Court: Have a Strong Cup of Coffee Handy Before Reading Further

In an unpublished opinion in an insurance coverage/construction defect case involving competing contractual "subrogation waivers" issued today, the California Court of Appeal advised as follows:

Appellate counsel for both sides have done an outstanding job, resulting in briefs
that have been more than ordinarily helpful to the court. The fact remains that the issues
are far from enthralling; they demand an almost microscopic examination of dry, lengthy
contract documents. As we embark on the resolution of these issues, then, we think it
only fair to suggest that the reader might want to be sitting in a comfortable chair, with a
cup of strong coffee nearby.

American Guarantee and Liability Ins. Co. v. ADP Marshall, Inc. (CA4/2, Dec. 4, 2007) No. E041182 (Richli, J.).

Sperm Donor Targeted for 'Dad' Signature

A New York man, who donated his sperm to a friend years ago is now facing a child-support order after signing his gifts with the moniker "Dad."

The unidentified Nassau County man, who helped a coworker give birth to a baby boy 18 years ago, was hit with the child-support order after sending his biological son several gifts and cards signed "Dad," the New York Post reported Sunday.

His attorney, Deborah Kelly, said her client had only wanted to help the college-bound teen and now was being targeted for his good will.

"It really is no good deed goes unpunished," Kelly said.

"When people do things they think are being done with good intentions and there is an agreement and one of the party reneges on the agreement, it is certainly disconcerting."

The man reportedly orally agreed not to have any rights or responsibilities in the boy's life when he made his sperm donation.

The Post said a Nassau County Family Court judge has ruled against conducting a paternity test in the unusual case, stating it could be traumatic to the teenager.

Details here from UPI. Just one more reason for me to stay indoors, with the blinds drawn, wearing three condoms at all times.

Judge Slams FBI Fishing Expedition at Amazon

How would you feel if you bought a book through Amazon and then found out your book purchasing records had been turned over to the FBI? Would it make you think twice about shopping at Amazon in the future? Amazon think so, and it turns out, so does a federal judge (order, PDF).

The FBI is going after one Robert B. DeAngelo, a former Madison, WI, official who has been indicted on tax evasion and mail and wire fraud charges, Cnet’s Declan McCullagh reports. It seems DeAngelo ran a healthy little used book and CD business out of city offices. He kept his costs low by using city computers and city warehouses.

So to get the goods on DeAngelo, the FBI wants to talk to some of his customers. Not that they suspect the customers were involved or were victimized by the scheme, but to get information to nail DeAngelo. So they issued (or rather the grand jury issued) a subpoena to Amazon for information on every one of DeAngelos customers. Eventually the subpoena was changed to 120 customers, 30 for each year under investigation.

Amazon felt the request infringed on their customers’ First Amendment privacy rights and moved to quash the subpoena. Specifically Amazon argued you have a First Amendment right to keep your book-buying history private. The government argued there is no such privacy right.

Judge Stephen Crocker held that there is a “cognizable First Amendment right” in such privacy, which can be balanced with the government’s need for information by having Amazon contact DeAngelo’s customers and ask for volunteers to talk to the FBI.

Details here from ZD Net.

Court: Police Must Return Seized Medical Marijuana

Felix Kha was stopped by police in Garden Grove, California, for running a red light. Kha consented to a search of his car, and the cops found a bag with 8.1 grams of pot in it. Although Kha produced a document indicating that he was authorized to possess and use marijuana for medical purposes, the police cited him "for unlawfully possessing less than one ounce of the drug while driving" and seized the pot.

Before trial, the prosecutor confirmed that Kha had a valid medical authorization for marijuana and dismissed the possession charge. The trial court ordered the police to return the drugs to Kha. The City of Garden Grove refused and filed a petition for writ of mandate compelling the trial court to reverse its order. Today, the Court of Appeal denied the petition, holding that the police must return the marijuana to Kha:

Mindful as we are of the general supremacy of federal law, we are unable to discern any justification for the City or its police department to disregard the trial court’s order to return Kha’s marijuana. The order is fully consistent with state law respecting the possession of medical marijuana, and for all the reasons discussed, we do not believe the federal drug laws supersede or preempt Kha’s right to the return of his property. That right has its origins in the CUA and MMP, but it is grounded, at bottom, on fairness principles embodied in the due process clause. Those principles require the return of Kha’s property.

City of Garden Grove v. Superior Court, No. G036250 (4th App. Dist., Div. 3, Nov. 28, 2007).

Firm Warns Associates of Looming Layoffs

Thacher Proffitt & Wood on Tuesday informed about 50 associates that their futures at the firm were uncertain because of the collapse of the market for mortgage-backed securities, an area where the firm had had a leading practice.

The firm's warning, first reported Tuesday on legal gossip blog Above the Law, affected 24 non-first-year associates who were told they were almost certain to be laid off in January unless the credit market substantially improved.

Additionally, the firm offered 29 first-years the option of taking four months' severance and leaving the firm. The firm's chairman, Paul D. Tvetenstrand, had previously said the firm would not have associate layoffs, but he said Tuesday that the outlook on the market had grown worse in recent weeks. Whereas the 350-lawyer firm had earlier projected the market would bounce back in a quarter or so, he said the feeling was now that the mortgage-backed securities market in particular would remain moribund for at least six months, if not longer. He said the warning and buyout offers were to give associates time to prepare. "It would be unfair to these associates to have them sitting on their hands" during that time, he said.

Details here from the New York Law Journal via Law.com. (Above The Law's post on the subject is here.)

Judge's Removal Recommended for Prolonged Tirade Over Courtroom Cell Phone

A two-hour fit of pique in which an New York upstate city judge ordered 46 defendants into custody because none would take responsibility for a cell phone that went off in court should cost him his judicial career, the Commission on Judicial Conduct recommended Tuesday.

Niagara Falls City Court Judge Robert M. Restaino's "painfully prolonged" outburst on March 11, 2005, "transcended poor judgment" and warrants his removal from the bench, according to the commission's recommendation to the Court of Appeals.

"In causing 46 individuals to be deprived of their liberty out of pique and frustration, respondent abandoned his role as a reasonable, fair jurist and instead became a petty tyrant, abusing his judicial power and placing himself above the law he was shown to administer," the commission concluded.

Although the judge's behavior constituted an isolated incident, his conduct brought the judiciary into "disrepute" and irreparably damaged public confidence in his ability to remain a judge, the commission held.

The commission's chairman, Raoul Felder, was the lone dissenter in the 9-1 determination. He called his decision the most difficult he has made in his four years on the commission.

Felder conceded that Restaino engaged in "two hours of inexplicable madness" and wrote that when he first reviewed the facts in the case, he believed the judge had become a "tyrant" whose behavior merited removal. But on further review, and upon hearing a remorseful Restaino ascribe his outburst to the buildup of stress in his personal life, Felder urged compassion and punishment short of removal.

"I cannot find it within myself to destroy this individual's professional life over this regrettable episode," Felder wrote.

Details here from the New York Law Journal via Law.com.

Law Firms Face New Rules on Retirement

With hordes of attorneys set to assume senior status, achieving a consensus to ditch mandatory retirement policies is just the first step in switching to what many call a fairer system. Kirkpatrick & Lockhart Preston Gates Ellis recently did it, as did Pillsbury Winthrop Shaw Pittman, and others are expected to follow. While these firms say deciding to abandon age-based retirement was relatively painless, implementing a merit-based system for evaluating older attorneys will not be a simple feat for most.

Details here from The National Law Journal via Law.com.

Florida Judges Feel Legal Blogs' Glare

In May, Dale Ross, chief judge for the Florida circuit court in Broward County for 16 years, stepped down following a year of embarrassing scandals, gaffes and bad behavior by his judges.

Although pressure was building for Ross to resign for years, many legal observers say it would not have happened if not for the new Broward courthouse blog, JAA Blog.

That blog hammered Ross on a daily basis and reported on such incidents as a judge arrested for smoking pot in a park, another judge making an off-color sexual remark and another judge allegedly taking a loan from a defense lawyer appearing before him.

The JAA Blog was started in August 2006 by a group of criminal defense lawyers fed up with the way things were being run in the Broward courthouse. They believed that it operated like a "good ol' boys network" rather than the second-largest county court in Florida.

Details here from The National Law Journal via Law.com.

Authorities: Bogus Harvard Law Grad Bilks Clients out of Thousands

A man who never finished college passed himself off as a Harvard Law School graduate and bilked clients out of more than $50,000, Broward County, Fla., authorities said Monday.

Robert Brady, 26, was charged with six counts of unlicensed practice of law and organized fraud, according to the sheriff's office. He was being held at the Broward County main jail on $350,000 bond.

Authorities said Brady posed as an attorney and collected retainer fees and other payments from clients that included respected lawyers, corporate executives and a physician. He even attended a Republican fundraiser for presidential candidate Fred Thompson recently and introduced himself as an attorney, authorities said in a statement.

Brady also convinced a local mortgage broker to obtain a black American Express card for "Charles J. Brady, Esq." and charged a total of $18,450 in goods and services, authorities said.

Brady's previous arrests include grand theft and uttering a forged instrument.

Details here from the AP via Law.com.

Also, The Dog Ate Her Gavel

If Contra Costa Superior Court Judge Barbara Zuniga isn’t prepared to handle arguments, she doesn’t try to sugarcoat the reasons why. She just tells it like it is.

In a tentative ruling filed late last month, the law-and-motion judge postponed a hearing on four defense motions in the same case, explaining that she needed “a lot more time” to get ready.

Three weeks later, when Zuniga again had to postpone a hearing on the case, she offered a more detailed — and entertaining — explanation:

1. COURT APOLOGIZES TO COUNSEL.
2. COURT NEEDS TO PUT THIS OVER ONE MORE TIME.
3. COURT JUST RETURNED FROM A CONFERENCE IN PHILADELPHIA. HOWEVER, LUGGAGE WITH MOTION PAPERS AND COURT’S NOTES STAYED IN PHILADELPHIA.
4. LUGGAGE WAS DELIVERED TOO LATE FOR COURT TO COMPLETE TENTATIVE.
5. MOTION CONTINUED TO NOVEMBER 21, 2007.

An insurance defense lawyer said he burst out laughing when he spotted Zuniga’s tentative ruling while looking for information about a different case. At the same time, “you can’t help but feel a little sympathy,” he said.

Lifted verbatim from Cal Law's Legal Pad.

Supreme Court: Mannequin Sex Doesn't Equal Indecent Exposure

A Sioux Falls man caught in the Washington Pavilion having simulated sex with a mannequin didn't commit a crime of indecent exposure, the state Supreme Court says.

In a decision released Thursday, the court reversed the conviction of Michael James Plenty Horse, who was found in the late afternoon of Nov. 14, 2005, lying on top of a mannequin in the Alumni Room of the Pavilion.

A security guard surprised Plenty Horse, the record says. He lay with his pants partially down on a mannequin which had its band uniform partially removed. He was 19 at the time.

The Supreme Court unanimously reversed a misdemeanor conviction, saying the state's indecent exposure statute "criminalizes sexual gratification by displaying or showing one's genitals in public."

The evidence failed to show that Plenty Horse was trying to display himself in public. It was almost closing at the Pavilion, and no other patrons were around when the guard found the man.

The court said Plenty Horse's action, "lewd though it may be, does not fall within the purview of the indecent exposure statute."

Details here from the South Dakota Argus Leader. (via ObscureStore.com)

Happy Fifth Birthday to Me (The Legal Reader)

This blog, The Legal Reader, was born five years ago today on November 6, 2002. That makes this website practically ancient in terms of weblogs and the normal weblog life cycle. This is my 3,865^th post. I've enjoyed doing this.

As the few of you who are regular readers may have noticed, my posting frequency has declined recently. After five years, I'm getting kind of bored. But I haven't decided to quit -- yet.

If any of my regular readers would like to become "guest contributors" to this weblog, please contact me at john *at* legalreader *dot* com to discuss it. (You can also send me links to interesting stories that you think I should post about at that email address . . . .)

Meanwhile, happy birthday to me, and Cheers!

Feds Go After Wildly Successful Medical Pot Sellers

"They're just a couple of nice kids from Berkeley who wound up being the victims of their own success."

That's how lawyer and longtime family friend Harold Rosenthal summed up the case against his clients Winslow and Abraham Norton, the brothers charged last week with moving an estimated $49 million worth of pot through their marijuana dispensary just outside Hayward over the past three years.

And, believe it or not, the brothers paid state and federal taxes on all of it. What's more, their dispensary had a medical marijuana permit issued by Alameda County and was regularly visited by sheriff's deputies to make sure everything was on the up and up.

Although as Sheriff Gregory Ahern told us in a recent interview, most of the young "patients" who frequented the dispensary on Mission Boulevard didn't "appear to be suffering from any serious illness."

Nevertheless, state law allows marijuana be sold to anyone who has a doctor's note, which - if you know the right doctor - takes about 15 minutes and costs about $100.

Winslow Norton, 26, who lives in Lafayette, and 23-year-old Abraham Norton of Oakland were indicted by the feds on charges of conspiracy to distribute more than 100 kilograms of marijuana, distribution of marijuana, maintaining drug-involved premises, conspiracy to launder money and money laundering.

The feds said the brothers used drug proceeds to purchase luxury items and properties, including two new Mercedes-Benzes, a new Ford F-250 truck, three new motorcycles and Winslow's Lafayette home.

Details here from the San Francisco Chronicle. You know, these guys were (apparently) in compliance with California state and local laws. Yet they violated federal drug laws. This case cries out for "jury nullification" -- even if the feds prove that the defendants violated federal drug laws, the jury could refuse to convict them.
Question: Say I was called for jury duty in this federal case. I am a licensed California attorney. During voir dire, I inform the judge that I cannot vote to convict the defendants of violating federal drug laws no matter what the evidence is, because I think these particular federal laws are in conflict with California state laws and are not in keeping with the federal Constitution. I think the California state and local laws predominate and I think that the defendants complied with them. Would this violate my Oath as a California attorney and/or imperil my ability to practice law in California?

The attorney Oath is defined in California Business and Professions Code section 6068, and states as follows:

6068. It is the duty of an attorney to do all of the following:

(a) To support the Constitution and laws of the United States and of this state.

(b) To maintain the respect due to the courts of justice and judicial officers.

(c) To counsel or maintain those actions, proceedings, or defenses only as appear to him or her legal or just, except the defense of a person charged with a public offense.

(d) To employ, for the purpose of maintaining the causes confided to him or her those means only as are consistent with truth, and never to seek to mislead the judge or any judicial officer by an artifice or false statement of fact or law.

(e) (1) To maintain inviolate the confidence, and at every peril to himself or herself to preserve the secrets, of his or her client.

Plaintiffs Lawyers in 'Blood Feud' Over Fees From $2 Billion Settlement

There's a brawl raging in the Lone Star state among some of America's richest plaintiffs lawyers. It's much quieter than a fight you might find in a saloon on Telephone Road in Houston. Forget the racket of splintering bar stools and bottles shattered on skulls. Wire transfers are silent, and the time/date stamp a clerk puts on a brief amounts to nothing more than a thunk. But make no mistake: "This is a blood feud," as one local lawyer puts it.

In one corner is John O'Quinn, 66, of Houston, bloodied and bowed after convictions for drunk driving and practicing without a license, and after not one but two ethics probes by the State Bar, one of which resulted in a public reprimand by the Texas Bar in 1989.

In the other corner is Joseph Jamail, also of Houston, crowned the "King of Torts" by Newsweek. Speaking with the confidence that only a long string of wins can produce, Jamail, 82, claims to be above the fray. "I don't have any animosity toward O'Quinn," he says. Maybe that's what $1.5 billion (Jamail's net worth, according to Forbes magazine) will do for a man.

The final combatant is Ronald Krist, 70, who essentially is acting as Jamail's corner man. A veteran Houston litigator, Krist says he doesn't go looking for cases that involve O'Quinn, but clients "present them and we take them."

Details here from The American Lawyer via Law.com. For an entertaining example of attorney Joe Jamail in action, check here.

Watch Out for the Legal Ethics of Online Networking

Lawyers and law firms that recognize the value of sites like Facebook, LinkedIn and MySpace in building their businesses are at the forefront of a new networking movement. At the same time, these pioneers are blazing ethics trails into previously uncharted territory. As with any attorney venture, the use of social networking sites can be subject to state ethics rules and regulations. Just because the interaction is in cyberspace, rather than a conference room, doesn't mean it's immune to regulation.

Details here from Law.com.