Legislators get bar's ear on lawyer discipline
Headline Legal News | 2008/03/06 03:07

Two House members pressing to take the power to regulate lawyers away from the State Supreme Court have won a meeting with an American Bar Association committee visiting Columbia.

The committee is in town reviewing the state’s lawyer discipline system. Chief Justice Jean Toal requested the review more than a year ago, long before the questions were raised about the court’s handling of a bar exam controversy.

The lawmakers, Reps. Kris Crawford, R-Florence, and Ted Pitts, R-Lexington, will meet with the ABA committee Friday.

The inner workings of the state judiciary have gotten statewide attention since November. At that time, news reports disclosed the Supreme Court had quietly thrown out a section of last July’s bar exam, a move that reversed the grades of 20 people who flunked the exam.

Those 20, now lawyers, included children of prominent state officials and law clerks to state judges.

The Supreme Court, the final authority in the matter, said the grade changes were made because of scoring errors. It has declined requests from The State for detailed information on its decision.

“I just believe when you look at any branch of government, there should be checks and balances and divisions of power,” said Crawford, a physician. He is lead sponsor of a bill that would remove lawyer regulation from the Supreme Court’s supervision and place it under the S.C. Department of Labor Licensing and Regulation.

LLR regulates other S.C. professions, including medicine and architecture. Part of the executive branch under Gov. Mark Sanford, its decisions can be appealed to the judiciary branch of state government up to the Supreme Court. But lawyers’ regulatory and disciplinary procedures, from start to finish, stay within the judiciary branch.

“We are glad to have (the lawmakers) talk to the committee,” Toal said Tuesday.

But the committee really isn’t set up to hear observations on proposed changes in the law, she said.

“If they want to see me, if they want to conduct hearings, that is the way to approach it,” she said, adding she would be glad to provide information to lawmakers about practices in other states.

The Supreme Court has paid a fee to the ABA to finance the committee’s evaluation. The ABA unit evaluates various states’ legal disciplinary systems.

Toal did not know how much the committee’s study would cost. Asked if its report would be made public, Toal said she won’t know until the report is done, but added, “I imagine some sort of results would be made public.”

Crawford said he hopes a Judiciary Committee subcommittee, where his bill now is, will soon hold hearings on the matter.

Pitts, a real estate broker, wants the results of the ABA committee’s findings to be made public.

“Our legal system is the foundation of this country, and the general public just wants to make sure everybody is treated fairly and equally,” Pitts said.



Lawyers seek removal of judge from their cases
Areas of Focus | 2008/03/06 02:55
Two African-American attorneys have asked that criminal District Judge Elizabeth Berry be disqualified from hearing the cases of 18 defendants they represent because, they say, she is prejudiced against African-Americans.

Berry strongly denied the assertion, saying that an e-mail message attributed to her is a fake.

The recusal motions were filed Tuesday by Fort Worth attorneys Glynis McGinty and Lesa Pamplin. The motion states that Berry directed a racial epithet at a court reporter in an e-mail she sent to her court reporter, Judy Miller.

Berry, who was in Mexico on Tuesday, flew back to Fort Worth on Wednesday to respond to the assertions.

"The reason I came back from out of the country was that I'm the steward of this court," Berry said. "The fact that someone is publicly alleging that this court is run by a racist judge is not something I'm going to stand for.

"I absolutely did not author the e-mail, dictate the e-mail, type the e-mail or send the e-mail. It's incendiary, racist, offensive language that I do not use and did not use or put in this document."

Miller said she didn't receive the e-mail, and Berry didn't write it.

"To prove authenticity is beyond our expertise," she said. "But if it was sent from her computer, Judge Berry didn't send it."

Berry has been judge of Criminal District Court No. 3 since 2003.

Pamplin contends that the e-mail, purportedly directed at court reporter Reginald "Reggie" Butler, began circulating around the courthouse last week, nearly 10 months after it supposedly was written. Pamplin said another lawyer showed her a copy of the e-mail but she does not know its original source.

Butler said Tuesday that he didn't want to comment.

On Tuesday, McGinty and Pamplin issued a news release, which they said was drafted by a number of Tarrant County's African-American defense attorneys. The two-page release cited the offensive e-mail and called for Berry's immediate resignation and Miller's immediate termination.

"It's kind of unsettling to know that in 2008 these kind of e-mails are being sent on a government computer -- and she's a judge," Pamplin said.

Attorneys who know Berry say they find it hard to believe that the veteran attorney and judge is racist.

"I've known Elizabeth as a district attorney, a defense attorney, a judge and a friend, and I can't imagine Elizabeth using that kind of language or sentiment," criminal defense attorney Jack Strickland said. "Something about this deal doesn't smell right. I wish people would give her the benefit of the doubt before they jump to conclusions."

Berry said she learned of the e-mail last month when she was notified of a confidential inquiry. She would not say whether the state Commission on Judicial Ethics made the inquiry. Commission officials also would not comment. But a Tarrant County Sheriff's Department report says a commission investigator contacted the department in December.

The judge questioned why McGinty and Pamplin would publicize the e-mail months after it purportedly was written.

"Don't you find it extremely coincidental and suspicious that over nine months later when I happen to be out of the country and unable to respond that these allegations are made public for the first time?" she said.

Leon Reed Jr., vice-president of the Tarrant County Black Bar Association, said the accusations should be investigated but that Berry should have been given the opportunity to respond before the issue was publicized.

"We're dealing with a very serious allegation that could have extensive legal ramifications," Reed said. "The first thing we should do is sit down with the judge. If she denies writing the e-mail, at a minimum an investigation should take place to determine if the e-mail was generated from her computer."

Berry said the e-mail itself raises questions about its author. For one thing, she said, she uses block letters to sign her e-mails, not the cursive signature contained in the racist e-mail.

And the date of the e-mail -- Monday, May 2, 2007 -- is incorrect, Berry said. A calendar shows that May 2 fell on a Wednesday last year.

Pamplin said she never intended to suggest that the e-mail is authentic. Her intent, she said, was to seek an independent investigation of what she considers a serious allegation.

"This is a collective action by a lot of attorneys who have concerns about this," Pamplin said. "That's why we said 'allegedly' an e-mail was sent. We're not saying it was definitive. We're saying it needs to be investigated."

Berry said it would be difficult to prove whether she did or did not send the e-mail because the county computer automatically deletes employee e-mails every 90 days.

But she said she would join with anyone, including her accusers, who wants a forensic examination of her computer to determine whether the e-mail originated there.

"If there's a way to show that the e-mail was sent or not sent, created or not created, I'd like to see that done," Berry said.

Pamplin agreed.

"If she welcomes an investigation, we welcome an investigation," Pamplin said.



Appeals Court Weighs Teen's Web Speech
Areas of Focus | 2008/03/06 02:54
A teen who used vulgar slang in an Internet blog to complain about school administrators shouldn't have been punished by the school, her lawyer told a federal appeals court.

But a lawyer for the Burlington, Conn., school told the 2nd U.S. Circuit Court of Appeals on Tuesday that administrators should be allowed to act if such comments are made on the Web.

Avery Doninger, 17, claims officials at Lewis S. Mills High School violated her free speech rights when they barred her from serving on the student council because of what she wrote from her home computer.

In her Internet journal, Doninger said officials were canceling the school's annual Jamfest, which is similar to a battle of the bands contest. The event, which she helped coordinate, was rescheduled.

According to the lawsuit, she wrote: "`Jamfest' is canceled due to douchebags in central office," and also referred to an administrator who was "pissed off."

After discovering the blog entry, school officials refused to allow Doninger to run for re-election as class secretary. Doninger won anyway with write-in votes, but was not allowed to serve.

A lower federal court had supported the school. U.S. District Judge Mark Kravitz, denying Doninger's request for an injunction, said he believed she could be punished for writing in a blog because the blog addressed school issues and was likely to be read by other students.

Her lawyer, Jon L. Schoenhorn, told the appeals court Tuesday that what students write on the Internet should not give schools more cause to regulate off-campus speech.

"It's just a bigger soapbox," he said.

But Thomas R. Gerarde, an attorney for school officials, argued that the Internet has completely changed the way students communicate.

The three-judge panel of the appeals court did not issue a ruling after the arguments.

In 1969, the Supreme Court said schools could ban expression if they can show that not doing so would interfere with schoolwork or discipline. In a later ruling, it allowed officials to bar "vulgar and lewd" speech if it would undermine the school's educational mission. But both cases involved events that occurred on school property or during a school activity.



A Key Case on Gun Control
Headline Legal News | 2008/03/06 02:52

Dick Heller, a longtime resident of the District of Columbia, carries a handgun for his job as a private security guard. But at the end of his shift, he packs up the .38 revolver and stashes it in a vault. He would like to keep a gun for protection at his Capitol Hill home, where he has endured the sound of gunfire for years. But he can't, because D.C. law forbids it. "They give me a gun to protect them," he says of the government, "but I'm a second-class citizen when I finish work."

One of the most restrictive gun laws in the country, the D.C. statute is the focus of a March 18 U.S. Supreme Court hearing that marks the most significant case on gun control in decades. With Heller as plaintiff, it is the first test since 1939 of whether the Second Amendment supports an individual's right to bear arms and not just a state's right to form a militia. It is a crucial distinction. A ruling in favor of the individual right could trigger a wave of constitutional challenges to gun

control laws nationwide. And it could suddenly bring a volatile issue—one particularly uncomfortable for Democrats—into play during a presidential election year.

"It's significant because either it's going to fuel attempts to restrict gun ownership or it could put a constitutional wet blanket on any effort to control gun ownership," says Martin Redish, a constitutional law professor at Northwestern University.

For all the passion on both sides of the Second Amendment debate, the Supreme Court has said remarkably little over the years about to whom the right applies. Specifically, the amendment states that "a well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed."

For most of American history, courts have interpreted the Second Amendment to apply to the collective right of states to assemble groups of armed citizens, such as the National Guard. Nine federal circuit courts have upheld that position, and the Supreme Court favored it when it last considered the issue in the 1939 case. (While that decision upheld the federal regulation of an individual's use of sawed-off shotguns, it didn't directly address the scope of the Second Amendment.)



Leaders split over choice of judge
Areas of Focus | 2008/03/03 05:00
Roanoke Valley legislators have only one week left in the General Assembly session to appoint a new judge in the General District Court that serves Roanoke, Roanoke County and Salem.

The Roanoke Valley delegation, which consists of three Republicans and two Democrats in the Senate and House of Delegates, is split on who should fill the vacancy left in the 23rd Judicial District by Roanoke County General District Court Judge Julian Raney's retirement.

If legislators can't come to a consensus, the circuit judges in the district will appoint someone to fill the vacancy until at least next year.

The two candidates up for consideration, Salem City Councilman Chris Clemens and Roanoke Commonwealth's Attorney Donald Caldwell, will visit the Capitol today for interviews.

In recent years, Republicans held majorities in both chambers of the General Assembly and therefore controlled appointment of judges. That would have hurt Caldwell, an active Democrat, had it been the case again this year.

But Democrats won a slim majority in the Senate last November.

"The House has its prerogative, the Senate has its prerogative, and we've got to come up with a match," said Sen. John Edwards, D-Roanoke.

Asked if he expects the Roanoke Valley delegation to agree on a candidate, Del. Morgan Griffith, R-Salem, said: "I don't know the answer to that."

The Roanoke Bar Association and Salem/Roanoke Bar Association have each endorsed Clemens for the job. But that's only one factor that the legislators take into consideration when making a decision.

Edwards, like the other four legislators in the delegation, is complimentary of both candidates, saying that either would make a fine judge. He has so far declined to name which he favors. Instead, he said, he'd take that up with the rest of the delegation after Monday's interviews.

Griffith said he is supporting Clemens for the judgeship, but emphasized that he has no problems with Caldwell.

"The reason is he [Clemens] has been endorsed by the two local bar associations," said Griffith, the House majority leader and member of the House Courts of Justice Committee.

Meanwhile, Del. Onzlee Ware, D-Roanoke, said he's supporting Caldwell because he has more experience than Clemens and because he lives in Roanoke.

"If you look at the last several judges, all were able but not one lived in the city of Roanoke," Ware said. "Roanoke deserves a judge who lives in the city."

Del. William Fralin, R-Roanoke, said he won't decide between the candidates until after their interviews today and added, "I think both of those candidates are well qualified."

But Fralin, who also sits on the House Courts of Justice Committee, said bar association endorsements would carry weight as he sizes up the candidates. All Roanoke Valley judgeships since 2001 have been filled by candidates who received a bar association endorsement.

"The bar association is very important because these are the folks who are very familiar with the people seeking the post," Fralin said.

Ware places less value on the bar endorsements. He said many of its members are corporate lawyers unfamiliar with the court for which they're endorsing a candidate.

"More than half the members who vote in the bar don't practice in General District Court," Ware said.

Freshman Sen. Ralph Smith, R-Botetourt County -- the only non-lawyer in the Roanoke Valley delegation -- is outright skeptical of bar endorsements. He said that because the lawyers in the bar will be practicing before the judge who's appointed, the endorsements represent conflicts of interest for the bars' members.

"If I'm going to serve in your courtroom for the next 20 years, the human nature is, 'How are you going to react to me?' " Smith said. "You can't take that out of it, and that's where I see a conflict of interest. I don't know that it takes an attorney's knowledge to find out who would be a good, fair judge."

That also extends, Smith said, to the 45 General Assembly members who are lawyers by profession.

"I understand it's about 32 percent of the members of the General Assembly who are attorneys, and that's a conflict of interest," Smith said. "In fact, everybody involved in this situation is an attorney except me. I'm not lobbying to say I should pick the judges, but there should be another mechanism" for appointing judges.



Judge Linda Miller Recognized for 25 years of Service
Court Watch | 2008/03/02 17:51



Judge Linda Miller was honored for her 25 years of service as a judicial officer by the OCBA Family Law section at their February meeting. Over 200 members of the section attended the monthly meeting held at the Turnip Rose in Orange.



Notable California Trials
Headline Legal News | 2008/02/29 22:48
Childhood abuse
Award: $11,000,000
Six female former parochial school students alleged sexual molestation by a lay teacher at their elementary school (Confidential v. Archdiocese of Los Angeles, Los Angeles County Superior Court, Plaintiff attorney: Eric F. Yuhl).

Rear-end fatality
Award: $1,500,000
A 28-year-old woman was killed when the vehicle in which she was riding was rear-ended by a tractor-trailer (Estate of Ana Rosa Gutierrez v. Kem-Iron Transport Inc., Los Angeles County Superior Court, Plaintiff attorney: Michael H. Whitehill).

Post-surgical death
Award: Defense
A 47-year-old man allegedly died as a result of negligent post-surgical care following an appendectomy (Tillery v. Ladenheim, Fresno County Superior Court, Defense attorney: Richard S. Salinas).

Worker burned
Award: $27,514,746
A 41-year-old worker was severely burned by a fireball at a bio-mass power production plant (Hall v. North American Industrial Services Inc., Eastern District Federal Court, Plaintiff attorney: Richard C. Watters).

Police brutality
Award: $1,500,000
A man arrested for public drunkenness alleged excessive force by police officers, resulting in a comminuted leg fracture (Andrews v. Ventura County Sheriff, Central District Federal Court, Plaintiff attorney: Michael C. Alder).

Student pedestrian struck
Award: $3,025,000
A 45-year old student struck by an SUV while attempting to cross a campus street claimed that her line-of-sight was blocked by trees that had not been properly pruned (Burkhart v. California State University, Long Beach, Los Angeles County Superior Court, Plaintiff attorney: Stanley K. Jacobs).

Infant scarred
Award: $385,000
One newborn twin sustained extensive facial scarring allegedly as a result of a negligently taped oxygen apparatus (Woo v. Los Angeles County/USC Medical Center, Los Angeles County Superior Court, Plaintiff attorney: Robert V. Chin).

Medical malpractice
Award: Defense
A patient who underwent a lumbar puncture alleged that the procedure was improperly performed and resulted in numerous spinal cord injuries (Loerch v. The Regents of the University of California, San Diego County Superior Court, Defense attorney: Richard D. Carroll).

Construction accident
Award: $1,600,000
A 27-year-old fence installer working on a scissor-lift was injured when it toppled over due to a missing steel grate on a catch basin (Boughamer v. Abboud Diamond Construction Inc., San Bernardino County Superior Court, Plaintiff attorney: Paul J. Ultimo).


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