Attorney Find Blog

I was always that kid who ruined all the fun.  You know the one I’m talking about—the one who remembered that driving drunk could get you killed or that climbing on the roof at midnight might be dangerous.  The one who said, “Um…that’s illegal” just when someone came up with a really good plan to have some fun or make some money.

Those issues don’t arise so much in my life these days, so I’d like to thank Adrian Martinez and Morusa Media for once again giving me the opportunity to say, “Um…that’s illegal.”

Martinez is the creator of the as-yet-unsigned-but-already-infamous television show “Who Wants to Marry a U.S. Citizen?”  There’s been a lot of fuss and controversy already:  does this exploit immigrants?  Is Martinez attempting to cash in on the immigration conflict?  Does the show’s premise take advantage of desperate people in difficult circumstances?

All valid concerns, but I really just have one thing to say:

Um…that’s illegal.

As you probably know, marrying someone simply to obtain (or confer) U.S. citizenship is a crime.  And marriages between U.S. citizens and non-citizens are scrutinized pretty carefully before citizenship is granted—especially when there are red flags like…oh…just for example…WINNING YOUR SPOUSE ON A TELEVISION SHOW.

I’m just guessing, but it seems possible to me that the reason no network has jumped to pick up the program is that network execs are a little hesitant to face criminal charges.  Just speculating.

With a little research, the whole thing just gets curiouser and curiouser.  A recent press release refers us to a website with the questionable URL “hookacitizen.com”.  Though the press release calls this the show’s website, it’s actually just a single page that disclaims a bunch of stuff (apparently, I’m not the first to raise the possible legal issues) and then provides a link for those needing more information about Immigration law.

That link goes to an Alabama law firm.

My first thought was that the concept had somehow been hijacked, but no…”hookacitizen.com” does seem to be registered to Adrian Martinez, the show’s creator—with a California address.  So does “immigrantlove.com”, which displays the same single-page disclaimer and link to the same Alabama law firm.

I said “curiouser and curiouser” already, right?  I’m beginning to think the real entertainment has nothing to do with the show.

1993’s Family and Medical Leave Act took an unprecedented step in the United States by ensuring that employees–at least, those working for companies with 50 or more employees–could take up to 12 weeks unpaid leave for medical or family needs without losing their jobs.  The flaw in the plan, of course, was that many American workers simply can’t take that kind of time off work and survive.  While the promise of a job to return to after illness or family crisis is very important, it’s meaningless in a practical sense if the employee has no means to take that time off and still pay the rent and put food on the table.

Now, Senators Ted Stevens (R-Alaska) and Chris Dodd (D-Conn) have introduced a bill that would establish mandatory insurance coverage for up to eight weeks of paid leave in such circumstances.  In its current form, the bill provides for a sliding scale benefits, so that those at the lowest end of the income spectrum would receive full salary, while those at the higher end would receive only a percentage.

Dozens of other countries guarantee paid paternity leave and paid time off for parents with sick children, and more than 150 countries already guarantee paid leave for women for childbirth.

Back in April, a blogger named Kristen over at The Mom Trap accidentally stole a duck from The Gap.  Now, personally I think that she should have returned it or paid for it…it seems to me that there’s a certain clarity and consistency to the idea that if you take stuff home from the store, you pay for it.  All in all, though, it wasn’t that much to get up in arms about.  I think it says something about a person’s character if she opts to keep something she hasn’t paid for, but the world is full of shades of dishonesty, and on the scale this isn’t a very dark gray at all.

Or at least, it didn’t look that way to being with.  For some reason, though, the blogging world has been buzzing about this duck for two months, and the overwhelming concensus has been that Kristen should keep the duck, should not pay for it, and should not be at all troubled by the “holier-than-thou” folks who for some reason believe that you should pay for what you take home from the store.

There’s been a lot of dismay voiced about how “worked up” people are getting about an inadvertantly stolen duck, but I don’t think that’s what people are worked up about at all.  I think people are worked up about the justification, the cheering, and the general sense that there’s no real reason to worry about paying for what you took home.  That perspective is much bigger than a stolen duck.

The controversy has grown to the point that tonight, Blog Talk Radio will be hosting a discussion of the “issue”.

I’m not especially interested in hearing people re-hash the ethical issues, which are fairly clear to me.  I am, however, interested to hear the analysis of the legal issues (which are equally clear to me).  A very popular “mommy blogger” who goes by the handle “LawyerMama” has been asked to serve as an “expert”, and I’m very interested to hear what she has to say.

You see, ethical issues and the relative importance of a $6.50 (or maybe it was $6.95–witness accounts vary) duck from The Gap aside, I’ve been utterly unable to come up with any LEGAL justification for keeping the duck.  Since I practiced criminal law, I have a bit of experience  working up legal justifications for questionable behavior, and in this case, I think my best approach would be to minimize, to paint a sympathetic picture of my client as a harried mother who just hadn’t realized.  That’d be a tough sell after she’s spent two months polling the internet community about whether or not she should keep the duck.

If LawyerMama has a legal argument as to why it’s okay to keep the duck, I’m very interested to hear it.  And if she doesn’t–well, then I’m very interested to find out whether she’ll risk sanctions from the bar association by encouraging a disregard for the law.  I don’t know that Kristen could rightly be called a “client” or what LawyerMama is offering legal advice, but if I were in her shoes, I’d be a little uneasy.   How does a lawyer justify proudly posting a “keep the duck” icon on her website when, so far as I can assess, there’s no legal justification for keeping the duck?  Even assuming this can’t be construed as advising a client to violate the law, what about the appearance of impropriety?

The law does vary–and so do ethical guidelines–from state to state, and my reading of her other posts indicates that LawyerMama is an intelligent woman, so I’m virtually certain that she wouldn’t be risking legal sanction to publicly take the “keep the duck” position without some kind of legal theory to support her advice.  I’m eager to hear what it is.

The attorney for a plaintiffs’ class reached a settlement agreement with Sears Roebuck and Co. whereby the attorney, Gary K. Shipman, would receive $1.1 million, while the plaintiffs would get less than $3,000 in cash and coupons. Fortunately, a North Carolina court stepped in to stop this grossly unreasonable settlement.

Not only did Shipman and Sears come up with this agreement, they apparently tried to hide it from the North Carolina court by going to Illinois to have it approved by a court. While lawyers are generally ethical, an unfortunate handful of high profile attorneys give the rest of us a bad name.

Because a ruling in a class-action applies to all potential class members, Federal and State Courts have rules requiring the class’s attorney to find class members, keep them informed at all stages of the case, and provide them an opportunity to opt out the case. Here, the attorney allegedly didn’t try to find class members, did not keep those he found informed, and tried to hide the final settlement.

After an Illinois judge approved the settlement, following a hearing where Shipman and Sears misrepresented the case, claiming there could be 1,500,000 class members (only 337 were found), the North Carolina court stepped in. The Court declared it would not be bound by the Illinois approval of the settlement, dismissing the case in a way that would allow the plaintiffs to bring the case again, hopefully without needing protection from unethical attorneys.

I would expect the lawyers will take this matter to the Federal courts to argue whether a North Carolina court can overrule the Illinois court’s judgment.

Anna Nicole Smith and the people around her have been involved in more legal issues than the typical attorney of late–tens of millions of dollars were at stake even before Smith’s death; her estate claim made it all the way to the United States Supreme Court, but still hadn’t been resolved at the time of her death. Despite the hundreds of millions of dollars in her late husband’s estate, there’s a bankruptcy claim involved, too. And now, after Anna Nicole’s untimely but unsurprising death, a startling percentage of the nation has been waiting with bated breath to find out who fathered Dannielynn, Anna Nicole Smith’s 7-month-old daughter. The baby has been living with Howard K. Stern, Smith’s companion and former attorney, who is listed as the father on Dannielynn’s birth certificate. However, DNA tests today revealed that Larry Birkhead is Dannielynn’s natural father. The legal battles are far from over, however. Smith’s late husband’s family continues to fight the inheritance that Smith claimed during her lifetime and that would now pass to Dannielynn, and no ruling has been entered regarding custody of the child.

A newswire story this week indicated that several Vanderbilt University students had been notification that they’d been targeted as defendants in lawsuits by EMI Music, SONY BMG Music Entertainment, Universal Music Group, and Warner Music Group.  Then, the Recording Industry Association of American (RIAA) offered the students a surprising option–visit a website and settle your claim online.  Yep, settle the claim online.  I visited the website, and the front page offers two options–you can visit a page of Frequently Asked Questions about the lawsuits, or you can click to settle your claim online using a major credit card.

The FAQ page encourages visitors to settle their claims by suggesting, among other things, that:

• The settlement amount is generally lower if the case is settled before the record company incurs litigation expenses;
• Ignorance of the law is no excuse;
• It’s too late to fix the situation by deleting files or declining future participation; and
• You can still be identified even if you used a wireless connection.

RIAA even points out that if you’re over 18 and you settle before a lawsuit is filed, it’s your choice whether or not to tell your parents that you’ve been involved.  However, once a lawsuit is filed naming you as a defendant, it becomes a matter of public record.

The site offers the possibility of payment plans for those who can’t afford a lump-sum settlement, but warns that there will be additional fees to cover the “administration costs” of the plan.

In 1969, the U.S. Supreme Court made a significant ruling with regard to the 1st amendment rights of students.   That landmark decision protected 13-year-old Mary Beth Tinker’s right to wear a black armband to school as a protest against the Vietnam War.  Political speech like Tinker’s protest is, of course, precisely what the 1st amendment intended to guarantee, and enjoys elevated protection when compared to other types of speech such as commercial speech.

Thus, the Tinker case isn’t entirely analogous to the case before the U.S. Supreme Court now–a case in which Joseph Frederick is fighting for his right to…unfurl a “humorous” banner reading “Bong Hits for Jesus” across the street from his high school in Juneau, Alaska.

There’s an interesting analysis of the case–and what it says about the state of our society–at www.firstamendmentcenter.org

Lewis “Scooter” Libby was convicted yesterday of perjury and obstruction of justice. While Libby’s attorneys immediately requested a new trial and indicated plans for an appeal if a new trial was not granted, and publications like The National Review decried the verdict and the process that led up to it, those who support Libby’s conviction are no happier.

Special Counsel Patrick Fitzgerald has indicated that no additional charges will be filed, although even the Libby jury reportedly stated that Libby wasn’t in this alone. The lack of charges relating to the real issue at hand–whether or not CIA agent Valerie Plame was intentionally “outed”–inspired strong reactions from an unlikely combination of officials. Senate Majority Leader Harry Reid apparently called for a commitment from the White House not to pardon Libby just moments after the conviction was announced, and former CIA officials have been quoted expressing relief at the conviction but concern that it doesn’t go far enough.

The White House is still declining to comment, classifying the case as an “ongoing criminal investigation” until such time as the appellate process has been exhausted.

After not seeing his wife since her mysterious disappearance in 2002, a Maryland man has sought a divorce, according to a story in the Arbutus Times. D.J. Rust Jr. testified last week in a Howard County Courtroom last week that he had not seen his wife since her disappearance and has no reasonable expectation of reconciliation with her. A judge said that she will recommend that Rust’s divorce request is met and that he gets custody of the couple’s 7-year-old son. Rust could receive his divorce decree by mail in less than a month, according to the judge. Maryland divorce law says that both couples have grounds for divorce after being separated for two consecutive years and having no reasonable expectation of reconciliation.

A Baltimore County detective was at last week’s hearing to follow the divorce proceeding and Rust’s activities. Rust was the last person to see his wife when she disappeared on the day of her son’s third-birthday party and has been the subject of a police investigation ever since. Michelle’s parents last saw their only daughter with her husband and son the night before she went missing, and her father later found her 1998 van empty near an intersection on the day of her disappearance. The parents have said that they think Michelle, who was a diabetic and needed daily medication, is dead, according to the story.

Police determined foul play within months of Michelle Rust’s disappearance, but have not located a body or any of her clothing and jewelry, which when she was last seen included a black V-neck top, white gold cross necklace, diamond engagement ring, and blue sapphire ring. A Baltimore detective assigned to the case said that police will continue to follow the activities of D.J. Rust Jr. until his missing wife is found. Rust and Michelle’s parents declined comments for the story.

Michelle Rust was 24-years-old at the time of her disappearance. She was 5-foot-4 and weighed 140 pounds. Posters describe her as being a blue-eyed white woman with red hair. Police ask people with any information about Michelle Rust’s disappearance to call 410-307-2020.

Last week, the California Supreme Court unanimously rejected a tobacco industry claim that the statute of limitations in tobacco limitations cases should start running when the plaintiff first becomes aware of the addiction. The argument wasn’t unfounded–it has roots in a 2002 9th U.S. Circuit Court of Appeals ruling that has stopped other similar cases over the past several years.

The California Supreme Court ruling opens the door for those and similar cases to go forward. The plaintiffs’ attorneys successfully argued that a plaintiff who discovered him or herself addicted to tobacco couldn’t reasonably be expected to guess the he or she might one day develop cancer or emphysema and file suit. In fact, such claims would likely be dismissed as frivolous, since evidence of any damages would be lacking.

The California Supreme Court ruling provides a green light for stalled tobacco litigation in California.