Sunday, October 21, 2012

Real wages stagnant for public interest attorneys, NALP says

The National Association for Law Placement (NALP) has issued its latest round of sobering job news, and this time the depressing statistics focus on public interest lawyer salaries.

The National Association for Law Placement NALP
Median entry-level public-sector and public interest lawyer salaries have grown by between 23 and 29 percent since NALP began tracking them in 2004, but that increase has barely kept pace with the rising Consumer Price Index - meaning that local prosecutors, public defenders, and other public interest attorneys are essentially earning wages comparable to those paid to lawyers who entered the field close to a decade earlier. Additionally, most of that salary growth occurred before the 2008 recession. Growth in public interest pay since then has been modest, NALP said.

"During the same period, the cost of legal education and the average amount of law school student loan debt have both risen at a much higher pace - which means that despite favorable changes in the federal loan repayment options available to law school graduates working in the public interest, there are still significant economic disadvantages at play as law students consider whether or not to pursue public interest legal careers," NALP executive director James Leipold said.

Law School
The College Cost Reduction & Access Act, which went into effect in 2009, caps monthly student loan payments according to the borrower's income and forgives student debt balances after designated periods of time. That period is 10 years for graduates who stay in public interest jobs, although critics have raised questions about the program's sustainability.

According to the NALP report, new public defenders can expect to earn a median salary of about $50,500, while a starting legal services attorney can expect to earn about $43,000. Those salaries increase to about $78,600 and $65,000, respectively, after 11- 15 years of experience.

Lawyer salaries have grown
Local prosecutors start at a median $50,000, which increases to nearly $70,000 after 11- 15 years. Lawyers at issue-driven public interest organizations typically start at about $45,000 and earn about $75,000 after 11 or more years on the job, according to NALP.

While no one undertakes a public interest career to get rich, starting pay has remained more flat than that of attorneys in private-sector jobs. Median starting salary in those positions has declined by 17 percent since 2009 and hovers at $60,000 for members of the class of 2011 in full-time jobs.

Still, the starting median salary for an attorney at a firm with 50 or more lawyers far outpaces that of public interest attorneys, at about $80,000. And some large firms continue to pay $160,000 to new associates, NALP said.

By Karen Sloan, The National Law Journal,

Source: The American Lawyer

Lawyers, CEOs boosted Obama's Sept. donations

Attorneys, business owners and retirees were among those who helped President Barack Obama maintain slim fundraising supremacy over Republican challenger Mitt Romney last month, with the president raising $181 million as he entered the last full month in the fight to keep his job.

Attorneys, business owners and retirees were among those who helped President Barack Obama maintain slim fundraising supremacy over Republican challenger Mitt Romney last month, with the president raising $181 million as he entered the last full month in the fight to keep his job.

An Associated Press review of newly released financial reports found at least $11 million from lawyers and at least $3 million from investors and bankers, some of whom cooled to the president earlier this election when critics say he cracked down on Wall Street and pushed for consumer-protection reforms. About $22 million more came from retired Americans, an important bloc of voters likely more tuned in to health care reform and changes in retirement benefits.

President Barack Obama and GOP challenger Mitt Romney
Their contributions, among hundreds of thousands, went hand-in-hand with record donations to an outside political group helping Obama win a second term. Still, the president began October with less available money to spend than Romney, as Obama's campaign, the Democratic Party and related groups reported $149.8 million cash on hand. That's compared with $183.1 million in the bank among Romney's campaign, the GOP and his joint-fundraising apparatus.

All told, a swath of small-dollar contributions helped Obama and the Democratic Party best Romney and the GOP by more than $10 million last month after being repeatedly walloped in the money race earlier this year. The president's fundraising haul topped the more than $114 million he and the Democrats raised during the month of August, and the cash Obama pulled in last month was slightly less than his record-breaking $190 million from September 2008.

Financial support to Obama and Romney are putting the presidential election on track to cost nearly $2 billion, thanks to mountains of cash earmarked to both campaigns and independent "super" political committees working on their behalf. Wealthy Americans are increasingly picking up the tab this year, at times giving millions of dollars apiece to super PACs that have buoyed costly advertising.

September's reports show major financial support going to both Republican and Democratic super PACs, with the pro-Romney Restore Our Future PAC reporting it collected $14.8 million in September, the group's second-most lucrative month. Late Saturday, American Crossroads, the major super PAC headed by GOP strategist Karl Rove, reported $11.6 million for September, the highest single-month total for the group.

President Barack Obama and GOP challenger Mitt Romney
Rove's top donors in September included Texas billionaire Harold Simmons, who gave $2.5 million and Oklahoma coal baron Joseph Craft III, who gave $1 million. Another $1.32 million was donated by the Armstrong Company, a Pennsylvania conglomerate which provided the donation as "in-kind cable access, and $1 million from Jay Bergman, an Illinois oilman.

Meanwhile, Priorities USA Action, the pre-eminent Obama-supportive super PAC, said it raised a record $15.3 million.

"People who support the president know that we've come too far to go back now," Priorities senior strategist Bill Burton said. "We're ahead a little bit now, but it is time to close the deal."

Both campaigns and super PACs have made an all-out push for contributions as Election Day quickly approaches. The contributions are funding a record-breaking campaign operation for both candidates, which translates to paying a legion of campaign staff and hundreds of millions of dollars' worth of television ads.

So when it came to contributions directly to Obama's campaign, business owners and some Wall Street types helped pick up the tab, even if they didn't make up a majority of total contributions. Obama's donors in September included more than 4,000 CEOs, records show, and his campaign continued to tally millions pouring in from key battleground states.

Yet Obama hardly has a lock on winning the financial fight.

Republican super PACs have helped to match or exceed Obama's TV ad spending in dozens of media markets in battleground states. Ad spending data obtained by the AP from April through early October found pro-Romney spending has exceeded pro-Obama ad spending by at least $65 million across the nine states expected to decide the election: Colorado, Florida, Nevada, New Hampshire, North Carolina, Ohio, Virginia, Iowa and Wisconsin.

Obama broke presidential fundraising records four years ago, but has found himself financially outgunned for much of the summer, thanks in part to super PACs supporting Romney. Meanwhile, an AP review of campaign data this fall found Obama out-raising Romney in most of the 11 states that at one point were pivotal to win the election.

Reports detailing revenues and expenses for the first half of October are due to the Federal Election Commission by Oct. 25. Those will provide the public with the last financial snapshot before the Nov. 6 election.

By Jack Gillum, The Associated Press,

Source: The Seattle Times

Sunday, October 14, 2012

Obama’s pro-terrorist lawyers, Holder, a deadly disgrace

October 12 marks the 12th anniversary of the bombing of the USS Cole. The grim milestone comes as President Obama faces mounting questions about his administration's dereliction of duty during the murderous attack on our consulate in Benghazi, Libya. And it comes just a day after resurgent al-Qaida thugs pulled off the drive-by assassination of a top Yemeni security official who worked at the U.S. embassy in Sanaa.

These are not "bumps in the road." These are gravesites on the blood-spattered path to surrender.

Benghazi attack was terrorism
Seventeen U.S. sailors died in the brutal suicide attack on the guided Navy missile destroyer as it refueled at the Yemeni port of Aden in the fall of 2000. Then-President Bill Clinton vowed to track down the Muslim terrorist attackers: "We will find out who was responsible and hold them accountable." But a dozen disgraceful years later, Slick Willy's toothless promise has become a bitter punch line.

The current Democratic White House has not only delayed and denied justice to the victims and their families. President Obama's foot-dragging administration, crawling with pro-terrorist lawyers, effectively undermines our nation's ability to detain, contain and destroy jihad threats from within and without.

Suspected Cole bombing suspect and former Persian Gulf Operations Chief for al-Qaida Abd al-Rahim al-Nashiri has been in U.S. custody since 2002 and at Gitmo since 2006. In February 2009, Obama met with Cole families and promised them justice. Then, he stabbed them in the back by ordering the (Social) Justice Department to abandon the death penalty case assembled against the al-Qaida mastermind under the Bush administration.

That's right: The Osama bin Laden football-spikers in the Obama administration deliberately dropped the USS Cole ball on al-Nashiri's military prosecution because of their opposition to the Guantanamo Bay detention system. Jesse Nieto, father of murdered Cole sailor Marc Nieto, won't forget it. "That really left a bitter, bad taste in my mouth," he told the Newnan Times-Herald earlier this year.

In 2011, the Obama administration reinstated the charges amid a widespread backlash against Attorney General Eric Holder's plans to bestow U.S. civilian trials in Manhattan to foreign Gitmo goons. But the trial has been plagued by yet more delays and left-wing lawyer antics painting Nashiri as a victim of American hegemony. "This trial is a political football the politicians are playing with," Nieto aptly noted. "If they left it to the military, it would be taken care of. And it would be fair."

Team Obama's initial withdrawal from the prosecution came out of left field - literally. But it is no surprise to those who paid attention to Holder's radical ideological and corporate allegiances.

violence in Libya and throughout the muslim world
As I reported in "Culture of Corruption," Holder joined the prestigious Covington and Burling business and corporate law firm after a quarter-century as a government lawyer. The stint boosted his net worth to nearly $6 million. Covington and Burling's post-9/11 claim to fame? Representing 17 terror suspects held at Gitmo who hail from Yemen, long a safe haven for terrorists. (Another Cole bombing mastermind, Jamal Mohammed al Badawi, was convicted and sentenced to die in Yemen for the terror attack, but somehow escaped twice from jail and was freed by the Yemeni government in 2007.)

Holder's law firm employed dozens of radical attorneys such as David Remes and Marc Falkoff to provide the enemy combatants with more than 3,000 hours of pro bono representation. Covington and Burling secured victories for several Gitmo enemy combatants in the U.S. Court of Appeals for the D.C. Circuit. Remes now represents Nashiri.

Falkoff went on to publish a book of poetry, "Poems from Guantanamo: The Detainees Speak," which he dedicated to the suspected terrorists: "For my friends inside the wire, Mahmoad, Majid, Yasein, Saeed, Abdulsalam, Mohammed, Adnan, Jamal, Othman, Adil, Mohamed, Abdulmalik, Areef, Adeq, Farouk, Salman, and Makhtar. Inshallah, we will next meet over coffee in your homes in Yemen."

One of the class of Yemeni Gitmo detainees that Falkoff described as "gentle, thoughtful young men" was released in 2005 - only to blow himself up in a truck bombing in Mosul, Iraq, in 2008, killing 13 soldiers from the 2nd Iraqi Army division and seriously wounding 42 others.

In January 2010, The Times of London reported "at least a dozen former Guantanamo Bay inmates (had) rejoined al-Qaida to fight in Yemen." Another Yemeni Gitmo recidivist and top al-Qaida leader, Said al-Shihri, was freed after undergoing "rehabilitation" - and then promptly rejoined jihadi forces. He was reportedly killed in a U.S. missile strike last month.

In February 2010, GOP Sen. Charles Grassley forced Holder to acknowledge that at least nine DOJ attorneys officially represented or served as advocates for Gitmo detainees before joining the Obama administration. They work in the offices of the attorney general and the assistant attorney general for the criminal division.

Gitmo recidivists - a burgeoning Obama demographic that includes suspected Benghazi jihad plotter Abu Sufian Ibrahim Ahmed Hamuda bin Qumu - certainly are better off than they were four years ago.

The question is: Can Americans at home and abroad really afford another four years of Obama, Holder and their soft-on-terror government attorneys sabotaging national security?

By Michelle Malkin

Source: The Cherokee Tribune

Liberty Mutual case might scare insurance lawyers

A lawyer, who didn't want to be identified, said insurance attorneys all over town are scratching their heads trying to figure out how a Campbell County jury could have awarded $3.4 million last month to a Liberty Mutual Insurance policyholder.

The case involves policy holder James Demetre, who sued Liberty Mutual's Indiana Insurance in 2009 for breach of contract and for a bad faith violation of the Kentucky Unfair Claims Settlement Practices Act.

Liberty Mutual insurance
Describing it as a "freak" jury verdict, it's just the kind that makes lawyers afraid to take such cases to trial, the attorney said.

But Jeff Mando, an insurance lawyer at Adams Stepner Woltermann & Dusing in Covington, said for jury members to award Demetre that much money, it sounds like they must have felt there were aggravating circumstances.

"A $3.4 million verdict in Campbell County is extremely rare. It's a very conservative jurisdiction," said Mando said, who mostly does insurance defense work and has practiced for 30 years.

There have probably been a few seven-figure jury awards in Campbell County during that time, but he can't remember one in recent memory, he said.

"Under Kentucky law, it's not whether it (the claim coverage issue) is fairly debatable, it's whether they debated fairly. It sounds to me like the insurance company did not treat its policyholder fairly," said Mando, who was not involved in the case.

By Jon Newberry, Staff Reporter- Business Courier,

Source: The Business Courier

Monday, October 8, 2012

Both sides take heat as second circuit weighs Jacoby & Meyers' suit over ban on law firm investors

Attorneys pressing Jacoby & Meyers' attack on New York State's ban on law firms accepting outside investment from non-lawyers may have gotten a ray of hope Oct. 5 during oral arguments before the U.S. Court of Appeals for the Second Circuit.

Attorney James Denlea, after getting hammered by the panel for insisting he had standing to challenge Rule 5.4 of New York's Rules of Professional Conduct, sat back and watched with pleasure as Judge John Walker Jr. (See Profile) asked Assistant Solicitor General Won Shin why the case shouldn't just be remanded with instructions to amend the complaint and solve the standing problem.
Jacoby & Meyers' -- Law firm
Calling the merits of the case "probably pretty easy," Judge Gerard Lynch (See Profile) said, "It's kind of a mystery to me why we are debating these rather arcane issues of standing."

When Denlea walked back to the lectern and Walker raised the possibility of remanding the case to the district court to cure the standing defect, Denlea replied "That would be more than acceptable, your honor."

In Jacoby & Meyers v. The Presiding Justices of the First, Second, Third and Fourth Departments of the Appellate Division of the Supreme Court of the State of New York, 12-1377-cv, Jacoby & Meyers claims the ban on outside equity investments in law firms violates the First Amendment and hinders the ability of small firms to expand and compete against larger firms.

Read Jaboy & Meyers' brief and the brief for the state.

But Southern District Judge Lewis Kaplan (See Profile), held on March 8 that provisions independent of Rule 5.4 prevented plaintiffs from accepting non-lawyer equity investments, that the firm lacked standing to challenge Rule 5.4 and that "even if they won on the merits of their constitutional claims" any opinion he would issue would be a "purely advisory declaration of the sort that is forbidden to federal courts under Article III of the U.S. Constitution" (NYLJ, March 9).

Kaplan had also held out the possibility that he might abstain from hearing the matter, which would send the case back to state courts, a possibility the firm clearly dreaded.

"Abstention would send us back to the very body that enacted the rule," Jeffrey Carton, Denlea's partner at Meiselman, Denlea, Packman, Carton & Eberz, said at the February hearing before Kaplan (NYLJ, Feb. 8).

But an amended complaint on remand from the Second Circuit would allow Denlea and Carton to add the other provisions of state law that block outside equity investment, including the state's partnership law, §1500(a)(I), which prevents limited liability partnerships from having non-lawyers as partners.

The attorneys elected to challenge only Rule 5.4 as a matter of strategy and because they say it is the law that most directly blocks outside investment. The relevant part of the rule states "(a) A lawyer or law firm shall not share legal fees with a nonlawyer" and "(d) A lawyer shall not practice with or in the form of an entity authorized to practice law for profit, if (1) a nonlawyer has an interest therein."

The New York State's ban on law firms accepting outside investment from non-lawyersIn a November 2011 hearing before Kaplan, the judge told Carton he was "pushing a huge rock up a hill" to convince the court first on standing, then on ripeness and finally on abstention under the "Pullman doctrine."

On Friday, Denlea pushed that rock up the hill at the Second Circuit, as Walker went after him on the issues of "redressibility."

Walker wanted to know why was Kaplan wrong in stating that a finding that Rule 5.4 was unconstitutional would have no preclusive effect and other provisions would still prevent Jacoby & Meyers from pursuing outside investment.

Lynch said, "You're asking us to rule that if the disciplinary rule falls, so will these other statutes, when those other statutes are not before us," asking later, and "doesn't that seem like a rather extraordinary thing for us to do?"

Denlea said all he was asking the court to do was to make a "narrow ruling on redressibility."

But Walker wondered, "How about the fact that we don't have enough information?"

When Shin began his argument, Walker said it seems that Jacoby & Meyers should have included the other statutes in their lawsuits.

Shin said Kaplan had "explicitly warned them about this problem and they ignored that" because "they made a strategic choice."

But then the judges began firing away at Shin.

Lynch said that it was "quite a risk for a lawyer to take" to try and take outside investment in order to be in position to challenge the rule.

And Walker asked, "How are you going to attract investment?" if Jacoby & Meyers took the risk of violating the rule.

Shin answered that Jacoby & Meyers could have amended its complaint. He also said the other laws blocking outside investment are "crystal clear" so there was no need to certify questions to the New York Court of Appeals or abstain.

Eastern District Judge John Gleeson (See Profile), sitting by designation, said, "I don't get why the use of the declaratory judgment statute isn't ideal" for this case.

"Why should they potentially want to place their livelihoods on the line?" Gleeson asked.

Shin then answered a question on enforcement of the ban and the consequences for violating it. The possibilities include a criminal prosecution or civil enforcement action by the attorney general or a criminal contempt finding by a state Supreme Court justice for attempting to litigate before the court.

"Why wouldn't it be useful to have a judgment that says at least, in this setting, it violates their First Amendment rights?" Gleeson asked. "Why isn't that sufficient?"

Gleeson said the state was placing Jacoby & Meyers in the position of having to "find every single prohibition and seek to challenge all of them" or they "lack standing to challenge one of them."

But Shin insisted "there is no discernible interest here."

After a brief statement by Denlea, Lynch then thanked the lawyers. "It's a very interesting case and interesting arguments on both sides," he said.

After the arguments, outside of court, Denlea and Carton said they were pleased that the judges were just as tough on Shin as they were on Denlea.

"They were throwing furniture at both of us," Denlea said with a smile.

By Mark Hamblett, The New York Law Journal,

Source: The American Lawyer

Drug lab scandal expected to delay cases, cost millions

The wave of destruction left by the alleged actions of disgraced former chemist Annie Dookhan reaches further than the defendants affected by polluted drug evidence.

Although state officials do not believe the 34-year-old longtime chemist at the Hinton State Lab in Jamaica Plain tainted any cases in Worcester County or west of Worcester, local attorneys, legal experts and others believe Ms. Dookhan will cause a delay in criminal cases and millions of dollars in state expenditures.

Annie Dookhan
Annie Dookhan
"It's going to be a financial tsunami from a variety of angles," said Boston-based lawyer Peter T. Elikann, a member of the Massachusetts Bar Association's Criminal Justice Section. "This is going to consume the court system for a least a couple of years."

The state is already asking district attorneys, the attorney general, administration for the courts, the state's public defenders and different state agencies for a potential cost estimate involved in the fallout of Ms. Dookhan's alleged actions.

Ms. Dookhan, of Franklin, is charged with obstruction of justice and falsely pretending to have a degree from a college or university. Authorities claim Ms. Dookhan tested more than 60,000 drug samples involving roughly 34,000 defendants in her nine years at the drug lab. The 100-page report involving the investigation shows Ms. Dookhan admitted to just looking at drugs instead of testing them.

District attorneys who had drug evidence tested at the Jamaica Plain lab, which was shut down as the scandal unfolded, are preparing a list of needed personnel to handle these cases — and a price tag to go with it. The district attorneys have not submitted a supplemental budget request as yet.

Worcester District Attorney Joseph D. Early Jr. said money will be needed for his office to pay for an appellate court prosecutor, a superior court prosecutor, one or two district court prosecutors and an administrator.

Mr. Early, president of the Massachusetts District Attorneys Association, said many district attorneys will push for more prosecutors.

"We are going to need more resources," he said. "We are pulling people from duties they already have."

It is believed the counties affected most will be Suffolk, Norfolk, Middlesex and Barnstable, which covers Cape Cod and the Islands. There are 1,141 individuals currently serving drug sentences in state or county prison or jail facilities who had drug evidence analyzed by Ms. Dookhan.

Mr. Early's office is reviewing 32 to 40 cases of people currently serving time, but as of a few days ago no connection to Ms. Dookhan was found. Mr. Early's office sends drugs to UMass Memorial Medical Center in Worcester for testing.

Whatever the cost, it appears the state is on the hook to pay. The polluted drug evidence flew in the face of the legal system and more than likely caused people to be jailed. The dollar amount for handling these cases on all sides and the associated civil suits expected to be filed is hard to predict, said state Sen. Stephen M. Brewer, D-Barre, chairman of the Senate Ways and Means Committee.

"It is hard to tell at the moment," he said. "It is somewhat of a moving target. Clearly it is a responsibility we take very, very seriously."

A rough estimate put forth by the senator was $10 million.

"Whatever it does take to administer fair justice, the commonwealth will honor that obligation," Mr. Brewer said.

The trial courts have already established judges designated to handle cases involved in the drug lab debacle. In Worcester County, Superior Court Judge James L. Lemire and Central District Court Judges Paul LoConto and David Despotopulos have been assigned to cases.

"We have established designated sessions for the purpose of assigning counsel and addressing the immediate liberty interests of the incarcerated defendants serving time in connection with a drug conviction stemming from a questionable drug analysis," the state Trial Court said in a news release last week.

"This is a terrible crisis. This is not only a crisis in the effects it has on individuals' lives, some people may be serving sentences or facing sentences because of enhancements," Worcester defense lawyer Peter L. Ettenberg said. "The diversion of attention to these old cases it just horrible. It has created a real problem for numbers of people: court staff, judges, prosecutors and the individual chemists."

The first wave of cases being reviewed by district attorneys offices involve those serving prison or jail time. The second wave will involve those in federal prisons. After that will be a review of people awaiting trial, those on probation and people who have been convicted and served their sentences.

In her interview with state police investigators, Ms. Dookhan claimed she faked tests for two or three years, according to investigation documents. She admitted to contaminating samples to receive a positive result for a specific type of drug, the investigation showed.

Lawyers are concerned the review of the potentially tainted cases will draw resources away from newer cases. Mr. Elikann said all the Jamaica Plain drug samples are going to the state police crime lab in Sudbury.

"I'm sure they'll try to be as efficient as possible," Mr. Elikann said. "It is believed there will have to be a terrific log jam. Things may move sluggishly for a while."

"The sad thing is that people were complaining about how long the drug tests were taking to be completed for the last several years," he continued to say. "It was already a fairly dire situation that was sort of the bane of the district attorneys offices and the judiciary."

Mr. Ettenberg, who didn't have an affected case as of a few days ago, believes chemists will be tied up testifying in court as well.

Jurors aware of the scandal might be more skeptical of drug certifications and chemists testifying now, defense lawyers said. In their investigation, state police spoke with supervisors at the drug laboratory in Amherst. The supervisor called the accusations involving the Jamaica Plain lab troubling because integrity is paramount in their line of work.

Scientific evidence used to be considered proof positive, Mr. Elikann said. That may change a little for jurors.

"Now they will have an extremely heightened awareness and possibly for better or worse, a much more dramatic skepticism," he said.

Jurors may have a short memory and not recall the scandal, Mr. Ettenberg said.

"Six months from now I don't think they are going to remember or care who this person is," he said. "I think it is going to depend on the person that is testifying."

Mr. Early, however, said jurors are intelligent, and have the ability to determine if a case in front of them was actually affected or a defense lawyer is trying to cast an unwarranted cloud.

But the Worcester district attorney is concerned the alleged misdeeds of Ms. Dookhan could create a perception that there were widespread transgressions with drug testing.

"I have an overall concern that what she has done will create a perception that drugs are not being tested in the proper manner," he said. "We know the other chemists are doing the work they are doing. It begs the question about the oversight, management and protocol of these facilities."

There is a review of the protocol. The state police investigation shows co-workers and others were concerned about Ms. Dookhan's work and the massive amount of tests she did at times.

"You really need to strive for failsafe perfection when it comes to taking people's freedom from them," Mr. Brewer said.

By Scott J. Croteau, Telegram & Gazette Staff,

Source: The Worcester Telegram & Gazette

Sunday, October 7, 2012

Aggravated unlawful use of a weapon under Illinois law

The state of Illinois has some of the nation's toughest laws on firearms. It is tragic because Chicago is one of the most violent places in America. If there is any place in America where a person would need a firearm for protection, it would be Chicago.

State of Illinois
Although the Second Amendment gives each person the right to bear arms, it is illegal to carry a loaded gun in Illinois. It is no small crime to carry a loaded gun. In Illinois, the offense is called aggravated unlawful use of a weapon. It is a felony for which the defendant can be sentenced to 1 to 3 years prison.

Time and time again, the Chicago Tribune runs a story about an out-of-state resident who comes to Illinois with a firearm for protection. Often the person is from Indiana, and he decided  to carry a loaded handgun while visiting Chicago.

It is a tragic story each time. The fact that the person was from out-of-state and possessed a valid out-of-state firearms license is not a defense. The fact that he was ignorant of the law is not a defense, either.

The criminal charge of aggravated unlawful use of a weapon is referred to by lawyers and judges as Agg UUW. The crime is found in the criminal code at 720 ILCS 5/24-1.6.

Aggravated unlawful use of a weapon is categorized as a Class 4 felony. If guilty, the defendant can be sentenced to 1 to 3 years in the Illinois Department of Corrections and may be fined up to $25,000. The law says that the judge is permitted to sentence the defendant to probation as opposed to time in custody.
The state of Illinois has toughest laws on firearms

However, the policy of the Cook County State's Attorney is to seek a prison sentence in every case. Basically, the defendant is caught in a political debate in firearms cases.

The city of Chicago is stricken with a high crime rate and multiple shootings on a daily basis. In response the prosecution seeks the maximum penalty on every case. Even for a defendant with no criminal history whatsoever, the prosecution will seek a prison sentence.

Many people are confused about the name of the charge because they did not use the weapon. But it does not depend on firing the gun. Simply possessing a loaded gun is considered aggravated unlawful use of a weapon.

The elements of aggravated unlawful use of a weapon are the following:

  1. Possessing a firearm either on your person or in your vehicle
  2. When you are not on your land, your residence, or your fixed place of business

And any one of the following elements is present:

  • The firearm possessed was uncased, loaded, and immediately accessible. 720 ILCS 5/24-1.6(1)-(3)(A).
  • The firearm was uncased, unloaded, but the ammunition was immediately accessible. 720 ILCS 5/24-1.6(1)-(3)(B).
  • Regardless of whether the firearm was loaded, the person possessing it did not have a Firearm Owner's Identification Card (FOID). 720 ILCS 5/24-1.6(1)-(3)(C).

The statute provides additional elements which would subject a person to the charge of aggravated unlawful use of a weapon. For example, a person can be charged with the felony if he was engaged in the commission of a misdemeanor offense, or had an order of protection issued against him within the last two years, or he was possessing a handgun and not yet 21 years of age, etc. Aggravated UUW charges under these circumstances are less common.

A second or subsequent offense of aggravated unlawful use of a weapon is a Class 2 felony with a mandatory prison sentence ranging from 3 to 7 years. The court is not permitted to sentence the defendant on a second offense to probation. Rather, a second offense is non-probationable.

The primary means of defending a charge of aggravated UUW is to challenge the search that produced the weapon, or find reasonable doubt as to possession.

The questions that should be asked are,

  • How did the police gain access to the firearm?
  • Did the police have a search warrant?
  • If not, did the police have probable cause to allow them to search the person or the vehicle?
  • Did the defendant possess the gun, or someone else?

The answer to these questions depends on the facts of each case and a lawyer should be consulted.

By Lewis Gainor

Source: The Criminal Lawyer Illinois

Weight of attorney general’s opinion on open carry debated

The wording of the law seems clear.

"Nothing in this section shall prohibit a city or county from regulating the manner of openly carrying a loaded firearm" on public property.

laws on firearms
Tell that to the lawyers.

From the Kansas Attorney General's Office: "A city may not completely prohibit the open carry of a loaded firearm on one's person."

From the Kansas League of Municipalities: "Logically, if the city can regulate, it can prohibit. … The attorney general's reasoning is erroneous."

The attorney general's opinion that was released Dec. 29 prompted city councils in Wichita and Overland Park to rewrite their firearms ordinances, and both cities now allow residents to openly carry firearms on public property.

But is the opinion legally binding? Could Wichita city officials thumb their noses at the opinion and keep their old law? The answer may depend on which lawyer you ask.

Many see an attorney general's opinion as just one lawyer's interpretation of a law that carries no legal weight in a courtroom. Others see an opinion as a carefully crafted argument written by seasoned lawyers who have thoroughly researched an issue and answered a question of vital public interest.

"It's the law where there is no law," said former Attorney General Bob Stephan, who said an AG's opinion carries significant weight in Kansas courtrooms. "More often than not, it's going to have the force and effect of the law."

Former Attorney General Vern Miller was less sure.

"An attorney general's opinion has no authority as far as I know; it's merely an opinion," he said. "It does add weight to a judge's decision, but a judge is the one who decides."

Since 1974, the Kansas Attorney General's Office has issued more than 6,000 opinions, most of which involve such obscure topics as sewer districts, library tax levies, no-fund warrants and the Tax Increment Finance Act. But there have been times when the opinions have shifted public policy in the state.

Stephan, who issued more than 3,100 opinions during his tenure from 1979 to 1995, said his opinions on abortions and Indian tribes not only altered state policy but touched off public protests from groups that disagreed with him.

He said the state's dry forces protested in the early 1970s when he issued an opinion that said national air carriers could serve liquor to passengers flying over Kansas. The airlines stopped the practice in 1972 after Miller, who was the attorney general then, raided an Amtrak train in Newton and confiscated its liquor under a state law that prohibited the serving of alcohol on a public conveyance. Amtrak challenged the raid in federal court and lost, and the airlines voluntarily stopped serving liquor while flying over Kansas.

The open carry ruling

Chief ]Deputy Wichita City Attorney Sharon Dickgrafe said she realizes that attorney general's opinions aren't binding in court, but she also said judges can find them to be persuasive. She said the open-carry ruling released in December was reasonable and well written.

"We felt that this opinion … could be used by a court to conclude that our ordinances were void or invalid," she said.

The city is expected to ask the 2013 Kansas Legislature to rewrite the law to make it clear that cities can prohibit carrying unconcealed firearms in public.

Kimberly Winn, deputy director of the League of Municipalities, said her office took the opposite position on the open-carry issue.

"They completely missed the ball on this one," she said of the attorney general's opinion.

Winn downplayed the significance of the opinion, pointing to a 2006 Kansas Supreme Court Ruling that says in part, "We have long held that the construction placed upon a statute by the opinion of an attorney general is neither conclusive nor binding on the court."

Winn said her organization advises cities to rely on their own attorneys when resolving legal issues instead of asking for an attorney general's opinion.

"There's really no legal value to them," she said. "If you can't rely on them in court, what's the point? We encourage people to use their own attorneys."

laws on firearms
Kansas law restricts who can ask for an attorney general's opinion or seek the advice of the office.

"The attorney general shall consult with and advise county attorneys, when requested by them, in all matters pertaining to their official duties," the law says.

It says the attorney general shall issue a written opinion to all questions of law submitted by the legislature, the governor, the secretary of state, the state treasurer, the state board of education and the commissioner of insurance.

Wichita lawyer Steve Joseph said the only ones legally bound by those opinions are state officials, state agencies and their employees.

But he said county attorneys and county counselors typically follow the opinions.

"From the point of view of prosecutors, it's pretty much seen as the Bible," he said. "But it's not the law. They're not bound by it at all

"You're always safe doing what the attorney general says," he said. "But it's just like another brief. It's just another lawyer's opinion."

By Hurst Laviana, The Wichita Eagle, 316-268-6499,

Source: The Kansas City Star

Wednesday, October 3, 2012

Senator calls on Leopold to pay his own lawyers

To County Executive John R. Leopold, state Sen. Bryan Simonaire "reeks of hypocrisy."

7th Anne Arundel County Executive -- John R. Leopold
County Executive John R. Leopold
To Simonaire, Leopold "chooses to childishly attack the messenger."

Two of the county's top elected officials engaged in a war of words Tuesday, kicked off when the senator called on the executive to pay his own legal fees if he loses a federal discrimination lawsuit.

The day ended with Simonaire admitting he has hired one of the women suing Leopold as a new legislative aid, a move he said had nothing to do with his decision to write the letter.

Sen. Bryan Simonaire
Sen. Bryan Simonaire
Joan Harris sued Leopold in March, claiming she was fired from her constituent services job for not supporting his 2010 re-election. She joined former public information officer Karla Hamner, who sued Leopold in 2010.

"I went the extra mile to hire her, even checking with the ethics board. She was not involved with this letter to the executive," Simonaire said.

Neither the county executive nor his spokesmen would comment on Harris' new job.

In his letter, Simonaire asked Leopold to promise he would pay back his attorney fees. Leopold hired private attorneys in the Hamner lawsuit and the first bill topped $20,000. Some estimates put the potential cost of his lawyers at hundreds of thousands of dollars.

"To put this into perspective, two hours of your legal services are costing our county more than many residents make in a whole week," Simonaire wrote in a letter released to the news media on Tuesday.

Responding in an angry tone, Leopold emailed Simonaire saying he "would prefer to act as a judge and jury before I am afforded the opportunity to defend myself."

He called Simonaire a hypocrite and urged him to look at his own record spending thousands of taxpayers dollars on hotel stays during legislative sessions in Annapolis. Leopold did not directly address Simonaire's call for a promise, instead saying he has been a fiscally responsible excecutive who returned $17,000 of his salary rather than accept a pay raise.

Simonaire countered that he used the stipend granted lawmakers for hotels during the session in his freshman year, but has since opted to bring a sleeping bag to his office and when working late.

"Instead of addressing the issue facing our taxpayers, Mr. Leopold chooses to childishly attack the messenger and avoid the pledge — it shows the sad state of politics today!" Simonaire responded.

Leopold's lawyers were hired at the recommendation of County Attorney Jonathan Hodgson about a week after Hamner's attorney filed depositions from three county police officers. The officers testified under oath that Leopold ordered Hamner's firing after she was transferred to the county Police Department.

District Judge Catherine C. Blake had put the case on hold pending the outcome of Harris' lawsuit, as well as the state criminal case against Leopold. Leopold was indicted in March on charges of misconduct and misappropriation for allegedly misusing his police executive protection detail. His trial is scheduled to begin in January.

The exchange between Simonaire and Leopold, both Republicans from Pasadena, is just the latest sign that there is no love lost between the two men. The two waged a lengthy public argument in 2009 over property tax credits for seniors, and earlier this year over increasing county funding for mosquito spraying.

Other elected officials on Tuesday agreed with Simonaire that Leopold should pay his own legal fees if the lawsuit goes against him.

State Sen. Ed DeGrange, D-Glen Burnie, said it can be difficult to decide when a public officials sued for something done in office should pay the cost of his legal defense. He said that if he was was accused of wrongdoing he would pay for his own lawyers.

"It if turns that someone was falsely accused, then you should take steps to get a reimbursement," he said.

Del. Pam Beidle, D-Glen Burnie, said the decision to ask a public official to pay for his legal defense should be made on a case by case basis. But the former county councilwoman should pay for his own lawyers.

"The charges are unrelated to his job," she said.

The County Council is considering a bill that would require the county to sue an employee for legal costs if he is judged liable in a lawsuit.

Councilman John Grasso, R-Glen Burnie, said the council is revising the bill to make sure it is legal. A vote is set Oct. 15.

"It's a moral thing, if someone is found guilty of wrongdoing, they should reimburse the taxpayers. That is hard earned money that needs to be spent wisely," he said.

By Sara Blumberg, Staff Write,


Albany lawyers win huge malpractice case

Jury awards $100M after hospital fails to treat heart attack patient

Two Albany attorneys won a $100 million verdict against an Oneonta hospital Monday over the treatment of a heart attack patient.

Law partners James D. Linnan and Charlene S. Fallon won the largest verdict in Otsego County Court history in the medical malpratice case, Linnan said.

A six-person jury ruled that A.O. Fox Memorial Hospital in Oneonta failed patient Debora Sohl when she went there Jan. 26, 2009, Linnan said. A representative for the hospital could not be reached Monday evening.

Sohl had gone to the hospital with chest pain radiating into her left arm and left side of her jaw. She had an abnormal electrocardiogram reading, all signs of a heart attack, Linnan said.

"She was kept in the emergency room with unrelenting chest pain. It's in the hospital chart: unrelenting chest pain for six hours," he said.

Treatment of a heart attack patient
Even after she was admitted, Linnan said, the hospital failed to treat her. She was transferred to UHS Wilson Medical Center in Johnson City, near Binghamton, where a cardiac catheterization was finally done.

"As a direct result of the 24-hour delay in getting that cardiac catheter, a substantial part of the front and bottom of her heart died and is now scar tissue," Linnan said. "The verdict found that Fox Hospital was negligent, and its doctors didn't provide adequate care."

Sohl's heart now functions at 30 percent of capacity, he said.

"This woman will need extraordinary medical attention," Linnan said. "Within the next six years or so, she'll need a heart transplant. Her lifestyle has been dramatically altered. This woman trained horses. She was a mother and grandmother."

Now 51, Sohl had worked as a bookkeeper and manager for a construction company, but now does not leave her home.

After the jury verdict Monday evening, Linnan said, his client said she finally felt like someone had listened to her.

By Tim O'Brien,,  518-454-5092, @timobrientu

Source: The Albany Times Union

Tuesday, October 2, 2012

Attorneys say T.J. Lane insane at time of Chardon High School shooting

Lawyers representing the teenager accused of killing three students and wounding three others at Chardon High School earlier this year say he was insane at the time and should not be convicted.

A not guilty by reason of insanity plea was filed Monday, after attorneys for T.J. Lane had asked for additional time to gather his mental health records and have him thoroughly evaluated by experts.
T. J. Lane
Attorneys for T. J. Lane say he was insane at the time of the Chardon High School shootings on Feb. 27.
In Ohio, insanity pleas are uncommon and are rarely successful.

Lane's lawyers, Ian Friedman and Mark DeVan, would have to prove that at the time of the shootings the teen didn't know his actions were wrong because of severe mental diseases or defects.

They declined to comment on Monday's plea.

In cases where the insanity plea has worked, lawyers have often shown long histories of treatment and hospitalizations for mental health problems.

In an earlier court hearing, Lane's attorney Mark DeVan said his client had suffered for years from visual and auditory hallucinations and severe migraines.

The most difficult part of using this defense is proving that that a severe mental illness caused the person to commit the crime, said Dr. Sara West, an assistant professor of psychiatry at Case Western Reserve University's School of Medicine.

"A delusion would have to be specific and related to the crime that was committed," she said. Additionally, defense lawyers have to show that their client didn't grasp that what he was doing was wrong.

"There are a lot of hoops to jump through," West said. Only about 1 percent of all felony criminal cases in the state use insanity defense. Of those, only about 15 percent are successful.

The filing now sets in motion a process where mental health experts will examine the 18-year-old Lane. The prosecution will get to pick one expert, the defense attorneys could have him evaluated by multiple experts and a judge can ask for an additional examination.

West said the experts would look at Lane's mental health history and his actions and demeanor prior to and right after the shooting occurred.

"Were they doing odd or unusual things before the crime or after the crime," she said. "They will be looking for evidence of a psychotic episode."

His attorneys will have to prove he has a severe mental illness -- such as schizophrenia or a mood disorder with psychotic features -- and not just a personality disorder or an addiction, West said.

West said those factors are harder -- but not impossible -- to find in younger defendants like Lane.

West also said that a psychotic episode can last days or weeks and that in some cases people can function somewhat normally enough to plan actions.

What is much harder is proving that the person didn't recognize what they were doing was wrong. In Ohio, she said, there is not a concrete definition as to whether that means legally wrong or morally wrong.

The plea could push back the expected Nov. 12 trial date in the case. Geauga County Common Pleas Judge David Fuhry had said he wanted the trial under way before the holiday season.

Prosecutors are against any further delays, saying they would prolong the suffering of the victims and their families.

Lane was indicted in June in the shooting Feb. 27 at Chardon High School. He is charged with three counts of aggravated murder, two counts of attempted aggravated murder and one count of felonious assault. If convicted, he faces life in prison without parole.

A police report said Lane admitted firing 10 shots from a .22-caliber semiautomatic Ruger handgun, a weapon he told authorities he had obtained from an uncle's home the night before the shooting. Demetrius Hewlin, 16; Russell King Jr., 17; and Daniel Parmertor, 16; were killed.

After his arrest, Lane told a sheriff's deputy that he had "killed a bunch of people" but that he didn't know why he fired the shots, according to testimony at a hearing in May.

By  Rachel Dissell, The Plain Dealer


Whistleblower Lawyers throw support behind Obama

As the Obama administration has cracked down on corporate fraud, lawyers representing whistleblowers have reaped multimillion-dollar rewards. Now, as they seek to sustain these historic payouts, they are serving as generous donors to the president’s re-election campaign.

Whistleblower Lawyers throw support behind Obama
Lawyers in the tight circle who specialize in filing fraud claims with the federal government on behalf of clients with evidence of wrongdoing have raised more than $3 million so far for President Obama. The administration, meanwhile, has paid out $1.6 billion to whistleblowers during his tenure, with law firms taking a cut in some cases of up to 40 percent of the proceeds.

The lawyers have contributed directly to Mr. Obama's campaign, served as "bundlers" who solicit contributions from others, donated to the Democratic National Committee and written large checks to Priorities USA, the "super PAC" supporting Mr. Obama's re-election efforts. They have also donated heavily to Congressional Democrats.

Their support comes as Mitt Romney, the Republican presidential nominee, has called for repeal of the Dodd-Frank Act, which imposed new oversight of the financial services industry and expanded the government's whistleblower program to the Securities and Exchange Commission, which has set aside $430 million for payouts. Business groups have also pushed for legislation imposing a cap on payments to whistleblowers, arguing that rewards reaching as high as $104 million, as happened in one case, have turned anti-fraud efforts into a lottery.

"The risks are enormous there will be real pullback because of pressure from the industry that has paid billions in penalties," said John R. Phillips, one of the nation's top whistleblower lawyers, who has raised more than $200,000 for Mr. Obama's re-election from colleagues, after first working in 2008 to help Mr. Obama get elected.

The fund-raising is already a flash point in Washington, where lawmakers have been divided along partisan lines over the administration's efforts to regulate the financial industry and the political parties have long been at odds over trial lawyers and class-action suits. On the campaign trail, Mr. Romney has cast himself and fellow Republicans as champions of business and the president and Democrats as hostile to business interests.

The U.S. Chamber of Commerce, which represents many of the companies that have been targets of the whistleblower investigations, has criticized the lawyers' efforts, particularly their aggressive outreach for potential clients.

"If someone is defrauding the federal government or investors, they should have the book thrown at them," said Matt Webb, senior vice president for legal reform policy at the U.S. Chamber Institute for Legal Reform. "But increasingly, this is not just about exposing wrongdoing. It is about trying to generate as much money and fees for the firms handling the cases."

Some of the industry's most important players, including lawyers from Mr. Phillips's firm, played a central role in advising the Securities and Exchange Commission on the rules creating its whistleblower program, including a provision to broaden the list of who was eligible to file a claim. In the last year, whistleblower law firms have hired several top S.E.C. officials who helped write those rules. They include Jordan Thomas, who has started a new S.E.C. whistleblower unit at Labaton Sucharow, a New York-based firm whose employees have contributed to the Obama campaign.

"We have had hundreds and hundreds of inquiries," said Mr. Thomas, who has sought out clients and promoted his firm's practice in speeches nationwide, an Internet blog and YouTube [GOOG  Loading...      ()   ] videos. "Our phones are ringing off the hook."

The push to crack down on Medicare fraud, for example, started long before the Obama administration, with many cases initiated by the Justice Department under President George W. Bush. But the Obama administration has been particularly aggressive in pursuing them.

Since January 2009, $13.2 billion has been collected by the federal government from companies through the False Claims Act, the primary whistleblower tool, with about $9.4 billion of that involving alleged health care fraud. The federal government has recovered more overall in financial penalties against drugmakers since 2009 than in the previous 18 years combined, with whistleblowers credited for helping initiate about three quarters of the cases, according to a recent study by Public Citizen, a nonprofit group.

Among the biggest False Claims Act settlements was a $2 billion fine against GlaxoSmithKline [GSK  Loading...      ()   ], accused of illegally promoting one of its blockbuster drugs, which could translate into a more than $100 million bounty for the whistleblowers, two of whom were represented by Mr. Phillips's firm. In May, Abbott Laboratories [ABT  Loading...      ()   ] agreed to pay an $800 million fine, which included an $84 million payment to the whistleblowers, four former Abbott sales staff members, who tipped off authorities about illegal marketing of an anti-seizure drug to children and elderly patients. The lead whistleblower was represented by Grant & Eisenhofer, a Delaware-based firm whose managing director has also served as bundler and contributor to Mr. Obama.

The S.E.C. whistleblower program targets fraud that harms investors or consumers through a securities law violation, while the health care cases typically involve cheating the Medicare or Medicaid programs. No big fines have resulted yet from the S.E.C. program because cases typically take several years to develop. But the office is receiving on average 10 tips a day, and got nearly 3,000 in its first year.

Mr. Phillips and other lawyers said their contributions are unrelated to their work and he said they have sparred with the Justice Department during Mr. Obama's tenure because of its efforts to minimize payouts to whistleblowers. Corporate lawyers who defend companies, he added, typically make more money on a case than the whistleblower attorney does.

Still, the ranks of lawyers seeking to represent whistleblowers has grown quickly in the last several years, as the value of the awards has skyrocketed. Lawyers at dozens of these law firms nationwide have contributed to Mr. Obama, campaign finance records show, while only a sprinkling of checks have been written from employees at the same firms to Mr. Romney.

The single biggest fund-raiser is John Morgan, a Florida-based lawyer. He has collected more than $1.7 million for Mr. Obama's re-election or for the Democratic National Committee, making him one of the campaign's biggest bundlers nationwide. He has also raised money for Elizabeth Warren, the Massachusetts Democrat running for the United States Senate. Ms. Warren served as interim head of the Consumer Financial Protection Bureau, also created as part of the Dodd-Frank law.

Mr. Morgan, in an interview, said his support for Mr. Obama and Ms. Warren was entirely motivated by his admiration for their leadership in Washington. But his fund-raising blitz occurred just as he was expanding his personal injury and trial law practice into the whistleblower field, with a television advertising campaign and new Web site, named

"America is full of crooks who are defrauding the government and investors every day," Mr. Morgan said. "We are talking about billions of dollars in ill-gotten gains. We win one case and it will pay for our entire national advertising budget."

Sean McKessy, a former corporate attorney who leads the new S.E.C. Whistleblower Office, said he welcomed the support of the outside lawyers. Whistleblowers get paid only if the claim is substantiated and results in a fine of at least $1 million - meaning there is no incentive to flood the agency with frivolous complaints.

"There is an extraordinary important role that good lawyers that understand the regulatory process can play," Mr. McKessy said, adding that individuals can also submit a tip without hiring a lawyer at all, although many do.

At a recent gathering of whistleblower lawyers at a Washington hotel, several hundred of them sipped on glasses of wine and cocktails as they began a series of meetings with senior officials from the Justice Department, the S.E.C. and Medicare programs - as well as Mr. McKessy - to compare strategies on how to bring in more corporate wrongdoers.

"The way you get more hunting dogs showing up is you feed them," said Patrick Burns, director of communications at a group that calls itself Taxpayers Against Fraud, the legal industry group that sponsored the conference. "And the Justice Department is cooking with Crisco right now."

By Eric Lipton, The New York Times


Monday, October 1, 2012

Supreme Court orders review of lawyer penalties

42 cases sent back, some believe harsher discipline is in store

The state Supreme Court is taking a tougher stand on how lawyers are being punished, ordering the State Bar of California to take a second look at more than three dozen cases of disciplined attorneys.

State Bar of California
The court’s move to turn back so many cases is unprecedented, and has sent a jolt through the state's legal community.

The justices did not say what it was about the misconduct cases that required additional review, but bar officials and lawyers who follow the discipline process said it is clear the court questioned whether the punishments were too lenient.

That means the cases against 42 lawyers, including four from San Diego, that once appeared settled are now in doubt. The misconduct in the cases runs the spectrum:

• A lawyer in Berkeley who represented a man charged with murdering a journalist smuggled a letter out of jail for him, then lied about it to police. Prosecutors said the letter was a hit list for witnesses against him in his upcoming trial. The bar settled the matter with a six-month suspension.

• A Newport Beach lawyer collected more than $100,000 in fees for working on loan modifications for clients in nine states. He wasn't licensed to practice law in any of the states, and in some of the cases did little or no work. The lawyer received a one-year suspension.

• San Diego lawyer Steven A. Guilin agreed to a six-month suspension of his license for misconduct in two instances, including forging a client's signature and another lawyer's, State Bar records show. He referred questions to his attorney, who declined to comment while the disciplinary matter is pending.

The decision not to approve the proposed disciplines indicates the Supreme Court is moving in a new direction under Chief Justice Tani Cantil-Sakauye, who became the court's leader in January 2011.

"This is unchartered territory," said Joe Dunn, the bar's executive director. "The court has never done this before. What's definitely clear to all of us in the legal profession is they are going to take a far more careful look at discipline cases under the new chief."

Cantil-Sakauye declined through a spokesman a request to comment about the court's approach to punishing attorneys because the cases are pending.

Richard Zitrin, a legal ethics professor at University of California Hastings College of the Law, said that the court was reacting to cases the bar had settled too easily while trying to clear out a backlog.

"Too often bad lawyers get off much too easily, and relatively innocuous but easy-to-prove violations get punished too severely," he said. The cases showed "the bar sacrificed the appropriate level of discipline for expediency. The Supreme Court was unhappy with that, and rightly so."

The cases had all been resolved through a kind of plea bargain, where the lawyers agreed to certain facts underlying their misconduct and both sides agreed on a punishment, without going through a trial before the State Bar court.

In the case of Guilin in San Diego, he agreed to represent a client in an immigration case, then submitted court filings indicating the client was representing himself, according to the bar's charging document, which he signed in January. He then signed the client's name to the filings, and neglected to serve the papers on the opposing side.

In the second instance, he was hired to file an appeal in an immigration case, but missed a filing deadline for the appeal. He then submitted documents trying to get the case reopened, but did so under the name of another lawyer - and forged that lawyer's signature on court filings, according to the charging document.

His lawyer, Ramona Hallam, declined to comment.

Under the state's lawyer discipline system, the State Bar investigates lawyer misconduct and recommends what punishment will be handed out, if any. Discipline ranges from probation to license suspension to disbarment. The discipline is not final until the Supreme Court formally approves it.

That is normally a routine process. The court nearly every week will have dozens of discipline matters scheduled for its weekly case conference and quietly approve them.

In the past five years, the bar has sent more than 3,800 cases to the Supreme Court, said Laura Ernde, a bar spokeswoman. Five were returned for further review.

Then, in June, the court abruptly sent back 24 cases in which discipline had been agreed to by the lawyer and the bar. The order said the cases had to be reviewed "in light of the applicable attorney standards," and cited two previous cases in which the court had ordered more severe discipline than the bar had recommended.

A few weeks later, lawyers with the bar identified another set of 24 pending discipline cases that Dunn said appeared to "fit the criteria for reconsideration" that the Supreme Court had indicated in June. Of those, the court returned 18 - deeming the balance, for some reason, did not need reconsideration.

Not everyone agrees the return of the cases signals a tougher stance by the court.

"The court didn't give a lot of guidance on whether they thought the discipline decisions were too harsh or too lenient," said David Carr, a San Diego lawyer and former discipline prosecutor with the State Bar for more than a decade.

He said the justices may have concluded that the factual explanation behind the discipline in each case was insufficient and simply wanted more explanation from the bar's lawyers.

Carr noted that all of the cases sent back concluded late last year, when the bar was working to reduce a backlog of disciplinary cases that had not been fully prosecuted.

Carr said that lawyers like Guilin, who had believed they were finished with the bar, will now have to go back and fight the cases again, and can probably expect a tougher time.

University of San Diego law professor Robert Fellmeth, an ethics expert and former state bar official, said the court was sending a warning shot that the discipline that had been worked out in the 42 cases was too light under legal standards.

"I think they're saying, 'We're here, and we're watching,'" Fellmeth said.

By The U-T San Diego

Source: The U-T San Diego

Pa. legal reimbursement law little used

A Pennsylvania law requiring convicted public officials to reimburse the treasury for taxpayer-funded legal help has been little used, a newspaper reported.

The Philadelphia Inquirer says its review of court and legislative documents and interviews with attorneys and officials says taxpayers have not been reimbursed despite the 1996 mandate. Even if the law had been aggressively applied, loopholes mean that millions would still have been left uncovered, the paper said.
Court of Pennsylvania
Harrisburg officials are supposed to be covered in matters involving their official jobs, a not uncommon practice by governments. They aren't covered in the case of private issues, such as a drunken-driving arrest. The Legislature covers legal bills only while officials are being investigated, and officials must pay for their own defense once criminal charges are filed.

But the paper said the heavy spending in Harrisburg is unusual, estimating that of the $15 million paid in the last five years, the state House spent more than $10 million hiring defense lawyers to address sweeping investigations begun by former attorney general Tom Corbett, now governor. The state Senate spent another $4 million to respond to federal indictments of four state senators, the paper said, adding that its figures are only estimates.

The paper said some prosecutors and critics cite flaws in the law, for example, the fact that it doesn't apply to money spent defending legislators facing state Ethics Commission investigations, even when the officials are found to have violated ethics rules.

Lawmakers have also imposed no limit on hourly rates or caps on total spending per official, leading to, for example, a $134,000 bill for defense attorneys for just one state representative, the paper said. The city of Philadelphia, in contrast, has a $17,500 cap on the legal defense for indigent murder defendants.

Retrieving the money is mainly the responsibility of the state attorney general, but the paper said the payback requirement has gone unused in case after case, the sole recent exception being a western Pennsylvania prosecutor who invoked the law to force a convicted state senator to repay $110,000 for legal defense work.

Representatives for Corbett and Attorney General Linda Kelly, who has pursued cases Corbett left behind, told the paper on Friday that the statute didn't apply to their cases. Corbett's spokesman, Kevin Harley, said prosecutors had been assured by defense lawyers who had represented legislators and aides that taxpayer money had been spent only on such matters as protecting legislative privacy issues and responding to subpoenas - not in criminal defense.

Kelly's spokesman, Nils Frederiksen, echoed those arguments and said money spent on defense attorneys had not been used "improperly." He didn't rule out the office invoking the law in the future, saying officials were "monitoring" the federal corruption prosecution of former State Sen. Robert J. Mellow, the Lackawanna County Democrat awaiting sentencing. Under the law, the attorney general is to seek reimbursement of legal fees in federal cases by filing suit in state court.

State House officials acknowledge that records do not provide a full accounting of their legal spending and that its legal-coverage policy has never been put into writing, the paper said. The state Senate reveals sums paid to individual law firms but is fighting in court to withhold the names of politicians who have received the legal help, it said.

By The Philadelphia Inquirer

Source: The San Francisco Chronicle