Daniel J. Berrigan, Defiant Priest Who Preached Pacifism, Dies at 94 – The New York Times

Source: Daniel J. Berrigan, Defiant Priest Who Preached Pacifism, Dies at 94 – The New York Times

Our apologies, good friends, for the fracture of good order, the burning of paper instead of children. How many must die before our voices are heard, how many must be tortured, dislocated, starved, maddened? When, at what point, will you say no to this war?

Spoken by Daniel Berrigan, S.J.  in 1968 as he with his brother and the other members of the `Catonsville Nine’  burned draft records with home-made napalm.

Daniel Berrigan who inspired me and others, like his brother, practiced true non-violent civil disobedience.  He acted, was punished, and never apologized.  Did he honor or dishonor law?  The former, in my view. – gwc


OTHERWISE: NJ Justices Expand Fee-shifting Rule to Non-Clients

Source: OTHERWISE: NJ Justices Expand Fee-shifting Rule to Non-Clients


Rejecting the entreaties of the State Bar Association, the New Jersey Supreme Court expanded its fee shifting rule for prevailing legal malpractice plaintiffs.  The Court – which has since 1996 adhered to a judge-made rule that it slowly extended, first beyond negligence-based claims, to those involving other breaches of duty to clients.
But now in Innes v. Marzano-Lesnevich the court has extended the rule of Saffer v. Willoughby (1996) to  a non-client – the beneficiary of an escrow agreement breached intentionally by the defendant attorney.
Despite the slippery slope arguments of the dissenters the limitation to intentional breaches of duty by lawyers as escrow agents will in fact sharply limit the further expansion of the exception to the so-called American Rule.

The case arose from the decision of a successor attorney not to abide by the agreement of the parties – that the divorcing wife’s attorney would hold the child’s passport to prevent removal of the young child from the United States. The defendant lawyer handed over the passport to the mother without the father’s consent, the child was taken to Spain where Spanish courts, ruling in the father’s absence barred any contact with the young child of the marriage.  The mother was jailed for reusing to return the child to the U.S. and eventually convicted of child-napping.  A large verdict for plaintiff was awarded in the Superior Court,

I was plaintiff’s expert on breach of fiduciary duty at trial.  After initially denying that she had handed over the escrowed passport in violation of the agreement, the defendant admitted it.  She asserted that the  parties had abrogated the signed escrow agreement.   I treated the breach as a flagrant violation of a duty implied in law when she retained the passport and agreement as successor attorney in a divorce case.  But the case was sent to the jury as a negligence case.  The Supreme Court has now remanded the case to the trial judge to make a specific fact finding on intentional breach.  The court observed that the record was sufficient to support such a finding, so it is likely that the trial judge will make the required finding.  – GWC

Second Circuit Finds New York’s In-state Office Requirement Constitutional

On April 22, 2016, the Second Circuit decided SCHOENEFELD v. SCHNEIDERMAN, et. al.  In a 2-1 decision, the Second Circuit reversed the district court and remanded the case with instructions to the court to award judgment to the defendants.  The Second Circuit majority upheld the constitutionality of New York’s rule that requires an instate office.  Relying on

McBurney v. Young, 133 S. Ct. 1709 (2013), the Court held, inter alia, that “in the absence of any proof that that statute’s instate office requirement was enacted for a protectionist purpose”, plaintiff could not prevail.

The suit was filed in 2008 by Ekaterina Schoenefeld, who was a New Jersey resident. She had cited the Privileges & Immunity Clause and argued that the policy, which blocked her from practicing in New York despite passing the bar there and meeting all other requirements, served no substantial state interest.  She had noted that New York residents need not have a physical office in New  York and may practice from their homes.   This argument was not successful.  The opinions are quite lengthy – 31 pages for the majority and 25 pages for the dissent. The ABA Journal has a story about the case here about and there is Wall Street Journal article here.

Although the Court held that it was constitutional for New York to have an in-state office requirement, the decision does not require such a rule.  At some point, New York might want to revisit this issue.   In addition to its domestic implications, this ruling has the potential to reduce the number of foreign-admitted lawyers who annually sit for New York’s bar exam. See Diane Bosse, Testing Foreign-Trained Applicants in a New York State of Mind.   New York’s in-state office rule could affect the attractiveness of the New York license as a global credential.

Lawyers, lawsuits, and the water crisis in Flint, Michigan

From NPR’s All Things Considered:

Out of State Lawyers Descend on Flint, Mich., Amid Water Crisis

For the most part, official help has been slow in getting to Flint, Mich., but one group of first responders is on the ground. A growing number of out of state lawyers are setting up shop in Flint, and they are filing dozens of lawsuits.

Listen to the coverage by Steve Carmody here (disclaimer, you’ll hear my thoughts about the situation during the last few seconds of this 3 1/2 minute radio spot).  Or read the full transcript after the jump. (Cross-posted at the Legal Ethics Forum.)Read More »

Lawyer Suspended for Using Info Divorce Client Obtained via Guessing Wife’s Password

The ABA Journal reports today that the Missouri Supreme Court suspended a lawyer for using the information obtained by the lawyer’s divorce client, who obtained the information by accessing the wife’s email without permission (husband guessed his wife’s email password).  The information obtained included:

  • current payroll documents of wife; and
  • a list of direct examination questions prepared by wife’s lawyer.

The court found that the lawyer violated the following Missouri Rules of Professional Conduct:

  • Rule 4-4.4(a), which prohibits a lawyer from using “methods of obtaining evidence that violate the legal rights” of a third party;
  • Rule 4-8.4(c) which prohibits a lawyer from engaging “in conduct involving dishonesty, fraud, deceit, or misrepresentation;”
  • Rule 4-3.4(a) which provides, in part, that a lawyer shall not “unlawfully obstruct another party’s access to evidence or unlawfully alter, destroy, or conceal a document or other material having potential evidentiary value;” and
  • Rule 4-8.4(d), which prohibits a lawyer from engaging “in conduct that is prejudicial to the administration of justice.”

The court noted that the lawyer had been disciplined five times previously.

You can find the opinion here.

O’Bannon v. NCAA – fee award largely affirmed

Source: O’Bannon v. NCAA – fee award largely affirmed

U.S. District Judge Claudia Wilkens has affirmed with relatively modest changes the fee award of the Magistrate Judge in favor of the college players who prevailed in their Sherman Act case against the NCAA.  They sought to share in revenues the colleges gain from selling the student athletes images and likenesses.

Because plaintiffs prevailed in part by obtaining partial affirmance on appeal, and because the litigation was the catalyst for certain NCAA rule changes Judge Wilkens held that the plaintiffs were a prevailing party.  Here is the bottom line:

For the reasons stated above, the Court GRANTS the NCAA’s motion for de novo review of Magistrate Judge Cousins’ fee order and adopts the fee order in part. Docket No. 415. The Court orders the following reductions in addition to the reductions ordered by Magistrate Judge Cousins. The Court will further reduce Plaintiffs’ attorneys’ fees by $3,628,610.15, to $40,794,245.89, and will further reduce Plaintiffs’ costs by $5,675.00, to $1,540,195.58.

It’s Been 40 Years Since the Supreme Court Tried to Fix the Death Penalty — Here’s How It Failed | The Marshall Project

Source: It’s Been 40 Years Since the Supreme Court Tried to Fix the Death Penalty — Here’s How It Failed | The Marshall Project

Unguided prosecutors – county by county  prosecutorial discretion – is at the heart of the arbitrariness of capital punishment in America, as well as state and local cultures which make coherence in our criminal justice system an impossibility.

Who lives and who dies – among those who have committed horrible acts?  Historically – men die, and Black men die much more often.  But even if – as in New Jersey – that factor was squeezed out (by Black urban political power) – the results are arbitrary.  At a symposium  I organized at Seton Hall eight years about the state’s repeal – former Chief Justice Deborah Poritz acknowledgedthat despite rigorous “propotionality review” they had failed to eliminate the arbitrariness of who was sentenced to death who to life in prison.  – gwc