Wednesday, February 27, 2008

Federal Government Launches Assault on South Florida Criminal Defense Attorneys

Miami criminal defense attorney (and amazing law professor) Roy Black did the right thing when representing notorious MedellĂ­n kingpin Fabio Ochoa. He retained an attorney for the sole purpose of conducting a due diligence investigation into the origins of the funds Ochoa planned to use to fund his criminal defense. But Black didn't hire just any attorney. He hired Ben Kuehne - an attorney of impeccable ethics and former counsel to Al Gore during the 2000 Presidential Election. Kuehne performed the necessary research and drafted an opinion letter recommending that Black accept payments from Ochoa totaling nearly $5 million. Kuehne purportedly earned between $220,000 to $260,000 for his work.

Sounds fair, right? Not in the eyes of the Federal government who indicted Ben Kuehne on charges of money laundering alleging that approximately $1.8 million of the funds referenced in Kuehne's opinion letter could be traced back to five separate undercover operations in New York and Miami. At the least, the government alleges that Kuehne knew the funds were commingled with drug money and funneled back to the U.S. through black market money brokers.

Prominent Miami criminal defense attorney David Markus points out that the motive for Kuehne to be unethical and knowingly lie about the origins simply isn't there. Some opine that the indictment may be politically driven.

The more likely scenario is that the government is trying to deter criminal defense attorneys from accepting high-stakes drug trafficking cases. And what better way to send that message than to pick on one of our Bar's most ethical attorneys? Maybe the government hoped the indictment alone would have a calming effect and attorneys would stand down. Fortunately, the opposite appears to have happened as our local attorneys have rallied behind Kuehne in record numbers.

A commenter on Markus's blog references Shakespeare’s Henry VI, which in this context is appropriate. The reference of course is to Dick the Butcher's famous exclamation: "The first thing we do, let's kill all the lawyers." In his dissenting opinion in Walters v. National Association of Radiation Survivors, 473 U.S. 305 (1985), Justice Stevens assessed the quote and said "Shakespeare insightfully realized that disposing of lawyers is a step in the direction of a totalitarian form of government." For the sake of our country's future, lets hope the local bar remains undeterred by this latest government assault.

U.S. v. Kuehne et al [PDF]
Money-laundering charges against famous lawyer fueling debate [South Florida Sun-Sentinel]

Tuesday, February 26, 2008

Oops, Britney Did It Again! This Time It’s Bigamy. Or is it?

Yes. She did. Britney Spears and her paparazzo boyfriend, Adnan Ghalib, eloped to Rosarita Beach, Mexico on January 9, 2008. Since 2004, Britney has had two failed marriages, gone to the psych ward twice, and been to rehab three times. As if Britney does not have enough problems in her life, she’s added the crime of bigamy to the long list. Or has she?

The key question is did Britney “willfully” marry Adnan “knowing” that he was already married?” Under California law, to find Britney guilty of bigamy, the prosecutor would have to prove (beyond a reasonable doubt) that Britney knew of the prior marriage but married Adnan anyway. Criminal defense lawyers look to the facts. According to news sources, when Britney was released from a psychiatric hospital the first time, Adnan convinced her into going to Mexico to get married by telling her that it was the only way to keep her safe from the world. Such facts could give rise to a lack of mental state defense.

As in Florida, there is a “mental state” element under the California bigamy law that Britney's criminal defense lawyers can argue is lacking. Such would not be the case in a state that recognized bigamy as a strict liability offense. So, if Britney were found guilty of the crime of bigamy, she could be punished by a fine not less than five thousand dollars ($5,000), or by imprisonment in the state prison.

This blog would not be complete if I did not touch on the laws in Texas. Under the bigamy laws of Texas, a man or woman commits a bigamy offense if he or she is legally married and his or her “spouse is married and he or she purports to marry or does marry that person in this state, or any other state or foreign country, under circumstances that would, but for the person's prior marriage, constitute a marriage.” Convoluted? Perhaps. That’s Texas law sometimes. But one thing is for certain. Texas law differs from many other state laws because there is no mental state requirement to prove the criminal offense of bigamy. Bigamy is a strict liability crime in Texas.

Jail bird Britney? Well, I hope not. Prison is certainly the one thing Britney wants to leave off her list of problems in life.

Saturday, February 23, 2008

High First Year Associate Salaries Cause Clients Distress

I have always wondered how large law firms have been able to pay such huge starting salaries to inexperienced first-year associates and still maintain a solid client base. In early 2007, a prestigious Wall Street firm set the new national pay standard for large firms by being the first to offer $160,000 salaries to first-year associates fresh out of law school. Of course, simple economics suggests that it is the client who ultimately must pay higher billable rates to accommodate such a high salary. And surely clients are not naive to believe that higher billable rates, let alone high paid salaries, are directly proportional to the quality of the representation. If clients suffer from such naivety, one of the purposes of this post is to dispel that belief.

I am personally familiar with two former partners at a large firm in San Antonio who left to form their own small firm. The reason? Salaries and billable rates were getting out of control and their clients were not happy. The partners began to investigate starting their own law firm when billable rate increases, which ranged from $180.00 hourly to $400.00 hourly, had made it increasingly more difficult to engage new clients. Surprisingly, the partners were able to retain 90 percent of their clients and now have a thriving small law firm practice.

Make no mistake about it. Most, if not all, law firms are in business to profit. But they must also have a duty to serve clients under a Lawyers Creed without sacrificing quality of representation. Personally, I am proud to be part of such a law firm. William B. Soloman, Jr., General Counsel for GMAC, said it best when he stated, “When I talk to law firms, I have one hand on my wallet [because] with the pressure on firms to increase revenues, they don’t care very much about cost effectiveness.” Our investment in experienced lawyers provides our clients peace of mind that the attorneys working their case will work efficiently. Clients of firms employing high paid first year associates absorb the cost of the inexperience by paying for additional legal research and hours of work. I am proud our firm combines experience and reasonable hourly rates to provide its clients affordable and quality representation. I am proud to be part of a law firm named Bertolino LLP.

Thursday, February 21, 2008

If in Doubt, Say No (or Get a Prenup)

Last week, a Houston Rockets fan conjured up what he thought was the perfect proposal. The scene was set at the Houston Toyota Center and - well, here's how it went...

Here, the proposed-to-spouse had the wherewithal to decline her suitor's request. Although it may seem obvious to most to not enter a marriage with doubts, academic studies have shown that a number of Americans do just that. The common result? Divorce within two to six years. University of Texas professor Ted Huston studied the phenomenon and termed the couples "early exiters." Huston believes that a number of early exiters enter marriage with the notion that matters will improve once they are wed, but quickly find their relationship only getting worse. Upon realizing that the deterioration of the relationship will be perpetual, the couple cuts their losses and files for divorce.

For those convinced a more romantic future awaits (but rational enough to preserve their property rights), the prenuptial agreement may be the legal solution. A prenuptial agreement is executed by the parties before the marriage, and can achieve any of several objectives: defining certain assets as community or separate property; clarifying that certain transfers from one spouse to another are gifts; waiving or specifying one spouse's right to alimony in the event of a divorce; or characterizing certain debts of one spouse or the other as community or separate indebtedness. Just the legal protection for the mate that just can't say "No."

Marriage Proposal Rejected at BasketBall Game [YouTube]
What's Love Got to Do With It? [University of Texas]

Wednesday, February 20, 2008

Visa Delay Causes Mariner to Be Late to Cactus League

Seattle Mariners second baseman Jose Lopez will be late for spring training due to immigration problems with his work visa. Lopez, a Venezuelan citizen, like other foreign national MLB players is required to obtain or keep current a valid work visa. reports that:

Lopez has not yet received a working visa from his Venezuelan government, and is expected to miss the first day or two of Spring Training, manager John McLaren announced Tuesday morning during his pre-workout media session at the Peoria Sports Complex.

The report itself is misleading as the visa requirement is one imposed by the United States government. While visas may be processed through the foreign country's U.S. consulate, the process rarely requires any involvement from the foreign government.

Athletes typically qualify for one of two work visas. Extraordinary athletes who have reached the top of their sport may seek an O visa. The fundamental requirement for an O visa is to have reached the top of the profession or endeavor for which the alien seeks admittance into the United States. Think David Beckham. The P visa is an alternative available to those athletes who do not otherwise meet the high standard required for classification in the O category. While the P visa still requires extraordinary ability, the main difference between the O visa and P visa is that with a P visa a player can come for a maximum of one year and with an O visa the player can come for longer. It would probably be safe to bet that an athlete like Lopez, who batted .251 last year with a plethora of errors to boot, is waiting on a P visa - and that's probably a good thing for Seattle fans.

Lopez's visa makes for late arrival []
Coming to America: Immigrants, Baseball and the Contributions of Foreign-Born Players to America’s Pastime [National Foundation for American Policy]

UPDATE: Minnesota Twins ace Francisco Liriano also had visa problems that caused him to be late to Spring Training.

International SXSW Bands Hustle to Obtain Immigration Status

SXSW announced its full music lineup almost two weeks ago - opening the door for many international bands and artists to play their first American show. But before they take the stage, most artists will first need to clear their immigration status with the U.S. government.

Generally, international musicians performing at SXSW are required to apply for a P visa. The P visa allows a person who performs with or is an integral or essential part of an entertainment group to enter the United States temporarily and solely for the purpose of performing in an event or performance. The person must be recognized internationally as being outstanding in his or her discipline for a sustained and substantial period of time, and must have a sustained and substantial relationship with the group over a period of at least one year. In some cases, the international recognition and/or one-year prior relationship requirement may be waived. Essential support personnel may accompany the performer or entertainer if they have the appropriate qualifications to perform the services needed. Artists and music executives who only plan to attend the convention (for business or pleasure) generally do not need a P visa provided they will not be earning money or working with a performing artist playing in the U.S. Other immigration and tourist visa requirements would still apply.

With the festival only three weeks away, musicians who have procrastinated may find themselves in the position that Rodrigo Sanchez of Rodrigo y Gabriela found himself in last year. Last year, Rodrigo was denied a visa renewal and forced to miss SXSW purportedly because he shared the name of a man with a criminal record.

Some foreign acts visiting the United States for reasons other than SXSW have found securing visas to be a more difficult process than expected. Artists like Amy Winehouse and Lily Allen have each had work visas denied for various reasons.

Homeland Security Gives Rodrigo y Gabriela the SXSW Blues [Spinner]
Winehouse gets visa, too late for awards [MSN]
Lily Allen's U.S. Visa Revoked [People]

UPDATE: Capitol K bows out of SXSW 2008 due to U.S. visa issues.

Friday, February 15, 2008

Former NFL Player, Attorneys Look to Cash in on Spygate

Let's end the week with something a little entertaining...

Attorney Eric Deters bills himself as "never too busy for another new case". Today, Attorney Deters filed a lawsuit against Bill Belichick and the New England Patriots in the U.S. District Court for the Eastern Distrcit of Louisiana alleging the Patrtiots' videotaping of the St. Louis Rams “walk-through” prior to the 2002 Super Bowl (XXXVI) defrauded the fans and tortiously interfered with numerous contractual relations. The Complaint was filed on behalf of former St. Louis Rams football player Willie Gary (no, not that Willie Gary), two 2002 Super Bowl ticket holders and a Rams seat license holder and alleges damages in excess of $35 million and also requests the Court triple damages under the Racketeer Influenced and Corrupt Organization Act (RICO), 18 U.S.C. 1962. The Plaintiffs have also requested that the Court certify the matter as a class action pursuant to Federal Rule of Civil Procedure 23.

Self-proclaimed "populist crusader" and New Jersey attorney Carl Mayer filed a similar lawsuit against Belichick and the New England Patriots in the U.S. District Court for the District of New Jersey in reference to the Patriots' alleged Spygate incident against the New York Jets. The Complaint alleged causes of action similar to those in Deters' filing and also contained a RICO count.

Mayer and Deters' clients will likely have to overcome Belichick and the Patriots' Rule 11 motion and the lawyers involved may have to overcome bar regulations such as Rule 3.130(3.1) of the Supreme Court of Kentucky. While one would expect both suits to go the direction of this Patriots lawsuit, you never know - the Patriots are on a losing streak.

Gary et al v. New England Patriots et al [PDF]
Mayer v. Belichick & The New England Patriots
$100M lawsuit filed against Patriots [Boston Herald]
Heat's on Cheats [New York Post]

UPDATE: The New York Post has weighed in.

Tuesday, February 12, 2008

Use of Electronic Evidence is on the Rise in Family Law Cases

According to a recent survey by the American Academy of Matrimonial Lawyers (AAML), nearly 90% of the nation's top divorce attorneys say that within the past five years, they have seen a dramatic increase in the use of electronic data as evidence in divorce and child custody cases. According to the survey, e-mail was the most common form of electronic evidence, followed closely behind with Text/Instant Messaging and evidence obtained from internet browsing history. The survey also noted the rise in data taken and used as evidence from Global Positioning Systems or Global Positioning Satellites (i.e., GPS). The survey noted a significant gender difference also emerged between which spouse uses electronic evidence during a divorce or child custody case. In short, 27% of the AAML members said that wives used electronic evidence more often during a divorce or child custody case, while only 5% of the husbands used electronic evidence.

Nation´s Top Divorce Lawyers Note Dramatic Rise in Electronic Evidence [FindLaw]

The Valentine's Day Effect

Like lawyers nationwide, Bertolino LLP historically experiences a sharp increase in the number of clients that contact its office inquiring about divorce proceedings around Valentine's Day. Some have gone so far as to dub the time of year 'Divorce Season'.

Could the boom possibly be related to the traditional day on which lovers express their love for each other? Probably not. Some researchers attribute the significant increase to an overall disinterest in filing for divorce during the preceding holiday season.

Our advice to clients? Avoid becoming a Valentine's Day statistic and stock up on flowers, candy, and gifts!

The Valentine's Effect [Forbes]
As Valentine's Day Approaches, So Does Height of 'Divorce Season' [Fox Business]

Sunday, February 10, 2008

Public LIkely to Benefit From Recent Texas Court of Criminal Appeals Decision

On Wednesday, the Texas Court of Criminal Appeals announced a decision in the case of State v. Crook (PD-0001-07). The ruling is expected to have an impact on the amount of money criminal defendants can be ordered to pay for their crimes. The Court's decision clarified how fines should be treated in association with Texas laws that require the sentences to be served concurrently when the charges all arise from the same criminal episode and are prosecuted together. After recognizing a sentence includes both the fine and the jail time, the Court found the fines must also be served concurrently.

The Crook case involved former El Paso attorney, James Crook. The trial court found Crook guilty of thirteen counts of improperly soliciting clients and entered a sentence requiring Crook to pay thirteen separate $10,000 fines and serve seven years of probation. As a result of the ruling from the Court of Criminal Appeals, Crook will now pay only one $10,000 fine, and the remaining twelve fines will be considered paid in full because they "run" at the same time.

State v. Crook
New rule brings confusion but no respite from parking fines [Austin American-Statesman]

Saturday, February 9, 2008

Firm Helps Low-Income Immigrants Apply for Naturalization

Bertolino LLP attorney F. Brett Baccari and his wife, Rachel Baccari, an attorney at the Law Offices of Becky Beaver, volunteered this morning at the Political Asylum Project of Austin (PAPA) to help qualified low-income applicants become United States citizens. PAPA, in association with the Austin Bar Association, held two Saturday clinics staffed by local Austin attorneys who provided legal assistance to qualified Legal Permanent Residents to help them obtain their United States citizenship. Qualified immigrants who came to the clinic worked one-on-one with a volunteer attorney who helped them navigate and complete the otherwise complicated naturalization process.

Bertolino LLP is committed to public service and regularly participates in local pro bono activities and charitable events in its Texas and Florida communities. Austin attorneys interested in assisting PAPA with future endeavors should visit the organization's volunteer website or contact PAPA's office at (512) 478-9788.

Political Asylum Project of Austin [PAPA]

Federal Government Sends Message to Immigrants and Visitors: Keep Your Immigration Status Current

Immigrants and non-immigrant visitors in Travis County, Texas may feel the effect of the Federal government's increased focus on illegal immigration. Travis County Sheriff Greg Hamilton recently announced that U.S. Immigration and Customs Enforcement agents would begin stationing themselves in the Travis County Jail - possibly 24 hours a day. It will be a dramatic change from the department's previous policy of not asking inmates and victims questions about their immigration status. This increased Federal presence could prove devastating to immigrants and non-immigrant visitors who overstay their visas.

Local groups have already begun organizing in opposition to the Federal presence. A number of Austin attorneys have spoken out regarding numerous instances where clients who were citizens, legal permanent residents, or visa holders had “immigration holds” placed on them while in the Travis Count jail.

Immigration agents to work out of Travis County jail [Austin American-Statesman]
Groups assail sheriff’s decision to give ICE more access [Austin American-Statesman]
Travis County Sheriff's Office


Friday, February 8, 2008

Narrowed Presidential Field Suggests Change is Coming for Country's Undocumented Immigrants

The suspension of Gov. Mitt Romney's campaign on Thursday brings hope for many of the country's undocumented immigrants. Each of the three remaining frontrunning candidates, Sen. John McCain (R-AZ), Sen. Hillary Clinton (D-NY), and Sen. Barack Obama (D-IL), have openly campaigned for legislation that would provide an avenue for undocumentad immigrants to obtain legal status. States with large immigrant populations, such as Texas and Florida, can expect to be immediately impacted. Current laws establish strict time bars that leave many undocumented immigrants no realistic path to legal residency.

The voting record of the remaining viable candidates indicates change is coming. Each candidate voted for the Comprehensive Immigration Reform Act of 2006 that would have permitted:
(i) illegal immigrants who have resided in the United States for more than five years to apply for citizenship by paying fines and back taxes, and (ii) illegal immigrants who have resided in the United States for two to five years to stay in the country without fear of deportation, provided after three years they left the United States applied for citizenship at border check points. The Act would have required those in the country for less than two years to return to their original nations. The Bill, however, died on January 3, 2007 with the end of the 109th Congress.

The next legislative attempt to address the status of undocumented immigrants came in the form of the Comprehensive Immigration Reform Act of 2007. This Bill proposed a a new "Z visa" to be given to everyone living in the United States illegally on January 1, 2007. The Z visa would give the previously undocumented immigrant the legal right to remain in the United States for the rest of their life. After eight years of holding the Z visa, the immigrant would be eligible for a United States Permanent Resident Card (i.e., "green card") after paying a $2000 fine and back taxes. Five years later, the immigrant would be elgible for citizenship. It too died.

Sen. John McCain - Immigration Reform []
Sen. Hillary Clinton - Reforming Our Immigration System []
Barack Obama - Plan for Immigration []