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Jul
2
Kudos to Overlawyered
Filed Under Blogging | Leave a Comment
I’d like to extend my belated congratulaions to Walter Olson and the crew at Overlawyered on their 1oth anniversary which, I understand, was yesterday. Overlawtered is generally acknowledged as the first legal blog ( or blawg, as some misguided souls insist). After 10 years its still must reading, thanks in large part to Walter Olson, its driving force. Congratulaions, friends!
Mar
17
Fumo Guilty
Filed Under Philadelphia, Political cases, White collar defense | Leave a Comment
Former Pennsylvania State Senator Vince Fumo was convicted yesterday on all 137 corruption related charges in which he had been indicted. The Philadelphia Inquirer has a lengthy story regarding the verdict that can be found here. I am not surpised that umo was convicted, although I am slightly surprised that he was convicted on ALL counts. While Fumo appears to have some viable appellate issues, I would be stunned if his motion for a new trial were to granted, and even more stunned if the Third Circuit were to overturn the conviction. Bottom line is that Vince will almost certainly end up doing prison time. The Inquirer story indicates that prosecutors are expected to seek a sentence in the range o 10 years. I haven’t done the math, but I expect that 10 years might be a little below the guidelines range. Nonetheless, I would anticipate that the judge would impose a sentence of something less than that. More to come on this one.
Jan
8
Evidently the chairman of America’s most august law firm agrees with me. In an essay published in the December 25, 2008 issue of Forbes, Evan Chesler, the managing partner at Cravath Swain & Moore, essentially calls for the end of hourly billing. While I find certain particular points in Mr. Chesler’s piece either silly (such as his referring to himself as a “trial lawyer”) or disputable (its not clear to me, for instance, that the billing regimen that Mr. Chesler endorses is really all that radical a departure from the hourly billing), I appluad his willingness to embrace new ways of thinking about fees. As I have said previously, hourly billing is pernicious in that it creates incentives for lawyers that are in direct conflict with their clients’ interests, i.e., the cost efficient resolution of their problems. Alternative fee arrangements, including contingent or partial contingent fees, flat fees with success premiums and the like, bring the lawyers’ incentive structure more into line with the client’s interests.
Aug
12
Who Is More Dangerous?
Filed Under Sentencing, White collar defense | 1 Comment
The man on the right is Salim Ahmed Hamdan. He was Osama bin Laden’s driver. He was convicted of materially aiding terrorists. He was sentenced to 5 1/2 years in prison. The man on the left is Jamie Olis. He was an accountant for Dynergy Corp., and was convicted of materially aiding activities that were later determined to be “fraudulent tax planning.” He was sentenced to more than 24 years in prison (reduced to 6 years – still 6 months more than bin Laden’s driver – after appeal). Tell me, who is more dangerous. And what do these two sentences tell us about the priorities of our justice system and our political classes. Free Jamie Olis!
Aug
7
Bad News For Fumo
Filed Under Philadelphia, Political cases, White collar defense | Leave a Comment
Another of State Senator Vice Fumo’s former aide’s has agreed to plead guilty and testify against their former boss. Looks like the rats are deserting the ship – with emphasis on the word rat. The Philly.com has the story:
In another blow to State Sen. Vincent J. Fumo, a computer technician who prosecutors said carried out an electronic cover-up for Fumo has agreed to plead guilty and is expected to testify against his former boss.
Leonard P. Luchko, 51, who worked in Fumo’s South Philadelphia office, is scheduled to plead guilty on Monday before a federal judge, according to a document filed yesterday in U.S. District Court.
Luchko and another computer technician are charged with systematically deleting e-mails and other potential evidence from computers used by Fumo and Fumo aides as well as by staffers at a key nonprofit organization that figured in the federal investigation.
The cleansing of the computers was allegedly done at Fumo’s behest and for the sole purpose of thwarting the federal investigation into Fumo’s activities.
Fumo, 65, a Philadelphia Democrat who has been a political powerhouse for decades in Harrisburg, is to stand trial in a sweeping corruption case starting next month.
He is accused of defrauding the state Senate and two nonprofit groups, misusing their employees and money for personal and political advantage. He is also charged with staging a cover-up to obstruct the FBI and IRS investigations.
Luchko is the second new prosecution witness to emerge in the months leading up to the trial before U.S. District Judge William H. Yohn Jr.
In June, political consultant Howard J. Cain, for years one of Fumo’s closest confidants, pleaded guilty to tax evasion and agreed to testify against Fumo.
Another computer aide in Fumo’s office, Donald Wilson, has been cooperating with federal prosecutors since before the indictment. He, too, is on the prosecution’s witness list.
James C. Schwartzman, a longtime friend of Fumo’s who is representing Luchko, did not respond to e-mail or phone messages. Fumo’s lead defense attorney, Dennis J. Cogan, would not comment about Luchko’s decision to plead guilty.
Assistant U.S. Attorneys John Pease and Robert Zauzmer also declined to comment about the scheduled guilty plea.
Luchko and a second computer technician, Mark C. Eister, were charged with leading an effort to cleanse computers used by Fumo, his staff, and workers at Citizens’ Alliance for Better Neighborhoods, a civic nonprofit organization funded with millions of dollars through Fumo’s efforts. Eister is awaiting trial with Fumo. His lawyer, Brian P. McMonagle, could not be reached for comment.
According to the federal indictment, the effort began in earnest Jan. 25, 2004, after The Inquirer reported that the FBI was investigating Fumo.
“The FBI probe into the Senator has really set him off. . . . He wants all the Blackberries wiped,” Luchko wrote in an e-mail to Eister that evening.
Even as Luchko and Eister worked assiduously to clean others’ computers, they failed to cleanse their own, an oversight exploited by the FBI to obtain copies of hundreds of e-mails.
In those messages to other staffers and Senate contractors, Luchko repeatedly cited demands from “the Boss” that potentially damaging e-mails be deleted.
“Mail from the Boss needs to be deleted!” Luchko wrote to one Senate contractor. “. . . You really have to clean your mailbox up this is the kind of s- that can get us in trouble.”
In another, Luchko boasted about his ability to outwit the FBI, saying investigators could never extract data from a particular Citizens’ Alliance computer.
“Good Luck to them because they are going to need it,” Luchko wrote. “They aren’t getting s- off that PC.”
In the e-mails, Luchko portrayed Fumo as absolutely determined to have the staff’s computer cleansed.
“The Boss is driving us ALL nuts with this FBI madness. . . . Life just got so complicated it isn’t even funny and the killer is I can’t tell anyone about it.”
Now, it appears, Luchko is talking about it, to prosecutors.
Might not look good for Fumo, but I still wouldn’t bet against him. Dude has more than nine lives.
Source: Philly.com
Jun
5
Broadcom Case Gets Weird
Filed Under Backdating, Drug Offenses, Prostitution | Leave a Comment
The New York Times reports that former Broadcom CEO Henry Nicholas has been indicted on optionsbackdating related charges and, in a separate indictment, charged with various drug related charges. In the “drug” indictment, Nicholas is accused of purchasing, using and selling illegal drugs, spiking associates’ drinks with drugs, hrinig prostitutes for himself and business associates, and supplying the prostitutes with drugs, and assorted other offenses.
Jun
5
Anyone who has had the experience of trying to get a judgment enforced in Philadelphia, or has had dealings with the Philadelphia County Sheriff’s Office for any reason, cannot possibly be surprised by the following article, which will appear in tomorrow’s Wall Street Journal, detailing Philadelphia Sheriff John Green’s refusal to perform his duty and conduct auctions on foreclosed properties:
Sheriff John Green has spent 37 years in law enforcement. But these days he’s best known around town for the law he won’t enforce.
With the economy soft and thousands of Philadelphians delinquent on their mortgages, Sheriff Green this spring refused to hold a court-ordered foreclosure auction. His move raised eyebrows on the bench and dropped jaws among lenders and their attorneys, who accuse him of shirking his duty to enforce legal contracts.
It also prompted a sweeping, court-endorsed deal, scheduled to go into effect next week, that aims to help homeowners avoid foreclosure. Even as Congress moves forward with a federal plan that could insure up to $300 billion in refinanced mortgages, Mr. Green’s unilateral approach has pushed Philadelphia to the leading edge of local responses to the national crisis.
“More of our neighbors, our families and our friends are falling behind on their mortgages and losing their homes” to foreclosure, the 60-year-old Mr. Green writes in a “Declaration of Neighborhood Stability” on his Web site, www.phillysheriff.com1. “My staff and I watch the suffering every day and witness the heart-wrenching scenes as families lose their primary means of wealth-building and face eviction.”
Mr. Green’s 241-person sheriff’s department is the armed wing of Philadelphia County courts, charged with transporting prisoners, securing courtrooms and auctioning off foreclosed properties at sheriff sales. In a city beset by poverty and crime, Mr. Green has emerged as an unlikely blend of lawman, politician, spiritual leader and social worker.
Desperate Homeowners
A dozen or more desperate homeowners appear in the sheriff’s lobby each day, seeking solace and counsel from Deputy Sheriff’s Officer Marquette Parsons, who sits at the front desk wearing blue and packing a sidearm. “This is the end of the line,” Mr. Parsons says. “They have to face reality now, because they’re facing a sheriff sale.” Mr. Parsons helps homeowners understand documents they’ve received from the court and advises them how to reach housing counselors. Sometimes he’ll contact the lender’s attorney to mediate a misunderstanding. The sheriff runs ads in local papers urging people to take “Sheriff Green’s Important Steps to Saving Your Home.”
Mr. Green, a police sergeant when he was elected sheriff in 1987, has a politico’s eye for his job. Last month, he presented a commendation for valor to an officer who was robbed at gunpoint while sitting in a barber’s chair and wounded one thief in the ensuing firefight. Standing next to the taller officer for the photo opportunity, Mr. Green hiked himself onto his toes. “Just one second,” he said. “I’m going to become a politician.” Everyone laughed. But he stayed on his tiptoes until the photographers finished their shots.
The sheriff says his political life merges with his religious calling. “Everything you do is part of your faith,” he says. For the past 20 years, Mr. Green, who is married and has six children, has hosted an annual prayer breakfast that has become a see-and-be-seen event for the city’s political elite.
The 80-page program from this year’s breakfast is jammed with paid congratulatory ads from businesses and unions, clergymen and subordinates, office holders and office seekers. “When the righteous are in authority, the people rejoice,” wrote one pastor, quoting the Book of Proverbs.
‘Stop the Bleeding’
The sheriff first made his mark in the foreclosure issue in 2004, when he noticed a spike in the number of delinquent properties the court was ordering sold. He postponed one month’s auction and then went to Judge Annette Rizzo of the Court of Common Pleas seeking to legalize the move.
“We have to stop the bleeding,” the judge recalls the sheriff saying in a courtroom crowded with worried homeowners. The sheriff says he doesn’t remember making such a statement.
“Really what he did was not legal,” Judge Rizzo says of the sheriff’s decision to stop the auction.
During a recess, she summoned the lenders’ lawyers, the sheriff, consumer advocates and the city solicitor into the back room. She asked them to form a committee to determine which individual homeowners deserved a delay, aid through existing government programs, or just a graceful exit from their house. But she declined to order a blanket moratorium on sales.
In 2007, the foreclosure wave began to swell again. Because Philadelphia didn’t experience a big run-up in home prices, it isn’t in as bad shape as hotter markets in Florida and Nevada. Nonetheless, foreclosure filings in the city rose to 6,237, from 5,288 the year before. Early this year, approximately 1,000 properties a month were going on the block at the sheriff sales, according to the sheriff’s office.
The trend caught the attention of Curtis Jones Jr., who had won a seat on the City Council a few months earlier and was eager to make a splash. He teamed up with consumer advocates and a senior colleague, Councilwoman Marian Tasco, to write a resolution calling on the sheriff and the Court of Common Pleas president judge, C. Darnell Jones II, to impose an indefinite moratorium on foreclosure sales.
On March 27, in its gilt-and-green chambers, the City Council unanimously voted its approval. It was a nonbinding resolution, more of a political statement than a practical one.
But as the council meeting moved to other matters, one of the sheriff’s senior aides phoned Mr. Green to tell him the resolution had passed. The sheriff decided on the spot to postpone the next sale and go to court seeking a longer moratorium. The aide relayed the decision to Councilwoman Tasco, who interrupted the meeting with the news. Housing advocates and their allies in the audience broke into applause.
“We knew [Sheriff Green] would do that,” Ms. Tasco told the council. “He cares about the citizens of Philadelphia.”
Mortgage lenders, servicers and their attorneys thought Mr. Green was acting more Robin Hood than sheriff. “It’s not his job to postpone things in favor of certain people,” says Michael VanBuskirk, a Philadelphia attorney, who describes the city as a “legal free-fire zone.” The city, he says, is “less attractive to business if you can’t be certain that the sheriff won’t invalidate a contract.”
Mr. Green and Judge Jones are casual golfing buddies. Still, Judge Jones warned the sheriff at a meeting soon after the announcement that a blanket moratorium on the sales was “unwise and more-likely-than-not illegal.”
Mr. Green says he never considered the legality of his decision to halt foreclosure sales. His aides say he is being cagey and that he saw himself as a catalyst to get the court to take action.
People Are the Law
“It’s not the sheriff’s job to sell houses,” says Deputy Sheriff’s Officer Paris Washington, a veteran of the department and its head of training. “It’s the sheriff’s job to serve the people who elected him. Because he was elected by the people, he has to listen to the people. Aren’t the people the law?”
In closed-door negotiations in April with lenders’ attorneys and housing advocates, Judges Jones and Rizzo worked out a streamlined process intended to make loans more affordable for delinquent borrowers who live in their houses.
Such homeowners are entitled to a free lawyer at court-supervised conciliation sessions with their loan-servicing company. Housing counselors are lined up to help assemble financial information to enable servicers and their lawyers to assess borrowers’ ability to pay. The lenders are under no legal obligation to reduce principal or interest, but they face strong pressure to make allowances.
Michael McKeever, a partner in Goldbeck, McCafferty & McKeever, says that his clients — large loan servicers and investors — welcome the court initiative’s potential to help borrowers resolve their debt problems. This week Mayor Michael A. Nutter offered $1 million to finance borrowers’ attorneys and counselors.
To give the plan a chance, Judge Jones ordered that sheriff sales on such owner-occupied properties be suspended at least through next month. The foreclosure wave “is a problem,” the judge says. “Is there a way we can do this in a way consistent with the law?”
Mr. Green downplays his own role. “All I did was provide enough time for a solution to develop, which was the easy part,” he says.
Source: The Wall Street Journal
May
27
Boy Scouts Sue City of Philadelphia
Filed Under Philadelphia | Leave a Comment
The Boy Scouts of America’s Philadelphia chapter has sued the City of Philadelphia in federal court to block the city’s May 31 deadline for the scouts to open membership to gays and atheists, or vacate their historic 1928 headquarters off Logan Square.The civil rights lawsuit, filed Friday in federal court in Center City, contends that the city’s ultimatum violates the scouts’ rights under the U.S. and Pennsylvania Constitutions.
“The City has imposed an unconstitutional condition upon Cradle of Liberty’s receipt of a benefit that Cradle of Liberty has enjoyed for nearly eight decades, and that many other organizations that limit members or services to members of a particular group continue to enjoy without punishment or the threat of punishment,” the scouts’ lawsuit reads.
City Solicitor Shelley R. Smith said the city would respond to the federal lawsuit and would likely file an eviction motion next week.
In the meantime, Smith added, the beginning of litigation would preserve the status quo pending a court ruling. Until that ruling occurs, Smith said, the scouts will be able to continue using the headquarters building.
The suit asks the court to permanently block city officials from attempting to evict the Scouts from their building, which sits on a half-acre of city land at 22d and Winter Streets.
The Cradle of Liberty Council’s predicament is one that has faced local scouting councils nationwide since a 2000 U.S. Supreme Court case the scouts won.
The national organization appealed the ruling in a suit filed by an openly gay New Jersey scout barred from serving as a troop leader.
Scouts must swear an oath “to God and my country” and to “obey the Scout Law” that includes keeping oneself “physically strong, mentally awake, and morally straight.”
In 2000 the Supreme Court ruled 5-4 in Boy Scouts of America v. Dale that the scouts are a private group and thus have the right of “expressive association” under the First Amendment to set their own membership rules.
The legal victory was short-lived as municipal officials nationwide began reexamining longstanding relationships with local scouts. Unlike the scouts, local public officials were bound by another line of Supreme Court opinions that barred taxpayer support for any private group that discriminates. Other mainstream supporters, such as United Way, also dropped them.
Last October, after several years of sporadic talks between city and council, the city imposed the May 31 deadline: Change your membership rules, vacate the building, or pay a fair market rent of $200,000.
The scouts have maintained that they cannot change their membership policies without being ejected by the national scout organization and cannot afford the rent.
Source: Philly.com
May
20
More Scaliapalooza
Filed Under Law practice, Legal Writing | Leave a Comment
Justice Scalia and Bryan Garner gave an interview recently to the ABA Journal in which they discuss their new book, “Making Your Case: The Art of Persuading Judges,” and advocacy, both written and oral. You can view the full transcript of the interview on the ABA Journal’s website via this link. Regardless of whether you agree with Justice Scalia’s judicial philosophy or not, he is perhaps one of the finest legal writers of this generation, or any other, and his thoughts on effective advocacy are compelling. I highly recommend that you read both the ABA Journal interview and “Persuading Judges.”
Apr
12
Scalia Takes Questions From VA High School Students
Filed Under Miscellaneous, Supreme Court, Uncategorized | Leave a Comment
On this weekend’s installment of C-SPAN’s “America and the Courts” Justice Antonin Scalia spoke to and took questions from a group of high school students from Virginia (you can view the program at this link for a limited period of time). I highly recommend that you take a look if you have any interest in the Supreme Court.