Wednesday, October 21, 2009

Ninth Circuit Finds NY Attorney Entitled to Additional Fees for Value of Referring Case to Nevada Law Firm

The Ninth Circuit has remanded a fee dispute case between attorneys to the trial court for a recalculation of the fees the referring New York attorney is entitled to for the referral to the Nevada law firm that successfully settled the case.

New York attorney Brian Fitzgerald referred a medical malpractice case to the Nevada law firm and alleged that there was an oral agreement to share the fees 50/50. The trial court rejected this argument, instead awarding Fitzgerald fees based on quantum meruit in an amount totaling one third of the added value to the client for Fitzgerald convincing the Nevada law firm to lower its contingency fee arrangement with the client. Fitzgerald appealed both the rejection of the oral agreement and the award under the theory of quantum meruit. The Ninth Circuit affirmed the trial court's rejection of the oral agreement, but remanded the case for the trial court to recalculate the quantum meruit award. The Court concluded that the trial court did not properly consider the value to the Nevada law firm of Fitzgerald's referral of the case to the firm.


US Supreme Court Vacates Seventh Circuit's Opinion for Failure to Consider All of Death Row Inmate's Arguments

 The U.S. Supreme Court granted certiorari in Corcoran v. Indiana, 558 U.S. __ (2009), to death row 
inmate Joseph Corcoran in his appeal from the Seventh Circuit's reinstatement of his death sentence. 
Corcoran's habeas corpus Sixth Amendment challenge to his death sentence was granted by the 
district court but overturned by the Seventh Circuit.

In granting Corcoran's Habeas Corpus Petition, the district court stated Corcoran's other arguments 
against his death sentence were rendered moot. On appeal by Indiana, the Seventh Circuit failed to 
provide any explanation for disposing of Corcoran's other arguments, which included claims that the 
trial court committed various errors at sentencing, Indiana's capital sentence statute is unconsti-
tutional, prosecutorial misconduct at sentencing, and that Corcoran should not be put to death 
because he is mentally ill. The Supreme Court concluded the Seventh Circuit erred by not considering 
or explaining its disposal of Corcoran's other arguments, and remanded the case for resentencing.

US Supreme Court Chief Justice Dissents from Court's Refusal to Hear DWI Case

AOL News reports that Chief Justice John Roberts has expressed his disagreement with the U.S. Supreme Court's decision in Virginia v. Joseph A. Moses Harris, Jr., 558 U.S, __ (2009), to deny certiorari in a DWI guilty verdict overturned by the Virginia Supreme Court. The Virginia Court overturned the conviction because the police were alerted to the defendant's drunk driving by an anonymous tipster without personally observing the defendant breaking any traffic laws prior to stopping the defendant.  
The Virginia Supreme Court concluded that the traffic stop violated the Fourth Amendment's prohibition of unreasonable searches and seizures. Justice Roberts, in a dissent joined by Justice Scalia, pointed out that state and federal courts are divided as to whether a traffic stop based on an anonymous tip to police that the driver is drunk when the investigating officer did not personally observe any traffic violations prior to the traffic stop actually violates the Fourth Amendment. Justice Roberts expressed doubt that a DWI case would fall under the general rule expressed by Florida v. J.L., 520 U.S. 266, 270 (2000), because "[t]he imminence of the danger posed by drunk drivers exceeds that at issue in other types of cases."

Saturday, October 17, 2009

What Do Lawyers Know About the Law Anyway?

Besides being an attorney, I am an avid amateur photographer and a member of the Nevada Camera Club. Whilst trolling the internet for a sample model release to use when I take pictures of interesting strangers, I came across a web article by Dan Heller, who advises that photographers should not consult a lawyer when trying to compose a model release to suit their purposes and avoid being sued. Being an attorney, you can imagine how I feel about this advice.  Heller gives three flawed reasons for his advice.  

As Heller's first reason, he advises that model releases fall under the specialized scope of the First Amendment.  Heller writes,
There is no government mandate about when a release is required. That is, the government does not track down violators. It is strictly a matter of civil law that must be enforced by individuals themselves. People have rights to privacy and publicity, but the First Amendment of the US Constitution also grants freedom of expression. It is this mixture of rights that often run counter to one another, so what a model release does is remove that conflict.
This is entirely misleading.  The First Amendment guards against government intrusion on one's free speech, not action by private parties.  Rendell-Baker v. Kohn, 457 U.S. 830 (1982).  Click here to obtain the full text of the Supreme Court case Rendell-Baker v. Kohn.  Wikipedia gives a nice overview of U.S. First Amendment protections.   Private actions such as libel and slander are tort actions between private parties that do not ordinarily invoke the First Amendment except in specific areas of law that require state enforcement, such as the Noerr-Pennington Doctrine or SLAPP suits.

Heller's next two reasons are that there is no clear answer as to what kind of model release a photographer needs, and that lawyers give bad business advice.  While he is correct that there is no clear answer unless a photographer wants a release for a very specific situation (for that matter, there is no clear answer to any legal question without knowing the specific circumstance), Heller makes the erroneous conclusion that lawyers give bad business advice.  But business decisions are generally the purview of the client/business owner.  What lawyers do do is give legal advice.  Any lawyer worth her salt will a) not give advice in an unfamiliar area of law; b) give thorough advice (i.e. all possible legal scenarios) as to what the state of the law in the client's jurisdiction is, based on the circumstances enumerated by the client; and c) not tell the client what to do.  An attorney needs to provide all relevant legal information to a client so the client can make an informed decision about how the client wants to proceed based on sound business reasons (i.e. the chances of being sued vs. the cost of preventing suit).  So, perhaps Heller has consulted only shady attorneys in the past whose only interests were in "running up the meter."

Notwithstanding the above, Heller does a fair job of explaining the nuances of when a model release might or might not be necessary.  But then again, Heller is not an attorney, and he fails to emphasize that he is relating general law and not a specific jurisdiction.  Be careful of taking his advice.  But don't take my word for it; click here for an attorney who is versed in intellectual property, copyright and entertainment law.

Friday, October 16, 2009

Inadequate Case Citation Results in $100 Fine for Attorney

The ABA Journal reports that an attorney in Wisconsin has been fined $100 for providing the Wisconsin Court of Appeals with an inadequate citation to an unpublished case. The attorney referenced the case in a footnote to support his argument for liquidated damages in a vending machine case, however got the case caption entirely wrong (citing instead to a misrepresentation case between newlyweds and a photographer) and provided a cite to nothing more than a docket number without so indicating.  The Court expressed its frustration in the unpublished opinion imposing the fine.  The pertinent portion of the opinion can be found at Legal Blog Watch.

Tuesday, October 13, 2009

U.S. Supreme Court Grants Certiorari to Hear Appeal of Enron CEO's Convictions

On October 13, 2009, the United States Supreme Court granted Certiorari to hear former Enron CEO Jeffrey K. Skilliings' appeal from his conviction of 19 criminal charges stemming from his role in the 2001 collapse of the Fortune 500 company Enron.  Skilling was convicted in 2006 and sentenced to 24 years 4 months in federal prison.

Despite Skilling's repeated requests for a change of venue, a Houston jury convicted Skilling in 2006 of insider trading, conspiracy, five counts of making false statements to auditors and twelve counts of securities fraud.  Skilling's appeal to the Fifth Circuit was denied. Skilling appealed to the Supreme Court and, according to NPR news reports, is claiming that the lower court erred by not granting a change of venue amidst the wide publicity his trial received in Houston, where Enron was located.