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Friday, January 18, 2008

When representing a defendant in Pelican Rapids, don't phone it in!

There was a very interesting case out of the 8th U.S. Circuit Court of Appeals yesterday -- Sherbrooke v. City of Pelican Rapids.

The federal appellate court turned back a civil-rights claim against the city and its police department over an arrest that sprang from a traffic stop that the motorist argued was invalid. The motorist had pulled to the side of the road and made a cell phone call from his car. When he re-entered the roadway, he kept his hazards on until he reached 55 miles an hour. A police officer, apparently cruising for drunk drivers, saw him driving with his hazards flashing and stopped him. The officer wound up arresting the motorist. Although police eventually let the motorist go without any charges, they recorded the call that he made to his lawyer while he was at the station. The motorist sued, alleging his state statutory and constitutional rights had been violated by the stop, arrest and recording.

A U.S. District Court judge allowed the motorist's sec. 1983 suit to proceed, finding both the stop and the recording of the attorney-client conversation provided grounds for the lawsuit. The 8th Circuit disagreed on both counts, concluding that the stop was reasonable and that the motorist's rights were not violated by the recording. The call was made in a public place in the station and knew that police might be listening, the court reasoned.

The idea that police may be recording their conversations with clients is sure to rile criminal defense lawyers -- particularly those used to taking late night calls from DWI clients asking for advice. However, the three-judge panel was unanimous in that part of its decision.

The case did generate a dissent on the former issue however. Judge Arlen Beam was not happy with the idea of police having the ability to stop someone who had just gotten back on the road and had not yet shut his hazard lights off. Beam viewed the motorist as just being cautious and having done nothing meriting being pulled over. He accused the majority of turning state law "on its head" and of taking a position that "defies common sense."

While such pointed attacks are relatively rare in a dissent, rarer still is it when the majority responds by lobbing a shot back. Responding to Beam's criticism of his decision, Judge Steven M. Colloton wrote:

"We think the alternative interpretation of the statute apparently endorsed by the partial dissenting opinion -- that highway drivers may use flashing lights whenever accelerating from reasonable and prudent speeds below the maximum (say, 50 to 54 miles per hour) up to the speed limit of 55 miles per hour -- more nearly 'defies common sense' than does ours.

In other words, "I'm rubber and you're glue, your words bounce off me and stick to you."

Denny Crane seeks relevance

Perhaps I shouldn’t admit it, but I’m a fan of Boston Legal -- ABC’s legal drama (although I hesitate to actually call it a drama) that follows the professional and personal lives of attorneys at the law firm of Crane, Poole & Schmidt. This week’s show had an interesting story featuring one of the firm’s senior and founding partners, Denny Crane.

Denny (skillfully played by William Shatner, right) apparently is in the early stages of Alzheimer's disease and rarely handles legal matters on his own anymore. Nonetheless, Denny was bound and determined to first-chair a high-profile murder trial, representing a woman who’d hit her husband in the head with a shovel in broad daylight. While Denny’s law partner -- and best friend -- Alan Shore (James Spader) is a brilliant criminal defense attorney, Denny didn’t want him to have anything to do with the trial. He simply didn’t want any interference in his quest to be relevant again. Alan did confront Denny, however, expressing his concern that Denny would “embarrass” himself if he proceeded with the case without help.

The show brought to mind a number of interesting ethical questions. What do you do when your law partner insists on handling a matter he or she is unfit to handle? Is concern over your partner being “embarrassed” the only reason to question the representation? And how do you know when your own health has made it impossible to adequately represent clients anymore? Should law firms have a mandatory retirement age?

I don’t have the answers, but I think the show would make a great starting point for a discussion of these issues in a CLE program.

By the way, Denny somehow managed to secure an acquittal. You’ve got to love the wonderful world of television!

Thursday, January 17, 2008

Ex-AGs offer tips at HCBA lunchtime panel

I just attended an interesting CLE program sponsored by the Hennepin County Bar Association entitled: "What to do when the Attorney General comes calling" (or "comes a' knockin," as I like to say.)

The panelist were two ex-AGs -- Mike Hatch (left) and Warren Spannaus. The lunchtime panel was fairly well attended; many of those there were in-house lawyers curious if they could pick up any tips as to what they could do to keep AG Lori Swanson from kicking in the door to their company. Hatch handed out a nice sum-up packet on the letterhead of his new firm, Blackwell Burke.

Hatch's advice included the following tips on how NOT to respond to the AG's Office:
-- Don't go in and talk about politics;
-- Don't engage in threats or personal attacks;
-- Don't be condescending;
-- Avoid histrionics and "righteous indignation"; and
-- Never be the tallest nail on the board -- in fact, scrunch down if you can.

Illustrating the last point, Hatch offered the following example in his materials:

"A lawyer took it upon himself to get in my face after a Congressional Hearing in which I testified on an issue, although I didn't name his company. After his outburst, I asked [the lawyer] which company he represented. Guess what company in that particular industry got sued?"

Always look at the bright side of life

Local attorney Kathleen Flynn Peterson garnered a mention on DC Dicta, the national blog of our sister publication, Lawyer USA. Peterson, as president of the American Association for Justice, provides a response to the U.S. Supreme Court's recent Stoneridge decision. (See "U.S. Supreme Court turns back 10(b) action" on this blog.)

Believe it or not, the AAJ reports being "encouraged" by the decision -- primarily because of its narrowness. Just goes to show, no matter how bad you think things are, they could be worse. In any event, click here for more from DC Dicta.

Wednesday, January 16, 2008

Litigating for 'Peanuts?'

I just got around to reading "Schulz and Peanuts: A Biography" by David Michaelis. I would highly recommend this meticulously researched view of Charles Schulz, the genius of the funny pages who, as our readers well know, hailed from right here in Minnesota.

There aren't a lot of lawyers in the book. There is reference to his highly public divorce (It won't be for "Peanuts," one radio commentator quipped at the time.) And, of course, there is a lot of copyright law floating in the background -- though no juicy IP disputes mentioned in the book. ("Rats!" as Charlie Brown would say.)

I suspect if a Schulz clone started something similar today it would spawn plenty of work for lawyers -- particularly given that Schulz based the names and characteristics of many of the characters on real people he knew. You'd probably have to add to each strip one of those lengthy disclaimers stating any resemblance to any real people is strictly coincidental -- completely ruining the comic flow. ("Good grief!")

In any event, I was trying to figure out which "Peanuts" character was the most likely to grow up to be a lawyer. I would have to give it to Lucy -- assuming that whole psychiatry thing doesn't work out for her. With the speed with which she charges Charlie Brown a nickle for her advice, she definitely has the concept of the billable hour down pat.

Article explores ups and downs of county attorney Backstrom

In case you missed it, Tuesday’s Star Tribune had an interesting article about Dakota County Attorney Jim Backstrom. Many of us know Jim not only as a tenacious prosecutor, but also as an engaging fellow who likes to spring his notorious Elvis impersonation on unsuspecting audiences.

But not everyone knows about the life experiences that have driven Backstrom in his work, including a sometimes less-than-idyllic childhood and the trauma of the 1992 Corinne Erstad case.

We at Minnesota Lawyer can say we knew him when: Backstrom was a Minnesota Lawyer Attorney of the Year in 2002, and he’s contributed several interesting commentary pieces to our newspaper over the years.

Tuesday, January 15, 2008

Larry Craig and the ACLU -- Best Friends for Life?

In what can only be described as a case of very strange bedfellows, the American Civil Liberties Union has filed a brief supporting Idaho Republican Senator Larry Craig’s petition to withdraw his guilty plea.

The ACLU argues that “[c]onvicting someone of a crime on the basis of conduct which may not be made a crime is a manifest injustice if anything is.” The senator should be allowed to withdraw his plea to correct this injustice, the ACLU says.

Johnson to leave Council on Crime and Justice, resume law practice

After nine years as president of the Council on Crime and Justice, Tom Johnson has announced that he is leaving the post and resuming his law practice at Gray Plant Mooty effective March 1.

"Being at the Council has been a wonderful experience; one that I have enjoyed each and every day for the past nine years," Johnson said in an e-mail announcing his plans. "For this I extend my heartfelt thanks to the Council’s committed Board of Directors, to its hard-working and talented staff, and to all of you who have helped the Council shed a brighter, more informed light on the causes and consequences of crime and violence."

U.S. Supreme Court turns back 10(b) action

Securities-fraud types have been awaiting the U.S. Supreme Court’s decision in Stoneridge Investment Partners v. Scientific Atlanta, and today the court 5-3 affirmed the 8th U.S. Circuit Court of Appeals in finding no private cause of action under Rule 10(b) of the Securities Exchange Act of 1934 for investors who were victimized by an apparent fraud.

In the absence of proof of reliance upon a plan to prop up stock prices, investors can’t sue third parties to the fraud who made misstatements because the statute does not extend to aiding and abetting liability and the misleading financial statements were not made public, the court found. The court rejected petitioners’ theory of “scheme liability,” which would allow them to rely not only on financial statements, but on the market transactions those statements reflect. If that rule were to be adopted, the Rule 10(b) action would reach the entire market in which the issuing company does business, the court said.

Justice Anthony Kennedy was joined in the majority by Chief Justice John Roberts Jr. and Justices Antonin Scalia, Clarence Thomas and Samuel Alito. Justice John Paul Stevens wrote the dissent, joined by Justices David Souter and Ruth Bader Ginsberg. Justice Stephen Breyer recused himself.

Monday, January 14, 2008

Blogs, dogs, Beatles and the law

There is a quirky (relatively new) blog in cyberspace called "Who Am Us Anyway?" that purports to pertain to music and dogs. Among the "mandatory chords" listed on the blog for the musically inclined are: the Clash, the Dead, Bob Dylan, the Kinks, the Ramones and the Stones.

Why do I mention the blog here? It happens to be run by a local lawyer. I did get a kick out of his post describing his pilgrimage in New York to honor some Beatles memories. And, oh yes, true to his word, the author also squeezes a dog into the story.

You'll have to excuse me if I don't have a good wrap up for this one, but it's been a hard day's night, and I've been working like a .... well, you know ...

Sunday, January 13, 2008

Letting federal judges do what we pay them to do -- Think!

Minnesota Lawyer published an article this week on how the recent loosening of some of the shackles placed on judges by the federal sentencing guidelines might impact things here in Minnesota. (See "Local federal judges now have more breathing room in sentencing.")

Minnesota has long been at the epicenter of a struggle over how much authority the federal judiciary should have in imposing sentences. Who can forget the constitutional crisis occasioned five years ago when a congressional committee attempted to delve in to the sentencing practices of local U.S. District Court Judge James Rosenbaum? The committee attempted to subpoena the records of cases in which Rosenbaum issued downward departures after Rosenbaum voluntarily testified before the committee advocating greater sentencing discretion for judges. (Click here for more background on this dispute.) The Inquisition-like tactic ignited a firestorm of controversy. The separation-of-powers doctrine was explicitly created to prevent such ham-handed attempts by one branch of government to intrude on the prerogatives of another.

As the Minnesota Lawyer article points out, the U.S. Supreme Court has been moving in the direction of giving judges more discretion to deviate (both upward and downward) from the sentences contained in the guidelines. The high court last month went as far as to strike down caselaw in the 8th Circuit making it extremely difficult for judges to deviate.

To me, it's just common sense to give judges meaningful sentencing discretion. The sentence an offender deserves is highly fact specific. While I think both judges and society in general benefit from guidance to make sure there is some overall consistency, that "guidance" should not handcuff judges by becoming virtually unbreakable rules. There will be cases when a harsher penalty is called for -- and cases where a more lenient sentence is called for. Judges should not have to jump through extraordinary hoops to deviate from the guidelines. We appoint our best legal minds to the federal bench, so why not let them actually use those minds? If we are not going to give judges any real discretion, we might as well develop a software program to impose sentences -- it would be a lot cheaper. But I, for one, would rather have a human being make those decisions after hearing all the facts. It's good to know that the U.S. Supreme Court apparently agrees with me.