August 2010 Archives

How much more detailed are jury instructions going to have to be regarding communications via social media during deliberations? Obviously, A. Great. Deal. More. Clear. One juror in a Detroit courtroom proved that this week, when she posted to Facebook how much she was looking forward to delivering a guilty verdict to the defendant. At that point in time, the trial wasn't even over.

Social media and juries are strange new "friends" and as always, the law is running to keep up with the technology. As discussed in a previous post, new model jury instructions have already been proposed to include a prohibition on use of the internet to research the case in progress. However, this case of Detroit juror Hadley Jons Facebooking a premature (to say the least) guilty verdict, is a call to action for litigators in several ways.

The defense is that the paperwork just got overlooked. But how does that happen if one defendant is a former MoFo partner with a Stanford / Ivy League education? The facts will no doubt unfold further as Jonathan Dickstein, and his wife, Barclay Lynn, are arraigned for charges they defrauded the San Francisco school district and the state of California in the amount of $400,000.

Dickstein and Lynn are due to appear in court on sometime next week on 30 counts of forgery, theft and conspiracy, according to the San Francisco Chronicle. The couple allegedly over-charged the school district and the state for the care of their autistic son during the years 2006 to 2008. Parents of disabled children are required by law to retain licensed private educational providers to develop individual treatment plans that meet state guidelines for their children. The school districts are then required to compensate the parents for any home education of autistic or severely disabled children.

Judge James D. Gibbons, a popular Manhattan criminal court judge, has resigned from his judicial post amid a porn scandal. The 47 year-old judge sent in his letter of resignation after court officials discovered a large amount pornography on his work computer. He was off on paternity leave during the discovery. Gibbons recently fathered a child with Legal Aid lawyer Jeanne Emhoff, 31, in what has been described by the press as an "ethics-skirting romance."

Porn is popular these days. With the SEC porn scandal and others, the lesson is simple -- work computers and time are for work-related activities. And no, Gibbons was not working on some type of porn case. Downloading inappropriate content on a work computer is not a crime (unless the porn involves underage girls), but it is a sign of professional irresponsibility, especially for a judge. The porn was discovered during a routine computer monitoring check that red-flagged Gibbons computer terminal.

Despite a trend towards more flat fee arrangements, most law firms still bill their clients by the hour. Associates must bill enough hours to pay their salary, overhead and make a nice profit for the firm. Firms often require 1700 to 2300 billable hours per year, leaving attorneys in a precarious situation. The more they bill, the more money the firm makes. Therefore, there is an incentive to work around the clock.

However, Ohio attorney Kristin Ann Stahlbush has been suspended, not for working around the clock, but for working around several clocks. According to the Ohio Supreme Court, Stahlbush billed the court of Lucas County, Ohio for more than 24 hours a day on multiple occasions. She also turned in other bills of dubious nature, including five bills for days of over 20 hours. Kristin Ann Stahlbush was investigated by the Ohio Bar Association and suspended for two years. The second year may be stayed if she meets the conditions of her suspension.

The American Bar Association House of Delegates has adopted new model rules for client trust accounts. The new rules reflect changes in banking laws, technology and legal practice.

The ABA Model Rules for Client Trust Accounts Records will be sent to state courts for potential adoption for compliance with Model Rule of Professional Conduct 1.15. Under 1.15, lawyers must maintain complete records of client trust accounts and must render a full accounting of distribution and receipt of trust property. Every American jurisdiction has has adopted the rules within 1.15 and more than half of the country has added additional rules detailing the trust records that attorneys must retain.

The reason for the update, according to the ABA Standing Committee on Client Protection: due to changes in banking and business practices, many lawyers were "inadvertently running afoul of their jurisdiction's rules of professional conduct."

Motion denied in a Seattle attorney's attempt to block the release of her DUI arrest report. 52 year-old Anne Bremner is a Seattle-based attorney who often appears on television shows giving legal commentary on high-profile cases. Bremner claims that she was the victim of a hit and run accident, and experiencing head trauma that caused her to exhibit alcohol-related symptoms the night she was arrested. Police on the scene say the Bremner did not mention the accident, or any need for medical attention.

The Seattle Times reports that Bremner was pulled over for a flat tire when police suspected that she was over the legal alcohol limit. Bremner was arrested and held in jail for five hours before she was released. There have been no formal charges against Bremner. Bremner did not want the circumstances of her arrest released to the public over fears that the DUI arrest records would have a negative effect on her reputation and credibility as a legal expert.

If you were quick enough to get on the court's site before the servers were overwhelmed, then you already know why Judge Vaughn Walker denied the motion to stay his decision in Perry v. Schwarzenegger. Judge Walker found that the proponents of Proposition 8, California's ban on gay marriage, did not meet any of the four requirements necessary for the court to grant their motion for a stay.

In the Order, the court dealt in detail with each of the four requirements necessary to allow it to grant a stay: will the parties seeking a stay be likely to win on appeal; will parties seeking a stay be irreparably harmed if the stay were denied; will a stay harm any other interested party and will the stay, if granted, be in the public interest. As required by precedent, Judge Walker focused most strongly on whether or not the proponents of the law met their burden in the first two requirements.

Wait until the appeal. And the appeal to the appeal. That is all the legal profession can say even after the landmark decision handed down by U.S. District Court Chief Judge Vaughn Walker in San Francisco on August 4. Despite the Prop 8 decision finding that the state law banning gay marriage violates the Equal Protection and Due Process Clauses, and despite the media frenzy, not much will change until the 9th Circuit and the Supreme Court both have their say.

Proposition 8 was passed in 2008 in response to the same sex marriages then taking place in California. The case of Perry v. Schwarzenegger represents the first federal court challenge to a state law banning same sex marriage. Judge Walker did not find that the proponents of Prop 8 had shown a rational basis for the state to limit marriage to one man and one woman.