The Morning Wrap

LAX Shooting: Paul Anthony Ciancia, the 23-year-old suspect in the shooting last week at the Los Angeles International Airport, planned to target Transportation Security Administration agents, the Los Angeles Times reports. During the rampage, Ciancia allegedly killed one agent and wounded two others. Spotting Shots: A gunfire surveillance network called ShotSpotter has recorded 39,000 shooting incidents in Washington since 2006, The Washington Post reports. The newspaper obtained the previously unreported data through a public-records request. Google Glass: A wearer of Google Inc.'s eyeglasses, Google Glass, last week received from a California Highway Patrol officer a citation usually given to drivers who may be distracted by a video or TV screen, raising questions about how authorities can regulate the devices, The Associated Press reports. Cecilia Abadie, the driver, said she's "pretty sure" she will fight the ticket. Uber Fight: In a suit brought by drivers who accuse Uber Technologies Inc. of short-changing them on tips and expenses, the company that connects drivers with passengers across several U.S. cities, is trying to convince a judge in the U.S. District Court for the Northern District of California that it's in the business of software, not transportation, The Recorder reports.

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Some Thoughts on Non-Lawyer Practice Issues After the Fordham Sypmosium

Yesterday, I was at much of the excellent Symposium Until Civil Gideon at Fordham Law School.  The panel on non-lawyer practice was particularly suggestive.  After listening to the panel, I have some thoughts.

Leadership is all.  Chief Judge Lippman, by spurring discussion of the topic, and appointing a Task Force (on which I serve) has made a "far out" idea part of the mainstream.  I believe that as a result of this leadership, we will see real progress in New York soon, and that that progress will have a major impact nationally.

That the formal decisions about the scope of the unauthorized practice prohibition are determined in criminal and enforcement civil actions often means that we have bad facts making bad law.  Things are made worse by the fact that the governing statutory interpretations are often decades, sometimes many, decades old.  We need to find a way to pull back and make regulatory progress in an era of a much more flexible educational system, technology, innovation, and obvious inability of lawyers to meet access to justice needs.

In particular, the use of technology based information, forms programs, diagnostic tools, flow charts, etc., can make it possible for people with less formal legal education to provide high quality assistance, particularly when they have been trained in the substantive area in which they practice.  As Chief Judge Lippman said at the While House this spring, "Sometimes an expert nonlawyer is better than a lawyer non-expert."

As a general matter, we have not paid enough attention, as pointed out by Prof. Gillian Hadfield at the Symposium, to the success that paralegals have had at assisting hearing officers understand and get the facts and law out in administrative proceedings.  That should provide reassurance to those who fear that those without three years of law school can not handle a hearing, at least when the judge has been trained in the techniques of bringing out needed information.

Let's keep talking about this critical area of innovation.

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Maryland Lawyer Pleads Guilty to Two Tax Charges

By Alex Zank A Maryland lawyer pleaded guilty Friday to charges of filing a false tax return and failing to file a different tax return altogether. George Nelson Smith, 52, of the Smith Law Firm, falsely filed a tax return for tax year 2005 by failing to report income, according to court records. Read the charging document here. Prosecutors said Smith, who litigated tort actions, claimed W-2 income from his law firm, but did not pay himself that W-2 income. He made expenditures from the firm's corporate bank accounts that were not reported on the return, according to the government. Smith failed to file a return altogether for tax year 2007 even though, according to the government, he took at least $668,000 from his firm for personal expenses. "No matter how you disguise your income, one still has to pay taxes on it," IRS special agent Thomas Kelly said in a written statement. "As an attorney, Mr. Smith is well educated regarding his federal income tax obligations, making his actions even more egregious." A lawyer for Smith, Lisa Lunt, an assistant federal defender in Greenbelt, Md., wasn't immediately reached for comment. Smith, according to the terms of his plea deal, will be required to pay restitution of $91,547. He also faces a maximum sentence of three years in prison for filing a false return and one year for failing to file a tax return. Sentencing is scheduled for Jan. 28. Contact Alex Zank at azank@alm.com.

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Federal Lobbying Spending Hits Lowest Level Since 2010

Overall spending on federal lobbying is at its lowest level since at least 2010, with a third consecutive quarter of declining government advocacy expenses, according to a new Center for Responsive Politics analysis. Organizations spent about $760 million during the third quarter of 2013 (July 1 to September 30). The sum is an almost $40 million decrease from the second quarter of 2013 and nearly $200 million less than the total for the first quarter of 2010. The $956.2 million tally for the first quarter of 2010 is the highest quarterly figure analyzed by the nonprofit organization, which studies the effect of money on the U.S. government. Sarah Bryner, research director at the Center for Responsive Politics, said a lack of activity in Congress or a move toward unreported lobbying work could possibly explain the downslide. But the exact reason is unclear. Affiliate publication Corporate Counsel has more.

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UBS Whistleblower Settles Suit With Former Lawyers

A former UBS AG banker who received a $104 million whistleblower award has settled a legal malpractice lawsuit against his former lawyers at Schertler & Onorato. The firm is dismissing its counterclaims in a related case. Bradley Birkenfeld sued his former lawyers at Schertler & Onorato, accusing them of mishandling the whistleblower process—costing him a potentially larger award and exposing him to criminal charges. Lawyers for Schertler & Onorato called Birkenfeld's allegations "vindictive and baseless" and accused him of suing in an effort to avoid paying legal fees. The two sides yesterday filed notice that they were dismissing their respective claims in pending cases in District of Columbia Superior Court and in the U.S. District Court for the District of Columbia. In the federal case, Birkenfeld dropped his claims against Schertler & Onorato in 2011, but the firm's counterclaim for fees, which was later moved to the D.C. Attorney-Client Arbitration Board, was still pending. According to a status report filed in September, a hearing was scheduled to begin today before the arbitration board. The firm told U.S. District Judge Robert Wilkins yesterday it agreed to voluntarily dismiss arbitration of the fee dispute and its counterclaims. Birkenfeld filed a new lawsuit against the firm in October 2012 in Superior Court. In the notice filed in Superior Court yesterday, the parties said the case "has been settled." Schertler's attorney, Mark London of London & Mead, declined to comment. Birkenfeld's lawyer in the federal court case, David Colapinto of Kohn, Kohn & Colapinto, declined to comment, as did his lawyer in the Superior Court case, Christopher Hoge of Crowley, Hoge & Fein.

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Related Documents: GreenTech Automotive

FOIA Productions U.S. Citizenship and Immigration Services Gulf Coast Funds Management EB-5 Regional Center Mississippi Development Authority April 15, 2013 FOIA Request April 26, 2013 Documents Memorandum of Understanding   Excerpted FOIA Production The documents below show how Gulf Coast Funds Management, the visa firm for GreenTech Automotive, was backed by […]

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FTC Approves Office Superstore Merger

Sixteen years after Federal Trade Commission lawyers scored a landmark courtroom win to block the merger of Office Depot Inc. and Staples Inc., the agency today allowed the merger of Office Depot and Office Max Inc. to go forward without conditions. The market for office supplies, the agency explained, has changed greatly. The FTC found that the $1.2 billion Office Max merger, which combines the second and third largest office supply superstores, "is unlikely to substantially lessen competition in the retail sale of consumable office supplies," and voted 4 – 0 to close its six-month investigation without taking action. New competition from stores such as Target, Walmart and Costco, as well as Internet office supply retailers has reshaped the competitive landscape for the industry, the FTC found. In 1997, when the agency brought the Staples case, it successfully argued that office superstores were a distinct market, and used pricing data to show that consumers paid more in areas where the superstores didn't compete. That's no longer the case. FTC staff "replicated the type of econometric work performed in Staples" as well as additional analysis, the FTC reported. None of it showed the current merger was likely to raise prices, according to the agency, citing "overwhelming evidence." "Our decision highlights that yesterday's market dynamics may be very different from the market dynamics of today," the FTC said. "Significant developments in the market for consumable office supplies have led us to approve a merger when we had blocked a similar merger sixteen years ago." Simpson Thacher & Bartlett partners Matthew Reilly and Kevin Arquit represented Office Depot, and Dechert partners Paul Denis and James Fishkin represented Office Max. "The commission decision's to clear the OfficeMax/Office Depot merger represents an important step forward in the analysis of retail mergers," Denis said in a written statement. "Our integration of advanced empirical methods with ordinary course business practices will have broad ranging application in other retail sector deals."

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D.C. Circuit: Contraceptive Mandate Violates Religious Freedom

Requiring employer insurance plans to include contraception coverage "trammels" the constitutional right to freedom of religious expression, a divided U.S. Court of Appeals for the D.C. Circuit said today. The D.C. Circuit is the latest court to join the legal fray over the contraceptive mandate included in the Obama administration's health care reform law. Federal appellate courts have split on whether the mandate violates the religious freedom of those who oppose contraceptive services and abortion, setting the stage for a fight before the U.S. Supreme Court. In today's ruling, the court reversed a trial judge's decision denying an injunction that would block, at least temporarily, the contraception mandate. The trial judge was ordered to take another look at the plaintiffs' request for an injunction. Francis and Philip Gilardi, brothers who co-own Freshway Foods and Freshway Logistics, sued the U.S. Department of Health and Human Services, arguing the mandate violated their religious beliefs as Roman Catholics. The law, they said, forced them to either include the coverage in their company insurance program against their beliefs or else pay an annual penalty of more than $14 million. The D.C. Circuit declined to take a position on whether the secular Freshway companies, as opposed to the Gilardi brothers as individuals, could "exercise" religion and be protected under the federal Religious Freedom Restoration Act. The Gilardis argued the companies could serve as surrogates for their owners' beliefs. That left the Gilardis as individuals. The government argued the burden on the brothers' religious beliefs was too tenuous, since it depended on employees purchasing contraceptive services. The court said the burden on the Gilardis' beliefs started when they had to decide what to include in their insurance program. "In other words, the Gilardis are burdened when they are pressured to choose between violating their religious beliefs in managing their selected plan or paying onerous penalties," Judge Janice Rogers Brown wrote for the court. Senior Judge A. Raymond Randolph joined Brown. Senior Judge Harry Edwards dissented, saying the mandate didn't require the Gilardis to take action that directly violated their religious beliefs. The Gilardis' attorney, Francis Manion of the American Center for Law and Justice, could not immediately be reached for comment. A representative of the Health and Human Services Department also could not be reached right away.

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Law Clerk to Judges of the ICJ (Associate Legal Officer) (multiple positions)

Note: Deadline to apply has been extended until 15 November 2013 at midnight Central European Time (CET).

 For more information on these positions click here

Background:

The International Court of Justice wishes to appoint multiple Law Clerks each of whom will provide research and other legal assistance to one of the judges of the Court. For administrative purposes, the Law Clerks are attached to the Department of Legal Matters.

Functions:

Under the supervision of the judge to whom he or she will be specifically assigned, the Law Clerk will provide such judge with legal research and related assistance with regard to cases pending before the Court. The Law Clerk may also be required to provide legal assistance and support to a judge ad hoc participating in a particular case. In co-ordination with his or her judge, the Law Clerk may also from time to time be called upon to perform some specific legal tasks for the Registry.

Qualifications and skills:

• an advanced university degree in law, with significant academic background in public international law or professional experience in the field. A first level university degree in combination with qualifying experience may be accepted in lieu of an advanced university degree. Post-graduate studies in public international law would be an asset;
• two years' experience in the settlement of international legal disputes with an international organization, government, law firm or other private sector entity would be desirable.

 Languages:

French and English are the official and working languages of the Court. Excellent knowledge of and drafting ability in one of these languages is required, as well as a working knowledge of the other. Command of other official languages of the United Nations would be an asset.

Compartelo:

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New York Times: In Regulators’ Sights

In Regulators' Sights By HILARY STOUT Published: October 31, 2013 Over the last three weeks, more than 2,200 people have placed orders for $10-to-$40 sets of magnetic stacking balls, rising to the call of a saucy and irreverent social media campaign against a government regulatory agency. The money from the sales […]

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The Morning Wrap

Declined: From The National Law Journal today: "LSAT Numbers Decline for Fourth Straight Year." The October test-taking numbers dropped by 11 percent, bolstering concern that any turnaround isn't likely to happen soon. More here on the drop in numbers from The Wall Street Journal. Removed: Citing the "appearance of partiality," the U.S. Court of Appeals for the Second Circuit has removed U.S. District Judge Shira Scheindlin from presiding over the stop-and-frisk case, The New York Times reports. The New York Law Journal has coverage here. Reuters reports: "Analysis: In removing stop-and-frisk judge, U.S. court enters rare territory." Read the Second Circuit ruling here. Reversed: "Only three days after a federal judge blocked a new Texas law that threatened to shut down many of the state's abortion clinics, the United States Court of Appeals for the Fifth Circuit, in New Orleans, reversed the decision, saying the rule should take effect while the case is argued in the months to come," The New York Times reports. Coverage here in the Dallas Morning News. The court's ruling is here. Names called: "When prosecutors in Williamson County tried to ban a defense attorney from referring to them as "the government" in court, defense attorney Drew Justice had a demand of his own: From now on, call me "Captain Justice." The Tennessean has the story here. (The Volokh Conspiracy has this earlier blog post.) Connected: The Wall Street Journal reports: "By year-end, most airline passengers will be able to use their tablets, e-readers and other gadgets during all stages of flight, the culmination of a decadeslong process that brings the flying experience further into the digital age." Barred: The Virginia Supreme Court has upheld a lower court's ruling prohibiting cameras at the sentencing hearing of George Huguely V, convicted in the killing of fellow University of Virginia student Yeardley Love, the Richmond Times-Dispatch reports.

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