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Legislature hires law firm to head probe of MnDOT
Headline News | 2007/12/20 09:07
The Minnesota Legislature is bringing in some hired help for its ongoing investigation of MnDOT's role in the collapse of the Interstate 35W bridge.

The Minneapolis law firm of Gray Plant Mooty will earn up to $500,000 to investigate the transportation department's operations in the years leading up to the collapse, which killed 13 and injured nearly 100 others.

Exactly what brought down the span on August 1st will no doubt be a matter of engineering and physics. The National Transportation Safety Board is entrusted with that probe, but it won't necessarily answer State Senator Steve Murphy's top question.

"What can we do to make sure that this doesn't happen again?"

Murphy, the Red Wing Democrat who heads the Senate Transportation Committee, convinced the Rules Committee to authorize the Senate's half of the half million dollar contract. House leaders are expected to okay the other portion.

"Are tough questions going to be asked about who made what decisions and when?," Murphy asked, "Yes. They have to be."

The law firm will technically work for the joint committee formed to investigate the tragedy, and is expected to delve into MnDOT's inspection records and decision-making process.

Governor Pawlenty asserts the money would be best spent elsewhere.

"It seems like it's not a great use of public money to have a fourth investigation," Pawlenty told reporters Wednesday, "But that's up to the Legislature in their infinite wisdom."

The Pawlenty administration's already paying $2 million for it's own investigation of the collapse. MnDOT hired the firm Wiss, Janney, Elstner of Chicago to run a "parallel" probe of the NTSB's review. That may take a year or more to complete.

In the meantime, Legislative Auditor James Nobles is looking into MnDOT's handling of the 35W bridge leading up to the collapse. He expects to issue a report in February.

"Seems to me they want to have a redundant investigation," Pawlenty argued, "It may have a political tinge or a motive to it and that's not helpful."

That political question comes up for two reasons. Senator Murphy is a longtime critic of MnDOT and Governor Pawlenty's resistance to raising the state's fuel tax to address a huge backlog in transportation projects.

And Murphy argues the collapse should make it clearer than ever that the state needs to invest more in roads and bridges.

"What would you think?" Murphy remarked, "A bridge fell down, my God. If that's not clear indication that we need to do something differently I don't know what is!"

Murphy said that if the Auditor's reports and other official probes deliver the answers the joint committee's seeking, he'll be happy to call off the law firm's probe.

"We're committed to end our association with the outfit that we hired today, if those other people are finding what we need to make sure the public is safe."

"Right now it doesn't appear that we're going to get everything we need."

A report by the St Paul Pioneer Press Wednesday raised Gray Plant Mooty's connections to Democrats and DFL politicians, pointing out that US Senator Amy Klobuchar once worked there.

Murphy said, however, the committee picked a law firm with the least number of conflicts politically of the five interviewed for the job.

"Which outfit has the least baggage? We did due diligence and we all decided that GPM was the best in that regard."

Murphy said the current plan is to issue first of three formal reports in March.


Judge rules in favor of Avvo's online rankings
Court Feed News | 2007/12/19 15:12

Avvo won a key legal victory Tuesday in its quest to legitimize its online attorney rating service. The legal brouhaha erupted earlier this year when high-powered class-action lawyer Steve Berman sued the Seattle startup, claiming that the company's attorney ratings were a "flat-out scam" and could harm consumers. But U.S. District Judge Robert Lasnik on Tuesday granted Avvo's request to dismiss the suit, writing in a 10-page order that the startup's attorney rating system is protected by the First Amendment.

Berman was traveling and could not be reached for comment.

Avvo Chief Executive Mark Britton declared victory, saying he had been confident that the court would reach that decision.

"This was a case that should have never been filed. It was aimed at chilling and censoring our opinions, the opinions of consumers and even the opinions of other lawyers," said Britton, the former general counsel at Expedia who founded Avvo last year. "We are gratified. We are very happy."

There is the possibility of an appeal.

The suit, which was brought by Berman on behalf of Seattle attorneys John Henry Browne and Alan Wenokur shortly after Avvo's launch last June, claimed that the attorney rating service was severely flawed since some accomplished lawyers scored lower than those with disciplinary actions.

For example, the suit noted that Supreme Court Justices Ruth Bader Ginsburg and Samuel Alito received the same rating as an attorney in prison for conspiracy and other charges.

The suit also said that attorneys could manipulate the rankings by updating their profiles on Avvo, citing one example of a Bellevue attorney who boosted his Avvo rating by posting athletic awards on his profile page.

But Lasnik wrote Tuesday that the Avvo ratings -- which assign rankings of 1 to 10 on attorneys -- are "subjective opinions."

"To the extent that their lawsuit has focused a spotlight on how ludicrous the rating of attorneys (and judges) has become, more power to them. To the extent that they seek to prevent the dissemination of opinions regarding attorneys and judges, however, the First Amendment precludes their cause of action," Lasnik wrote.

Lasnik also questioned why Browne would use his rating as a "Super Lawyer" by Washington Law & Politics magazine as evidence against his sub-par Avvo rating, noting that the court did not want to determine if one system was better than the other.

Avvo, which has raised about $13 million from Benchmark Capital and Ignition Partners, has attracted more than 4,000 lawyers who have claimed profiles on the site. About 2,000 of those are from Washington state.

Despite the legal action, Britton said that he spent little time on the case and most of the employees stayed focused on the job at hand.

"I think the team took it for what it was worth, rather than getting worked up by it or getting distracted by it," he said.



Chicago Lawyer Is Indicted On Refco-Related Charges
Lawyer Blog News | 2007/12/19 14:12

In a rare case of a lawyer being charged in connection with the alleged wrongs of a client, Chicago lawyer Joseph Collins was indicted today on fraud and other charges in connection with the 2005 collapse of commodities and derivatives firm Refco Inc. Federal prosecutors in Manhattan on Tuesday announced 11 counts against Mr. Collins, of the law firm Mayer Brown LLP, in connection with legal work he did for Refco, including documenting a series of "round trip loans" between related entities and outside investors that Refco completed to shift bad debt off its books from the late 1990s to 2005. The discovery of the transactions led to one of the swiftest collapses in Wall Street history.

Phillip Bennett, the former chief executive of Refco, and others have been indicted in connection with the Refco collapse.

"Acting hand-in-hand with Bennett, Collins made affirmative misrepresentations, material omissions, and told deceptive half-truths, all to assist Bennett's scheme to steal more than $2.4 billion from potential investors," the indictment said.

Lawyers are rarely charged criminally in connection with a client's alleged fraud. In the collapse of Enron Corp., no outside lawyers were charged. "There tends to be gray in legal transactions, but to show intent in a white collar prosecution, it needs to be black and white," says Andrew Weissmann, the former head of the Department of Justice's Enron Task Force and now a partner at Jenner & Block LLP. "It's difficult to develop that kind of evidence against lawyers."

The Securities and Exchange Commission also filed a civil complaint Tuesday against Mr. Collins, alleging that he aided and abetted securities fraud at Refco.

Mr. Collins, who has been the head of Mayer Brown's derivatives group, is now on leave from the firm while the charges are pending, the firm said Tuesday. "Mayer Brown has cooperated fully with authorities investigating activities related to the collapse of Refco," the firm said in a statement. "Our review of the evidence available to us shows that the firm acted in a professional, competent and ethical manner in its work on behalf of Refco."

Mr. Collins's lawyer, William Schwartz, said his client intended to fight the charges and called him "an innocent victim of the Refco fraud. This indictment should send a chill down the spine of every transactional lawyer who believes he or she is representing an honest client."

Michael Garcia, the U.S. Attorney for the Southern District of New York, took a different view, saying it is "not a crime to have a client who commits a crime. No lawyer will be prosecuted unless that lawyer knows about the client's fraud and agrees to join in it understanding its unlawful nature."

The charges are a blow to a law firm that has weathered several of late. In July, buyout firm Thomas H. Lee Partners LP, which purchased a stake in Refco in 2004, sued Mayer Brown for allegedly failing to inform Lee about the bogus loan transactions. Also this year, an independent examiner filed a report in Refco's bankruptcy, concluding that there was significant evidence that the law firm "knew or should have known" the loans were fraudulent.

Beyond Refco, the law firm has struggled with recent defections by high-profile partners, and it suffered negative publicity this year when it fired or demoted 45 partners in an effort to boost its profitability.



Judge orders hearing on destroyed CIA videotapes
Lawyer Blog News | 2007/12/19 13:05
A U.S. judge on Tuesday ordered the Bush administration to explain whether the CIA violated a court order by destroying videotapes of the harsh interrogations of two terrorism suspects.

U.S. District Court Judge Henry Kennedy, who in 2005 had ordered the government to preserve information on prisoner mistreatment at the U.S. naval base at Guantanamo Bay, Cuba, scheduled a court hearing on the tapes for Friday, overriding government objections.

Lawyers for a group of Guantanamo Bay inmates contesting their detention had requested the hearing to learn whether the government had complied with the preservation order. They cited reports that information obtained from the interrogations implicated five unnamed Guantanamo detainees.

"We hope to establish a procedure to review the government's handling of evidence in our case ... and generally to require an accounting from a government that has admitted that it destroyed evidence," said David Remes, an attorney for the group of inmates.

He declined to comment on whether he believed any of his clients were implicated during the interrogations.

The CIA on December 6 disclosed that it had destroyed hundreds of hours of interrogation tapes, prompting an outcry from congressional Democrats and human rights activists. The sessions recorded on the tapes were believed to have included a form of simulated drowning known as waterboarding, which has been condemned internationally as torture.

The CIA said it destroyed the tapes lawfully and did so out of concern for the safety of agents involved if the recordings were ever made public. The White House has repeatedly denied the United States tortures terrorism suspects.

The Justice Department declined to comment on the judge's hearing order but the department last week urged Kennedy not to investigate the videotapes.



Lawsuit Against Utah Ski Resort Revived
Court Feed News | 2007/12/19 11:18
Skiers assume the potential for injury when they try to navigate a steep mountainside, but not all risks are inherent, the Utah Supreme Court ruled Tuesday, clearing the way for a lawsuit against a resort.

William Rothstein suffered severe internal injuries when he skied into a wall at Snowbird in February 2003. He sued and claimed the resort was negligent.

A lower court had said Snowbird Corp. was protected from a lawsuit because of two waivers signed by Rothstein when he obtained a season pass at the popular resort near Salt Lake City.

The high court overturned that ruling and said the releases go against a state law that is designed to keep insurance rates affordable for resorts but not shield them from all liability.

The releases signed by Rothstein "are contrary to the public policy of this state and are, therefore, unenforceable," the 3-2 decision said.

Snowbird spokeswoman Laura Schaffer said the resort doesn't comment on pending litigation.

In court papers, the resort maintained Rothstein skied off a connecting trail to an area that was marked off by rope. But the rope had a gap, which Rothstein mistook for an entrance to an open trail. He hit a wall made of railroad ties that was obscured by a light covering of snow.

Snowbird won the earlier ruling on two releases Rothstein had signed, assuming all risks and specifically mentioning cases "including the negligence of Snowbird, its employees and agents."

The Supreme Court's ruling Tuesday restores Rothstein's lawsuit and clarifies state law.

"What it will do is to encourage ski resorts to be more careful in their operations," said Jesse Trentadue, an attorney for Rothstein.



DOJ: No comment on forcing encryption passphrases
U.S. Legal News | 2007/12/19 11:14

The U.S. Department of Justice won't say when it believes an American citizen should be forced to divulge his or her PGP passphrase. We've been trying for the last two days to get the DOJ to answer this question, which became an important one after last week's news about a judge ruling a criminal defendant can't be forced to divulge his passphrase on Fifth Amendment grounds. The Fifth Amendment, of course, protects the right to avoid self-incrimination.

In the case of U.S. v. Sebastien Boucher, federal prosecutors think that the defendant has child pornography encrypted with PGP (Pretty Good Privacy) on his Alienware laptop. They sent him a grand jury subpoena demanding the passphrase--which is what a judge rejected on Fifth Amendment grounds.

"I won't be able to provide anyone for an interview," said DOJ spokesman Jaclyn Lesch. "The point you raise is one that we would want to address in court. I hope you understand."

We had asked the DOJ this: "In the DOJ's view, under what circumstances can a person be legally compelled to turn over an encryption passphrase?"

In one view, which prosecutors tend to share, a passphrase is like a document or key that must be forcibly turned over. The civil libertarian view treats a passphrase as the contents of someone's mind, which a defendant cannot be compelled to divulge.

The distinctions between these views are important to Americans' privacy rights and law enforcement needs. Unfortunately, we'll have to wait for future legal filings to find out what our public servants actually think.



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