruling.

The administration has argued that the suit endangers state secrets and national security. But the Justice Department has not said whether it will ask higher courts to uphold the surveillance, which was part of a program that President Obama criticized as a candidate.

Jon Eisenberg, Al-Haramain's lead attorney, said the Obama administration "has embraced the power grab and abusive litigation tactics of the Bush administration" in the court case.

Bush acknowledged in 2005 that he had authorized federal agents after the Sept. 11, 2001, terrorist attacks to intercept phone calls and e-mails between Americans and suspected foreign terrorists without the warrants that Congress had required in a 1978 law.

He claimed inherent power to override the law, an argument Walker rejected.

Unlike all others who had challenged the surveillance program, Al-Haramain, a now-defunct charity, had evidence that it had been wiretapped - a secret document that the government inadvertently sent to the organization.

Although Al-Haramain was barred from using the document in its lawsuit, Walker ruled in March that the organization had presented enough public evidence to show that it had been the target of illegal surveillance.

On Tuesday, the judge awarded damages of $100 a day, the maximum allowed by the 1978 law, to two Al-Haramain attorneys whose phone calls he found were intercepted for nearly seven months in 2004.

Walker refused to award punitive damages, saying the government had believed it was acting legally. But he granted the lawyers' request for $2.5 million in fees.

The attorneys prevailed against a government that "has fiercely litigated this case from the beginning," Walker said.

By Bob Egelko, begelko@sfchronicle.com, Chronicle Staff Writer

Source: Chronicle Staff

Federal judge chastises Kilpatrick lawyers over secrecy attempts

A federal judge today censured former Mayor Kwame Kilpatrick's attorneys for trying to file motions under seal in the lawsuit involving slain exotic dancer Tamara Greene.

Today's order by U.S. Eastern District Judge Gerald E. Rosen is his latest admonishment of Kilpatrick's attorneys for trying to keep court motions hidden. Rosen ordered Kilpatrick's motion, which was filed Monday, stricken from the court record.

Norman Yatooma, attorney for Greene's family, said the attorneys were "trying to seal documents related to Kilpatrick's computer."

Rosen pointed out that anyone wishing to file motions under seal must receive prior authorization from the court, and show why the information needs to be kept under wraps.

"This court has repeatedly emphasized in this case that this . . . rule would be strictly enforced, and it has removed from the docket sealed submissions that were filed in violation of this . . . rule." Rosen wrote in today's order.

In September, Rosen made public a motion filed by Kilpatrick attorney James Thomas seeking to dismiss a federal lawsuit filed by Greene's family, which claims the ex-mayor and Detroit Police officials quashed an investigation into Greene's drive-by shooting death in April 2003.

Greene allegedly danced at a rumored but never proven Manoogian Mansion party.

Thomas was not available for comment this afternoon.

In today's order, Rosen wrote that Kilpatrick's attorneys likely won't be able to show just cause to file the motion in question under seal, because the motion "discusses procedural matters that seemingly need not be shielded from public disclosure."

By George Hunter, The Detroit News

Source: The Detroit News

Monday, December 20, 2010

Judge rules Speight competent to stand trial in Appomattox slayings

A judge on Friday declared a man accused of killing eight people mentally fit to stand trial and appointed a public defender to represent him.

Appomattox Circuit Judge Richard Blanton accepted a state mental-health hospital's report stating that Christopher Speight, 41, is capable of understanding court proceedings and assisting his lawyers.

C.J. Covati of Roanoke, one of two attorneys hired by Speight shortly after his arrest Jan. 20, did not oppose the competency finding. He said Speight "still hears voices and has hallucinations, but they are not as intrusive" as they were before he was sent to Central State Hospital in June for mental-health treatment.

Speight was charged with three counts of capital murder after the shootings at the Appomattox house he shared with his sister and her family. He surrendered Jan. 20 after an 18-hour manhunt.

In court papers last spring, Speight's attorneys said he displayed "an overall agitated and fearful demeanor" in jail and that he talked about "being tortured by other entities that were battling over him, and he demanded the torture stop."

The former security guard was sent to a state mental hospital in June after a psychologist found him too mentally ill to assist his lawyers or stand trial.

Speight, handcuffed and shackled and dressed in a jail-issued orange jumpsuit, sat quietly through the 10-minute hearing, speaking only to confirm his identity and acknowledge that by requesting court-appointed counsel he was waiving his right to a speedy trial.

The capital public defender, David P. Baugh of Richmond, will be allowed to choose another lawyer or lawyers to help with the case. Covati and Neil Horn of Roanoke have been representing Speight and are the likely choices, but Blanton said he never has allowed the capital defender to bring in more than one other attorney. The defense attorneys all declined to comment after the hearing.

The case was continued to Jan. 4, when a trial date is expected to be set. Appomattox Commonwealth's Attorney Darrel W. Puckett said the appointment of the public defender won't slow the process but the trial still won't be anytime soon.

"There's lots of stuff that has to happen on both sides," he said after the hearing.

Speight was arrested Jan. 20 after an overnight standoff with authorities at the home he shared with his sister, her husband and their two children. Those family members were among the victims. Two neighbors, their teenage daughter and a teenage boy also were killed.

Speight also is accused of firing at a state police helicopter, resulting in a charge of attempted capital murder of a police officer.


Source: Richmond Times-Dispatch

4 state AGs urge spill victims to get lawyers

Attorneys general in four Gulf states are urging oil spill victims to consult lawyers before accepting final payments from a $20 billion compensation fund and agreeing not to sue BP.

They issued notices to claimants Thursday in Florida, Alabama, Louisiana and Mississippi. They warned residents that if they sign away their rights they can't come back and get more money, even if they suffer new damage from oil from the BP rig explosion.

Claimants can now accept interim, final and quick final payments. Those opting for final or quick final must agree not to sue BP or any other responsible party.

Fund administrator Ken Feinberg says he appreciates the attorneys general looking out for their citizens and says he is doing that, too.

By The Associated Press

Source: The Washington Post

Thursday, December 16, 2010

20 States Sue Government Over Federal Health Care Act

Lawyers representing 20 states were in a Florida courtroom Thursday arguing to overturn the federal Health Care Act

Their lawsuit is just one significant force in the overall legal opposition to the law across the country.

The Attorneys General from 20 states have a message for the president

"Obamacare should be stricken down as a violation of the constitution," says Texas AG Greg Abbott.

Attorneys General from Texas, Florida and Alabama argued in a federal court that congress does not have the constitutional authority to force all Americans to buy health insurance --or penalize them if they don't.

"The judge actually said if Congress can get away with making us purchase health care, it could also get away with making us buy broccoli," says Abbott.

They also told the judge, if states are forced to expand medicaid programs under the new law, they'll go broke.

"Where are you going to get the money? Are we going to raise taxes in the states enormously?" asks Bill McCollum, the Florida Attorney General.

Earlier this week a federal judge in Virginia ruled that citizens cannot be forced to buy health insurance. Supporters of this lawsuit want the Florida judge to go even further; to actually stop the federal government from enacting health care reform.

But two other federal judges have upheld the law and dozens of groups are weighing in from the sidelines.

"There is a lot at stake because there are tens of millions of people who are going to gain coverage as a result of this legislation.," says Ron Pollack, the Executive Director for Families USA.

Outside the courthouse some showed their distrust of more government intervention, but others who've fought their own health care battles want to see this reform law stick.

"In my situation, I would have suffered less not only financially, but medically had I been eligible for medicaid," explains Laurie Scop, a Florida resident.

Lawyers for the federal government say ultimately states don't have the authority to interfere. Legal analysts say the issue will undoubtedly end up before the Supreme Court.

The other states involved in the lawsuit are Alabama, Alaska,
Arizona, Colorado, Georgia, Indiana, Idaho, Louisiana, Michigan, Mississippi, Nebraska, Nevada, North Dakota, Pennsylvania, South Carolina, South Dakota, Texas, Utah and Washington.

By CBS News

Source: Kbtx.com

Home invasion lawyers want to bar words and glares

Lawyers for the second man charged with murder in a deadly machete attack and home invasion in New Hampshire want prosecutors barred from glaring at him during his upcoming insanity trial.

Attorneys for 21-year-old Christopher Gribble of Brookline also want to stop prosecutors from using family photographs of the victims or describing them as a "loving and caring family."

Gribble has admitted he helped kill Kimberly Cates and maimed her daughter in their Mont Vernon home, but he says he was insane at the time. His trial is scheduled to begin in February.

Steven Spader was convicted in November of murder and other felonies for killing Cates, 42, and maiming her 11-year-old daughter, Jaimie. Prosecutors say Spader wielded a machete and Gribble hacked at the victims with a knife.

Defense attorneys Matthew Hill and Donna Brown base their motions in large part on their observations during Spader's trial. During arguments to the jury and occasionally while questioning witnesses, prosecutors Jeffery Strelzin and Peter Hinckley would stand in front of the defense table and glare at Spader. Such conduct is an effort to convey to the jury how the state feels about the defendant and "only serves to exacerbate the shocking and emotional nature of the evidence in this case," the defense attorneys said.

They want Superior Court Judge Gillian Abramson to order prosecutors to "not glare at/or stare down" their client during trial.

During Spader's trial, prosecutors projected onto a screen photographs of the victims that Hill and Brown say "have no relevance in this case. The only purpose of this evidence is to evoke sympathy."

Gribble's lawyers also want prosecutors barred from using terms like "slaughter, horror or ambush" during the trial, saying those words are inflammatory. Hill and Brown also want to exclude testimony from victims' relatives about gifts they gave Kimberly Cates that were stolen during the home invasion. The lawyers called that testimony emotional and not relevant.

Prosecutors have yet to file a response to the motions. Abramson will hear arguments on them Jan. 10.

Gribble and his lawyers return to court next week to argue a motion to move the trial to another judicial district. The judge denied a similar motion in Spader's case.

By Lynne Tuohy, The Associated Press

Source: The Boston Globe

Wednesday, December 15, 2010

Truth in Lending Act changes opposed by consumer attorneys

Two local attorneys representing homeowners fighting foreclosure have joined more than 200 lawyers, more than 30 legal services organizations and a dozen consumer advocacy groups asking the Federal Reserve governors to preserve the right of borrowers to cancel a loan if they do not receive proper disclosures.

Soquel attorney Pamela Simmons and Henry Martin of the nonprofit Watsonville Law Center signed a Nov. 16 letter to the Federal Reserve governors, asking them to withdraw changes to the Truth in Lending Act proposed in FRB Docket R-1390.

The Fed announced the proposed changes, which run 250 pages in the Federal Register, Sept. 24 and is accepting comments until Dec. 23.

Existing law, enacted in 1968, allows consumers up to three years to cancel a loan through a process known as rescission if they did not receive proper disclosures when the loan was closed.

The proposed change would require the borrower to repay the loan before the loan could be canceled instead of afterward, which is the current procedure.

"This proposal would make it completely useless to all but the wealthiest borrowers," according to letter signed by the Center for Responsible Lending, Consumer Action and the National Coalition of Reinvestment Coalition.

"A homeowner can't borrow the money to pay off the lender unless the lender is willing to accept the lower payoff and agrees to release their security interest," Simmons said.

In the September announcement, the Fed said the proposal was designed to "simplify and improve the notice of the right to rescind to consumers at closing" and to "reduce undue compliance burden and litigation risk for creditors."

The Mortgage Bankers Association, which represents the real estate finance industry, has not yet finalized its comments to the Federal Reserve, "but we are inclined to support the proposed rule as it relates to rescissions, " spokesman John Mechem said.

Several years ago, Aptos insurance agent Sean Rovai worked with Simmons' partner, attorney William Purdy, to use the right of rescission to cancel a loan.

"One of the documents was not signed so it was not valid," said Rovai. "I went to another lender and got a new loan."

He attributed the problem to sloppy paperwork.

"The whole crisis is basically greed on everyone's part," he said. "You've got to live within your means. If you're working at Walmart, you don't live in a $900,000 house. Lenders need to be held accountable for the shady things they did."

It's very uncommon for someone to rescind a mortgage loan, according to Simmons.

"Our firm has been specializing in this issue for years," she said. "We've done hundreds."

When problems are found, a notice of rescission is sent to the lender, which must decide within 20 days whether to accept it. The lender cancels the lien on the property, and the borrower pays the loan balance, minus payments already made.

Simmons said clients generally refinance or sell the property to do that, though sometimes the lender may rewrite the loan at the new balance.

By JONDI GUMZ, Santa Cruz Sentinel

Source: San Jose Mercury News

Brunei prince's NY court fight with attys near end

Brunei's flamboyant Prince Jefri Bolkiah tried to play by his own "royal rules" in dealing with two British lawyers he has accused of stealing from him, one of their attorneys said Monday as a trial in the globe-trotting, multimillion-dollar dispute neared its end.

Lawyers for attorneys Faith Zaman Derbyshire and Thomas Derbyshire made closing arguments Monday in the five-week-long trial. The case has become a tabloid staple by opening a window on the prince's outlandish lifestyle -- including some sexually explicit, life-sized, custom-made statues he once kept at an estate on New York's Long Island.

The prince's lawyers were due to give their summations Tuesday.

Jefri is the so-called "playboy prince" of one of the world's richest royal families. He's the youngest brother of the sultan of oil-rich Brunei.

Jefri says the Derbyshires, a husband-and-wife legal team, exploited their access to his business affairs to steal about $7 million from him. The prince's camp says they embezzled by doing everything from using his money to buy themselves a home in Manhattan Beach, Calif., to charging beauty treatments and other personal luxuries to his corporate credit cards.

The Derbyshires say he owes them $12 million or more in promised fees and authorized everything they did. They say the disputed transactions were made on Jefri's behalf, were his way of paying them or were reimbursements for money they'd advanced to his businesses -- and they say they ultimately ended up millions of dollars short.

The prince's side is "throwing up smoke ... so that they can take the compensation duly owed to Mr. and Mrs. Derbyshire. Those are Jefri's rules," Faith Derbyshire's lawyer, Peder Garske, told jurors Monday.

They would, he said, "have to decide whether it's going to be Jefri's rules, royal rules or the rules that require you to tell the truth and comply with your agreements."

Jefri has long been notorious for his free-spending ways: He once owned more than 2,000 cars and 600 properties, according to a Delaware court ruling.

He's spent much of the past decade locked in court fights with his brother's government, which accused Jefri of embezzling nearly $16 billion from Brunei's state coffers while he was its finance minister, nearly bankrupting the tiny country on the island of Borneo.

Jefri denied any wrongdoing but agreed in 2000 to repay money to Brunei's investment arm. The dispute endured for years as the Brunei government pressed him to turn over promised assets, and he hired the Derbyshires in 2004.

"I was impressed" on meeting them, he testified last month.

After their business relationship soured, he fired them in 2006 and later sued them.

Word of the erotic statues emerged as the case headed for trial, but the judge has barred any mention of them to jurors.


Source: BusinessWeek

Monday, December 13, 2010

Lawyers Try to Revive Texas Death-Penalty Hearing

The defense attorneys for an accused killer are trying to restart a controversial hearing on the legality of the death penalty in Texas after the state's highest criminal court stopped it Tuesday at the request of prosecutors.

The controversial hearing, which started Monday at a state district court in Houston, was expected to last a couple of weeks. The defense lawyers had asked the judge to rule that the way Texas applies capital punishment is unconstitutional because it carries high risks of executing innocent people.

Their goal was to prevent their client, John E. Green Jr., from being prosecuted for capital murder, which is punishable by death. Mr. Green is accused of killing a Houston woman in front of her children.

But the Harris County district attorney's office, which brought the case against Mr. Green, asked the Texas Court of Criminal Appeals to halt the hearing, arguing that the district court has no authority to decide on the issue. The appeals court ordered the involved parties to file legal briefs within 15 days, outlining their arguments before it can decide whether the hearing should move forward.

"We are focused on what they want us to do and believe that there is a pretty decent chance that they will agree with us," said Richard Burr, one of Mr. Green's lawyers, of the appeals court.

A spokeswoman for the district attorney declined to comment.

Critics of the Texas criminal justice system had seen the hearing as an opportunity to air in court what they say are well-documented problems that have led to wrongful convictions and executions.

By Ana Campoy, ana.campoy@dowjones.com

Source: WSJ.com

APS should not let lawyers interview witnesses at school, Hall told

Atlanta Public Schools administrators are giving their personal criminal defense attorneys access to school grounds so they can interview potential witnesses, raising "serious witness intimidation concerns," the governor's special investigators have told Superintendent Beverly Hall.

In a letter sent Thursday, the investigators told Hall to tell her administrators to stop allowing their defense attorneys to interview teachers and instructors on school property, on school time and at the direction of school principals. This appears to put the school district's stamp of approval on the practice and can let administrators and principals use the power of their office to compel witnesses to cooperate, the investigators said.

The letter was sent to Hall by Gov. Sonny Perdue's special investigators, Mike Bowers, Bob Wilson and Richard Hyde, and was written under the governor's office masthead. In August, Perdue appointed the investigators to determine whether Atlanta school officials falsified scores on the Criterion-Referenced Competency Tests.

"It's very serious business and we want what could be construed as interference with the investigation to be stopped," Bowers said Friday. "It's not that the defense attorneys don't have a right to talk to anyone they please, but it shouldn't be under those conditions. We're not going to put up with it."

APS spokesman Keith Bromery said the school system is reviewing the letter. It will respond "at the appropriate time to the issues it raises," he said.

The APS test-tampering scandal already has resulted in dozens of GBI agents being dispatched to Atlanta public schools to interview teachers and administrators.

During the ongoing investigation, numerous APS employees have confessed to changing students' test papers, providing answers to students or watching others manipulate tests, The Atlanta Journal-Constitution has reported. The investigators have granted immunity to teachers, so long as they tell the truth, and are using their cooperation to investigate superiors.

On Nov. 30, Fulton County District Attorney Paul Howard designated Bowers, a former state attorney general, and Wilson, a former DeKalb DA, as special assistant district attorneys. Howard said he may convene a special grand jury and decide whether criminal charges should be brought against APS officials.

In their letter, the investigators singled out Lucious Brown, the principal at Kennedy Middle School, saying Brown allowed his defense lawyer to interview witnesses on school property and during school hours. "We view Mr. Brown's conduct as an abuse of power over the employees he supervises," the letter said.

Brown did not return phone calls seeking comment.

The school district's probe of the CRCT results -- conducted by a "blue ribbon commission" composed of civic and business leaders -- found high numbers of erasures on 2009 test answer sheets at Kennedy Middle School.

The state investigators asked Hall to tell all APS employees that her directive requiring school employees to cooperate with the governor's investigation does not apply to cooperating with defense lawyers who represent school officials. Hall should tell her employees they are free to talk to defense attorneys but are under no obligation to do so, the letter said.

If APS employees choose to speak with a defense lawyer, they should not admit they have received immunity from criminal prosecution in connection with the governor's investigation, the investigators told Hall. "Doing so at this early stage of the investigation could jeopardize the governor's investigation and their safety."

Atlanta criminal defense attorney Steve Sadow said Friday he understands why the investigators do not want potential witnesses to be put in a position at their school where they feel they are required to talk to defense attorneys representing school principals and administrators. But asking Hall to instruct school employees that they should not admit they have received immunity borders on misconduct, he said.

"If you're encouraging prospective prosecution witnesses to potentially lie to defense counsel, that's a problem," Sadow said. "If they've received immunity and are being told to say they don't have it, that's a whole different situation. It's just flat-out wrong."

The special investigators should have asked Hall to tell her employees it is her preference that they not discuss any immunity agreement because it could potentially jeopardize the investigation or their safety, Sadow said. "But she also should be able to say it's their decision to make."

By Bill Rankin, The Atlanta Journal-Constitution

Source: The Atlanta Journal-Constitution

Wednesday, December 8, 2010

Lawyers say video shows two shooters at City Grill

Citing video from transit authority cameras, defense attorneys today said Riccardo M. McCray was not one of the two gunmen exchanging shots that left four dead and four wounded outside the City Grill restaurant last August.

Following a delay in a pre-trial hearing, attorney E. Earl Key stressed outside the courtroom that "Mr. McCray was not firing a weapon" during the incident.

Key and co-counsel Samuel P. Davis said they will prove through prosecution evidence, including Niagara Frontier Transportation Authority video of the shooting scene, that there were two shooters exchanging gunfire as the downtown restaurant was vacated early last Aug. 14.

Key, whose comments were disputed by prosecutors, said crime scene video will prove "there's no question there were two shooters," neither of whom was McCray.

A pre-trial hearing on the admissibility of statements McCray made to police after his Aug. 25 arrest was adjourned this morning by Erie County Judge Sheila A. DiTullio to Dec. 23 after prosecutors obtained three new video discs from WIVB-TV.

Prosecutors James F. Bargnesi and Mary Beth DePasquale told the judge the district attorney's office did not learn until Ch. 4 broadcast additional footage of the crime scene Monday night that more tapes existed.

Key and Davis, complaining about alleged prosecution footdragging, accepted a copy of the new tapes without acknowledging their value to the pending case now set for the start of a jury trial March 14. The tapes reportedly pertain to both the shooting scene and McCray's surrender after being taken to the TV station by community activist Darnell Jackson.

After today's court session, Bargnesi, when pressed on the two-shooter claims, stressed that this is only the defense's contention. Bargnesi, chief of the Erie County DA's Homicide Bureau, noted that McCray is "the one accused of the deaths and injuries."

McCray, 23, a former street gang member, faces a possible life term with no chance of parole if convicted.

He is charged with fatally shooting Danyell Mackin, 30; Willie McCaa, 26; Tiffany Wilhite, 32; and Shawntia McNeil, 27. He's also charged with wounding James Robb, 27; DeMario Vass, 30; Shamar Davis, 30; and Tillman Ward, 27.

By Matt Gryta, mgryta@buffnews.com, NEWS STAFF REPORTER

Source: The Buffalo News

Gabe Watson's lawyers talk about his return

Gabe Watson is back in Birmingham and his attorneys say they hope to have him out of jail in a matter of days. The man accused of killing his wife on their Australian honeymoon back in 2003 is spending his 2nd night in the Jefferson County Jail.

Watson touched down in Birmingham overnight and was booked. Just a few hours later, he was speaking to his attorneys in person for the first time in months.

"I was very pleased that Gabe was upbeat. He was positive and optimistic. And I think that was because he was touching ground at home," said Brett Bloomton, one of Watson's attorneys. "He is in Birmingham, his treatment at the Jefferson County Jail I could commend."

"Understand that Gabe's been away from home for a year and a half now," said Joe Basgier, another of Watson's lawyers. "He's really excited to be back with his family and friends. This is not a place he wanted to run away from, he desperately wanted to come back."

Watson's attorneys say they will ask for a bond hearing within days, as soon as the case is assigned to a judge. In the meantime, they're taking shots at Attorney General Troy King's case, calling the charge that Watson plotted his wife Tina's Australian honeymoon drowning while he was still in Jefferson County, "ludicrous."

Prosecutors claim Watson thought he would benefit financially from Tina's death even though he was not named as the beneficiary of her insurance policy. "It truly is a ludicrous theory," Bloomton said. "We believe there are pursuing this because they have been put under such tremendous pressure by Gabe's former in-laws, they've succumbed to that pressure."

Assistant Alabama Attorney General Don Valeska says this was a grand jury decision. "They're not pressured by Tina's family, Troy King, or Don Valeska," Valeska said. "They made their decision, and we'll be presenting our case."

Watson's team says it's turning the tables on the outgoing attorney general and ready to go after King for his public comments about the case.

"The AG's office and the prosecution team has been poisoning the airwaves with their lies and their theories of this case for years, really," Basgier said. "It is a concern. We think that by doing that they may have violated some of Gabe's constitutional rights and we're going to attack that in court."

"We have evidence that we're going to offer to show that, and that's how you prove a case, with evidence," Velaska said. "Not with some criminal defense lawyer yapping in the breeze, but we'll present our evidence in court."

It could be days or even a week or more before Watson makes his first appearance in court because this case hasn't been assigned to a judge.

Under Alabama code, Watson could get a bond as low as $50,000 or could remain without a bond until the trial.

By Jonathan Hardison

Source: Myfoxal.com

Tuesday, December 7, 2010

Attorneys For Bakers To Stay After State Pulls Payments For Lawyers

Lawyers for the father and stepmother of a 10-year-old girl who authorities believe was killed and dismembered are sticking by their clients even though North Carolina will no longer pay the tab because no charges have been filed in the girl's death.

The state Office of the Capital Defender said this week it will cease paying the lawyers it appointed for Elisa and Adam Baker — a move that comes after the local prosecutor objected to their work. But the attorneys for both Elisa Baker and Adam said they will continue helping their clients.

"I'll probably stay on to assist him in this matter if he needs me to," attorney Mark Killian told The Associated Press on Friday. Killian said Adam Baker, an Australian citizen, was in unfamiliar territory and he was "just trying to help him out the best I can."

Killian also represents Baker on unrelated charges.

Lisa Dubs, Elisa Baker's lawyer, told the Hickory Daily Record that she planned to remain with her client as well. Like Killian, Dubs said she was not concerned if she were not paid by a client or the state.

"As a practical matter, it doesn't effect my or Mark Killian's ability to represent Elisa Baker or Adam Baker," Lisa Dubs told the newspaper.

The lawyers were appointed for the Bakers after Zahra Baker was reported missing Oct. 9 and authorities later characterized the case as a homicide. Court documents said the Capital Defender Office appointed Dubs because it believed Elisa Baker was about to be accused of murder.

Nobody has been charged in the girl's death. Elisa Baker has been charged with obstruction, accused of faking a ransom note to mislead investigators. She also has told authorities that Zahra Baker was dismembered after she died, but no cause of death has been publicly revealed.

Prosecutor Jay Gaither has said he objected to the lawyers' appointments because the capital defender's office should not be providing attorneys for people who have not been accused in capital crimes.

Bob Hurley, the state capital defender, told the newspaper the Bakers needed provisional counsel because they were implicated in the child's death.

"All you have to do is read the paper and listen to comments of law enforcement and follow their investigation," Hurley said. "Everyone in the state knows that Elisa Baker and Adam Baker are the leading suspects of the investigation."

His letter to Dubs said her work was needed during a critical time in the ongoing investigation.

Word of the state ending the appointments came as some members of the community gathered for a two-day memorial service for Zahra at a funeral home. Several dozen people signed a memorial book during the Thursday gathering, which was to resume Friday afternoon.

The funeral home displayed photos and a video of the girl.

"Please make sure justice is served," said Melissa Simpson, a Hickory resident. "This is a sad, sad thing — I'm a mother myself."

By The Associated Press

Source: NBC17.com

Lawyers say video shows two shooters

Attorneys for Riccardo M. McCray, who has been charged with murder in the August shooting deaths at City Grill, claimed they have video of two people exchanging gunfire during the incident.

The statement in court Monday marks the first public statement that more than one gunman may have been outside the bar when four people were killed and four others wounded while leaving a party.

Attorney E. Earl Key said the video shows "there were two shooters" during the Aug. 14 incident but did not elaborate during the opening day of a pretrial hearing to determine whether defense attorneys will be allowed to challenge the legality of statements McCray made to police after his arrest Aug. 25.

McCray, 23, who faces a possible life term without parole, reportedly will be one of the first defense witnesses to take the stand when the evidence hearing continues today before Erie County Judge Sheila A. DiTullio.

He is charged with fatally shooting Danyell Mackin, 30; Willie McCaa, 26; Tiffany Wilhite, 32; and Shawntia McNeil, 27. He's also charged with wounding James Robb, 27; DeMario Vass, 30; Shamar Davis, 30; and Tillman Ward, 27.

Key disclosed the alleged shooting scene video Monday without further explanation as he was cross-examining Buffalo police Detective Sgt. James Lonergan, who took McCray into custody Aug. 25 at the WIVB-TV studio on Elmwood Avenue.

While challenging Lonergan's claim that he never heard McCray ask to speak to an attorney before he was rushed to Police Headquarters that day, Key told the judge the alleged shooting scene video shows "one person shooting at another one."

After prosecutors James F. Bargnesi and Mary Beth DePasquale objected to the Key statement, the judge cut off further talk about a "video," ruling that it was a likely "trial issue."

Neither Key nor co-counsel Samuel P. Davis could be reached to comment on the existence of the video. Prosecutors declined to comment.

WIVB-TV Senior Correspondent Rich Newberg interviewed McCray at the Channel 4 studio after community activist Darnel Jackson got McCray to surrender Aug. 25. Newberg and Channel 4 General Manager Chris Musial arrived at court Monday under defense subpoenas, but neither took the stand.

McCray was in court for Monday's proceedings but did not speak.

By Matt Gryta, mgryta@buffnews.com, News Staff Reporter

Source: The Buffalo News

Thursday, November 25, 2010

Arizona medical-pot law has attorneys in bad spot

Arizonans needing legal help with the new medical-marijuana law could find themselves adrift, unable to hire an attorney.

Patricia Sallen, ethics counsel for the State Bar of Arizona, said it may be a violation of the rules laid out by the state Supreme Court for lawyers to help their clients break the law.

Sallen said the Arizona statute that will formally become law after the Nov. 29 election canvass, does permit individuals with a doctor's recommendation to obtain up to 2 ½ ounces of marijuana every two weeks. It also sets up procedures for the state to license non-profit corporations to sell the drug.

But both the sale and possession of marijuana remain illegal under federal law, she added.

That, Sallen said, could keep attorneys from helping Arizona corporations set up a dispensary. And it also could mean no help going to court for any company that believes it was unfairly or unlawfully denied a dispensary license or even for an individual who claims to be entitled to a medical-marijuana card.

Sallen's preliminary opinion is not based just on conjecture of what the Arizona ethics rules require.

She pointed out the Maine Board of Overseers of the Bar, that state's counterpart to her organization, issued a formal opinion earlier this year after Maine adopted its own medical-marijuana law.

That opinion specifically says that attorneys, although allowed to provide advice on the law, are not permitted to help their clients break it. The fact that the federal government is not enforcing its own anti-drug laws against those complying with state medical-marijuana statutes is irrelevant, the Maine opinion says.

And Sallen said the ethics rules that regulate Maine attorneys are virtually identical to the ones by which Arizona lawyers must live.

Sallen said a formal opinion for Arizona lawyers will be coming from her office on the issue, although she could not say when. She acknowledged that an opinion warning attorneys to avoid these cases could leave Arizonans without the legal help they need.

Some of the first questions may come from those needing legal assistance to incorporate a firm with the specific purpose of setting up a marijuana dispensary.

But the need for an attorney may become more acute as some of these companies are denied one of the limited number of state licenses to operate a dispensary.

Under the terms of Proposition 203, the state can issue permits equal to 10 percent of the number of pharmacies in Arizona. State Health Director Will Humble said that probably comes out now to 125.

Humble said he is likely to award the licenses based on an examination of each applicant's qualifications. That, in turn, opens the door for appeals and lawsuits by anyone not on the final list.

"A lawyer may discuss the legal consequences of any proposed course of conduct," Sallen said. "Otherwise, how could you find out what is legal and illegal to do?"

But Sallen said the rules also make it clear that attorneys cannot counsel a client to engage in conduct a lawyer knows is criminal or fraudulent.

And what of someone who needs an attorney to go to court?

"That's the question we're looking at," she said. "At what point do you cross the line?"

The formal opinion from Maine doesn't provide a bright line of what attorneys can and cannot do. In fact, the Maine board specifically dodged the issue, she added.

"Where the line is drawn between permitted and forbidden activities needs to be evaluated on a case by case basis," that formal opinion reads.

"We cannot determine which specific actions would run afoul of the ethical rules," it says. "We can, however, state that participation in this endeavor by an attorney involves a significant degree of risk which needs to be carefully evaluated."

Sallen said that what attorneys do in California, which has one of the oldest medical-marijuana laws in the nation, is of little guidance, as that state's ethics rules differ from Arizona's and, in fact, from most of the rest of the nation.

The rules in Colorado, however, where a medical-marijuana law was approved in 2000, are identical to Arizona's.

There has been no formal opinion from that state's Bar on the issue. But an article written earlier this year for a Colorado Bar Association newsletter on the issue of helping companies set up marijuana-distribution businesses, which are legal under that state's laws, provides no more guidance on the issue than the Maine opinion.

"Lawyers who assist medical-marijuana dispensaries may well violate (the ethics rule) and should not delude themselves by indulging fine distinctions over the degree of their assistance or knowledge of a client's criminal conduct," attorney Alec Rothrock wrote. "The risk of violation is high and cannot be eliminated."

But Rothrock said that, at least in Colorado, the chances of the state Bar investigating an attorney and specifically imposing a significant penalty is probably minimal.

By Howard Fischer, Capitol Media Services

Source: Azcentral.com

Attorneys: Big Tobacco snuffed out deal

Attorneys say Big Tobacco conspired to kill a deal that would have yielded $10 million for flight attendants suing the companies over health problems they attribute to the second-hand smoke they inhaled on the job for years

Soon after lawyers from a tobacco company asked for time to think about a $10 million offer to settle suits filed by thousands of flight attendants, they took the offer off the table.

Attorneys for the flight attendants -- who spent years working on smoke-filled planes -- say they can prove that Big Tobacco banded together to thwart the deal.

Three tobacco companies offered to help a fourth pay for future judgments and attorneys' fees if it rejected the settlement, according to a motion filed in Miami-Dade Circuit Court this month.

``It is quite an outrageous circumstance that we discovered,'' said Miami Beach attorney Marvin Weinstein, who represents many of the flight attendants. ``It's the justice process they've interfered with here.''

He said the company that wanted to settle in 2000, Lorillard, was convinced by R.J. Reynolds, Philip Morris and Brown & Williamson to forgo the deal. For one thing, it would have given the flight attendants a ``war chest'' to use to continue fighting against the remaining companies.

In exchange, the three companies would help pay future judgments if Lorillard abandoned the settlement.

Lorillard, R.J. Reynolds and Brown & Williamson did not return messages seeking comment. Philip Morris could not be reached.

Weinstein is demanding the companies pay $30 million -- three times what the original settlement would have yielded, or $12,000 for each of the 2,500 flight attendants suing.

It has been nearly two decades since more than 60,000 nonsmoking flight attendants hurt by exposure to second-hand smoke while working in airline cabins filed their class-action lawsuit. The companies settled for more than $300 million years later. The money went to establishing a research foundation.

From there, about 3,000 flight attendants chose to pursue individual cases against the tobacco companies. About 10 cases have gone to trial, with one winning her case.

The deal with Lorillard was worked out after the original settlement.

``We wanted to get at least one tobacco company out of it,'' Weinstein said. ``We didn't want to deal with four armies of lawyers.''

But since that fell through, he and other lawyers for the flight attendants have dug up documents showing Philip Morris, R.J. Reynolds and Brown & Williamson put their offer to pay portions of future judgments against Lorillard on paper in 2001.

``They actually reduced their conspiracy to writing,'' Weinstein said.

More evidence of the tobacco companies' deal emerged during the deposition of a Lorillard attorney, who asked what occurred as his company weighed the settlement offer.

``I said, `Did you have any conversations with other lawyers of the other defendants?' and one of the lawyers from the other companies says `Don't answer that,' '' Weinstein said.

He is awaiting a date he can present that and other information about a possible backroom deal to a judge.

Flight attendant Suzette Janoff, who worked for American Airlines for 13 years, has asthma, chronic sinusitis and has had surgery because of the smoky cabins in which she attended to airline passengers, she said.

Hers was one of the few cases to go to trial, but it ended in a mistrial after the judge found the tobacco companies mislead the jury. She has put off a second trial, afraid she will have to pay court costs and attorneys fees if she loses.

``To hear that the tobacco companies conspired with each other to avoid any settlement in our cases would not surprise me at all,'' said Janoff, who lives in Arizona. ``They do whatever they can to avoid paying out a penny, particularly to the flight attendants who had to work in their toxic stew for decades.''

By Nirvi Shah, Nshah@miamiherald.com

Source: The Miami Herald

Sunday, November 21, 2010

Twenty-One Ruden McClosky Attorneys Named “Best Lawyers in America” 2011

Florida-based law firm Ruden McClosky announces that 21 of its attorneys have been selected as top legal practitioners by The Best Lawyers in America 2011

Florida-based law firm Ruden McClosky announces that 21 of its attorneys have been selected as top legal practitioners by The Best Lawyers in America 2011. Published by Woodward/White Inc., The Best Lawyers in America is the oldest peer-review publication in the legal profession and listings are based on an exhaustive year-long survey of members within the legal profession. The current, 17th edition of The Best Lawyers in America is based on more than 3.1 million detailed evaluations of lawyers by other lawyers.

Following are the Ruden McClosky attorneys listed in the 2011 edition of The Best Lawyers in America, along with the area(s) of concentration for which they were selected:

• Michael R. Bakst, Shareholder: Bankruptcy and Creditor Debtor Rights, Insolvency and Reorganization Law
• Debra L. Boje, Shareholder: Trusts and Estates
• Scott J. Fuerst, Shareholder: Land Use & Zoning Law, Real Estate Law
• Bruce D. Goorland, Shareholder: Real Estate Law
• Mark F. Grant, Shareholder: Real Estate Law
• Margaret-Ray Kemper, Shareholder: Land Use & Zoning Law
• Michael H. Krul, Shareholder: Corporate Law
• Bruce D. Lamb, Shareholder: Health Care Law
• Donald C. McClosky, Shareholder: Environmental Law, Land Use & Zoning Law, Real Estate Law
• Dennis D. Mele, Shareholder: Environmental Law, Land Use & Zoning Law
• Steven R. Parson, Shareholder: Real Estate Law
• John H. Pelzer, Shareholder: Appellate Practice
• Marvin S. Rosen, Shareholder: Real Estate Law
• Carl Schuster, Shareholder: Trusts and Estates
• Stephen H. Siegel, Of Counsel: Health Care Law
• John L. Shiekman, Shareholder: Real Estate Law
• Peter D. Slavis, Shareholder: Real Estate Law
• Harry B. Smith, Of Counsel: Real Estate Law
• Barry E. Somerstein, Shareholder: Real Estate Law
• Mark K. Somerstein, Shareholder: Banking and Finance Law, Real Estate Law
• Ernest Lee Worsham, Shareholder: Environmental Law

The Best Lawyers in America includes attorneys in 78 specialties, covering all 50 states and the District of Columbia. For more than 25 years, Best Lawyers lists have earned the respect of the profession, the media, and the public, as the most reliable, unbiased source of legal referrals anywhere.

About Ruden McClosky

Ruden McClosky, one of Florida’s most established full-service law firms, represents regional, national, and international clients with business interests throughout the state. With offices across Florida, Ruden McClosky is fueled by strong client relationships, a roster of experienced attorneys, and a commitment to delivering superior client service with a focus on results. Among the most respected law firms in the state for more than 50 years, Ruden McClosky’s culture is grounded in excellence, professionalism, diversity, and civic involvement. For more information please visit www.ruden.com.

Source: PRLog.Org

FTC gets tougher on fees collected by firms, lawyers for mortgage relief

Client trust accounts will be necessary under new rule

Hoping to cut down on fraud and scams tied to the mortgage crisis, the Federal Trade Commission is tightening rules for companies and attorneys who perform loan-modification and foreclosure-rescue services.

On Friday the FTC announced a rule that would prevent mortgage-relief companies from collecting fees from consumers until a homeowner has a written offer from a lender and decides the offer is acceptable.

Loan-modification and rescue schemes have flourished as the financial and mortgage crisis squeezes consumers. Unscrupulous companies often collect fees from consumers, yet fail to do any work.

Illinois banned upfront fees for loan modifications in 2006, but the federal law will allow the FTC to police the industry too.

The FTC also passed a rule Friday that attempts to rein in attorneys who are often exempt from bans on upfront fees.

In September the Tribune wrote about a loophole in state and federal law that allowed attorneys to collect upfront fees for modifying mortgages. Often, instead of negotiating with a lender, some attorneys or the companies they worked for just kept the client's cash and didn't complete the job.

Under the new FTC rule, attorneys will be required to place advance fees into what is known as a client trust account. The accounts are an attempt to keep client funds separate from an attorney's personal or business funds until the attorney has earned the money.

The FTC and state attorneys general offices would be able to enforce the federal rules by issuing injunctions, civil penalties and trying to recover money for consumers.

The Illinois State Bar Association and the American Bar Association have opposed the rule, arguing that, among other reasons, it interferes with state courts' regulation of lawyers. The federal rule could be challenged by attorneys.

Tom Pahl, with the FTC, said the new federal rules provide another layer of enforcement because attorneys can be sued by the federal government in addition to facing discipline by their state bar and action by the attorney general's office.

Federal investigators also will proactively review advertisements and Web sites, as opposed to lawyer regulatory groups that usually wait for consumer complaints, he said.

Mark D. Hassakis, president of the Illinois State Bar Association, said lawyers who take money from clients without performing any work are committing fraud and would be dealt with by the state's lawyer regulatory board.

"Stealing is wrong," he said. "This is just another version of stealing."

David Berenbaum, chief program officer of the National Community Reinvestment Coalition, said the new federal rules should help crack down on some mortgage scams, but attorneys are a growing concern. They are "not following through on commitments made to consumers," he said.

In California, the legislature passed a law last year that bars anyone, including attorneys, from collecting upfront fees for loan modifications.

In Illinois, Attorney General Lisa Madigan's office said it is reviewing whether additional legislation is necessary.

By Ellen Gabler, egabler@tribune.com, Tribune reporter

Source: Chicago Tribune

Sunday, November 14, 2010

Lawyers look ahead in tangled Minnesota gov race

Competing lawyers involved in Minnesota's tangled race for governor maneuvered Friday for a potentially protracted struggle, with Republicans suing for faster access to election data and Democrats challenging whether Gov. Tim Pawlenty should stay in office if the battle drags into next year.

With a recount set to begin by month's end, attorneys for Republican Tom Emmer and Democrat Mark Dayton demonstrated how each side is readying for a fight that could push through December. The new governor is supposed to take his oath on Jan. 3.

For now, Dayton holds an 8,755-vote lead over Emmer, who is entitled to an automatic hand recount of all 2.1 million ballots. The recount phase is scheduled to end in mid-December, but Emmer and the state GOP haven't ruled out a court challenge after that.

There's a lot at stake for both sides in the next moves. Republicans risk a public backlash if they're seen as stringing out an inevitable outcome simply to make legislative gains by keeping a Republican governor in office longer. Pawlenty, a 2012 presidential hopeful, could be damaged if he's seen as part of such an effort. For Dayton and Democrats, delay means lost time in power and a more difficult transition.

Emmer's attorneys sued election administrators in Pine and St. Louis counties, saying they haven't been quick enough to turn over voter rolls, absentee ballot data, background on poll judges and paper trails from voting equipment. They cited the urgency of the upcoming recount — and noted the potential of a lawsuit contesting the election later.

"Given the expedited timelines for election contests under Minnesota law, as well as the fact that Minnesota has 4,136 precincts, time is of the essence," wrote attorney Eric Magnuson, the former chief justice of Minnesota's Supreme Court.

The Emmer campaign wants a court injunction forcing counties to turn over all requested information within five days. The legal brief says the campaign needs the information to assess whether all valid votes were counted and the underlying tabulations are accurate.

Dayton attorney David Lillehaug criticized the wide-ranging data requests and said Emmer's lawyers have "embarked on one of the biggest legal fishing expeditions in Minnesota history." Dayton's legal team argues that the other side is raising concerns about the election without many facts to back them up.

Republicans have said they are still in the process of investigating reports of voter fraud, machine malfunctions and other irregularities. If the 2008 deadlocked Minnesota Senate race is any guide, those issues won't be fodder for the recount but could be argued in a subsequent lawsuit.

A lawsuit could delay seating of a new governor. A candidate or any registered voter has seven days after a recount to file an election contest, and a trial wouldn't commence for 20 days after that. The schedule for resolving a challenge could push the race far into January, with fresh GOP majorities set to take over the Legislature.

Under the Minnesota Constitution, the term of a governor runs "four years and until a successor is chosen and qualified." Many, including Pawlenty, read the clause to mean Pawlenty would stay on longer.

Dayton attorney Charlie Nauen said he sees a gray area.

"If the numbers show that Mark Dayton has more votes, he's 'chosen' certainly by the people and 'qualified,'" Nauen said.

Dayton's lawyers said their are looking into their options and stopped short of saying they would seek clarity in court. In 2008, the state Supreme Court refused to order an election certificate issued to Al Franken in his Senate race until the lawsuit was complete.

The GOP didn't make its attorneys available to comment on the Dayton legal theory. Party chairman Tony Sutton declined comment on whether there is ambiguity in the constitution.

"The Democrats would like this to be about some scheme to extend Governor Pawlenty's term. That's not what we're trying to do here," Sutton said. "We're trying to make sure every vote is counted."

Democrats fear that if Pawlenty stays on, the Republican majorities would advance legislation that Dayton opposes. A key Jan. 15 deadline looms for Minnesota to apply for more than $1 billion in federal health funding, which Pawlenty opposes.

By The Associated Press

Source: Google News

Attorneys Named To 2011 Connecticut Super Lawyers And Rising Stars Lists

Eighteen attorneys from Pullman & Comley, LLC, were recently named to the Connecticut Super Lawyers list for 2011, the law firm reported today. In addition, six of the firm's attorneys were named to Super Lawyers "Connecticut Rising Stars 2011" list.

The Pullman & Comley attorneys on the Connecticut Super Lawyers 2011 list include the following, listed with their cited practice areas: David P. Atkins, Professional Liability: Defense; Collin P. Baron, Health Care; Deborah S. Breck, Estate Planning and Probate; Eliot B. Gersten, Business Litigation; Andrew C. Glassman, Business/Corporate; Irve J. Goldman, Bankruptcy and Creditor/Debtor Rights; Joshua A. Hawks-Ladds, Employment and Labor; Lee D. Hoffman, Environmental; Christopher P. McCormack, Environmental Litigation; Jonathan B. Orleans, Employment and Labor; Alan S. Parker, Estate Planning and Probate; Michael G. Proctor, Real Estate; Richard C. Robinson, Business Litigation; Daniel A. Schwartz, Employment and Labor; James T. Shearin, Business Litigation; Alan J. Sobol, Criminal Defense; James P. White Jr., Real Estate; and Diane W. Whitney, Environmental. Those named to the Rising Stars list include Adam J. Cohen, Business Litigation; T. Scott Cowperthwait, Business Litigation; Carrianna K. Field, Bonds/Government Finance; Jessica Grossarth, Bankruptcy and Creditor/Debtor Rights; Carrie L. Larson, Utilities; and Jessica A. Slippen, Business Litigation.

Attorneys Gersten, Glassman, Hawks-Ladds, Hoffman, Parker, Robinson, Schwartz, Sobol, Whitney, Field and Larson practice in the firm's Hartford office.

The list of attorneys selected to Connecticut Super Lawyers appears in the November 2010 issue of New England Super Lawyers, and the special section appearing in the February 2011 issue of Connecticut magazine.

Super Lawyers recognizes attorneys in more than 70 areas of practice using a multiphase selection process that considers 15 separate indicators of peer recognition, professional achievement and ethical standards. The final selection for 2011 was made from a pool of 3,611 Connecticut attorneys, producing the final 2011 Connecticut Super Lawyers list of 869 attorneys. The Rising Stars selection process is the Super Lawyers selection process except that candidates must be either 40 years old or younger or in practice for ten years or less, and the selection process does not include peer evaluation by practice area.

Founded in 1990, Law & Politics has been publishing the annual Super Lawyers lists since 1991. Super Lawyers is published in 50 states and the District of Columbia by Law & Politics, a division of Key Professional Media, Inc. For more information on the selection process and a complete list of attorneys selected for inclusion in Super Lawyers, visit superlawyers.com. For more about the standards for inclusion in Connecticut Super Lawyers, please see www.superlawyers.com/connecticut/selectiondetails.html.

Pullman & Comley, LLC provides a wide range of legal services. For more information, please visit www.pullcom.com.

By Biz Buzz

Source: Courant.com

Thursday, November 11, 2010

Hutaree lawyers: Talk was just talk, not a plot

In an effort to bust up the government's case, defense lawyers in the Hutaree militia case this week disclosed some of the government's secret recordings, including a conversation at a wedding in which an undercover agent and two Hutaree members discussed alleged roadside bombs.

The defense disclosed the recording as part of an effort to show that just because militia members were talking about alleged roadside bombs doesn't mean there was any actual plan to build them, use them or violently overthrow the government.

In court documents filed Tuesday in federal court in Detroit, defense attorneys Richard Helfrick and Todd Shanker cited the wedding conversation that took place March 13 -- two weeks before nine Hutaree members were arrested in FBI raids.

During the conversation, an undercover agent urges Hutaree leader David Stone Sr. to obtain road signs so that he can begin constructing alleged improvised explosive devices (IEDs).

Agent: "OK. Once we get everything, how fast do you want those?"

Joshua Stone: "We'll have lots of money probably."

David Stone Sr.: "Well, let's do a forecast."

Agent: "As soon as I get (to) it."

David Stone: "Uh, as far as any kind of mass order? ... Uh, early fall."

Undercover agent: "Really? Wow. OK."

The agent then repeatedly asks David Stone whether there is a specific target, in reference to the alleged plot against local officers outlined in the group's indictment.

David Stone: "No.... It's just like when we were talking earlier, we could be anywhere."

Defense lawyers argued the conversation doesn't reveal any real plan to use the weapons, nor does it show a plot to harm local police, as alleged in the indictment.

Helfrick and Shanker are representing David Stone Jr., 20, of Adrian, the adopted son of Hutaree leader David Stone Sr. They are seeking to dismiss Stone Jr.'s case and are requesting a special pretrial hearing where the government must prove that a conspiracy existed and that the defendants were part of it.

The government, however, has argued in court documents that a special hearing would be "burdensome, time-consuming and uneconomical" and that the facts and the indictment "returned by a legally constituted and unbiased grand jury are enough" to proceed to trial.

By Tresa Baldas, Free Press Staff Writer

Source: Freep.com

Harris May Injury Lawyers Opens New Offices to Provide Aggressive Legal Representation for California's Central Coast

Renowned trial attorneys Ryan Harris and Robert May have opened Harris May Injury Lawyers to provide a fresh perspective and proven results to individuals along California's Central Coast.

Harris and May believe there is a real need for quality legal representation on the Central Coast of California. With the launch of their San Luis Obispo, Santa Maria, and Ventura law offices, the attorneys at Harris May Injury Lawyers will bring unparalleled representation for injured persons and their families.

"We each have extensive experience in the field and together have successfully litigated more than 1,500 cases for clients across the state," said May. "Whether clients have suffered injuries as a result of auto accidents, defective products or any other forms of negligence, we get the results and compensation they deserve."

Both Ryan Harris and Robert May have gained a reputation for being aggressive trial lawyers.

Harris has tried cases resulting in jury verdicts ranging from $30,000 to $13,300,000.

May, a Central Coast native, attended Righetti High School and Cal Poly SLO before attending California Western School of Law. During the course of his career, May has resolved numerous six and seven figure cases.

Harris and May's most recent litigation successes include settling a personal injury case for $2.3 million and receiving a $13,284,363 jury verdict in the case of Rogers v. Storms, which was tried in Visalia, California.

"We are dedicated to protecting the rights of those who have been injured from negligence - and we know what it takes to get results," said Harris. "Our firm is founded on the belief that large insurance companies should not be the only ones with access to quality legal representation."

Unlike many other personal injury firms, the attorneys at Harris May have mastered the art of focusing on their clients and handling cases to successful conclusion. Through their unique process of information gathering, negotiation, and litigation, Harris May Injury Lawyers aim to bring a higher standard of personal injury law to the Central Coast of California.

True to their assurance of providing quality legal representation, Harris May Injury Lawyers operate on a contingency fee basis.

Harris May Personal Injury Lawyers:
Attorneys Ryan Harris and Robert May founded Harris May Injury Lawyers on the belief that large insurance companies should not be the only ones with access to quality legal representation. Harris May Injury Lawyers takes pride in providing unparalleled representation to injured persons and their families.

The attorneys at Harris May have experience in litigating a variety of personal injury cases - clients have suffered from auto accidents, motorcycle accidents, tractor-trailer accidents, bicycle accidents, dog attacks, injuries from defective products, and injuries from many other forms of negligence.

Harris May Injury Lawyers serves the people of San Luis Obispo, Santa Barbara, and Ventura Counties, and all other areas throughout the Central Coast of California. In addition, the firm has Spanish-speaking personal injury lawyers.

Visit www.harrismayinjurylawyers.com/.

By PRWeb, www.prweb.com/releases/prweb2010/11/prweb4723464.htm

Source: SFgate.com

Sunday, November 7, 2010

Florida Bar pushes to freeze jailed lawyer's funds, license

It says he used his power as an attorney to falsify mortgage forms

The Florida Bar is trying to freeze a Jacksonville lawyer's finances and suspend his license as he answers to an organized fraud charge after authorities unraveled a mortgage scheme.

Jay Clifton Halsema, 38, has been held in the Duval County jail in lieu of $500,000 bail since his Oct. 20 arrest.

In court records, the State Attorney's Office says Halsema had worked on the financing paperwork for at least two fraudulent real estate deals worth a total of $1.7 million.

Friday, the Bar filed an eight-page petition in the Florida Supreme Court that, if granted, would prevent him from dipping into any accounts related to his law practice and would suspend his law license.

Court papers filed to support the Bar's argument say Halsema used his leverage and savvy as an attorney to falsify mortgage papers.

The scheme dates to at least 2005, in which he stuck a former client with a nearly $290,000 debt on a Ponte Vedra Beach condo.

Duval County court records show he qualified to be represented by a public defender. In November 2008, Halsema declared bankruptcy.

The Florida Bankers Association put out an alert last month for anyone who may have done business with Halsema.

Bar records show that he has amassed a number of complaints, but has not responded to any of them. The Supreme Court petition also alleges that Halsema had forged his wife's signature on the financing paperwork for property on Greenridge Road in Jacksonville the couple bought in 2005.

By David Hunt, david.hunt@jacksonville.com, (904) 359-4025

Source: Jacksonville.com

Lawyer says call proves contractor wasn’t at fault for Hyde Park explosion

A lawyer for the contactor blamed for Wednesday’s gas explosion that leveled a house in Hyde Park said yesterday that a recorded phone call proves his client followed safety procedures and casts blame on NStar for failing to mark all the gas lines in the area.

No one was injured in the blast, which occurred about 8:45 a.m. and shattered windows and cracked walls in nearby houses.

Andrew Daniels, a Boston lawyer for Defelice Corp., said his client placed several calls to Dig Safe Systems, including one on Oct. 1 and one a day before the explosion, to ensure that utility lines, especially gas lines, were marked around 17 Danny Road, where the company was doing work.

In the recording, a copy of which was provided to the Globe, Bob Savage, Defelice general manager, called Dig Safe asking that the gas lines in the neighborhood be remarked:

Dig Safe: Did you want everybody back out?

Savage: No, just the gas company.

Dig Safe: OK, I’ll send that right out. They do have up to 24 hours to respond.

Daniels said the explosion occurred one day plus 10 minutes after that call. The phone call was reported by WCVB-TV Friday night.

According to Daniels, the gas line 45 feet down Danny Road was marked, but a line 12 feet from Danny and Reynold roads was not marked.

“The line that was hit was not marked,’’ Daniels said.

Mayor Thomas M. Menino banned Defelice on Friday from doing any more work with city agencies until a state Department of Public Utilities investigation into Wednesday’s explosion is complete.

Dot Joyce, spokeswoman for Menino, declined to comment yesterday, saying the mayor’s office would await the results of the investigation. Menino lives about a block away from the site of the explosion, on Chesterfield Street.

By John M. Guilfoil, JGuilfoil@globe.com

Source: The Boston Globe

Thursday, November 4, 2010

Houston Maritime Lawyers Say Revelations About ‘Cement’ in BP Disaster Not Surprising

Kurt Arnold and Jason Itkin of Houston’s Arnold & Itkin LLP react to findings of presidential commission investigating Deepwater Horizon oil spill

Houston maritime attorneys Kurt Arnold and Jason Itkin say that last week’s news that cement used to seal the doomed Deepwater Horizon oil well before its blowout last April was known to be faulty fits the evolving track record of BP and Halliburton in the deadly incident.

“The negligence of BP and Halliburton that led to 11 deaths and the economic destruction of countless other lives in the Deepwater Horizon disaster is increasingly clear," Arnold says.

Arnold, a founding partner of Arnold & Itkin LLP, was reacting to a report from the National Commission on the BP Deepwater Horizon Oil Spill and Offshore Drilling, which is investigating the mammoth oil spill.

The commission said on October 28 that it had found that the mixture called “cement” that was meant to temporarily seal the Deepwater Horizon well repeatedly failed lab tests before the April 20 blowout. BP operated the oil well owned by Transocean Ltd. Halliburton was BP’s cementing contractor.

The presidential commission said representatives of BP and Halliburton communicated about testing that showed the cement mixture would be “unstable,” but they proceeded with drilling anyway.

The oil rig exploded, killing 11 offshore workers, and sank to the bottom of the Gulf of Mexico. The resulting spill of millions of gallons of oil closed commercial fishing waters for several weeks.

“This was the failure of managers from BP and Halliburton who knew of the danger that existed and proceeded in what can only be described as a reckless manner," says Jason Itkin, another founding partner of Arnold & Itkin LLP.

Arnold and Itkin have shared their maritime law expertise and insights about the incident with national and local media in the aftermath of the disaster, including National Public Radio’s “All Things Considered,” CNN’s “Anderson Cooper 360,” the Houston Chronicle and Houston’s ABC television affiliate, among others.

About Arnold & Itkin LLP

The maritime accident lawyers at Arnold & Itkin LLP, a personal injury law firm based in Houston, Texas, understand the complexities and legalities of maritime law and have a successful track record of verdicts and settlements in favor of maritime workers. The law firm provides legal guidance on all aspects of maritime law and the benefits offshore workers are entitled to under the Jones Act, the Death on the High Seas Act, the principle of maintenance and cure, or the Longshore and Harbor Workers' Compensation Act.

Arnold & Itkin LLP handles maritime claims at port cities along the Gulf Coast in Texas, Louisiana, Mississippi and Alabama. The firm can be contacted toll free at (866) 222-2606 or through its website - http://www.arnolditkin.com/contact-lawyer.php.

Source: Prweb.com

Lawyers cite mitigating factors in Conn. deaths

A Connecticut man convicted of a deadly home invasion should be spared the death penalty because he was in a "state of intense rage, despair and confusion" during the crimes and is deeply remorseful for what he did, his attorneys said Wednesday.

Steven Hayes was convicted last month of murdering Jennifer Hawke-Petit and her two daughters in a horrific home invasion in Cheshire in 2007.

His attorneys filed a list of mitigating factors in New Haven Superior Court on Wednesday. The same jury that convicted Hayes must now weigh those factors against aggravating factors cited by prosecutors, including the heinous and cruel nature of the deaths, in deciding whether to sentence Hayes to death or life in prison.

The defense said Hayes fears life more than death and cited his abusive childhood and history of drug addiction. Deliberations are tentatively expected to begin Friday following closing arguments on Thursday.

Defense lawyers have depicted Hayes as a follower, while asserting that his co-defendant, Joshua Komisarjevsky, was the mastermind who escalated the violence.

"Steven Hayes has responded subsequent to the crime with shame, humiliation, depression, suicidality and empathy for the victims. His response is sharp in contrast to the co-defendant's, who has glorified in writing the exercise of violent criminal power and sexual abuse over the Petit family," defense attorney Tom Ullmann wrote in the court documents filed Wednesday.

Prosecutors say both men are equally responsible. Komisarjevsky will be tried next year.

The defense also noted that Hayes accepted responsibility for his crimes early on and offered to plead guilty before the trial in exchange for a life sentence.

"Steven Hayes has a conscience and is remorseful," Ullmann wrote.

Hayes' attorneys also say his prison conditions in which he is kept isolated 24 hours per day and his guilty feelings "make his life nearly unbearable and worse than any fear or dread of death."

By John Christoffersen, The Associated Press

Source: The Washington Post

Sunday, October 31, 2010

Sacramento Personal Injury Lawyers Warn Consumers to Use Caution with Online Social Networks

Demas & Rosenthal, a team of Sacramento personal injury lawyers whose URL can be found at www.injury-attorneys.com, hereby offers basic guidelines regarding consumers' use of Online Social Networks, or OSN's. As OSN's become more prevalent and are used regularly by more people, certain legal interests could be put at risk based on the information that members of OSN sites share with the public at large.

Web sites and interfaces such as Facebook, MySpace and Twitter among others have attracted millions of users and members in the United States alone. Statistics reveal that approximately one-third of all Americans between the ages of 35 and 44 are active on OSN's, 19 percent of Americans between the ages of 45 and 54 are active on these Web sites and 10 percent of Americans between the ages of 55 and 64 have information posted on OSN Web sites.

In terms of legal rights and protections, there are different policies in place for each OSN Web site, but there are certain steps that should not be taken if someone has obtained or will need the help of Sacramento personal injury lawyers for a legal matter. These warnings and suggestions include:

1. Do not allow access to an OSN profile by people you do not know.
2. Do not post pictures of yourself attempting to perform activities that you are not able to do based on a legal claim you are making or will soon make.
3. Do not discuss or post about a pending legal matter in any way.
4. Do not discuss any injuries you've suffered as a result of the negligence of someone else.
5. Do not post personal information such as your date of birth and your phone number.

The laws regarding what can be used as evidence in California personal injury lawsuits and how this evidence is obtained in regards to OSN's are not yet settled or clear. Therefore, those who share information regarding pending legal matters should be aware that doing so can harm his or her case or claim if those representing the defense obtain this information.

About Demas & Rosenthal

Demas & Rosenthal is a law firm comprised of Sacramento personal injury lawyers that has helped clients fight for their consumer rights for nearly 20 years. The firm represents clients in California personal injury lawsuits that include matters relating to traffic accidents, defective products and general negligence. Demas and Rosenthal has an "AV" rating, the highest possible national rating from Martindale-Hubbell. The "AV" rating is derived from confidential assessments by attorneys in the community as well as judges. In addition to the highest attainable legal ability ratings, Demas and Rosenthal has been given the highest marks for "adherence to professional standards of conduct, ethics, reliability and diligence.

For the original version on PRWeb visit: www.prweb.com/releases/prweb2010/10/prweb4711104.htm

Source: Sfgate.com

Teaching Lawyers How to Fight Foreclosures

O. Max Gardner runs a select boot camp for defense attorneys to pass on his strategies

Lawyers have been traveling to a remote 160-acre farm in the mountains of Western North Carolina since 2006 to drink Scotch, network, and prepare for legal combat in foreclosure and bankruptcy cases. Groups of a dozen or so arrive about nine times a year for the four-day "boot camp" where they learn how to protect their clients' assets by exploiting the mistakes of creditors. Their instructor is O. Max Gardner III, a 65-year-old bankruptcy litigator and grandson of a North Carolina governor, who was using flaws in mortgage servicing to stave off lenders years before cases involving shoddy paperwork spurred an investigation by the attorneys general of all 50 states. Gardner charges $7,775 for the program, which includes 3,000 pages of materials, lodging, food, and unlimited wine, beer, and single-malt Scotch.

"My time with Max changed the trajectory of my legal career," says Nick Wooten, a 40-year-old Alabama attorney who shifted his focus from personal injury to bankruptcy and foreclosure after attending the boot camp in 2007. "Knowledge is power, and one thing he is able to give in his boot camp is a tremendous amount of knowledge about how the other side operates," says Wooten.

Attendees, who are admitted only after a background check confirms they don't work for creditors, travel along a gravel road to reach Gardner's farm in the South Mountains. They sleep in cabins and swap stories over meals prepared by Gardner's wife, Victoria, in the family's three-story log-cabin style house on a hill overlooking a pond. Gardner spends 10 to 12 hours each day on topics such as "Max's Favorite Discovery Devices," "Strategy to Trap Opponents in their Own Mistakes," "Mortgage Servicing Litigation: How the Legal Network for Creditors Is Organized," and "The Alphabet Problem, A to D Unlawful Transfer of Mortgages and Notes." Guest speakers at his October boot camp included a forensic accountant, a North Carolina Superior Court judge, and the former general counsel for Saxon Mortgage, now owned by Morgan Stanley (MS).

The heart of Gardner's strategy is to uncover omissions and errors in mortgage securitizations, the process in which thousands of loans are bundled into bonds and sold to investors. Securitizations are plagued by lost promissory notes and missing or inconsistent tracking of changes in ownership of loans, Gardner says during a break at the October session. "One of my primary objectives is to give you enough knowledge so that you can understand more about the business structure and organization of the creditors than their own lawyers know," he tells a class.

He started the boot camp after piecing together evidence that lenders and servicers were relying on teams of workers—what defense lawyers now call "robo-signers"—to process thousands of foreclosure documents a day without the time to verify them. While Gardner and some of his 559 graduates have been winning settlements for years, it wasn't until Sept. 20, when Ally Financial (GJM) said it was halting some evictions, that foreclosure documentation became a national issue. "We had a steep hill to climb to convince the judges that the largest financial institutions in America were engaged in this kind of conduct," Gardner says.

Most foreclosures go unchallenged because homeowners rarely hire attorneys. That changed as judges began questioning whether banks were producing sufficient proof that they had standing to foreclose. Private attorneys working on behalf of homeowners are paid in different ways. Some are paid by clients, many of whom have cash even though they aren't making mortgage payments, says Margery Golant, a Boca Raton (Fla.) attorney who graduated from the boot camp in August 2009. If a bankruptcy court judge believes a mortgage company has submitted false evidence, the court can order the creditor to pay legal fees, she says.

Gardner says the graduates of his program act like a large law firm. Linda Tirelli, a consumer bankruptcy attorney in New York and Connecticut who attended the program in October 2008, says she has the confidence to go up against what Gardner calls "tall-building law firms" because the community of graduates located in 47 states functions as a unit, exchanging documents and discovering patterns of misconduct. "It's a fraternity," she says. "We don't see each other as competition. We want more attorneys to join, because the more we have the better."

By Prashant Gopal

Source: BusinessWeek

Sunday, October 24, 2010

One Mess That Can’t Be Papered Over

Lawyers representing delinquent homeowners have been shouting for years about documentation problems in residential mortgages. Now that their complaints have gained traction with investors, attorneys general and some state court officials, the question of consequences looms large.

Is the banks’ sloppy paperwork a matter of simple technicalities that are relatively easy to cure, as the banks contend? Or are there more far-reaching consequences for banks and the institutions that bought mortgage-backed securities during the mania?

Oddly enough, the answer to both questions may be yes.

According to real estate lawyers, most banks that have gotten into trouble because they didn’t produce proper proof of ownership in foreclosure proceedings can probably cure these deficiencies. But doing so will be costly and time-consuming, requiring banks to comb through every mortgage assignment and secure proper signatures at each step of the way — and it surely will take much longer than a few weeks, as banks have contended.

Once this has been done appropriately (not by robo-signers, mind you) the missing links in the banks’ chain of ownership can be considered complete and individual foreclosures can proceed legally.

None of this will be easy, however. And it will be especially challenging when one or more of the parties in the chain has gone bankrupt or been acquired, as is the case with so many participants in the mortgage business.

Still, addressing all of these lapses is possible, according to Joshua Stein, a real estate lawyer in New York. “If there are missing links in your chain of title, you go back to your transferor and get the documents you need,” he said in an interview last week. “If the transferor doesn’t exist any more, there are ways to deal with it, though it’s not necessarily easy or cheap. Ultimately, you can go to the judge in the foreclosure action and say: ‘I think I bought this loan but there is one thing missing. Look at the evidence — you should overlook this gap because I am the rightful owner.’ ”

Such an unwieldy process will make it more expensive for banks to overhaul their loan servicing operations to address myriad concerns from judges and regulators, but analysts say it can be done.

ON the other hand, resolving paperwork woes in the world of mortgage-backed securities may be trickier. Experts say that any parties involved in the creation, sale and oversight of the trusts holding the securities may be held responsible for any failings — and if the rules weren’t followed, investors may be able to sue the sponsors to recover their original investments.

Mind you, the market for mortgage-backed securities is huge — some $1.4 trillion of private-label residential mortgage securities were outstanding at the end of June, according to the Securities Industry and Financial Markets Association.

Certainly no one believes that all of these securities have documentation flaws. But if even a small fraction do, that would still amount to a lot of cabbage.

Big investors are already rattling the cage on the issue of inadequate loan documentation. Last week, investors in mortgage securities issued by Countrywide, including the Federal Reserve Bank of New York, sent a letter to Bank of America (which took over Countrywide in 2008) demanding that the bank buy back billions of dollars worth of mortgages that were bundled into the securities. The investors contend that the bank did not sufficiently vet documents relating to loans in these pools.

The letter stated, for example, that Bank of America failed to demand that entities selling loans into the pool “cure deficiencies in mortgage records when deficient loan files and lien records are discovered.” Bank of America has rejected the investors’ argument and said that it would fight their demand to buy back loans.

Mortgage securities, like other instruments that have generated large losses for investors during the crisis, have extremely complex structures. Technically known as Real Estate Mortgage Investment Conduits, or Remics, these instruments provide investors with favorable tax treatment on the income generated by the loans.

When investors — like the New York Fed — contend that strict rules governing these structures aren’t met, they can try to force a company like Bank of America to buy them back.

Which brings us back to the sloppy paperwork that lawyers for delinquent borrowers have uncovered: some of the dubious documentation may undermine the security into which the loans were bundled.

For example, the common practice of transferring a promissory note underlying a property to a trust without identifying it, known as an assignment in blank, may run afoul of rules governing the structure of the security.

“The danger here is that the note would not be considered a qualified mortgage,” said Robert Willens, an authority on tax law, “an obligation which is principally secured by an interest in real property and which is transferred to the Remic on the start-up day.” If, within three months, substantially all the assets of the entity do not consist of qualified mortgages and permitted investments, “the entity would not constitute,” he said.

If such failures increase taxes for investors in the trusts, Mr. Willens said, the courts will have to adjudicate the inevitable conflicts that arise.

What if a loan originator failed to provide documentation substantiating that what’s known as a “true sale” actually occurred when mortgages were transferred into trusts — documentation that is supposed to be provided no longer than 90 days after a trust is closed? Well, in that situation, a true sale may not have legally happened, and that doesn’t appear to be a problem that can be smoothed over by revisiting and revamping the paperwork.

“The issue of bad assignment has many implications,” said Christopher Whalen, editor of the Institutional Risk Analyst. “It does question whether the investor is secured by collateral.”

In other words, were the loans legally transferred into the trust, and, if not, do the trusts lack collateral for investors to claim?

For example, according to a court filing last year by the Florida Bankers Association, it was routine practice among its members to destroy the original note underlying a property when it was converted to an electronic file. This was done “to avoid confusion,” the association said.

But because most securitizations state that a complete loan file must contain the original note, some trust experts wonder whether an electronic image would satisfy that requirement.

All of this suggests that while a paperwork cure may eventually exist for foreclosures, higher hurdles exist when it comes to remedying flaws in mortgage-backed securities. The only way to wrestle with the latter, some analysts say, is in a courtroom.

“The whole essence of this crisis is fraud and unless we restore the rule of law and transparency of disclosure, we are not going to fix this,” said Laurence J. Kotlikoff, an economics professor at Boston University.

By Gretchen Morgenson

Source: NYTimes.com