As reported by InsideCounsel, the American Bar Association House of Delegates (“ABAHD”) recently approved an amended model rule stating that it is ethical for lawyers to disclose client information when trying to move from one firm to another.

Specifically, the rule states that it is ethical for an attorney in negotiations for a different job, as well as attorneys in merging firms, to disclose the identities of clients and the amount of business they generate because the information can help point out any conflicts of interest that might exist.  However, the model rule states that lawyers still should not reveal clients' financial information.

Although the model rule has been approved by the ABAHD, the rule is simply an advisory rule.  In addition, the rule provides little guidance for attorneys faced with the question of how much client information can be ethically revealed in states whose bar associations do not have rules covering this topic.  Thus, prior to revealing any information, lawyers should carefully consider and weigh this model rule against Model Rules of Professional Conduct 1.6 and 1.9.

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As a recent post on noted, the Tenth Circuit recently affirmed the convictions of Howard O. Kieffer.  Kieffer, who for several years practiced criminal defense law, had a problem - he never went to law school and had no license to practice law.  A California resident, Kieffer held himself out as a criminal defense attorney via a domain name with a Virginia company, which also hosted the web site.  The government argued that the web site he maintained, which was accessed by two of his victims, in Colorado and Tennessee, was a “wire communication in interstate commerce” sufficient to establish jurisdiction under the federal wire fraud statute.

One aspect, in particular, of the Tenth Circuit decision raises eyebrows.  The issue is what constitutes an interstate wire for the purpose of the wire fraud statute.  The White Collar Crime Professor Blog identified this as a particularly important issue in the cyber-connected world we now live in.  This issue has been evolving for some time, as shown in United States v. Phillips, 376 F. Supp2d 6 (D. Mass. 2005).  There, the court rejected the government argument that “in order to satisfy the elements of the wire fraud offense, it was not necessary to present evidence that the pertinent wire communications themselves actually crossed state lines, as long as the communications (whether interstate or intrastate) traveled via an ‘instrument of an integrated system of interstate commerce,’ such as the interstate phone system.”  More recently, the Tenth Circuit, in United States v. Schaefer, 501 F.3d 1197 (10th Cir. 2007), held that one person’s use of the internet, “standing alone” was insufficient evidence that the item “traveled across state lines in interstate commerce.”

Therefore, it is now somewhat surprising to read in Kieffer that the Tenth Circuit changed its position.  The court noted that before the website could reach the local host server, it had been uploaded by Kieffer to the Virginia company, and then transmitted from Virginia to Colorado and Tennessee. Based on those facts, the court held that "[t]he presence of end users in different states, coupled with the very character of the internet” permitted the jury to infer transmission across state lines.  Now, under Kieffer, an allegation that a web site was used to perpetrate fraud would give rise to federal wire fraud jurisdiction in nearly every case.  Stated differently, given the “the very character of the internet,” it is unlikely that a defendant will reside in the same state as his web site host and victims. 

Now, as Paul F. Enzinna noted, unless other courts reject Kieffer, the potential exists for a surge in federal wire fraud prosecutions.  With Kieffer seemingly establishing such minimal interstate contact requirements, it would seem that virtually any viewing or use of a web site could be used to trigger federal jurisdiction.

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The U.S. Equal Employment Opportunity Commission ("EEOC") recently announced the adoption of a four-year strategic plan that focuses on, among other things, continued efforts to address "systemic discrimination" in the workplace.  

Not surprisingly, the EEOC's strategic plan sets forth a primary objective (which the EEOC acknowledges will exhaust the majority of its resources) to combat employment discrimination through administrative (e.g., investigation and conciliation) and litigation enforcement mechanisms with regard to private employers, labor organizations, employment agencies, and state and local government employers and through adjudicatory and oversight mechanisms Congress has given the EEOC with regard to federal employers.  

Based upon the EEOC's admittedly limited resources, the strategic plan states a need "to think strategically about how best to target its efforts to ensure the strongest and broadest impact possible in its efforts to stop unlawful employment discrimination."  In this regard, the strategic plan asserts that a top priority will be to continue the EEOC's 2006 "Systemic Initiative" designed to identify, investigate and litigate cases of alleged systemic discrimination (which the EEOC describes as "pattern or practice, policy, and/or class cases where the alleged discrimination [often by a single charging party] has a broad impact on an industry, profession, company, or geographic area").  

We look forward to gaining insight on how the EEOC intends to marshal its resources over the next several years - such as through the use of Commissioner charges, directed investigations, and empirical data - to address allegedly discriminatory policies or other instances of "systemic discrimination" from EEOC Commissioner Victoria A. Lipnic during DRI's 35th annual Employment & Labor Seminar, to be held May 2-4, 2012 in Chicago, IL.  If you have not already registered for this event, please access the registration information here and secure your spot today. 

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Supreme Court Update

Posted on November 10, 2011 05:50 by David Axelrad

The Supreme Court heard argument on November 7 in Zivotofsky v. Clinton, No. 10-699, a case involving the “political question” doctrine and the scope of the President’s authority over the conduct of foreign relations.

In 2002, as part of the Foreign Relations Authorization Act, Congress enacted Section 214, entitled “United States Policy with Respect to Jerusalem as the Cpaital of Israel.”  Subsection 214(d) provides that, for purposes of issuing a passport to a United States citizen born in Jerusalem, the Secretary of State, upon request, must record the citizen’s place of birth as “Israel.”  In a statement issued at the time he signed the bill, the President took the position that Section 214 is merely advisory because, if it is instead directory, Section 214 would impermissibly infringe upon the President’s constitutional authority to formulate the United States’ position on the recognition to be given to foreign states.

Menachem Zivotofsky, who was born in Jerusalem in 2002 to U. S. citizens, applied through his mother for a passport, requesting that the place of birth be listed as “Jerusalem, Israel.”  The State Department responded that its policy precluded listing “Israel” as Zivotofsky’s birthplace, and issued a passport listing the place of birth as “Jerusalem.”  Menachem, through his parents, then filed an action for declaratory and injunctive relief, seeking an order compelling the State Department to comply with Section 214(d).  Both the district court and the Court of Appeals held that the issues presented by Zivotofsky’s action raised non-justiciable political questions. The Supreme Court granted certiorari to consider both the political question and whether Section 214 is an unconstitutional infringement of the President’s authority.

During oral argument, Zivotofsky’s attempt to defend Section 214 met with skepticism.  Zivotofsky took the position that Congress has authority to legislate in the area of foreign policy, and that Congress acted appropriately in concluding the designation on a passport of “Jerusalem, Israel” as an American citizen’s birthplace would do no harm to U. S. foreign policy.

However, Chief Justice Roberts, and Associate Justices Kennedy, Ginsburg, Scalia, Sotomayor and Kagan, all expressed doubt that Congress could legislate in this area without encroaching upon the President’s authority to conduct the foreign relations of the United States.  As Justice Sotomayor put it:

“[W]hat entitles Congress to trench on a presidential power that has been exercised virtually since the beginning of the country?”

The Court was more receptive to the Solicitor General’s argument that the President’s authority over foreign affairs, including the extent to which foreign governments are recognized, is exclusive, and that Section 214 necessarily infringes upon that authority.  Justice Breyer suggested that the Court might want to abstain from entering this controversy between the legislative and executive branches by upholding the Court of Appeals’ conclusion that this case involves a non-justiciable political question. However, Justices Kennedy and Sotomayor suggested that the Court should reach the merits of the controversy in order th eliminate uncertainty concerning the allocation of responsibility for the conduct of foreign affairs.

A decision in this case is expected by the end of the current Supreme Court term.

David Axelrad is an attorney with Horvitz & Levy in Los Angeles.  Contact David here.

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(originally posted on on October 4, 2011)

Well, the Reference Manual on Scientific Evidence: Third Edition is out. And the fix is in.
Think we exaggerate? How about this little gem from the Preface: "Judges and juries, however, must consider financial conflicts of interest when assessing scientific testimony. The threshold for pursuing the possibility of bias must be low. In some instances, judges have been frustrated in identifying expert witnesses who are free of conflict of interest because entire fields of science seem to be co-opted by payments from industry"?

Or how about the first section of the first chapter of the Manual: "A. Atomization"? Citing our least favorite case, Milward v. Acuity, the Manual frowns on the effort of courts to examine the premises, and the evidence allegedly supporting those premises, of an expert when determining whether his causal inference is warranted. Noting, very slyly and without disclosing their demand for transparency and accountability, that certain well known and respected authorities have concluded that ultimately the determination of causation is a matter of scientific judgment "reflecting the weight of the evidence", the Manual chastises those who might cock an eyebrow when it turns out that none of the "evidence" proffered by an expert actually supports his opinion. What duties would be left to a gatekeeper obliged to accept the mere ipse dixit of a well credentialed academic? The Manual, unsurprisingly, doesn't say.

Worse yet, and indicative of who, and what cause, was behind the effort, the Manual goes on to cite the new-ish Milward three more times. Once for the proposition that the unproveability of a theory is proof of the theory; once to support the rubber stamping of an expert's personalized and unexamined - weighing in the scales of his scientific judgment - "methodology"; and, once to reject the idea that statistical significance testing - the "it might be so" hurdle for hypothesis generation from statistics - is any business of federal judges.

The first chapter tellingly concludes that "there are serious concerns about whether ... the guidelines have resulted in trial judges encroaching on the province of the jury to ... judge the overall credibility of  ... scientific theories." We thought the whole point of Daubert was to ensure a better approximation of the truth by at least limiting the theories to be considered by lay juries to those that have a decent chance of being true. Guess not.

David Oliver is managing partner of the Houston office of Vorys, Sater, Seymour and Pease. His practice focuses on civil litigation involving allegations of injuries due to exposure to chemicals or pharmaceuticals; he holds degrees in both chemistry and biology. David is registered for DRI’s Annual Meeting. He is speaking at the Toxic Tort Committee CLE session on October 28.  

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The Advisory Committee on Civil Rules is currently holding hearings across the country on proposed amendments to Federal Rules of Civil Procedure 26 and 56.  See link.  A hearing was held on November 17, 2008 in Washington, DC.  Future hearings are set for San Antonio on January 14, 2009 and San Francisco on February 2, 2009.  The proposed amendments and the Advisory Committee’s comments can be found here.

It is important for those interested in civil justice to become familiar with the proposed amendments as they seek to revise 2 very important rules relied upon by federal court attorneys – Expert Disclosure and Summary Judgment.  While many sections are being changed, the following stand out for me:

Rule 56(c) will be changed to require a point/counterpoint recitation of material facts.  This is not new to me because for many years the District of New Hampshire has required a movants to submit separate statement of material facts, and the opposing party to specifically lay out those material facts that are disputed.  Local Rule 7.2(b).  The requirement of setting the facts out in separately numbered paragraphs is new for me but not problematic.  It has been my experience that the requirement has forced movants and opponents to focus on that which is truly material, i.e. facts that affect the outcome of the litigation under the applicable substantive law, rather than simply asserting a long litany of facts in an effort to either persuade the court of the merits of your overall position without regard to the issues at hand or throwing numerous facts against the wall in the hope that the court will assume that there must be an issue in there somewhere and deny the motion.  I believe that it has also focused the court’s attention and permitted it the luxury of not having to decipher what a party thinks is material or in dispute.  This latter point is particularly important in cases where there are pro se litigants, such as civil rights matters where my judges have expressed great frustration in matters I have been involved in.  Therefore, when I spoke to the Committee in DC, I encouraged the adoption of that requirement in the proposed rule.

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