Friday, April 25, 2008

Officers Denied Immunity For Arresting Protester

The 10th Circuit denied immunity to five police officers in Albuquerque, N.M., who allegedly arrested a University of New Mexico faculty member during an antiwar protest, simply because he was part of a "large basket containing a few bad eggs."

The court ruled 2-1 that John Fogarty may proceed with a lawsuit accusing the officers of targeting him without probable cause and using excessive force to arrest him during a March 2003 demonstration against the U.S. war in Iraq.

The protest began on the UNM campus and spread to city sidewalks and streets, with between 500 and 1,000 demonstrators voicing their opposition to the war.

Fogarty and a friend joined a drum circle that was "play(ing) a really nice samba," Fogarty claimed. But police accused the drummers of inciting the crowd and making it more difficult to clear the streets.

Capt. John Gonzales told officers to "remove the drums," a statement some interpreted as a direct order to arrest the drummers, Fogarty included. The plaintiff said he was already off the street when officers pelted him with an unknown projectile and arrested him.

Officers allegedly took the handcuffed Fogarty near an area with lingering tear gas, causing Fogarty to suffer an acute asthma attack. He also claimed to have torn a tendon in his wrist during the ordeal.

The majority refused to dismiss Fogarty's claims, ruling that he had provided enough evidence to survive summary judgment at this stage.

"The Fourth Amendment plainly requires probable cause to arrest Fogarty as an individual, not a member of a large basket containing a few bad eggs," Judge Lucero wrote. "In other words, that Fogarty was a participant in an antiwar protest where some individuals may have broken the law is not enough to justify his arrest."

Makers of Paxil, Zoloft Win

In a significant victory for drug manufacturers, the 3rd U.S. Circuit Court of Appeals has ruled that the makers of Paxil and Zoloft cannot be sued for failing to warn of a risk of suicide because the Food & Drug Administration has explicitly refused to order such warnings.

Voting 2-1 in a pair of cases where the lower courts issued conflicting rulings, the 3rd Circuit found that such lawsuits must be pre-empted because they directly conflict with action already taken by the FDA.

Writing for the majority, 3rd Circuit Judge Dolores K. Sloviter said the FDA has "actively monitored" the possible risk of suicide from taking the class of antidepressant drugs known as selective serotonin re-uptake inhibitors, or SSRIs, for two decades, and concluded that the suicide warnings demanded by plaintiffs "are without scientific basis and would therefore be false and misleading."

But Sloviter, who was joined by visiting Judge Jane A. Restani of the U.S. Court of International Trade, emphasized that the ruling was a narrow one.

"Our holding is limited to circumstances in which the FDA has publicly rejected the need for a warning that plaintiffs argue state law requires," Sloviter wrote in Colacicco v. Apotex Inc.

In dissent, 3rd Circuit Judge Thomas L. Ambro said he would have allowed both cases to go forward.

Thursday, April 24, 2008

Film Editor Says He Was Cheated

Damien Leveck, a film editor, claims Paulist Productions and Forgiveness LLC defrauded him of wages and wrongfully fired him while he worked on a film called "Forgiveness."

In his Superior Court claim, Leveck says he worked as a creative adviser for Apple until he "was courted by Frank Desiderio of Paulist and Forgiveness to be an in-house editor for film projects."

He claims Desiderio offered him $60 an hour, but the paychecks were hinky from day one - first, without deductions and without overtime; then his pay rate was cut to $50 an hour - then to $30 an hour. Then, he says, the defendants denied him two months wages completely, "claiming Plaintiff was working on a pro-bono basis."

Leveck claims Desiderio told him the pay cuts were necessary because Desiderio had lost $2 million on a previous film, called "The Jesus Experience."
Leveck claims that while all this was happening, he was working 12 to 20 hours a day on the film, "Forgiveness."

During this time, Leveck says, Desiderio was soliciting members of his church to invest in the film project on which Leveck was being cheated.

"Mr. Desiderio was selling stock in the film at a minimum investment of $30,000," the complaint states. "Mr. Desiderio was fraudulently inducing members of the church to invest in the project by claiming that the church would benefit from the donations. Mr. Desiderio received investments from the parishioners ranging from $30,000 to $60,000. Mr. Desiderio made it clear that Father Liam Kidney was in no way to know about the investments."

Represented by Todd Harrison, Leveck demands punitive damages for wrongful termination, fraud, conversion, breach of contract, interference, and Labor Code violations.

Spanking Attorney Sues 'Washingtonienne' Author.

Former Senate Judiciary Committee counsel Robert Steinbuch sued Jessica Cutler, author of the "Washingtonienne" blog and subsequent book, claiming she invaded his privacy by publishing "in graphic detail the intimate amorous and sexual relationship between Cutler and the Plaintiff," including his alleged predilection for spanking.

Steinbuch also sued Hyperion Books, a division of Disney Publishing Worldwide, which allegedly paid Cutler a $300,000 advance for her book, after her blog became a sensation.

n his federal complaint, Steinbuch says, "At the time of his relationship with Cutler, Plaintiff did not know that Cutler was simultaneously engaged in sexual relationships with another man, let alone with five other men, and let alone that she was prostituting herself to some of them; and Plaintiff did not know that Cutler was recording the details of her relationship with Plaintiff in her blog, and Defendant Cutler described Plaintiff as, among other things, a committee counsel who likes spanking. That blog is the subject of a separate and distinct litigaion.

Steinbuch also claims Cutler profited by "capitalizing on the publicity generated by her blog and her relationship with Plaintiff" by signing a deal with Playboy that included a nude photo spread of her, and the "thinly disguised novel, of the roman a clef genre," in which her relationship with him is "described in graphic detail."

His complaint adds: "Hyperion specifically advertised the book as being in 'a witty, unapologetic voice, the novel's narrator Jackie tells the story of ... the staff counsel whose taste for spanking she "accidentally" leaks to the office.'"

Steinbuch demands $10 million damages for invasion of privacy, false light, and intentional infliction of emotional distress. He is represented by Jonathan Rosen of Clearwater, Fla.

Friday, April 18, 2008

Surgeon Could Lose License Over Sex With Patient

A prominent North County surgeon could be in trouble with the state medical board and learned he could lose his license.

Dr. Dennis Nigro is the subject of a hearing at the state building in which he is accused of having sex with a patient.

Nigro admitted to having a brief affair with a woman in 2003, but said she was no longer in his care during their relationship.

Nigro’s lawyer, medicare defense attorney, Michael Khouri, said, “The woman does not believe Dr. Nigro was her doctor when the sex occurred.”

“There is documentation required to terminate relationship. It was not done in this case,” said Deputy Attorney General Mary Agnes Matyszewski.

An administrative law judge will issue a proposed decision that will be sent to the state medical board for final disposition.

Nigro’s license could be suspended if discipline is deemed necessary.

Thursday, April 17, 2008

Improper Handling of Client Trust Accounts

Managing money is always tricky, especially when it belongs to someone elseThat's why, in 2006 alone, more than 20 lawyers found themselves before the State of Michigan Attorney Discipline Board after having grievances filed against them for mismanagement of their clients' funds.

However, in Michigan, there is an infrastructure in place that allows attorneys to insulate themselves from the consequences of accounting errors - both accidental and otherwise.

Specifically, Michigan Rule of Professional Conduct (MRPC) 1.15 provides guidelines for the two types of client accounts: Interest on Lawyers Trust Accounts (IOLTAs) and non-IOLTAs.

The rule defines an IOLTA as "an interest or dividend bearing account" that "shall include only client or third person funds that cannot earn income for the client or third person in excess of the costs incurred to secure such income while the funds are held."

Though interest is earned on this type of account, the client does not receive those proceeds. Instead, the interest is paid to the Michigan Bar Foundation.

Conversely, a non-IOLTA under MRPC 1.15 also earns interests or dividends, however, that "net interest or dividend will be paid to the client."

MRPC 1.15 applies to both pooled and individual client trust accounts. But, because "it is common for a lawyer only to maintain one pooled client trust account," said Professor Lawrence A. Dubin - who teaches Professional Responsibility at the University of Detroit School of Law - IOLTAs, rather than non-IOLTAs, may be easier for attorneys to work with.

However, that doesn't mean that IOLTA administration is without its own pitfalls.

In fact, with penalties ranging from a slap on the wrist to a permanent loss of license, learning the ins and outs of proper client trust management is fast becoming an integral part of effective practice management.

Tuesday, April 15, 2008

Court Won't Hear Young Killer's Appeal

The Supreme Court refused Monday to review a 30-year prison sentence for a teen who was 12 when he killed his grandparents in South Carolina.

Lawyers for Christopher Pittman wanted the justices to examine whether the long prison term for a child violates the Constitution's ban on cruel and unusual punishment. With no possibility of parole, he will be 42 before he is released, they said.

Pittman is the only inmate serving such a lengthy sentence for a crime committed at such a young age, his lawyers said. The judge who sentenced him was prohibited by law from taking his age into account.

South Carolina contended the punishment is proportionate to the crime and said there is a national trend of increased punishment for young violent criminals.

Pittman used a shotgun to shoot Joe and Joy Pittman in their bed and then set fire to their home in 2001. During his trial four years later, Pittman's attorneys unsuccessfully argued the slayings were influenced by the antidepressant Zoloft — a charge the maker of the drug vigorously denied.

Monday, April 14, 2008

Court Tosses Suit Over School Speech

A high school student won't be allowed to proceed with a lawsuit against his school district for instituting a policy that barred him from expressing his opposition to homosexuality, a federal appeals court ruled Wednesday.

The U.S. 6th Circuit Court of Appeals, in a 2-1 vote, said Boyd County High School student Timothy Morrison failed to show that he was harmed by the policy that was later changed. Judge Deborah L. Cook, joined by Judge John R. Adams, also said Morrison didn't show how winning a lawsuit seeking only $1 in damages would rectify his situation. Judge Karen Nelson Moore dissented.

"This case should be over," Cook wrote. "Allowing it to proceed to determine the constitutionality of an abandoned policy — in the hope of awarding the plaintiff a single dollar — vindicates no interest and trivializes the important business of the federal courts."

The ruling is a reversal of a previous ruling that held Morrison should be allowed to pursue the lawsuit.

Morrison, a senior at Boyd County High School, sued the Boyd County school district over a policy that required students to undergo anti-harassment training. He claimed the policy threatened him with punishment for expressing religious beliefs in opposition to homosexuality. Morrison is a professed Christian who believes his religion requires him to speak out against what he sees as behavior that doesn't comport with his understanding of Christian morality.

Morrison was never punished under the policy, which was later changed to exempt speech that would normally be protected off campus.

The school district adopted the policy and established the anti-harassment training as part of a 2004 legal settlement that ended a lawsuit between the school district and a now-defunct gay-rights group that wanted recognition as an extracurricular group.

Members of the Boyd County High School Gay Straight Alliance argued that the school district violated their constitutional rights by refusing to allow them to meet on campus.

Joel Oster, an attorney for the Alliance Defense Fund, a Christian law group that represents Morrison, didn't immediately return a telephone message left at his Scottsdale, Ariz., office. Winter Huff, an attorney representing the school district, didn't immediately return a call to her Somerset office.

Sharon McGowan, an attorney for the American Civil Liberties Union, which supported the Alliance Defense Fund in arguing that Morrison should be permitted to pursue his case, said the ACLU was disappointed by the decision.

Tuesday, April 8, 2008

A Song

Talk To My Lawyer

I was walking outside of City Hall - I slipped & I had a terrible fall
It was negligence on the part of I don't care who
I fell so hard I was seeing stars - dollar signs and men from Mars
And the man who helped me up said I ought to sue
(He was a lawyer...he was all out of breath)

Once I had an accident - not too bad, just a little dent
A new Mercedes hit me from the rear
Man got out in a 3 piece suit & asked if a thousand dollars would do
I said, "Well, let me think for a minute here"

I'm gonna talk to my lawyer - I might have whiplash
I might have trauma - let's not talk petty cash
I've got a witness - to put a hand on the Bible
Jury jury, hallelujah - you might be liable

My Momma said to Uncle Jim, "I just don't know what's wrong with him...
That son of mine is a no-good big wazoo"
Well, I have never overheard such a bunch of slanderous words
I'll tell you Momma, I've got a mind to sue

I'm gonna talk to my lawyer - Momma, that was vicious
Defamation of character - wrongful and malicious
I've got a witness - to put a hand on the Bible
Jury jury, hallelujah - you might be liable

I was trying to open up my map - when I spilled some coffee on my lap
How was I supposed to know it was going to be hot?
I went back to that fast-food place, to the manager with the happy face
I said, "I want the name of whoever brewed that pot"

I'm gonna talk to my lawyer - I think I've got a pretty good case
All I need are some crutches - maybe I'll put on a neck brace
I've got a witness - to put a hand on the Bible
Jury jury, hallelujah - somebody's liable

Monday, April 7, 2008

Lawyers seek to bar statements obtained by torture

Lawyers for Guantanamo Bay detainee Salim Ahmed Hamdanon Friday asked a military tribunal to bar the use of statements made by Hamdan that were allegedly obtained through the use of torture and requested that the court declare that Hamdan has been subjected to abusive interrogation techniques. Hamdan contends that he was subjected to prolonged periods of isolation and beatings at the hands of US interrogators and that any statements he has made while in custody are unreliable. The motion argues that the use of these statements would violate the US Constitution, international law and the 2006 Military Commissions Act, which allows evidence obtained through coercion to be introduced if it is reliable, but excludes the use of statements obtained through torture. A spokesman for the Pentagon denied the allegations and said that detainees are treated humanely.

Hamdan has been in US custody since 2001 when he was captured in Afghanistan and accused of working as Osama Bin Laden's driver. In 2006 he successfully challenged US President George W. Bush's military commission system when the Supreme Court ruled that the commission system as initially constituted violated US and international law. Congress subsequently passed the Military Commissions Act of 2006, but Hamdan and a number of other Guantanamo detainees ave argued that the current law still violates their rights. Last month, a military judge affirmed a prior ruling report that Hamdan's lawyers may send written questions to Khalid Sheik Mohammedand other alleged high-level al Qaeda detainees to facilitate the discovery of evidence on the issue of whether Hamdan was an al Qaeda agent who conspired in the USS Cole or Sept. 11 attacks.

Friday, April 4, 2008

Firm Gets Into Trouble for Lawsuit Loan

A company that advanced an Atlanta lawyer and his firm $25,000 for a portion of potential payouts from a sheaf of cases says that it never got its money nor interest payments topping 100 percent annually.

Lawsuit Financial Inc. of Southfield, Mich., sued Earl A. Davidson and his firm, Giddens, Davidson & Mitchell, in Fulton County Superior Court earlier this month to collect its $25,000 and many times that sum in fees and interest.

Complicating matters is that Davidson, the attorney in question, was disbarred last month by the state Supreme Court for misusing funds in his trust account, not paying his dues to the State Bar of Georgia and not complying with continuing legal education requirements.

Davidson could not be reached, and his former partner, Bobby L. Giddens, did not respond to a request for comment. But firm partner Kenneth Mitchell, reached by telephone, was dismayed at news of the action.

"Oh, no," said Mitchell. "We've got enough problems." He said he was "completely unaware" of the suit.

Lawsuit Financial is one of a growing number of businesses in the litigation finance industry, which is generally engaged in providing money to plaintiffs who pledge to pay back the funds if they successfully resolve their cases.

Businesses providing such "non-recourse" loans can be found on the Internet. They offer to take the financial pressure off plaintiffs as they wait for their litigation to proceed.

A review of various state bar regulations and legal periodicals reveals that, although often termed "loans," the advances are generally regarded by state regulators as investments, so the companies are not bound by traditional bank regulations and usury laws.

Hiring Lawyers by the Numbers

Many companies are instituting new policies for hiring outside counsel -- policies that are making some general counsel squirm and some law firm lawyers shudder.

Under pressure to control expenditures for legal services, general counsel are increasingly called upon to explain their outside counsel hiring practices and the resulting costs to their clients.

More important, while in the past the details of hiring decisions may have been left up to general counsel and their law departments, now many corporate employers are getting involved.

Some corporations are implementing policies that mandate that their procurement or purchasing departments become involved in every decision to outsource services -- including legal work -- says Ron Friedmann, president of Prism Legal Consultants Inc.

Some outside counsel say that this increased involvement by purchasing and procurement departments has resulted in a "commoditization" of legal services -- corporate clients purchasing legal services much like commodities.

"There's a movement right now, across the board, to pay the lowest price you possibly can," says Ed Hansen, a partner in the global outsourcing and technology practice at Morgan, Lewis & Bockius. "On the surface, it seems like a good idea, but companies aren't able to differentiate what's a commodity and what's not. You can't buy outsourcing services like you buy pencils."
Hansen calls outside counsel services "relationship-based contracting," and says those contracts can fail when the GCs need to work internally with management or departments like procurement or purchasing come between in-house and outside counsel.

Read More Here:

Thursday, April 3, 2008

Fair trial rights must trump right to counsel in Indiana v. Edwards

"In Faretta v. California, 422 U.S. 806 (1975), the Supreme Court held that the Sixth Amendment provides a constitutional right to a criminal defendant to decline the assistance of counsel and instead to represent himself. The Court explained that a defendant's decision to invoke this right should be honored even in instances in which a defendant would be better served with representation by counsel. The National Association of Criminal Defense Lawyers (NACDL) agrees, and believes that a defendant's decision to waive the assistance of counsel should be overridden only in very rare circumstances.

NACDL believes that Indiana v. Edwards presents such an occasion. The question presented in that case is whether and when a court can, over a mentally-infirm criminal defendant’s objection, override the defendant’s decision to represent himself and require defendant to receive assistance of counsel. Where the mentally-infirm defendant is competent to stand trial because, under the well-known formulation of Dusky v. United States, 362 U.S. 402 (1960), he can "assist counsel," but his mental abilities do not permit him to competently represent himself, NACDL believes that fair trial rights must trump the defendant's right to refuse counsel.

Ideally, however, this conflict between representational and due process rights would not arise in the first place. In the law of competency as it existed at common law and until 1960, courts asked whether self-represented individuals were competent to represent themselves, not whether they were competent to assist a non-existent lawyer. The question whether counsel can be forced on someone like Mr. Edwards would never have arisen because, without an attorney, he would not have been deemed competent to stand trial in the first place.

In the Edwards case, NACDL submitted an amicus brief arguing that the Court should eliminate the Dusky competency standard’s assumption that counsel is present and refocus the test on the ability of the defendant to present a defense, with the presence of counsel – only in those cases where counsel is present – one factor to be considered. This return to the common law standard respects both the due process right to be tried only if competent and the Sixth Amendment right to choose whether or not to waive counsel."

Progressive Tax Announces the Ten Costliest Mistakes

Progressive Tax has been working with the IRS on a daily basis for more than 25 years to classify its accounts receivable. Before they begin the process of negotiating a settlement with the IRS, the Travelers Tax team of lawyers, accountants and federally licensed enrolled agents often must first undo the damage their client has already done.

According to the Internal Revenue Service: 1.Fifteen percent of all taxpayers owe back taxes. 2. In 2005, an estimated $120 billion in taxes went uncollected. 3. An estimated 76,686 taxpayers had delinquent tax bills of more than $100,000 (as of Fiscal Year 2004). 4. The number of levies (a key enforcement tool in which the IRS takes possession of assets to collect on unpaid taxes) topped 2 million during fiscal year 2005. These figures are a 21 percent increase from 2003 and triple the 2001 number.

First and foremost, the IRS is never - never - on your side, Here's just one example: The IRS will tell a taxpayer to go ahead and file an offer in compromise. The taxpayer thinks great, I can negotiate a settlement myself. Well, one of the reasons they do that is so you will divulge all of your financial information. It essentially gives them a road map to all of your assets.

Getting nailed for back taxes by the Internal Revenue Service is tough enough, but many taxpayers make a bad situation even worse by fumbling one of life's most delicate situations, according to Progressive Tax.

See below for Progressive Tax's Ten Costliest Taxpayer Mistakes.

The IRS works hard to collect full back taxes, penalties and interest. Progressive Tax specializes in pre-settlement planning using the IRS guidelines in order to get the client's disposable income as low as possible prior to submitting an offer in compromise. The goal: a settlement the taxpayer can carry.

Progressive Tax often starts by getting the IRS to release the levies on a client's bank accounts. If you lock up a person's bank account, they can't do business, they can't pay their employees and they are forced to shut down, that's not in anyone's interest.

Pixelplus Obtains Intellectual Property Victory

SEOUL, South Korea, Pixelplus Co., Ltd. (Nasdaq: PXPL), a fabless semiconductor company in Korea that designs, develops, and markets CMOS image sensors for various consumer electronics applications, today announced that the Company obtained a completely favorable ruling from the Intellectual Property Tribunal ("IPT") of the Korea Intellectual Property Office ("KIPO") on the cancellation and invalidation of two disputed process patents claimed by MagnaChip Semiconductor.

In November 2006, the Company announced that MagnaChip filed patent infringement claims on three process patents in Seoul Central District Court. In May 2007, the Company initiated cancellation and invalidation proceedings on these three patents at the IPT at KIPO. Given the IPT's commendatory ruling on the two process patents, Pixelplus will issue a separate announcement once the IPT at KIPO provides its ruling on the one remaining disputed process patent claimed by MagnaChip.

Pixelplus is a South Korea-based developer of high-performance, high- resolution, and cost-effective CMOS image sensors for use primarily in mobile camera phones. In addition to mobile phones, Pixelplus provides CMOS image sensors and SoC solutions for use in webcams and notebook embedded cameras, toys and games, and security and surveillance system applications.

As a fabless semiconductor company, Pixelplus is focused on creating proprietary design technologies to develop CMOS image sensors with sharp, colorful and enhanced image quality, size efficiency, and low power consumption.

This press release contains certain statements that are not historical in nature but are "forward-looking statements" within the meaning of the "safe- harbor" provisions of the Private Securities Litigation Reform Act of 1995. Forward-looking statements generally can be identified by the use of forward- looking terminology, such as "may," "will," "expect," "intend," "estimate," "anticipate," "believe," "project," or "continue" or the negative of such words or other similar words. Pixelplus cautions readers that forward-looking statements are based on the Company's current expectations, estimates and assumptions about our company and our industry, and are subject to a number of risks and uncertainties. Actual results may differ materially from those contained in such forward-looking statements. Investors are directed to Pixelplus' reports and documents filed from time to time with the U.S. Securities and Exchange Commission for a description of various factors that should be considered before investing in Pixelplus' securities.

These factors may cause Pixelplus' results to differ materially from the forward-looking statements made in this release. The forward-looking statements speak only as of the date of this press release and Pixelplus assumes no duty or obligation to update them to reflect new, changing, or unanticipated events or circumstances.