What NOT to do at a disciplinary hearing 101

I've come across some humorous orders that judges given. For instance, and I quote:

ORDER DENYING MOTION FOR INCOMPREHENSIBILITY

Before the court is a motion entitled “Defendant’s Motion to Discharge Response to Plaintiff’s Response to Defendant’s Response Opposing Objection to Discharge.” Doc. #7. As background, this adversary was commenced on December 14, 2005 with the filing of the plaintiff’s complaint objecting to the debtor’s discharge. (Doc. #1). Defendant answered the complaint on January 12, 2006. Doc. #3. Plaintiff responded to the Defendant’s answer on January 26, 2006. Doc. #6. On February 3, 2006, Defendant filed the above entitled motion.

The court cannot determine the substance, if any, of the Defendant’s legal argument, nor can the court even ascertain the relief that the Defendant is requesting. The Defendant’s motion is accordingly denied for being incomprehensible (1)

And the footnote reads:

Or, in the words of the competition judge to Adam Sandler’s title character in the movie, “Billy Madison,” after Billy Madison had responded to a question with an answer that sounded superficially reasonable but lacked any substance,

Mr. Madison, what you've just said is one of the most insanely idiotic things I've ever heard. At no point in your rambling, incoherent response was there anything that could even be considered a rational thought. Everyone in this room is now dumber for having listened to it. I award you no points, and may God have mercy on your soul.

Deciphering motions like the one presented here wastes valuable chamber staff time, and invites this sort of footnote.

Other interesting orders:

Order Granting Motion to Compel Lunch

Order to Lighten Up

There are various other motions:

• Motion to Compel Opposing Counsel to Wear Appropriate Shoes
• Motion for a Fist Fight

I'll finish this blog off with something that strikes at the heart of commercial practice and ethics, as well as the heart of every lawyer: disciplinary hearings. Here's a link to a what NOT to do when facing a disciplinary hearing:

Here's the tip: If you are facing disciplinary charges alleging that you were disruptive and abusive in court, it is good to be careful what you say during the disciplinary hearing. During a hearing in July, Colorado attorney Mark Brennan was cited twice for contempt by the same panel of judges that is currently deciding whether to impose discipline for his alleged past conduct.

In this hearing, Brennan was defending himself against allegations that he had been disruptive and unprofessional during a 2006 jury trial. Those allegations are controversial, and I should point out that at least some of the jurors in that case did not think he acted inappropriately. But here are some acts he engaged in during the more recent hearing that probably did not bolster his defense:

• Repeatedly interrupting the presiding judge;
• Calling opposing counsel a "worm";
• Laughing loudly during an opposing witness's testimony;
• Asking whether that witness's father had been a Klan member; and
• Asking whether the issues in the witness's divorce proceedings had included who would get "the hound dog and shotgun."

This clip includes both contempt citations, and also features the presiding judge marveling about the fact that Brennan is acting unprofessionally during a hearing on allegations that he acted unprofessionally:

Also not recommended: shoving opposing counsel. Brennan has denied actually doing this, so here's a clip from the third day of the hearing that may allow you to make up your own mind:

In particular, you should do your best to avoid having the record reflect that the presiding judge had to admonish you that "this is not trial by combat." [Slight correction: the judge may have been addressing this to both attorneys, rather than just to Brennan. It's hard to tell from the clip. So please view this comment as general advice (and I still think it qualifies as that) rather than an implication that the judge said this directly to Mr. Brennan.]

The panel's decision on the underlying disciplinary charges has not yet been released, but is expected in the next couple of months.

All humour from http://www.loweringthebar.net/

White Collar Fraud & Companies

Are the Corporate Police becoming tougher?

I am reminded of a spoof that Michael Moore did involving a white-collar version of the show Cops – instead of cops chasing down young black males, Moore (satirically) proposed the idea of police running after multi-millionaire/billionaires, throwing them to the ground, cuffing them and putting them in the backseat of a cop-car. Of course, in the real world, no matter how much we’d like to see Bond (or perhaps your boss) being rugby tackled or on the receiving end of a taser, that’s not how they’ll typically be treated for white-collar crime.

In the 80s and late 90s a number of white-collar criminals received relatively light sentences. Michael Milken served less than two years and still had a fortune of around $2.1billion. Frank Quattrone, on the other hand, received a deferred prosecution agreement and will not face prison time and will in fact receive compensation.

On the other side of the century, Bernard Madoff who defrauded investors of billions of dollars was sentenced to 150 years in prison; the maximum allowed. It appears that the time of the corporate lawlessness is over.

But when exactly should a director be liable for losses suffered?

Apart from the obvious situation where the director, for instance, provides a personal guarantee for a transaction, I would say that the extent to which a director is personally liable is quite limited. Certainly in a case where the director has abused his position for his or another’s benefit he should be personally liable – e.g. the example given where a director provides an interest free-loan to a friend, or perhaps provides a friend with work where he is paid exuberantly well. Both cases involve a conflict of interest as well as a breach of the director’s fiduciary duty to the company and the director should be liable for any profits arising from that - and more!

This of course isn’t just limited to directors (although perhaps because of their position the standards are higher for them) – employees cannot hide behind the corporate veil if they also misuse their position.

I think these elements are certainly fair – and I doubt anyone would question a director being personally liable when he or she has committed fraud or breached his fiduciary duties. The conflict comes when a director, for instance, is alleged to be liable for simply a bad business deal – albeit one done in good faith and with sound business judgement. So yes, a balance needs to be reached to encourage the formation of corporations which is essential to economic growth as well as ensuring personal responsibility for shady directors..

The veil of incorporation has been considered in Trustor AB v Smallbone [2001] 3 All ER 987. The significance in this case lies in the way counsel for the claimant invited the Court of Appeal to lay down rules as to when the veil of incorporation may be lifted. Smallbone was a director of Trustor AB, a Swedish registered company. Without the consent of the other directors, he transferred large amounts of corporate funds into a company controlled by him, Introcrom Ltd. He then removed some of these funds from Introcrom Ltd’s bank account into his own name. Being aware of all the circumstances, Smallbone was found to be jointly and severally liable with Introcrom Ltd for those sums received by him from its bank account. The court then had to consider whether Smallbone was liable for sums paid from that account to other persons.

Trustor AB, the claimant company, sought to obtain the lifting of the veil of incorporation of Introcrom Ltd under three headings:the company was a sham with no unconnected third party involvedthe company was involved in the improprietyit was necessary that the veil should be lifted in the interests of justice.The Court of Appeal was content to lift the corporate veil on the first two grounds but not the third. It was stated that there was no general power to lift the corporate veil simply because it was necessary in the interests of justice.Again the case of Adams v Cape Industries plc was cited with approval. The veil should not be lifted merely because legal technicalities resulted in injustice.

http://www.accaglobal.com/archive/corpsecrev/44/895748

Also another interesting article on the Australian perspective: Piercing the Corporate Veil in Australia by Ian Ramsay, David Noakes.

To Be Or Not To Be (A Lawyer), That is The Question!

I stumbled upon this amusing but informative article on the virtues/disadvantages of being a lawyer.

Some of the comments are directly relevant to the topics we've been studying this year. For example, under the topic 'top 10 reasons not to be a lawyer', coming at number 10 is the requirement to wear appropriate attire in court. And that's very true. Court etiquette; when to bow, where to stand/sit, the terms of address used, the appropriate clothing - these are all things quite relevant to the day-to day practice of appearing in court or in chambers.

Number 7 is people will ask you for free advice. This was also something that we were lectured on - and generally taught that we should direct business through the business and offer a discount if appropriate - in order to cover your own ass if things go hay-wire.

There is a story about a doctor and lawyer at a party. They were engaged in conversation when a guest approached and asked the doctor for some free medical advice. Not wanting to appear impolite, the doctor answered the question. After the guest had left, the doctor resumed his conversation with the lawyer.

"I noticed no one has come up and asked you for free advice. How do you keep people from doing that?"

"Every time someone asks me for advice I send them a bill," the lawyer replied.

The doctor thought that was an excellent idea and, the next day, sent the guest a bill for $75. Two days later, the doctor received a bill from the lawyer for $150.

Of course there are also advantages to becoming a lawyer; improving communication skills, learn the ability to focus on an issue, and learning your various rights.

The Fuzzy Line of Witness Coaching?

This came up in a discussion.

I think anyone who has participated in a moot or watched questioning in court will know that it’s very difficult to have a pre-thought-out answer for every answer that is given to you – you often have to answer/reason/mull over on the spot. That said, it seems to me that the line between what is and what isn’t coaching is a bit fuzzy. Obviously we should never tell a witness to say something which we know is false – that would be breaching a whole bunch of duties lawyers owe, as well as be facing possible criminal sanctions. But is it okay to, for example, advise a witness to use one word over another?

In Preparing witnesses: a practical guide for lawyers and their clients by Daniel I. Small, it states: ‘Witness coaching takes place when a lawyer makes suggestions that modify witness’s story and/or create a deviation from the truth.’ Presumably then, using the word ‘hit’ instead of ‘smash’ isn’t witness coaching (as Small gives as an example). I guess the best guideline we have is to remind the witness that he/she should tell the truth no matter what, and to not give or suggest answers to possible questions, or to give the exact questions which you will ask. Also it will discredit the witnesses’ reliability and it is illegal under the WA evidence rules and probably a good way to be facing the Legal Practice Board which is about as fun as a smack in the head.

Unbelievable Lawsuits 101.

I came across an interesting article where a man faces criminal charges after a passerby and her child saw the man making coffee in his kitchen. Naked. The prosecution will have to prove that Williamson knew people were there for them to get a conviction on the charge that carries a one-year jail term and a $2,000 fine.

I came across another article on 'unbelievable lawsuits that actually happened.'

Some of my favorites:



In 1991, a Michigan man sued Anheuser-Busch for false and misleading advertising. He also claimed that he suffered personal injury as a result of the false advertisement. In his complaint, he referenced a Bud Light commercial in which two beautiful women come to life for a couple of Budweiser truck drivers. Because this didn't happen to him when he drank the beer, he claimed that these false advertisements caused him emotional distress, mental injury, and financial loss. He sued in excess of $10,000. The court dismissed all his claims.

In 2006, a man sued Michael Jordan as well as the founder of Nike, Phil Knight, for $832 million. He claimed that because he was often mistaken for the basketball star, he had suffered permanent damage, including defamation of character and emotional pain and suffering. He later dropped the lawsuit.



A woman in Israel sued a tv station and it's weatherman for $1,000 when the weatherman predicted a sunny day and it rained. She said that, because the forecast was clear, she left home underdressed. She then caught the flu, missed 4 days of work, spent $38 on medications and "suffered stress" as a result of a badly forecasted day.

To inject a bit of legal analysis that is lacking in this blog post, what would happen in Australia if I was presented with or facing cases of such a spurious nature? Well, from the top of my head, I'd consider questioning the matter from the get-go, pointing out that it is a frivolous proceeding and one which doesn't have any merits, and hopefully 'quashing' the matter from the start.

Why You Should Never Talk to the Police

http://video.google.com/videoplay?docid=-4097602514885833865#
http://video.google.com/videoplay?docid=6014022229458915912#

I came across these two brilliant lectures - one given by a defense attorney, and another given by a police officer. Surprisingly, both strongly agree on one thing: never talk to the police. Whether you're innocent or guilty, or have any sort of excuse, their advice is the same: don't talk to the police or any government agency. Although given in an American context, much of what they say is highly relevant here too.

But to give it a commercial practice and ethics spin, is this the right advice to give? Should we, as lawyers, be advocating non-cooperation with legal authorities?

Yes! We owe a duty to our client to save his or her ass from jail or from being sued for every penny he or she has. And if you have a client who is facing investigation, or is being interviewed, the first thing you would urge is: don't say a damn thing (at least not until I am there)! You don't want to do the work that the other side is supposed to do. If they have a strong case they'll get around your client's lack of willingness to tell his or her life story. If someone wants to put you in jail, they better have damn good proof for doing so.

As was stated in the video "anything you say can/will be used against you, but nothing you say can/will be used to help you." The video details the myriad of ways a perfectly innocent person can dig themselves a hole which would be difficult to climb out of. Also, when someone refuses to answer questions, that refusal cannot be held as evidence of an inference of their guilt (e.g refusal to answer on the basis of self-incrimination).

Interestingly, the police officer notes that most of his convictions depended on the accused/suspect admitting that their guilt. Now, this isn't to say that I don't want criminals caught - I do. And if a crime was committed against me or a family member or friend I would want that person caught. No question about it.

Is that ethical? In my opinion yes - we're here to advocate and represent on behalf of someone who is in any legal system quite daunted and unfamiliar with the whole process.

But foremost as a lawyer my duty is to my client; and strongly recommending against talking with the police has to be one of the most important principles.

Online Poker, Jurisdiction and Legal Confusion.

I've recently become interested in playing poker online (No-limit Texas hold 'em to be precise). I came across a case where a player's money was essentially confiscated (around $50,000) because of alleged cheating. The player attempted to sue the website and the case is still ongoing. It brings up an important issue of jurisdiction - would the jurisdiction be where the player lives, where the site is hosted, or where the business is located? It is a nightmare of jurisdictional problems.

More obscure than that is the poker laws in Australia. This isn't a small industry, some estimates have put the amount of money spent on online casinos at around 300 million a year. Is it legal to gamble online in Australia? Yes. Kind of.

The federal legislation prohibiting online gambling in Australia targets the suppliers of prohibited gambling services, not the customers. It becomes more complex when the State laws interact with the federal law - e.g. in Queensland or the ACT you will be breaching the law if you knowingly participate in unauthorised gaming (where supplier is not licensed to provide).

The Interactive Gambling Act 2001 (Cth) states that it is an offence to provide interactive gambling services to a customer physically present in Australia. The offence applies to both local and foreign interactive gambling services providers. However, realistically only the foreign interactive gambling providers that have some connection to Australia are likely to be prosecuted. Some Australian providers are allowed.

"Interactive gambling services" are defined as "gambling services" provided, in the course of carrying on a business, using:

* an internet carriage service;
* any other carriage service which has at least one point in Australia;
* a broadcasting service;
* another content service; or
* a datacasting service.

"gambling services" are broadly defined as:

* A service for making bets or introducing individuals to other individuals who wish to make bets; or
* A service for the conduct of a lottery or for the supply of lottery tickets; or
* A service for the conduct of a gamewhich is played for anything of value and which involves an element of chance (games “predominantly of skill”, such as computer games, fall outside the definition of gambling services and are not prohibited ; or
* any gambling service (within the ordinary meaning of that expression) that does not fall into any of the above categories.

Express exemptions exist for:

* A telephone betting service.
* A service for online wagering - for example, on a horse race, a harness race, a greyhound race, on an event or a series of events or (provided bets are accepted only before commencement) on a sporting event.
* A public gaming service (that is, specific gaming services provided in licensed pubs, clubs or casinos including linked poker machines in clubs).
* A gambling service associated with a particular broadcasting or datacasting program, or where its sole purpose is to promote goods or services that are advertised on a broadcast service. Examples are interactive TV game shows and promotions with entry fees in the form of a 1900 telephone number.
* Online lotteries and online sale of lottery tickets (but not online scratch or instant lotteries).
* Contracts that are financial products within the meaning of Chapter 7 of the Corporations Act 2001 (Cth) . This includes contracts for options, futures and agreements entered into on a futures market or a futures exchange.
* Exempt services as determined by the Minister.

The Federal Act prohibits the broadcasting, datacasting and publishing of advertisements for interactive gambling services in Australia. An example of publishing an advertisement in Australia would be to place it on a website which is aimed at Australian end-users.

So, at the end of the day we have a situation where the legality is completely obscured. Yet we have tens and tens of thousands of Australians who nonetheless gamble online everyday.

And I really fail to see how playing poker online is different to a casino. In a casino, at least, they take a larger proportion of the rake (i.e. every hand played, the casino takes a certain amount - online, the 'rake' is much smaller and at a fixed cap). Further, if you're playing the video-game slots, (or indeed, blackjack or roulette), the house is always has an advantage to win. You cannot say the same for poker, where the skill of the players is the deciding factor, and the casino really is unconcerned with who wins or loses, because they always get a share of the pot - they just want as many people to play as possible. One of the biggest sites, PokerStars, has around 13 million registered players. Joe Hachem, the first Australian to win the World Series of Poker in 2005 earning him 7.5 million dollars, plays online at PokerStars.

I think it was Lincoln who said that to expose a bad law you should enforce it as strictly as possible. If the laws regarding online gambling in Australia were enforced as strictly as possible they would likely piss a lot of people off which politicians wouldn't be too keen about.

Or they could just recognize that practically the laws aren't enforced, and hence should change.

My 2 cents.