Wednesday, September 29, 2010

Missing evidence leads to dropped charges in Houston drug killing

Key evidence was not provided by police officers against the two defendants

Prosecutors in midtrial Tuesday dropped capital murder charges against two men after it was discovered that investigating Houston police officers did not give prosecutors or defense lawyers evidence in the case, attorneys for the accused said.

State District Judge Mary Lou Keel ruled that taped statements by Joseph Louis Rodriguez, 21, of Houston, and Mario Gomez, 19, of Richmond, were inadmissible after a Houston police officer said defense lawyers hadn't been told about the videotapes.

Defense lawyers Bob Loper and Casey Keirnan had audio, not video, of what their clients told police.

Loper said prosecutors also were surprised to find out Tuesday about the discrepancy.

He blamed three Houston police officers who testified under oath Monday that no videotape had been made in the case. One of the officers found the video in a different file at HPD after he testified it did not exist.

"He came back and told prosecutors, 'Voila, look what I found!' " Loper said. "I think it's all on HPD."

Rodriguez and Gomez faced non-death capital murder charges, accused of killing two men in a drug deal on Sept. 18, 2009. Constitutional prohibition against double jeopardy prevents the men from ever being tried again in connection with that crime. Prosecutors cannot appeal Keel's ruling.

Harris County District Attorney Pat Lykos disagreed with the judge's decision.

"We do not believe that the statute or the case law required the court to exclude all of the defendants' statements," she said in a written statement. "The defense had an adequate opportunity to review the audiotapes and sufficient time to prepare their defense; thus, the purpose of the statute was satisfied."

HPD spokesman Victor Senties deferred to Lykos' statement, saying it was a matter between prosecutors and the individual investigators.

Rodriguez and Gomez were accused of shooting two gang members in an altercation over drug-dealing turf, their lawyers said.

Both remain in Harris County Jail on murder charges in a different slaying.

Keirnan said the video shows the men demonstrating how they were defending themselves. Because of the body language on the videotape, just hearing the audio does not adequately depict their self-defense claims, he said.

The law requires that all documentation of the statement has to be turned over, he added.

By BRIAN ROGERS,, Houston Chronicle

Source: Houston Chronicle

Another One Of Drew Peterson's Attorneys Quits

Reem Odeh Was Only Woman On Defense Team

Drew Peterson has lost another lady.

Reem Odeh, the only woman among the eight lawyers to defend Peterson against charges he murdered his third wife, has quit the case.

But it's not Peterson's fault, Odeh said. She blamed her exit on Joel Brodsky, the longest serving of Peterson's attorneys.

Odeh's motion to withdraw from the case, which she filed Monday morning, cites "irreconcilable differences with defense counsel Joel Brodsky." Odeh declined to go into detail about the differences and said she fears Brodsky will retaliate if she speaks ill of him. She would not discuss what she suspects Brodsky will do to her but said she "wishes him luck" in his future endeavors.

Brodsky similarly said, "Best of luck," to the departing Odeh, but disputed that she was actually leaving on her own terms.

"I guess it's a case of, 'You're fired.' 'No I quit,'" Brodsky said.

Brodsky went on to say it was Peterson himself who ordered Odeh off the case.

"Drew fired her," Brodsky said, but could not explain why.

"You'll have to ask Drew, and I don't think he's available for comment," he said.

Peterson has been locked up since May 2009 while he waits to go to trial for allegedly murdering third wife Kathleen Savio, who was found drowned in her dry bathtub in March 2004. The police also suspect Peterson had a hand in killing his fourth wife, Stacy Peterson, who vanished in October 2007. Stacy Peterson remains missing, and Peterson has not been charged with any crime related to her disappearance.

In addition to the irreconcilable differences, Odeh's motion to withdraw accused Brodsky of keeping her from visiting Peterson in the county jail. But that didn't stop her from dropping by to see the disgraced former cop and alleged wife killer Monday to let him know she was cutting him loose as a client. She predicted Peterson would be sad to see her go.

"I think he'll be upset," she said. "He respected my opinion. I got along well with his children. I got very close to them in the past few years."

Dissolving Partnership
Odeh and Brodsky were law partners for years before splitting their firm in May. Odeh says things have "been contentious" ever since.

The month before Odeh and Brodsky dissolved their partnership, the two other attorneys representing Peterson jumped ship. George Lenard of Joliet and Andrew Abood of East Lansing, Mich., also cited irreconcilable differences with Brodsky in their motions to withdraw from the case.

After Lenard and Abood left, four attorneys from Chicago signed on to defend Peterson.

Odeh spoke highly of Lenard and Abood, saying, "I think they're great guys. I think they're hard workers and I think they're ethical, competent attorneys."

Asked her opinion of Brodsky, Odeh declined to comment.

By Joliet Herald-News


Sunday, September 26, 2010

Four S.D. lawyers focus on medical marijuana law

The specialty keeps them busy as legal issues arise over what's allowed

Jeffrey Lake is a veteran lawyer whose law practice focused on real estate, mortgage lending and construction defect cases.

Lance Rogers worked on a variety of criminal cases before finding a niche in one area. Michael Cindrich used to work for the District Attorney’s Office before quitting to start his own practice. And after graduating from law school in 2008, Kimberly Simms set up her new law practice determined to focus on one emerging area of law.

What do these lawyers have in common?

They have become part of an informal medical marijuana bar in San Diego — lawyers who work almost exclusively on civil and criminal cases dealing with the often contentious and complex issues surrounding the legal use of cannabis as medicine.

They do it in a county that has a reputation for taking one of the hardest lines against medical marijuana use in the state. District Attorney Bonnie Dumanis has aggressively pursued cases against members of cooperative or collectives, contending they were illegally engaged in drug sales and not in compliance with the state law that voters approved in 1996 to allow the use of pot with a doctor’s prescription.

The city of San Diego’s code enforcement officers also have been methodically going to medical marijuana outlets and citing them for zoning violations, at the same time that city leaders are fashioning new regulations for the pot dispensaries, Lake said.

He represents more than 70 collectives and cooperatives in the county, assisting them with the civil side of the law: how to legally set up such entities, deal with zoning and leasing issues, and help clients who are trying to navigate different rules from city to city.

Some cities have a moratorium on opening medical marijuana outlets. Other governments, including the county, restrict them to certain areas, Lake said.

He also is active in the policy issues surrounding medical marijuana.

“It’s legally challenging, because this is a new area of the law,” he said. “There is not very much case law on a lot of these issues yet, and it’s an emerging field.”

That sentiment of working in largely uncharted legal territory was echoed by the other attorneys. Kimberly Simms graduated from law school in San Diego in 2008 and now works exclusively on medical marijuana cases. She said she was drawn to the field because she sees medical marijuana use as a civil-rights issue and was intrigued by the combination of law and politics.

“The political push and pull over medical marijuana, and how that interacts with our laws, is fascinating,” Simms said.

While use of medical marijuana is allowed under California law, it is prohibited under federal law. That conflict is just one of several areas of uncertainty and confusion among patients, caregivers and cooperatives that the lawyers have to grapple with.

Cindrich said the first thing he tells clients in his practice is that marijuana is illegal under federal law. But then he warns them that dealing with cities and the county won’t be easy either.

“My other advice is that the city of San Diego is not currently receptive to new dispensaries opening up, so this most likely will be a headache for you,” he said. “But if you feel strongly about this, and you are in it for the rights reasons — to help patients, and not just to make money — this could be for you.”

Cindrich worked for the District Attorney’s Office in San Diego for a year or so when he graduated from law school in 2006. He did not work on any medical marijuana cases, but when he decided to start his own practice he became intrigued by the issue.

Now he represents patients, caregivers and members of cooperatives who are being targeted by his former employer, who he says is making it unnecessarily difficult for patients.

“The DA’s Office here is taking an extremely narrow view of the medical marijuana law,” he said. “Attorneys in other parts of the state are aware of that and realize how difficult the legal environment is in San Diego for medical marijuana.”

The District Attorney’s Office does not have a special unit or designated prosecutor devoted to medical marijuana cases, said Deputy District Attorney Steve Walter, the assistant chief of the narcotics section. Cases are assigned to a variety of prosecutors.

As for taking a narrow view of the law, Walter said the office pursues cases only when they have determined a law has been broken. “It’s fair to say,” he added, ”our office’s belief is, if you are selling marijuana, that is illegal.”

The medical marijuana law allows possession and cultivation under certain circumstances for qualified patients. State guidelines say collectives or cooperatives should be nonprofit and can’t sell to nonmembers.

Last week, a medical marijuana prosecution began that is being closely watched in San Diego Superior Court. Jovan Jackson, who won an acquittal from a jury last year on charges he was illegally selling the drug from the Answerdam cooperative in Kearny Mesa, is again on trial on charges stemming from a second raid on the cooperative.

Rogers represented Jackson in his first case and is doing so again. His task may be made more difficult because Judge Howard Shore ruled that Jackson could not raise the medical marijuana defense.

Three months ago, Rogers decided to leave the law firm he was working at and open a practice devoted only to medical marijuana cases like Jackson’s. With debate over marijuana use heating up, he said it was important that people who use pot for medicine have lawyers who know the nuances and intricacies of the law.

By Greg Moran


Who's watching the watchdog?

Judging by the public and professional outcry, most of Wisconsin seems to have known that the purported actions of Calumet County District Attorney Ken Kratz in trying to spark a relationship with a domestic abuse victim even as he was prosecuting her assailant was wrong.

But somehow that was not the conclusion of the state Office of Lawyer Regulation.

Last week, Gov. Jim Doyle began the process of removing Kratz from office and appointed former Kenosha County District Attorney Bob Jambois to oversee those proceedings.

That's all well and good. A hearing is set for Monday and we hope a final determination comes as soon as practicable.

But the Kratz case shouldn't end there.

It has raised disturbing questions about the processes, secrecy and effectiveness of the Office of Lawyer Regulation itself.

As state Attorney General J.B. Van Hollen told the Green Bay Press-Gazette last week, "I was astounded they (the Office of Lawyer Regulation) dismissed it as out of hand. To think they did nothing. Everybody was very shocked."

After the woman filed the complaint against Kratz with police, the state Justice Department investigated and decided against pursuing criminal charges.

From published reports of the allegations, that makes some sense - the allegations are creepy and outrageous, but may not be criminal.

The Justice Department gave the complaint over to the Office of Lawyer Regulation, as it should have, to assess whether Kratz' actions constituted professional misconduct.

Incredibly, the agency decided that Kratz' smarmy text messages to the domestic abuse victim were inappropriate but "did not appear to involve possible professional misconduct." The office did not even go ahead with a formal investigation and closed the file last March. They never contacted the abuse victim.

Even today, the agency's decision and the reasons for it remain cloaked in secrecy.

On Friday, in the face of mounting criticism, the Office of Lawyer Regulation announced it was reopening its investigation into the Calumet County district attorney because "substantial" new information had been presented that shows "what may be a pattern of conduct." Ah, that would be the three other women who have come forward with similar complaints against Kratz in the past two weeks.

Isn't that the kind of thing the state agency is supposed to ferret out in the first place?

The Office of Laywer Regulation is an arm of the state Supreme Court, and its actions on grievances are done confidentially to protect lawyers and their clients, until there is a referral to the Supreme Court for action or a lawyer agrees to a public reprimand.

In the main, that is probably a reasonable process for most state lawyers. But prosecuting attorneys have substantially more power than other lawyers and that should require special safeguards to prevent abuse of office and professional misconduct.

According to the office's annual report for 2008-09, almost 70 percent of the grievances and complaints filed that year were dismissed for "lack of sufficient information to suggest an allegation of potential ethical misconduct."

The Wisconsin State Journal reported earlier this month that the state Supreme Court has publicly or privately sanctioned just 28 prosecutors in the past 29 years.

We don't know if one sanction a year is something to celebrate or something to wonder about and, given the Kratz case, that "wonder" has turned to worry.

This episode has done no favors to ethical, hard-working district attorneys, either. It has brought a dark cloud over the justice system by raising a question of how often predation has replaced fairness and professionalism in our courthouses.

Such circumstances are not acceptable. The state Supreme Court must clear the air on this case and make sure someone is watching the watchdog. If it takes more openness in proceedings when prosecutors are accused of misdeeds or inappropriate action, then that should be the course we follow to restore confidence in our courts.


Wednesday, September 22, 2010

Tort Reform Author Joe Nixon Representing Taylor

If the Larry Taylor-Steve Mostyn battle over windstorm insurance payouts wasn't a proxy war for the tort reformists and the trial lawyers before, it certainly is now. Mostyn, the president of the Texas Trial Lawyers Association, subpoenaed state Rep. Taylor, R-Friendswood, last week for a deposition over what Mostyn believes is a potential abuse of power.

Taylor said yesterday he has hired former lawmaker Joe Nixon to represent him. You may remember Nixon as the architect of 2003's sweeping tort reform law. "He called me and offered to help," Taylor said.

If you're just joining this saga, Taylor requested information from the quasi-public Texas Windstorm Insurance Association, known as TWIA, about how much Mostyn and other attorneys made in settling a multimillion dollar claim on behalf of homeowners earlier this year. Mostyn objected on the grounds Taylor asked for private homeowner information and won a temporary restraining order to keep the information private at least until a hearing next week.

Taylor has maintained that he's only seeking information so he can fix policy. He co-chairs a TWIA oversight board that has a report due Nov. 15, and since the settlement with Mostyn's 2,400 clients was the state's largest this year, Taylor says it's reasonable to be asking how much the state paid out to homeowners and attorneys.

No date has been set for the depositions.

By Elise Hu

Source: The Texas Tribune

Bill 'hijacked' by amendments from trial lawyers

A bill intended to strengthen the law in favor of first responders hurt in the line of duty has been hijacked according to the sponsor of the bill. But the mother of a murdered police officer said the bill must pass.

The bill is meant to increase penalties for reckless drivers who injure first responders, but an amendment is causing controversy.

"Unfortunately, the bill has been polluted by at least two amendments," said Rep. Will Tallman (R-Adams/York), the bill's sponsor.

Tallman kicked off the more than two hours of testimony before the Senate Banking and Insurance Committee. But criticizing the new amendment, an amendment added to House Bill 2246 by the Trial Lawyers Association, allows attorneys to suggest to the jury how much pain and suffering is worth monetarily in auto-related civil cases.

"To suggest what a pain and suffering amendment would be would not be fact or evidence, rather opinion," said Stuart Setcavage, of State Farm Insurance.

"It's going to affect our bottom line, because of increased insurance costs," said Mark Campbell, of H.F. Campbell & Son, Inc.

Small businesses and insurance companies testified premiums could skyrocket because of an increase in verdicts. Some senators questioned why tack on this type of amendment that would benefit trial lawyers financially and disrupt the bill's original intention.

"Because so many of the states already have this amendment as a law, they're surprised we don't," said Kim Weigand, whose son was killed in the line of duty.

Her son, Sgt. Michael Weigand, died almost one year ago Tuesday as he rode a motorcycle as an escort in a charity bike ride. She is for the bill with the amendment and doesn't want it passing any other way.

Copyright 2010 Newport Television LLC All rights reserved. This material may not be published, broadcast, rewritten, or redistributed.

By Annie McCormick


Sunday, September 19, 2010

Don't fall for scams: Real mortgage counseling will help secure loan modification for free

The foreclosure crisis is bad enough, but in southern New Jersey and elsewhere it is being worsened by illegal and unscrupulous operators scamming distressed homeowners, government-approved counselors say.

With advertised promises of quick and easy mortgage modifications that would let people keep their homes, these mainly out-of-state operators are getting high up-front fees from those who can least afford them and then doing nothing meaningful.

What’s worse, the real help homeowners need from federally approved mortgage counselors is free, supported by state and federal funding.

“Some former mortgage brokers, to make up for the loss of income from selling mortgages when the market was hyperinflated, are resorting to preying on individuals facing foreclosure,” said Russell Graves, executive director of Consumer Credit and Budget Counseling in Marmora, Upper Township.

John Schmidt, vice president of housing for Tri-County Community Action Agency in Bridgeton, said he has seeing a high number of for-profit operations targeting distressed homeowners.

“When a bank files for foreclosure, that’s a public record. They have teams of people searching the records and contacting those people,” Schmidt said. “They’re charging fees of $1,500 to $3,000, and basically they don’t do anything, just gather some information.”

Graves said agencies need a debt adjuster’s license in New Jersey to work on mortgage modifications, and that’s available only to nonprofit organizations.

As a consequence, modification scam operations are usually, but not always, located out of state. Currently, ones in Maryland and New York are advertising heavily online and on radio in southern New Jersey, he said.

Graves, 52, of Upper Township, said he has called one of the services and found it is charging 1 percent of the mortgage amount, which would be about $2,500 on an average loan — ostensibly to provide a service available for free from agencies approved by the Department of Housing and Urban Development.

He said the foreclosure crisis is grim, and it is especially sad when someone in danger of losing their home comes in after wasting a large amount of money on a loan modification scam.

“One situation really bothered me. This family was losing their home and they went to a young lady who was a former mortgage broker in the state and she charged them $800 up front and after five months had done nothing,” Graves said. “By the time we got to them, they were 11 months behind on their mortgage and once they hit 12 months, they’re not eligible for the Federal Housing Agency’s Home Affordable Modification Program.”

Schmidt said one of his clients, an elderly woman, was given a refinancing mortgage with a payment of $1,200 per month, even though her income was only $900 per month.

Graves and Schmidt said their agencies have turned the names of modification scam operators over to the state Department of Banking and Insurance and the Attorney General’s Office.

Unfortunately, the state does not have the manpower to go after all of the illegitimate operations, Graves said. Many get warnings, and some are prosecuted to discourage others.

Attorneys are exempt from the requirement for a debt adjuster’s license and can work on mortgage modifications, he said, which gives some out-of-state services an opening.

Agencies fronted by lawyers, which could have one attorney and dozens of sales people, often use direct mail to solicit homeowners in foreclosure, he said.

“I contacted one, and when they found out I didn’t need a loan modification, they sold my name and number to a debt-settlement agency,” Graves said.

Even though New Jersey was only 29th among states for foreclosure filings in August, Consumer Credit and Budget Counseling is getting a few new foreclosure clients a day, he said.

The agency has about 425 active foreclosure clients in Atlantic and Cape May counties, he said, and is just one of several HUD-approved agencies in the region helping those in foreclosure for free.

The agency’s staff has gone from nine to 15 to handle the increased need for debt relief, “and will probably increase going forward,” Graves said.

The principle causes of the foreclosure crisis are well-known — a housing bubble that burst, excessively loose mortgage lending standards and a severe recession — but Schmidt said some clients he sees have helped put themselves in trouble.

“Some homeowners feel that if they pay their car loan and credit cards, it will maintain a higher credit rating, but that’s not the case,” he said. “The previous generation knew to pay the mortgage first, but somewhere that got lost in the mix.”

Those who do not pay their mortgage should be saving as much of the payment as they can afford, he said.

“Lenders really frown on going into mediation on a loan modification if the homeowner has nothing to put down on the table,” Schmidt said.

Graves said banking at least a partial mortgage payment can also pay off if foreclosure cannot be avoided.

“From the first missed payment to the time the sheriff is asking you to leave is more than 24 months right now,” he said. “For clients unable to stay in their homes, that’s good news, because if they save even half of what the mortgage payment was, they can move on with some money in their pocket and continue their lives.”

By Kevin Post, 609-272-7250,


Court weighs Bluffton crash blame

Is Bluffton University responsible for the 2007 bus crash that killed seven people, including five of its baseball players, or does blame rest solely with the company whose bus sped over an overpass and landed on the highway below?

The Ohio Supreme Court wrestled with that question yesterday, with the debate coming down to the definition of the word hire.

There's no dispute that Bluffton University paid Ottawa, Ohio-based Executive Coach Luxury Travel to drive its baseball players to a tournament in Florida.

But attorneys for the university's insurance carrier and two of the accident victims clashed over whether the university had "hired" the bus, which would make it liable for the accident. A trial court and the 3rd District Court of Appeals approved dismissal of the lawsuit against the university's insurer, saying there had been no "hire" of the bus.

The driver for Executive Coach apparently mistook a freeway exit ramp as a carpool lane and plunged the bus onto the highway below in the early hours of March 2, 2007. The accident killed five student athletes, as well as the driver and his wife.

Steven R. Smith, the attorney for the estate of one of the accident victims, said that not only had the university hired the bus, but the baseball coach gave "permission" - another catchword in the insurance policy - to the bus driver.

"This court knows that the insurers control every comma and every period of the insurance policy," Smith said.

D. John Travis, the attorney for Federal Insurance Co., one of the university's carriers, said the university had not hired a bus any more than he would hire a taxi to take him to his hotel.

"Somebody's got to maintain control, and here it was Executive Coach, because they're the ones who controlled the methods and the means," Travis said.

The court is expected to issue its decision in several months.

By James Nash,

Source: The Columbus Dispatch

Friday, September 17, 2010

Pa. Supreme Court Takes Another Shot at Attorney-Client Privilege

'Gillard v. AIG' is the latest in a series of worldwide rulings covering attorney-client privilege

An attorney arguing for an insured in a case about attorney-client privilege said the Pennsylvania Supreme Court had its chance in 1998 to take control of whether communications from an attorney to a client were privileged and instead let the legislature re-enact an 1887 statute codifying that the privilege extends only to communications from a client to an attorney.

Now it is that statute that the court must strictly construe in finding AIG should produce documents that were drafted by an attorney for the insurance company client, the attorney for William Gillard argued in Gillard v. AIG Tuesday.

It's the second time this year the court was faced with the privilege issue, but in the first case, Nationwide v. Fleming, only four justices decided the case and they were split, leaving a Superior Court's decision that attorney-client privilege is a one-way street stand. Nationwide also involved an issue of waiver, which Gillard does not, allowing the justices in Gillard to look only at the merits.

All seven justices heard Tuesday's arguments in Gillard, in which the lower courts relied on the Nationwide decision in determining communication from an attorney to the insurance company client is not privileged.

In response to the argument by Gillard's attorney, Claire Neiger of Michael T. Sosnowicz & Associates in Darby, Pa., Chief Justice Ronald D. Castille asked whether this was a matter of practice and procedure that was within complete control of the court and not the legislature. He asked Neiger why the court couldn't simply ignore the codification of the privilege and say the legislature violated separation of powers by regulating something within the court's powers to regulate.

Neiger responded that the court could do that, but it would be going against its prior decisions.

"In 1998, you had the opportunity to pull back and you didn't," Neiger said.

Before Neiger was able to finish her next argument that this issue was better handled under the common law attorney work-product doctrine, Castille asked her whether she would like it if her communications with her clients were made public.

"I would hope I would have the sense to craft it in a way" that it would be protected, Neiger said, adding that attorneys are "clever."

"I don't know why an attorney has to be clever," Justice Joan Orie Melvin said later.

Neiger had argued that some communications from attorneys to clients are protected as long as they reference information the client had previously provided. She said Philadelphia Common Pleas Judge Jacqueline Allen followed that guideline in determining in Gillard that some documents were discoverable and others were not.

The argument for the other side is that attorneys sometimes want to be proactive in writing opinion letters to clients on new legislation or issues facing the company and they argue that should be protected.

The court recognized at the start of argument the slew of amici filers on behalf of AIG, including the Philadelphia, Allegheny and Pennsylvania Bar Associations, the U.S. Chamber of Commerce and the Association of Corporate Counsel.

AIG's attorney, David Rosenberg of Weber Gallagher Simpson Stapleton Fires & Newby in Pittsburgh, said it shouldn't be lost on the court that all of these attorney groups are coming out in favor of privilege being a two-way street.

He said for hundreds of years the court has recognized as privileged communication both from and to the attorney. It was in 1887 that the privilege was initially codified, but only in part. Both then and now the statute reads that an attorney cannot "be competent or permitted to testify to confidential communications made to him by his client."

Rosenberg said this language was not meant to limit hundreds of years of privilege protecting communications from the attorney to the client. He cited a 1900 case, National Bank of West Grove v. Earle, in which the Supreme Court found privilege to be a two-way street even after the 1887 enactment of the statute.

Castille said it seems hard to sort out what communication was from the attorney and what was from the client when some of the attorney communication might include client comments as well.

Rosenberg said the communications are intertwined and a finding that privilege is a one-way street creates too big of a risk to the client that something they say might be revealed. He said the Supreme Court has the power to clarify this issue.

"Attorneys and clients need clarification and direction," Rosenberg said.

Neiger said AIG makes it seem that the court hasn't dealt with this issue since 1900, but she said that was only a one-page opinion that was dicta. She said there are plenty of cases, however, that have followed strict statutory construction. Over time, Neiger said, corollaries to the privilege statute have arisen that allow for the protection of some attorney communication.

Justice Max Baer asked whether Neiger's construction would put an attorney in the position of determining during each conversation with a client whether what she said is discoverable. Neiger responded in the negative, saying those discussions are based on privileged facts from the client, not based on corporate interests of having opinion letters from attorneys be protected.

"All the attorney has to do is write in an opinion letter facts given by the client and it's not discoverable," she said.

Justice Debra Todd said she wanted to "quarrel" with Neiger's repeated comments that the case was about protecting corporate interests, as Neiger said was evidenced by the amici filers. Todd said the associations of attorneys signing on in support of AIG represent both plaintiffs and defendants.


In Nationwide, Justices J. Michael Eakin and Baer wrote to affirm the lower court while Justice Thomas G. Saylor and Castille wrote to overturn it. Justices Seamus P. McCaffery and Todd had to recuse themselves from the case because they sat on the lower court panel. Though the case was argued in March 2008, the court didn't issue a ruling until after interim Justice Jane Cutler Greenspan left the bench in January 2010, leaving only four justices to decide the case. Orie Melvin couldn't rule on the case because her brother represented one of the parties.

The same day the full court heard arguments in Gillard, the European Court of Justice decided in the closely watched Akzo Nobel case that attorney-client privilege does not extend to in-house attorneys in investigations of anti-competitive acts by corporations. Although Gillard didn't deal with in-house counsel, Nationwide did.

The Akzo Nobel ruling raised immediate ire from in-house counsel across the globe, including the ACC, which came out in favor of AIG and Nationwide.

In a statement Tuesday, ACC General Counsel Susan Hackett said the organization was dismayed by the ECJ ruling, which she said ignores the independence of in-house counsel.

"In-house counsel are top legal practitioners who are just as capable as their outside counsel counterparts," Hackett said. "The idea that professional independence stems from the type of office a lawyer works in, rather than from their moral and professional compass, evidences a deep misunderstanding of legal professionalism and lawyers."

By Gina Passarella


Law firm earns top recognition throughout S.C.

Turner Padget ranked among best law firms by U.S. News & World Report

Turner Padget Graham & Laney, P.A. announced Wednesday the firm’s inclusion in the inaugural Best Law Firms list, published by U.S. News & World Report in conjunction with Best Lawyers. Turner Padget is recognized as the top firm in 16 practice areas throughout the state, and is noted in eight additional categories among other top law firms in South Carolina. Inclusion on the U.S. News & World Report Best Law Firms list signals a combination of excellence and breadth of experience. The full list is available today at

Turner Padget is recognized in the following categories:

• Tier One Rankings:
o Alternative Dispute Resolution
o Criminal Defense: White-Collar
o Trusts and Estates Law
• Tier Two Ranking:
o Tax Law

• Tier One Rankings:
o Medical Malpractice Law – Defendants
o Professional Malpractice Law – Defendants
• Tier Two Rankings:
o General Commercial Litigation
o Real Estate Law

• Tier One Rankings:
o Alternative Dispute Resolution
o Banking and Finance Law
o Insurance Law
o Medical Malpractice Law – Defendants
o Municipal Law
o Product Liability Litigation – Defendants
o Real Estate Law
o Trusts and Estates Law
o Workers’ Compensation Law – Employers
• Tier Two Rankings:
o Construction Law
o Mass Tort Litigation/Class Actions – Defendants
o Personal Injury Litigation – Defendants
• Tier Three Ranking:
o General Commercial Litigation

• Tier One Rankings:
o Alternative Dispute Resolution
o Workers’ Compensation Law – Employers
• Tier Two Ranking:
o Intellectual Property law

The inaugural Best Law Firms list showcases over 8,000 law firms ranked in one or more of 81 practice areas. Major clients and leading lawyers were asked to rate the law firms they consider best in their practice areas. Ultimately, 9,514 clients – including every Fortune 100 company and over half of Fortune 1000 companies – provided 194,370 firm practice area evaluations. These survey responses were combined with more than 3.1 million evaluations of individual lawyers previously collected by Best Lawyers. Data regarding the number of clients a firm serves, combined with information on billing ranges, pro bono commitment, diversity and other objective data were integrated to develop the final list.

About the U.S. News Media Group

The U.S. News Media Group is a multi-platform digital publisher of news and analysis, which includes the monthly U.S. News & World Report magazine, the digital-only U.S. News Weekly magazine,, and The U.S. News Media Group’s signature franchises include its News You Can Use® brand of journalism and its “America’s Best” series of consumer guides that include rankings of colleges, graduate schools, hospitals, health plans, and more.

About Best Lawyers

Best Lawyers is the oldest and most respected peer-review publication in the legal profession. For over a quarter century, the company has helped lawyers and clients find legal counsel in distant jurisdictions or unfamiliar specialties. Best Lawyers lists are excerpted in a wide range of general interest, business and legal publications worldwide, reaching an audience of more than 17 million readers.

About Turner Padget

Founded in 1929, Turner Padget is one of South Carolina’s largest law firms with 91 attorneys and five offices in Charleston, Columbia, Florence, Greenville and Myrtle Beach. The firm provides clients in many industries with quality legal services in areas such as arbitration and mediation, business entity planning and organization, business litigation, construction and environmental litigation, employment and labor law, estate and tax planning, insurance coverage analysis and litigation, intellectual property, personal injury defense litigation, products liability, professional liability, real estate transactions, trucking and transportation, and workers’ compensation. For more information, visit

By From local reports


Monday, September 13, 2010

Standing alone

In a tough economy, more people serve as their own legal counsel

With her pin-striped slacks and courtroom decorum, Kelly Seeley might have been mistaken for the attorney she lacked during her recent divorce trial.

But the part-time Eugene property manager knows she was no match for the experienced lawyer representing her now ex-husband during the five-hour trial last month.

“It was terrifying,” she said of appearing “pro se” — a Latin term meaning “for oneself.” “There’s so much paper involved. I spent countless hours sorting through it, organizing it. You do what you can and hope that you have all the information you need.”

Seeley thinks she may have fared better if she, too, had been able to afford professional representation.

As it was, Lane County Circuit Judge Ted Carp awarded the former couple joint custody of their children but made Seeley’s ex-husband the primary parent, saying he could offer more stability due to his established, home-based business. The role gives him slightly more parenting time and final say-so on issues such as medical decisions.

Carp also awarded him the family’s residence until their last child leaves home, when he must sell or refinance to pay Seeley her share. The judge ordered him to pay Seeley’s medical bills but awarded her far less spousal support than she hoped to receive.

Seeley is among an increasing number of Lane County residents forced by financial woes to represent themselves in court. Amid a three-year national recession, local judges say they are seeing more and more pro se parties in contested divorce and custody cases.

Their evidence is anecdotal: Oregon does not track such representation — nor do most states, according to the National Center for State Courts. But in a 2009 national survey by the Self-Represented Litigation Network, 60 percent of judges reported seeing more pro se litigants since the economy tanked. And on several recent mornings, the Lane County Circuit Court trial docket has been dominated by domestic cases labeled “both parties pro se.”

It’s a trend that worries the judges — though not for reasons you might expect.

The problem is not one of angry couples shrieking at each other, unbuffered by attorneys, the judges said. Indeed, during her proceeding, Seeley praised her ex-husband as “a good father.”

“It’s not about acrimony,” said Lane County Circuit Judge Karsten Rasmussen, even though it’s true that good lawyers can help remove some of the emotion from the process. “They’ll tell their clients, ‘I know you’re angry because he left you or she left you, but who left who doesn’t matter in court.’ ”

The big problem, says Rasmussen and other judges, is pro se parties’ failure to understand and address in writing often-complex details about assets and debts, pensions and parenting.

“Maybe they’re not disputing these things at the time of the judgment, but that can change,” Rasmussen said. “The paperwork does matter.”

Housing market hurts

Even before the recession, judges statewide were concerned about justice for people representing themselves in court. A 2007 report by a state Judicial Department family law committee found that more than two-thirds of the state’s domestic cases involved at least one pro se party.

The report urged simpler procedures, language and filing forms that are the same statewide. It proposed training judges and court staff to better work with pro se parties. And it urged family lawyers to donate more time representing low-income parties — and to “unbundle” divorce services so people can hire attorneys for only part of their cases.

Seeley actually did that after filing for divorce in February. She said her 14-year marriage was strained to the breaking point as she underwent breast cancer surgery and treatment the previous year. Her cancer also left the self-employed couple reeling financially, she said. With no health insurance, they faced $12,000 in medical bills even as she had no income due to her illness.

But Seeley used the Oregon State Bar’s Modest Means referral service to find a local lawyer willing to discount her fees.

“My first session was only $35,” she recalled. Even with a discount, however, Seeley hasn’t yet paid off the lawyer’s $3,000 bill for pretrial work on the case. When the attorney asked for a $6,500 retainer to handle the trial, Seeley decided to go it alone.

She had little choice. The depressed housing market doomed Seeley’s efforts to resume her real estate career. She was so strapped that she continued living in the same house as her estranged husband as they awaited trial and a decision about custody of their children and the home. Such arrangements have become more common, said Lane County Circuit Judge Charles Zennaché, a former family law attorney.

“It creates a lot of tension,” he said.

The collapsed housing market has also curtailed a time-honored way of paying legal costs, Zennaché said.

“In the past, more people could hire lawyers with the understanding that fees would be paid out of equity in the parties’ home when it is sold,” he said.

Now, there are no guarantees there will be any equity — or if the house will sell.

Free help available

Seeley went to court unaware of another resource: Lane County’s Family Court Assistance Program. Each morning, the program helps people on a drop-in basis, giving them basic forms and resources to get their cases started, coordinator Colleen Carter-Cox said.

Afternoons, clients with appointments can get such services as having documents reviewed to ensure they’re ready for filing. The program also offers trial preparation classes.

It has no income criteria, Carter-Cox said, but the troubled economy is definitely driving more people to seek help representing themselves.

“A huge percentage of the people we see have no assets,” she said. “People have a lot of debt and talk mostly about the stress of the economy when it comes to child support. There also seems to be increased conflict because of unemployment.”

Donna Austin, program coordinator for the Lane County Family Mediation Program, said her agency is also seeing more clients unable to afford lawyers. Splitting couples who can’t agree on custody and parenting time must attempt to mediate their differences before going to trial in Lane County. General demand for mediation services also has risen, she said, though it’s not clear if that’s due to the increase in pro se parties.

It’s not because of a big spike in divorce filings, however. Such cases have not increased significantly since the current recession began in late 2007. In fact, there are far fewer such cases now than a decade ago — 1,605 in 2009 vs. 1,949 in 1999.

Erika Hente, director of Legal Aid Services of Oregon in Lane County, said she is not surprised by the flat numbers.

“A divorce is already a financially devastating transaction to go through,” she said. “In tough economic times, people realize they might have to wait awhile — even though the marriage is not getting any better.”

Her agency represents low-income clients in domestic cases, but budget limitations allow it to serve only 20 percent of qualified applicants statewide, she said. The local office does offer family law classes that are open to anyone, regardless of income.

“One class is on filing your initial divorce, one is on filing initially as an unmarried parent seeking custody, and a third class is on finishing up the process,” she said.

Divorce more complex

But Hente said Legal Aid always urges clients to try to find funds to hire an attorney for highly technical matters, such as retirement accounts.

Brad Litchfield, president of the Lane County Bar Association’s Family Law section, said the troubled housing market and tightened credit are making divorce more complex even when both parties are represented by lawyers.

“There’s a much greater long-term entanglement relating to paying off debts, especially if they are upside down on their house,” he said.

Litchfield said he can understand, in such times, why people aren’t hiring attorneys.

“A divorce case from start to finish can be very costly, especially when there are custody disputes and you need to pay for expert testimony,” he said.

But not having representation also can be expensive, he said. He noted that he’s seen people agree to more child support than they can afford, or fail to properly value a family business.

He added that he’s seen too many prospective clients fail to take advantage of the Recession Response Program that Attorney General John Kroger created last May within the state’s child support program. It allows parents with “employment-related” drops in income to apply for a swift, temporary reduction of their child support obligations.

Attorneys can shorten the divorce process, Litchfield said, because parties enter court with some issues resolved and others identified for the judge.

“We will say, ‘These are the issues to help you understand which parent should have custody,’ ” he said.

Zennaché agreed that judges have far more to do in pro se cases. And there’s disagreement on the bench over judges’ proper role in helping self-represented parties. He normally starts with the basics in such cases, he said, reviewing relevant portions of the law.

“Sometimes I read the statutes out loud, so I know they’ve at least heard it,” he said.

“With custody, my job is to do what’s in the children’s best interest,” he said, so he sometimes has a child come in to help him make that determination.

“I never ask, ‘Who do you want to live with?’ ” the judge said. “I emphasize that this is my choice, not theirs. But I’ll ask questions such as, ‘What’s a typical Saturday like at your mom’s house and at your dad’s house? What happens when you break the rules there?’ ”

But the most challenging cases for judges, he said, are those like Seeley’s, where one party has a lawyer and one does not.

Litchfield agreed.

“Lane County’s got a tremendous group of family law lawyers who, for the most part, will be fair and straightforward to the party that’s not represented. But they still need to be zealous advocates for their client; they can’t or shouldn’t be giving breaks to the other side.”


Lane County Family Court Assistance Program: Drop-in assistance from 8:30 to 11:30 a.m. weekdays in the Lane County Courthouse basement. Document review and court appearance preparation by appointment. 541-682-4302.

Oregon Child Support Division Recession Response Program: Expedited temporary support payment reductions for those who have lost a job or work hours. or 1-800-850-0228.

Oregon State Bar Modest Means Program: Matches qualified applicants with lawyers offering reduced rates. or 1-800-452-7636.

Lane County Legal Aid and Advocacy Center: Free legal services for some clients meeting low-income guidelines; classes for general community. or 541-485-1017.

Lane County Family Mediation Program: Free child custody and parenting plan mediation services for parents with open court cases. 541-682-3962.

By Karen McCowan


Conservative Duo Tests Health Law

Whether President Barack Obama's health-care overhaul survives could depend on a yin-and-yang pair of conservative Washington, D.C., power lawyers who sued to stop it mere hours after the bill became law in March.

The lawsuit, filed in Florida by David Rivkin and Lee Casey, is one of a handful of challenges lodged against the law in recent months. Like Messrs. Rivkin and Casey's action, some of the suits argue that Congress doesn't have the Constitutional authority to require people to buy health insurance or face a fine, a key tenet of the legislation.

But largely because the Florida lawsuit was lodged on behalf of 20 state attorneys general, it has become the most closely watched case in the ongoing political battle overt the health-care overhaul.

"This is one of the most important Constitutional challenges in history," said Mr. Rivkin, who along with Blaine Winship, an assistant attorney general in Florida, is scheduled to defend the lawsuit in front of U.S. District Court Judge Roger Vinson.

The Constitution grants Congress certain powers, like the power to tax or to regulate commerce between the states. Messrs. Rivkin and Casey believe, however, that nothing in the Constitution gives Congress the power to require individuals to own health insurance. They worry that the health-care example could set a dangerous precedent. "This is well beyond health care," Mr. Rivkin said. "It's about a fundamental alteration of a key portion of constitutional architecture which would greatly impair individual liberty."

Legal experts are divided over the strength of their case, however, with many predicting it will sooner or later fail entirely. The Obama administration has lodged an early challenge to the suit, arguing that the Constitution's Commerce Clause gives Congress the power to pass the law. The government also argues that the states filing the suit don't have "standing." That is, they can't sue because the law has yet to harm them.

Walter Dellinger, who served as acting solicitor general under President Bill Clinton and now works in private practice in Washington, D.C., said the case should be dismissed for lack of standing. "David and Lee are very well-regarded lawyers, but they've brought better lawsuits."

Such criticism doesn't faze Messrs. Rivkin and Casey, both of whom work at Baker & Hostetler LLP in Washington, D.C. Mr. Rivkin said his clients have the right to challenge the law now for several reasons. For starters, said Mr. Rivkin, states have already had to spend money and commit resources to comply with the law.

But Mr. Rivkin sees a different harm suffered by the states. "The states' sovereign authority is being trammeled upon by the federal government."

Although a team, the two men, both 53 years old, are a study in contrasts. Mr. Rivkin, who emigrated from the former Soviet Union when he was 17 and still speaks with a slight accent, handles more of the work that demands an extroverted streak, like drumming up clients or doing television interviews.

Mr. Casey, who hails from Michigan, opts for the more solitary tasks, such as analysis and writing. "I'm the introvert," he said..

The pair met in 1987 as young Reagan Justice Department lawyers and quickly bonded through their shared conservative political views and fascination with the Constitution.

"Back then, we would go to Monticello and Montpelier a couple times a year," recalled Mr. Rivkin. "It was a quintessential Washington friendship. It revolved around ideas."

Both stayed in government through the George H.W. Bush administration, and in 1993, "after the political wheels turned," Mr. Rivkin lured Mr. Casey to the Washington office of the law firm Hunton & Williams LLP. In 2000, they decamped together to Baker & Hostetler, where their practice focuses largely on appellate litigation.

Mr. Casey says he and Mr. Rivkin work on together on cases "75 to 80 % of the time. They also frequently pair up to write op-ed pieces, which typically feature a politically conservative point of view.

Last year, the pair wrote a series of op-eds on the constitutionality of the health-care law in The Wall Street Journal that grabbed the attention of Florida attorney general Bill McCollum. According to Florida deputy Attorney General Joe Jacquot, the pieces sparked conversation throughout Mr. McCollum's office on "state sovereignty and the individual mandate"—the portion of the law that requires all individuals to purchase health insurance.

At the same time, Mr. McCollum knew that Mr. Rivkin was giving South Carolina's attorney general, Henry McMaster, advice on challenging the so-called "Cornhusker kickback." Under that arrangement, Nebraska Senator Ben Nelson agreed to support the health-care bill in exchange for individual benefits for Nebraska.

Ultimately, the "kickback" was dropped, but when it was settled that Florida would take the lead in the lawsuit, Mr. McCollum kept Mr. Rivkin on board.

On Tuesday, Judge Vinson is unlikely to rule on the government's motion. But he could give a sign which way he's leaning.

The pressure on Messrs. Rivkin and Casey is "intense," said Bradford Berenson, a former White House attorney in the George W. Bush administration. "Every move they make will be scrutinized."

By Ashby Jones,


Saturday, September 11, 2010

North Carolina family lawyers report: Divorce insurance - Provider or provoker?

The insurance world is a complex mass of policy offerings providing coverage for everything from tangible goods, to businesses, to body parts to ideas. The list of insurable properties extends from the concrete to the abstract, is always expanding and has recently come to include divorces.

A North Carolina insurance firm recently announced its plan to provide individuals with insurance policies to protect against the financial impact of divorce. The company, SafeGuard Guaranty Corp., aims to provide financial assistance to cover the costs of separation, divorce and its aftermath.

According to SafeGuard’s WedLock product description, individuals purchase “units” of initial protection with payouts starting at $1,250 and reaching as high as $250,000. Policyholders pay $15.99 per month for each unit. Over time, the policies mature and offer payouts from $6,250 to $1,250,000. Safeguard explains, “you buy what your needs are and what your budget will allow but the big difference is that the coverage amount grows over time without any increase in your premium.”

The company even offers a divorce likelihood calculator, offering an analysis based on areas of an individual’s life such as race, parental marital status, level of education and spiritual beliefs. Again, referring to the company’s website, “WedLock Divorce Insurance will provide a financial safety net for those people unfortunate enough to be impacted by divorce.”

The Raleigh divorce lawyers of Gailor, Wallis and Hunt explain that knowledge of your options is the best way to prepare for a divorce. While purchasing divorce insurance prior to marriage may seem like a great way to set aside a fund that cannot be accessed by the other spouse, it may also not be available to the policyholder if a divorce never occurs. Further, the fact that premiums will be paid on a monthly basis after marriage, raises issues of whether the policy will be marital property in some states, like North Carolina, and potentially the accumulated value of the insurance will be divisible between the spouses - a fact which would substantially diminish the value of the insurance to the spouse making the purchase. Further, a divorce insurance policy may trigger conflicts regarding perceptions about commitment levels towards the marriage and feelings of resentment stemming from the self-serving interest of the policy.

Considering a prenuptial or postnuptial agreement (if already married) would produce more certain results.

Prenuptial agreements provide each party with a variety of options. Not only do they offer more variety in terms of asset protection in case a divorce is necessary, but they also offer estate-planning opportunities. These contracts can address retirement benefits, allocation of debt, alimony, household bills, credit card charges, procedures for filling tax returns and even estate planning issues, such as providing for children from prior relationships.

This protection can provide comfort to both parties: that in the event of a separation or divorce, each party is protected. Discussing a prenuptial agreement with your soon-to-be spouse can help settle issues that could become adversarial during a divorce.

As marriage is a team effort, it should begin with a dual effort to ensure its success. Rather than looking into divorce insurance that could only benefit the policyholder, consider an agreement that would work to meet the needs of each party. While it is important prior to marriage to acknowledge the possibility of a divorce, it is not necessarily a wise decision to begin a marriage with insurance dependent on the failure of the marriage.

The North Carolina family attorneys of Gailor, Wallis and Hunt can help you prepare your prenuptial agreement so your assets will be protected, should a divorce occur. The highly respected attorneys of Gailor, Wallis and Hunt have dedicated their lives to helping couples plan and preserve their marriage and family, but are also dedicated to helping men and women in the divorce process obtain a favorable and equitable divorce.

GWH offers knowledge, skill and experience in the many areas of family law that is second to none.

To contact the family law attorneys of Gailor, Wallis and Hunt, call (866) 666-1491.

By Gailor Wallis & Hunt


Fenton minister's lawsuit stalled, for now

A lawsuit over a website's accusation of child sexual abuse by a minister in Fenton stalled in limbo Friday on a narrow point of law.

The lawyer for the Rev. James D. Manning, pastor of Solid Rock Ministries, has filed a subpoena trying to learn who posted the material online. But that has remained secret because the Internet address was purchased confidentially through a company called Domains by Proxy.

At a hearing on the John Doe site owner's motion to quash the subpoena, he was represented in St. Louis County Circuit Court by Ken Chackes and three other lawyers. That led Mark Goodman, one of Manning's lawyers, to announce he was withdrawing the subpoena, because he could now press the damage suit against Doe through his lawyers.

But Doe's lawyers moved to thwart that strategy, insisting they were hired only to represent Doe in the subpoena issue, not the lawsuit. After several minutes, both sides agreed to disagree, for now.

Manning is accused on the site — — of abusing a girl for years, starting when she was 12. His suit accuses the site of intentional infliction of emotional distress but does not deny the underlying accusation.

The website includes information from a 2003 suit against Manning and his church.

According to the court file, Manning was dropped as a defendant from the suit the same day that the girl was the sole witness in a brief bench trial. Based on her accusations against Manning, the judge found in favor of the victim and against the church, for $500,000.

Goodman emphasized Friday that the outcome was a court judgment, not a mutual settlement. The parties to the case did later agree that the victim would only seek the $250,000 available under the church's insurance policy, court files show.

Outside the courtroom Friday, Goodman told Doe's lawyers, "We could do this the hard way or the easy way." Then he spotted bystanders, including a reporter, and suggested that the attorneys talk later.

Chackes told a reporter that Doe's lawyers have not yet decided whether to continue to argue that they do not represent Doe in the suit, to do something to clarify the issue or to simply file an answer to the suit. He said he thinks the suit is without merit and raises important First Amendment issues about the posting of information from public court documents.



Wednesday, September 8, 2010

Seminars directed to only judges, prosecutors are troubling

Recently, I became aware of a situation that, as a criminal defense lawyer, I find troubling. I discovered the Ohio Highway Patrol is conducting seminars with federal government monies.

What makes this so disturbing is the fact the seminars are directed to judges and prosecutors only, and defense counsel are specifically excluded. This raises concerns the programs are being conducted to indoctrinate judges and to influence future court decisions

I can only assume these specific programs somehow slipped by the Ohio Supreme Court's CLE committee and disciplinary counsel without being properly vetted to see if they are ethically proper and to see if credit could be given appropriately for attendance. From the perspective of one who has been excluded, these programs do not appear to pass muster on either point.

Rule 2.9 of the Code of Judicial Conduct precludes ex parte communications. Ex parte communications includes not only pending matters but also impending matters. I understand the definition of ex parte communications can be a term of art, especially when dealing with lawyers; however, in the instant matter, we have law enforcement indoctrinating judges and prosecutors to the exclusion of defense counsel on the use and validity of speed-measuring devices, identifying drugged drivers, crash reconstruction and finally now field sobriety tests. The information that is provided is only from the law enforcement perspective, and it is not subject to confrontation or challenge by defense-oriented peers.

It is fairly apparent the purpose of these seminars is to influence judges and prosecutors to the exclusion of defense counsel on issues that will be coming before the court in the near future. In addition, it gives the appearance the bench and the state are in bed together and defense counsel is the ugly stepchild of criminal court. The Ohio Highway Patrol officers are in court day in and out sitting at the prosecutors table, and they drive the case as much as any defendant does. Mass ex parte communications are as improper as if the officer spoke individually with the judge before trial without the defendant or defense counsel being present.

One might argue this is too vague to fall within the definition of impending, however, one cannot disagree that, at minimum, it gives the appearance of impropriety and does not appear to promote impartiality as required under Rule 2. Even more specifically, Canon 1 states a judge shall uphold and promote the independence, integrity and impartiality of the judiciary and shall avoid impropriety and the appearance of impropriety.

My complaint does not seem to concern the Bar like it should. Just imagine the complaints that would be raised if taxpayer-paid-for CLE seminars were conducted by Medical Malpractice Plaintiff firms for the purposes of influencing and indoctrinating only judges and plaintiff lawyers to the exclusion of the insurance defense attorneys. The Bar would immediately put a stop to these seminars.


Source: The Newark Advocate

Execution stay remains intact for man convicted in McClain County murder

A federal judge in Oklahoma City denied Tuesday a request to lift the third stay of execution for a death row inmate facing lethal injection for killing a 77-year-old man during a 1994 McClain County robbery.

Jeffrey David Matthews' stay of execution was granted last month after defense attorneys raised concerns about the substitution of a never-before-used sedative in the lethal injection procedure. The state Corrections Department wanted to substitute Brevital for sodium thiopental, which is normally used for sedation.

Lawyers with the attorney general's office requested the stay be lifted because the Corrections Department had obtained a dose of sodium thiopental.

While noting the availability of the usual sedative nullified most of Matthews' objections, Judge Stephen P. Friot kept the stay in place until after an Oct. 15 hearing. Friot did so to give Matthews' attorneys a chance to argue any issues they believe have not been addressed. Matthews' stay is set to expire on Oct. 16.

Matthews, 38, of Purcell, was convicted of killing Otis Earl Short and assaulting Short's wife, Minnie Delores Short, whose throat was slashed, during the robbery near Rosedale.

Another drug

During Tuesday's hearing, Friot also denied a death row inmate's request to join with Matthews in the lawsuit. Donald Ray Wackerly II, 40, of Muldrow, is scheduled to be executed Oct. 14 for the 1996 murder of Pan Sayakhoummane, 51, during a robbery in rural Sequoyah County.

Lawyers with the attorney general's office said while there is only one dose of sodium thiopental, which has been earmarked for Matthews, the Corrections Department plans to use pentobarbital for Wackerly's execution. Veterinarians use pentobarbital for animal euthanasia, and it is the legal drug for physician-assisted suicide in Oregon.

Friot denied Wackerly's request, saying he did not find enough commonality among the issues and that the death row inmates would be arguing about the use of different drugs.

Wackerly's attorney, Susan M. Otto, a federal public defender, would not comment on whether her client will file a separate lawsuit.

Lawsuits, appeals and stays

Matthews, who has exhausted other appeal avenues, intervened in a case filed in February by James Pavatt, who was convicted of killing Rob Andrew to get the proceeds of an insurance policy. Pavatt was having an affair with Andrew's wife, Brenda Andrew, who also was sentenced to death.

Pavatt's lawsuit challenges Oklahoma's lethal injection method on grounds that it is cruel and unusual. During Oklahoma's lethal injection method, the sedative is administered first, followed by a drug that stops breathing and then a drug that stops the heart.

If Matthews' latest challenge is denied, the state Court of Criminal Appeals will set a new execution date.

Gov. Brad Henry has granted two stays of execution to give defense attorneys time to examine fingerprint evidence. Matthews was scheduled for execution first on June 17, then on July 20 and again on Aug. 17.

By Michael Baker


Tuesday, September 7, 2010

Lawyers: Texas financier didn't tap investor money

Lawyers for R. Allen Stanford say the Texas financier did not take out $1.7 billion in deposits made to his now defunct Caribbean bank and use them for loans to himself.

Stanford's attorneys were trying to shoot down claims made by a fraud examiner who has testified the financier used the money as personal loans.

Stanford's financial dealings were being examined during a court hearing Thursday in which a federal judge was to decide if Stanford and two ex-executives of his now defunct companies will continue having their legal bills paid for by an insurance policy. They are fighting charges they bilked investors out of $7 billion in a massive Ponzi scheme.

By The Associated Press

Source: Google News

Gubernatorial candidate Corbett plays anti-corruption card

NOTE: The Tribune-Review profiled Democratic gubernatorial candidate Dan Onorato on Monday.

The parallels are hard to escape.

In 1978, Republican nominee Richard Thornburgh, a crusading federal prosecutor from Pittsburgh, rode a reputation for putting corrupt politicians in prison to the governor's mansion, beating a Pittsburgh Democrat along the way.

Three decades later, GOP hopeful Tom Corbett, a former federal prosecutor in Pittsburgh, is relying on a reputation for sending corrupt lawmakers and aides to prison to follow in Thornburgh's footsteps. He, too, needs to defeat a Pittsburgh Democrat -- Allegheny County Chief Executive Dan Onorato.

"I've walked in those shoes before," Thornburgh said of Corbett. "It is legitimate for him to call himself a reformer."

In the biggest public corruption probe in at least three decades, Corbett charged 25 state lawmakers, former lawmakers and staffers with public corruption during the past two years. His staff has tallied 3 convictions, 7 guilty pleas and 2 acquittals in the cases, most of which involve funneling public resources to political campaigns.

The list includes former House Whip Mike Veon, a powerful Beaver County Democrat serving a prison sentence.

The 13 defendants awaiting trial include two former House speakers, Democrat Bill DeWeese of Greene County and Republican John Perzel of Philadelphia. Ten of those awaiting trial are Republicans.

Attorney Mark Schwartz, an aide in the 1970s to then-House Speaker K. LeRoy Irvis, an Oakland Democrat, said it's eerie how Corbett mirrors Thornburgh.

"He probably has been a little more even-handed going after Republicans as well as Democrats," Schwartz said. "But this is the Thornburgh playbook, right down to the press conferences."

Corbett spent two decades of his 34-year legal career as a prosecutor.

"If you want to understand me, understand that I'm a U.S. attorney. And we do things the same way," Corbett said. "Harrisburg hasn't figured it out yet."

He said he never patterned himself after Thornburgh, a U.S. attorney who served as attorney general of the United States during the Reagan administration after two terms as governor.

"I sat at (Thornburgh's) desk; his desk was my desk. I have a picture where I'm with him when he was attorney general after I was sworn in," Corbett said.

Both men pay homage to Elsie Hillman of Squirrel Hill, the grand dame of Pittsburgh Republicans.

"I just recognized honest people who are committed to public service," Hillman said. "It's luck to find people like this."

Thornburgh said Hillman was first to call him about his likely appointment in 1969 as U.S attorney for the Western District of Pennsylvania.

Corbett said Hillman tapped him to run the elder George Bush's 1988 presidential effort in Western Pennsylvania. A year later, Bush appointed Corbett as U.S. attorney here.

Back then, Duquesne University law professor Joe Mistick was chief of staff to Pittsburgh Mayor Sophie Masloff, a Democrat. He remembers the day a receptionist alerted him that Corbett was waiting to see him.

"He hadn't called. He just walked across town. ... I steeled myself. I wondered who had done what wrong," Mistick said.

Corbett told Mistick the Justice Department had money for cities to tackle drugs and rebuild communities. The resulting partnership -- Pittsburgh's Weed and Seed program -- became a model for the nation.

Corbett's post as state attorney general has been a waiting room for aspiring Republicans, who have held the job since it became an elective office in 1981. At least two other gubernatorial hopefuls began campaigns from there.

Corbett oversees 800 employees in the Attorney General's Office. A former employee's whistleblower lawsuit against Corbett, alleging improprieties in the office, is pending.

Former Senior Deputy Attorney General Thomas Kimmett claims he was fired for bringing evidence of improprieties in the Financial Enforcement Section to his superiors. The lawsuit, scheduled for trial this year, claims collection companies were paid richly for work the attorney general's staff did.

"I find it hard to believe no one mentioned to Tom Corbett the types of things that were being done," said Charles Kimmett, a Washington lawyer who is representing his uncle in the suit.

Corbett declined to comment on the litigation.

In court filings, Corbett said he delegated decisions about day-to-day personnel matters to supervisors. He said Kimmett was fired Nov. 21, 2008, after the former prosecutor filed a lengthy objection to a plan to address deficiencies in his performance review.

Other former employees are more complimentary. North Carolina lawyer Bill Conley, who worked with Corbett in the state and federal prosecutor's offices, said Corbett is a good listener, solicits ideas, encourages debate and then delegates.

Conley said Corbett was well-grounded, down-to-earth. "I think he still lives in the same house he grew up in," Conley said.


He's married to his college sweetheart, Susan Manbeck Corbett. She left Western Pennsylvania four years ago to become vice president of the Gettysburg Foundation, a nonprofit that promotes the historic battlefield and its museums.

Until recently, her boss was Robert Wilburn, former Thornburgh budget secretary.

Despite their life in Central Pennsylvania, the Corbetts maintain the Shaler home where he grew up and the couple raised their children.

Corbett sampled corporate America as a lobbyist for garbage giant Waste Management before his 2004 campaign for attorney general.

He won that race by a razor thin margin but amassed the biggest GOP win in the state in his 2008 re-election.

Earlier this year, Corbett joined 13 other state attorneys general -- 12 of them Republicans -- in a lawsuit to halt the federal health care overhaul touted by President Obama and Democrats.

Lawyers, insurance executives, energy company officials and GOP stalwarts were among those who came through with $8.5 million for Corbett's GOP primary this year.

Corbett wants to ban political contributions and gifts from those seeking state work. But he chafes at caps on campaign contributions.

"It really comes down to a free speech issue," he said.

Corbett said publicly reported campaign contributions serve the public's interest, not laws regulating how much anyone can give.

In 2004, a court ordered a Republican campaign organization to disclose who provided $450,000 it funneled to Corbett's campaign. The ruling eventually identified Chesapeake Energy CEO Aubrey McClendon as the donor. Earlier this year, news reports identified a Boca Raton housewife who contributed $180,000 to Corbett's gubernatorial campaign as the spouse of another energy executive, East Resources CEO Terry Pegula.

Asked about those donations, Corbett said the news media detailed the contributions and identified the donors. He said such contributions do not influence him.

Corbett has said he supports responsible regulations on gas drillers, but he opposes Democratic Gov. Ed Rendell's moratorium on leasing state lands for drilling and a proposed gas extraction tax.

In a TV interview in the spring, Corbett said his no-new-taxes pledge included a ban on fees. More recently, he pointed to the language of the pledge, noting it does not include fees.

The candidate mined a few long-time GOP favorites for his campaign: pledges to advocate for school choice scholarships and privatizing the state's liquor stores.

Corbett's other reform proposals include: reducing the size and cost of state government by 10 percent; putting expenditures online; eliminating lawmakers' discretionary grants commonly known as walking-around-money; capping legislative leadership funds; ending legislative per diems; and establishing two-year state budgets.

Patrick Thomassey, a prominent Pittsburgh defense attorney sworn in with Corbett as an Allegheny County assistant district attorney in 1976, said Corbett's "people skills" ensure he'll stay in touch with voters.

"When we were young prosecutors, he could talk to the vice president of U.S. Steel or the guy who was digging ditches on the pipeline," Thomassey recalled.

"Tom has his finger on the pulse of the community. He's a realist. We need someone who can temper what the people want with what's realistic. I think Tom can do that. And I'm a Democrat."

By Debra Erdley

Source: Pittsburgh Tribune-Review

Monday, September 6, 2010

Five Years After Katrina, Local Firms Soldier On

It's hard to believe that five years have passed since Hurricane Katrina devastated New Orleans.

Retrospectives on the subject have been all the rage recently--such as Spike Lee's new HBO film on the storm's devastating aftermath--and now sibling publication The National Law Journal has the story on how some local law firms are getting back to business.

The NLJ checked in with several lawyers that the paper initially reached out to four years ago, after Katrina had flooded 80 percent of New Orleans and forced many local businesses either out of business or elsewhere.

Lawyers and law practices weren't immune to the aftereffects of the disaster: The NLJ notes that the numbers of lawyers with offices in New Orleans dropped nearly 20 percent as attorneys moved to neighboring states to make a living.

But just as the Crescent City has clawed its way back, the local legal market has also rebuilt. The NLJ reports that local bar membership is slightly higher than pre-Katrina levels. And while the explosion of the Deepwater Horizon offshore drilling rig was a disaster environmentally, it's been a boon to local lawyers.

Richard Dicharry, chairman of New Orleans-based Phelps Dunbar, has been shuttling back and forth to London advising the insurers for the rig's operator, Swiss-based Transocean. Phelps Dunbar has had a London insurance practice since 1985, according to The NLJ.

But despite the increase in billings caused by Deepwater Horizon-related legal work, Dicharry notes that less than 30 percent of his firm's business stems from the city in which it is based. Instead, Phelps Dunbar's offices in Tampa, Houston, and Baton Rouge account for the majority of the firm's revenues.

Dicharry told The NLJ that government foot-dragging has slowed many of New Orleans's redevelopment efforts and that recruiting high-end legal talent to the city for an extended period of time remains a problem.

By Brian Baxter


Vote for safety

Self-interest should rally Houstonians around red-light cameras in November.

n an election showdown that pits public safety and health officials against traffic-court lawyers and libertarians, the Chronicle urges voters to support the city's red-light-camera system in the upcoming municipal referendum.

As Chronicle columnist Lisa Falkenberg noted in a recent column, both sides in the referendum have monetary stakes in the outcome.

The city of Houston, its police department, area trauma centers and the contractor managing the cameras receive millions of dollars in revenue generated by the red-light citations. Since the city installed the system in 2006, nearly 800,000 tickets have been issued with $43.7 million collected.

On the other hand, the financial heft and organization behind the camera opponents comes largely from traffic-court attorneys, including Paul Kubosh, who make their living helping motorists fight tickets. Kubosh claims the city's motive for installing traffic cameras is profit rather than public safety. In his case, it's a pot-calling-the-kettle-black situation.

Since camera-generated citations are based on car ownership and are more difficult to challenge in court than officer-issued traffic tickets, they bite into the lawyers' business.

The due process issue is perhaps the most potent in the opposition's arsenal. Opponents claim the system denies those ticketed the opportunity to defend themselves in court. However, the red-light-camera statute does provide for appeals to the police department, followed by municipal courts and then the county-court system. Because the citations are based on photographic evidence of a vehicle entering an intersection after a light turns red (excluding those trapped waiting to make a left-hand turn) and are reviewed by a police officer, they are hard to contest.

In some cases those who have sold vehicles have been ticketed because new owners had not changed the registration when the violation occurred. It's a good reason for sellers to make sure the buyer does so promptly.

Anyone with extensive experience driving or walking across intersections in Houston knows how pervasive and potentially dangerous red-light running is in this town. More than 800 people died in intersection crashes in Texas in 2008, and the Houston-Galveston Area Council estimates red-light running has a quarter-billion-dollar impact annually in damages and injuries incurred.

While there is a debate over whether the cameras lower the total number of accidents at the intersections where they are installed, a Rice University study found that the most serious side impacts that can lead to fatalities were reduced by 16 percent. It also found that red-light running was significantly reduced at the camera-monitored intersections.

That's backed up by researchers at the national Insurance Institute for Highway Safety, who found that urban motorists are more likely to be injured in crashes involving red-light running than other types of collisions. As in Houston, several studies conducted in Virginia, Pennsylvania and California documented substantial reductions in red-light running at intersections equipped with cameras.

We've all seen the tragic consequences of motorists violating traffic signals and maiming or killing innocent pedestrians and occupants of other vehicles. The right to privacy doesn't apply to reckless driving on public thoroughfares that endangers the community. We believe the cameras are a vital extension of our undermanned police traffic-enforcement capabilities. In this case, a picture can vastly multiply the eyes and extend the arms of the law.

Mayor Annise Parker and a majority of City Council support red-light cameras. These elected officials are joined by an impressive group of community law enforcement officials and health care leaders of the Texas Heart Institute, Harris County Hospital District, Memorial Hermann Healthcare Systems, Teaching Hospitals of Texas and the Texas Hospital Association.

The Chronicle recommends citizens follow their leadership and vote in favor of red-light cameras.

Source: Houston Chronicle

Thursday, September 2, 2010

MMM Partner Mac Hunter to Enter Gate City Bar Association Hall of Fame

Morris, Manning & Martin is pleased to announce that Partner James “Mac” Hunter will be inducted into the Gate City Bar Association's Hall of Fame during its annual gala event on November 6. Past honorees include civil rights legend Donald Hollowell, Atlanta Mayor Maynard Jackson, Georgia governor Roy Barnes, and state Supreme Court Justices Robert Benham and Leah Ward Sears.

The Gate City Bar Association, the oldest African-American Bar Association in the state of Georgia, will honor Mr. Hunter for his contributions to society, for his efforts to give back to the community and serve others, and for being an advocate for justice, diversity and equality.
“The firm is immensely proud of Mac and his accomplishments,” said Managing Partner Louise Wells. “Mac dedicates a great deal of his time – and himself – to making our firm and Atlanta, as well as our legal community, a better place. This honor is well deserved.”

Throughout his legal career, Mr. Hunter has fought to recruit and to expand career opportunities for other African-American attorneys. Prior to joining private practice, he was a senior trial attorney with the U.S. Equal Employment Opportunity Commission where he was responsible for litigating some of the first cases under the 1972 Amendment to Title VII of the Civil Rights Act of 1964. He has also served as a dedicated mentor to many younger lawyers and has challenged and inspired them to advance in their legal careers while also giving back to the community.

“Over the years, Mac has been a zealous advocate for his clients, a mentor to other attorneys, and a champion for the less fortunate in our community through his civic involvements,” said colleague Clyde Mize, the Gate City Bar member who nominated Mr. Hunter for the Hall of Fame. “He is a great role model for me, as well as others in the firm. I am proud to call him both a colleague and a friend.”

For nearly four decades, Mr. Hunter has labored to improve and strengthen the Atlanta community by endeavoring to educate, inspire and enrich the lives of its residents. In addition to his support of the Gate City Bar Association, he has been actively involved with organizations such as the Lawyers Committee for Civil Rights Under Law, Goodwill Industries of North Georgia, Inc., and the Atlanta Workforce Development Agency (AWDA), where he serves as chairman. He is also National General Counsel for the 100 Black Men of America, Inc. (a position he has held for nearly 25 years), General Counsel for the 100 Black Men of Atlanta, Inc., General Counsel for the National Black College Hall of Fame Foundation, Inc., General Counsel for the National Cares Mentoring Program, Inc. and General Counsel for the Trumpet Awards Foundation, Inc. He is a member of Kappa Boule of Sigma Pi Phi Fraternity, Inc., the Atlanta Chapter of National Association of Guardsmen, Inc. and Omega Psi Phi Fraternity, Inc.

About Morris, Manning & Martin, LLP
With our roots in the Southeast, Morris, Manning & Martin ( is a full-service law firm with national and international reach. We dedicate ourselves to the constant pursuit of our clients’ success. To provide our clients with optimal value, we combine market-leading legal services with a total understanding of their needs to maximize effectiveness, efficiency and opportunity. MMM enjoys national prominence for its real estate, litigation, technology, healthcare, intellectual property, capital markets, environmental, green industry, insurance, mergers & acquisitions and timberland & forest products practices. MMM has offices in Atlanta, Raleigh-Durham, Savannah, Taipei, Beijing and Washington, D.C. and now an alliance with FGCN in São Paulo, Brazil.

About the Gate City Bar Association
Established in 1948, the Gate City Bar Association ( is the oldest African American Bar Association in the State of Georgia. The Gate City Bar Association was organized by ten African American lawyers to provide the educational, social and community involvement of a professional association for African American lawyers, who had been excluded from participating in the segregated bar associations in Atlanta and throughout the State.


Business Plan Basics for Starting a Law Firm

One of the biggest mistakes law firm owners can make is not investing enough money in the firm

There's nothing like the adrenaline rush of starting a new firm. The roller coaster ride can be stressful: determining which clients make the transition from the old firm to the new one, calculating expected billings and wondering whether profits will materialize. Dealing with banks and firm co-owners regarding paying for everything compounds the pressure. But lawyers can ease the stress of starting their own firms by creating a basic business plan.

Writing a business plan for a new firm is not that difficult. Start with an outline. Include broad categories, such as practice areas, culture, operational details and financial goals.

The new firm's practice areas and cultural aspects will largely determine the financial portion of the plan. Consider a hypothetical insurance-defense firm. One of the cultural decisions should include amounts and types of current and prospective client entertainment. Should the firm budget for sporting-event suites to entertain, or should it budget minimal amounts for entertainment and maintain lower billing rates? Looking to clients and defining the firm culture will lay the foundation for the rest of the business plan.

Once attorneys make cultural decisions, the next step includes determining and documenting operational details. Assume the hypothetical insurance-defense firm decides to purchase a sporting-event suite. The business plan should document pertinent operational details. Who will shoulder responsibility for managing the suite? What procedures will ensure the firm fully utilizes the suite for the intended client-development purposes? What procedures should be in place to approve and document the related entertainment expenditures? Defining the practice area and cultural aspects of the plan will lead lawyers to develop the financial portion.


The financial portion of the business plan includes two distinct aspects: capital and operations.

The capital plan should estimate the amount of money needed to start the firm and document the amount of money the owners intend to keep invested in the firm on a continuing basis.

The operations plan estimates the amount of money the firm and/or owners should make. Both plans should include the following significant in-between details.

• The capital plan should detail expenditures such as furniture, computers, leasehold improvements, client costs advanced and losses during the start-up phase. It should reflect the financial sources used to pay for capital plan expenditures. This almost always results in some combination of bank loans and owners' contributions of their own money.

For example, assume estimates for furniture, computers and leasehold improvements total $200,000. Further assume the firm will lose an additional $300,000 before monthly income from fees exceeds monthly expenses. Firm capital needs to total $500,000. The owners then must determine the appropriate amount of debt and personal finances to fund the $500,000. I prefer loans from owners at higher interest rates, generally 6 percent to 8 percent. Owners are on the hook for any loans anyway, so why not pay themselves the interest?

One of the biggest mistakes owners can make is not investing enough money in the firm. A lack of funds often will create significant negative energy, both internally and when dealing with bankers, financial advisers and other owners.

• The operating plan should lay out sources of income and estimated recurring overhead costs, with the difference reflecting profits to the firm or owners. For hourly firms, income estimates ultimately should reflect chargeable hours collected. Underlying assumptions getting to the collections amount will include combinations of hourly rates, chargeable hours generated, chargeable hours billed, and allowances for time held or written off.

I like to start with something simple such as income collections by timekeeper. These amounts show the income necessary to meet owners' goals for compensation and profits. Then, I prefer to back into all of the other assumptions supporting this amount.

For example, assume a solo practitioner wants to make $500,000. Further assume overhead costs under the business plan total $500,000, including costs related to four additional timekeepers. To make the $500,000, the five timekeepers must collect $1 million of fee income. In other words, if the solo wants to make $500,000, he or she needs to collect $1 million to get there.

Firms tend to get hung up on the production process and become fixated on billable hours. But at the end of the day, what ultimately determines firm profits and owner compensation is how much fee income hits the bank account. In light of this, measuring cash collected by timekeeper is equally -- if not more -- important than measuring the production process. Collections should not be an afterthought but a key focus.

Finally, a strong team of vendors and professionals streamline the start-up process. Detailed capital and operating plans point to necessary vendors and professionals. A new insurance-defense practice should use consultants familiar with the economics of such a practice. Office managers, controllers and outside accountants who work for insurance-defense firms understand financial operations and may be helpful developing the business plan. Seek referrals from trusted colleagues to find knowledgeable, honest and fairly priced resources. These usually result in the best long-term relationships -- the relationships lawyers need for their new ventures to succeed.

Chuck Duff, a certified public accountant, is owner and shareholder of Duff, Kitchel & Co. in Houston. He serves as chief financial officer and financial consultant for a number of closely held businesses. He works with a significant group of law firms, as well as energy, homebuilding, retail and manufacturing companies. He focuses his practice on financial planning, internal reporting, and tax planning and reporting, in addition to consulting projects. His e-mail address is

By Chuck Duff