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9th Circ. Won't Revive Pandora's Anti-SLAPP IP Defense

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Wells Fargo Hit With Class Action Over Alleged Zelle Scams

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Breaking News: Weinstein Conviction Affirmed

The New York Appellate Division for the First Judicial Department has affirmed Harvey Weinstein's conviction. Defendant Harvey Weinstein, a famous and highly successful movie and television producer, was charged with one count of criminal sexual act in the first degree... https://ift.tt/6NenQF2

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CLE Double Billing Draws Suspension

Thursday, June 2, 2022

A recent decision of the Massachusetts Supreme Judicial Court is summarized below

The respondent admitted the factual allegations and disciplinary rule violations charged in the Petition for Discipline. The respondent was a partner in the litigation department of a large national law firm. He organized a CLE conference in April 2019. He worked with the sponsor to prepare for the conference and he arranged for and paid, out of his personal funds, $1,952.85 for wine for the reception. After the conference, the respondent submitted documentation to, and sought reimbursement from, both the conference sponsor and his law firm. Both reimbursed him in full. When the law firm discovered what the respondent had done, it filed a complaint with Bar Counsel. The respondent immediately reimbursed his firm the full amount.

Respondent was suspended for a year and a day.

Reuters reported on his recent employment

Delta Capital Partners Management LLC, a private equity firm focusing on litigation and legal finance, has tapped DLA Piper partner Jonathan Sablone as the newest member of its team.

Sablone, who joined DLA Piper in October 2019 after an almost 25-year run at Nixon Peabody, stepped into his new role this week at Delta as managing director and global director of originations.

(Mike Frisch)

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Curaleaf Sued Again Over CBD Drops Containing THC

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Seyfarth Bolsters Seattle Presence With New RE Partners

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Employer Considerations For Leave Donation Programs

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No Civil Mediation Of Bar Discipline Matters

Thursday, June 2, 2022

The Florida Supreme Court has amended its Rules of bar discipline procedures

The Florida Bar (Bar) filed a petition proposing amendments to rules 3-7.6 (Procedures Before a Referee) and 3-7.10 (Reinstatement and Readmission Procedures). The petition was in response to a referral from the Court to consider amendments to the rules in accordance with the Court’s recent decision in Florida Bar re Murtha, 327 So. 3d 256, 259 (Fla. 2021), wherein this Court held that the referee’s order requiring civil mediation in this Bar reinstatement proceeding was inappropriate and noting that the Court would separately refer the issue to the Bar to consider a rule on the issue of mediation. The Board of Governors of The Florida Bar unanimously approved the proposal. The Bar published the proposal for comment in The Florida Bar News, and no comments were received. Having considered the Bar’s report, the Court hereby adopts the amendments as proposed. The more significant amendments are discussed below.

First, in rule 3-7.6, language is added under new subdivision (f)(3) to provide that civil mediation is not available to the parties but grievance mediation under chapter 14 is permitted as applicable. Additionally, new subdivision (h)(5)(C) is added and provides language to mirror rule 3-7.11(d)(1) to emphasize that witness and document subpoenas must be issued by the referee.

Next, in rule 3-7.10, a sentence is added to subdivision (f) prohibiting a referee in Bar reinstatement proceedings from referring a petition for reinstatement to civil or grievance mediation. Finally, multiple grammatical amendments are made throughout both rules for clarity and consistency with In re Guidelines for Rules Submissions, AOSC06-14 (Fla. 2006). Accordingly, we amend the Rules Regulating The Florida Bar as reflected in the appendix to this opinion. New language is indicated by underscoring; deletions are indicated by struck-through type.

(Mike Frisch)

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Embarrassing And Detrimental

Thursday, June 2, 2022

The District of Columbia Board on Professional Responsibility proposes a public censure for disclosures made by an attorney in a motion to withdraw

This charged Rule violation arises out of the following representations in Respondent’s affidavit submitted in support of the motion to withdraw as the Client’s counsel:

[the Client] came to counsel’s office in a rude, belligerent and absolutely uncooperative manner. He showed up with a woman he said was his girlfriend. Both were loud and unruly. [The Client] declared he did not require the services of counsel and counsel agreed and told him it was his right to choose who represents him. Counsel then admonished him that whether he retains other counsel or not, he must appear at all scheduled court [sic] until his case is concluded. He said he did not need any advise [sic] or counsel, collected his deposit and left and this counsel has not heard from or seen him since nor does counsel expect to. [The Client] has neither provided the information requested nor cooperated with counsel. [The Client] has failed to cooperate making it doubly, doubly difficult if not impossible to prepare his defense and according to [the Client], he does not need the services of this or other counsel.

The board

a lawyer’s public assertions that his client was rude, belligerent and absolutely uncooperative and unruly, among other derogatory characterizations, would likely be embarrassing or detrimental to a client. Disclosures “tending to demean or belittle” a client are “contrary to the fundamental principle that the attorney owes a fiduciary duty to his client and must serve the client’s interests with the utmost loyalty and devotion.”

...Finally, Respondent’s disclosures in the motion to withdraw were not done to defend against a complaint about his representation because the Client had not yet complained about his representation. Rule 1.6(e)(3) permits the disclosure of client secrets “to the extent reasonably necessary to respond to specific allegations by the client concerning the lawyer’s representation of the client.” Respondent filed the motion to withdraw in August 2016, but the disciplinary complaint was not filed until May 2017. Thus, the Rule 1.6(e)(3) exception does not apply here.

The board also proposes rejection of the Respondent's jurisdictional and choice of law assertions. (Mike Frisch)

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Charges Dismissed

Thursday, June 2, 2022

The Florida Supreme Court dismissed bar discipline proceedings against an attorney over a dissent of Justice Couriel

Respondent, a member of the bar for almost four decades, was lead counsel to the plaintiff in a significant case that had been pending for a long time. Confronted with what he thought were meritless pleadings from a newcomer to the litigation, he sent two emails on June 20, 2020, that, on their face, are clear and convincing evidence of disparagement and humiliation of opposing counsel in violation of the rule. Nobody disputes that the messages were sent. Respondent remembers writing, but not sending, one of them—but off it indisputably went.

To Respondent’s credit, he acknowledges that his “correspondence was unprofessional, undignified, rude, and outlandish” and that there is “no place in the practice of law for such correspondence.” Amended Report of Referee at 12-13. Yet it is incumbent upon us to say so, and to say so with force and clarity when such words come from the most senior and trusted members of our profession.

Justice Labarga concurred. (Mike Frisch)

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"Scant Heed To Reality"

Thursday, June 2, 2022

The Delaware Court of Chancery held that Skadden's billings as a court-appointed custodian in a bitter corporate deadlock that has been the subject of extensive litigation were properly paid.

Broadly speaking, these authorities allow Pincus and his advisers to request reasonable reimbursements related to the custodianship, but the parties disagree bitterly about the operation and reach of each provision.

The bills

We turn next to the claim that “Skadden’s attorneys billed at outrageous rates[.]” In determining the appropriate amount of fees to award, the trial court found that Skadden’s rates were reasonable. We review this for an abuse of discretion. As an initial matter, the evidence discussed above regarding the rates charged by comparable firms in other cases runs contrary to the claim that Skadden’s rates in this matter were “outrageous.” Moreover, although Shawe and TPG retained an expert to challenge Skadden’s fees, the trial court observed that the expert focused primarily on only one of the eight non-exhaustive factors articulated by Rule 1.5(a), “the fee customarily charged in the locality for similar legal services[.]” Consistent with our guidance, the court considered other Rule 1.5(a) factors, including “the amount involved and the results obtained” and “the novelty and difficulty of the questions involved[.]” The court concluded that Pincus and Skadden faced a complex task and navigated significant obstacles, further justifying the hourly rates charged.  In our view, the court’s reasonableness determination was adequately supported.

Shawe and TPG also assert that Skadden should have discounted its rates. As above, this claim is undercut by the trial court’s finding that Skadden’s rates were similar to what it and peer firms charged in other matters. In any case, Shawe and TPG cite no controlling authority that requires a “reasonable client” discount. In fact, in In re RegO, Chancellor Allen awarded fees to a court-appointed guardian ad litem and explained that the “position that work of this sort is a quasi-public service that deserves to be paid at a discount is without authority.” We agree and conclude that none of Shawe’s and TPG’s challenges to Skadden’s hourly rates has merit.

Another rejected claim

Next, Shawe and TPG allege that Skadden billed improperly by producing vague entries and charging in full for overstaffed matters and simple research tasks. The trial court considered and rejected these challenges in calculating the overall fee award. Thus, once again, we review for an abuse of discretion. We reject these objections.

...Our own review of the record confirms that the Court of Chancery correctly dismissed this objection. For example, in the Omnibus Objection, Shawe and TPG attacked Skadden “for researching ‘indemnity rights’” for seven hours. Of course, Pincus’s right to indemnification was a hotly contested issue in this case, so the suggestion that Skadden’s research into the matter constituted an overreach pays scant heed to reality. We conclude that Shawe’s and TPG’s challenges to Skadden’s billing practices lack merit. 

Bottom line

we affirm the April 30, 2021 Fee Order awarding Pincus $3,242,251 in fees, subject to the qualification that TransPerfect Global, Inc. is the only party liable for the $1,148,291 Contempt Sanction.

(Mike Frisch)

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Billable Hours | Permalink

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Felony Conviction Interim Suspension

Wednesday, June 1, 2022

The Florida Supreme Court has suspended an attorney based on felony convictions and appointed a referee to conduct a hearing on sanctions. 

The Miami Herald reported on the charges

To stalk and terrorize his ex-girlfriend for months, a Miami lawyer secretly affixed a GPS tracker to her car, then used an online program known as Spoofcard to mask his phone calls to her, investigators say.

But police found that Grant Sarbinoff used his own bank accounts to pay for the services — evidence that led to his arrest Tuesday on a slew of stalking and identity-theft charges.

And that was just part of a campaign of harassment, police say. The 37-year-old lawyer is also accused of sending hundreds of bizarre e-mails over months, following her around town and hacking into her various online retail accounts, even canceling the electricity in her home.

Sarbinoff, of Miami Beach, was arrested Tuesday by Miami-Dade Police’s Cyber Crimes unit. He was booked into the Turner Guilford Knight Correctional Center.

He’s been accused of this behavior before. In 2015, according to Broward court records, a judge issued a permanent injunction against him for stalking a woman.

Sarbinoff has been a lawyer since 2010, according to the Florida Bar. Sarbinoff could not immediately be reached for comment – and it was not yet clear if he had obtained an attorney.

The program Spoofcard allows users to mask their calls, disguising them as calls from other people. Miami-Dade detectives issued a subpoena and learned he used his e-mail, phone number and Bank of America credit account to open the Spoofcard account.

He and the victim, who is also a lawyer, met on the match-making website Tinder in November 2015. They dated for over a year, according to an arrest warrant.

Last September, after they broke up, he began contacting her daily, even though she blocked his number and repeatedly asked him to stop. According to the arrest warrant, Sarbinoff also:

▪  Hacked or tried hacking into the woman’s Hulu, Publix and Instagram accounts, among dozens of others. Online purchases were made in her name, as were reservations at a restaurant and massage service. Her identity was even used to order Papa John’s pizza without her permission.

▪  Repeatedly used Uber to travel to her block in trips investigators believe was to spy on her. He also followed her to a movie – and later was seen shadowing her as she walked her dog.

▪  Used the Spoofcard program to repeatedly call her, masking them as coming from phone numbers from over a dozen friends and associates of hers.

After months of harassing phone calls to her, her new boyfriend and other people in her life, the woman reported the case to authorities. After hearing her story, a Miami-Dade State Attorney’s investigator walked out to the parking lot and found the GPS tracker hidden underneath her car, according to the warrant.

His bank account was used to pay for the subscription GPS monitoring service, according to the warrant by Miami-Dade detective Steve Kaufman.

This story was originally published May 2, 2017 3:15 PM.

(Mike Frisch)

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From Here To Paternity

Wednesday, June 1, 2022

The Florida Supreme Court has ordered a three-year suspension of an attorney who had fathered a criminal client's child. 

From the complaint filed by the Bar  was initiated by the client's mother

Ms. Nixon alleged that following her daughter’s release from jail, and during the representation, respondent engaged in a sexual relationship with Ms. Nixon’s daughter and ultimately fathered her child.

From the onset of the legal representation, respondent was aware that Ms. Nixon's daughter had a history of abusing drugs and continued to use drugs when not incarcerated.

Furthermore, during the criminal proceedings in which respondent represented Ms. Nixon’s daughter, respondent alleged that she was incompetent to proceed to trial.

On or about February 21, 2018, respondent filed a motion on behalf of Ms. Nixon's daughter alleging that his client was “incapable of assisting her attorney in the preparation for and trial of her case” and alleging that she “has a long history of mental illness.”

In March 2019, while respondent remained counsel of record for Ms. Nixon’s daughter in 49-2017-CF-00369, Ms. Nixon’s daughter gave birth to a child and gave the child respondent’s last name.

He admitted that the child was given his last name but "claimed he was not involved"

Respondent subsequently admitted that he had sex with Ms. Nixon’s daughter while he was her counsel of record in an Osceola County, Florida criminal case, but maintained that the relationship in no way compromised his ability to represent the daughter.

However, during his sworn statement in the bar proceeding, respondent testified that he revealed compromising information after he began representing Ms. Nixon’s daughter. Respondent stated, “I put the word out that [Ms. Nixon’s daughter] was an informant in Daytona Beach, and I – and when she would walk into a place, like a drug – some type of drug place, people would scatter like roaches. ‘Cause I put the word out that she was an informant, so nobody would deal with her.” 

(Mike Frisch)

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Are You Serious, Judge?"

Wednesday, June 1, 2022

A reciprocal public censure for misconduct in an oral argument before the United States Court of Appeals for the Second Circuit has been ordered by the New York Appellate Division for the Second Judicial Department

The respondent represented Robert Doyle, the appellant in that matter. On December 11, 2019, in response to a question posed by Second Circuit Judge Denny Chin regarding the injury suffered by Doyle, the respondent stated twice, “Are you serious, Judge?” and then commented, “I see that you read the briefs thoroughly.” After opposing counsel presented his argument, the respondent attempted to make a rebuttal, but was told by the circuit judges that he had waived rebuttal. The respondent then disrupted the proceeding by failing to be seated, and a circuit judge directed a court security officer to escort him out of the courtroom. After the respondent was removed from the courtroom, he was loud and argumentative towards the court security officer and failed to comply with the officer’s instruction to enter an elevator until the officer escorted him.

In a letter to the Second Circuit, he attributed his comments to "understandable frustration"

The respondent claimed that, over the past 20 years, he had observed “comments and questions from the bench that could be described as ‘disrespectful,’ ‘discourteous,’ and ‘inappropriate.’” In his view, there was a “double standard that those who appear before the Court are loath to violate for fear that the judges  will take their personal feelings into account when making their rulings, whereas judicial integrity requires (indeed, [is] partly defined by) the opposite.”

The Second Circuit imposed a reprimand

In mitigation, the Second Circuit considered that the respondent had no disciplinary history, and most importantly, that the respondent, in his declaration, accepted responsibility, and expressed remorse, shame, and profound sorrow for his misconduct. The Second Circuit noted that the respondent’s post-argument letter “may not have much mitigation value” (id. at 119), but hoped that after a longer period of reflection, his declaration more accurately reflected his understanding of his conduct.

The Second Department ordered a censure. (Mike Frisch)

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Unauthorized Access And A False Report Alleged

Wednesday, June 1, 2022

The Illinois Administrator has filed a complaint alleging misconduct by a former public employee.

In July of 2017, after completing a six-week training program, Respondent began her employment as an investigator for the Civilian Office of Police Accountability (“COPA”), then known as the Independent Police Review Authority (“IPRA”), which served as the oversight agency of the Chicago Police Department (“CPD”). COPA was responsible for receiving and investigating complaints against CPD members alleging domestic violence, excessive force, coercion, or verbal abuse.

Alleged unauthorized access and misuse

At the time Respondent began her employment at COPA, she was in a romantic relationship with CPD officer Joseph Rasso (“Officer Rasso”).

Between December 2017 and December 2018, while still in a romantic relationship with Officer Rasso, Respondent searched and accessed the CLEAR database records pertaining to investigations into Officer Rasso 32 times without authorization.

And

Between December 2017 and December 2018, Respondent searched for her brother, also a CPD police officer, in the CLEAR database 13 times and accessed his records pertaining to investigations into him 10 times.

A later alleged violation

Between July 2018 and December 2018, Respondent improperly accessed 12 times in the CLEAR database case log #1087843,2 which was an investigation into Chicago Police Department (“CPD”) officers who responded to an incident at a bar during which an off-duty CPD officer was involved in an altercation with two other patrons. One of the officers dispatched to the bar was Respondent’s then-boyfriend, Officer Joseph Rasso (“Rasso”).

Respondent was not among the investigative staff assigned to case log #1087843.

COPA concluded its investigation of case log #1087843 and issued a summary report of its findings on October 25, 2018 (“Summary Report”).

On or about November 14, 2018, Respondent accessed and read the Summary Report and discussed its findings with her co-worker, COPA investigator Garrett Schaaf (“Schaaf”).

She came to believe Schaaf had reported her and allegedly

On December 28, 2018, Respondent submitted an anonymous complaint to OIG from her work computer which stated the following:

COPA Investigator Garrett Schaaf has been carrying a firearm to the office. He is not allowed to have a gun at the office. Even if he is legally registered. He has been planning on carrying out a mass shooting here. He has also told me that he plans on shooting everyone in the Intake area first because of the way the office is designed. The people that work in that section would have no way to escape. He last told me about his plan on Christmas Eve.

In that complaint, Respondent listed another COPA investigator, Emily Pierce (“Pierce”), as a witness.

As a result 

On February 13, 2019, a Cook County Grand Jury indicted Respondent on three felony counts: official misconduct by committing disorderly conduct, in violation of 720 ILCS §33-3(a)(2); official misconduct by committing an act in excess of her lawful authority, in violation of 720 ILCS §33-3(a)(3); and disorderly conduct, in violation of 720 ILCS §26-1(a)(4). The Clerk of the Circuit Court of Cook County docketed that matter as People v. Yohanna, 19 CR 2254.

In March of 2019, Respondent received notification of termination of her employment due to her unauthorized access to the COPA computer system and was offered the opportunity to voluntarily resign.

In April of 2019, Respondent resigned from her employment at COPA.

The criminal charges were resolved  by a deferred prosecution agreement. (Mike Frisch)

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Amazon Says Big Tech Bill Could End 3rd-Party Sales

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CitiMortgage Urges 9th Circ. To Undo Revival Of FCRA Suit

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