MC&A Newsletter Volume IV, we brought you news of the misuse of social
networking sites and personal digital assistants (PDAs) by jurors. Well it appears as though technology has
reared its head yet again. This time, it
relates to attorney misuse of social networking sites. This newsletter contains news for both
lawyers and the public at large and in the spotlight this month is the recent
arrest of Roman Polanski and the legal issues raised by his arrest.
Ethical Considerations in the Age of Online Social Networking
Recent examples of attorneys engaging
in online social networking sites signify an emerging collision between the
traditionally strict ethical standards of the legal profession and the much
looser standards observed in online social networks like Facebook or Twitter. In one trial, for example, an attorney
requested a delay in a trial due to a death in the family. After granting the request, the judge found
several posts referencing a week of partying on the attorney's Facebook
profile. Yet another attorney sitting on
a jury disclosed details of the case on a blog.
Issues of confidentiality aside,
attorneys must approach their online identities with an exceptionally high
degree of discretion. We live in an era
where a reduced sense of privacy has emerged based on the explosion of online
social networking websites. These
websites allow friends and colleagues to communicate with each other instantly
by posting blogs, photos of their activities, or even by simply answering,
"What are you doing right now?" These
sites are free, easy, and are pushing the legal profession's traditionally
strict standards of decorum and professionalism to the limits of their
While some attorneys encourage the
profession to relax its standards and allow modern methods of freedom of
expression, others are calling for professional discipline and a restoration of
strict ethical standards that do not tolerate such expression. Attorneys who are found to have engaged in
professional misconduct face much more than a sense of restricted
expression: they may face significant
fines, suspension, or worse -- disbarment.
Although online social networking
sites may test the profession's traditionally strict ethics, common sense must
not be forgotten. If your online
community includes your judge, client, or superior, you might think twice
before posting private details of your personal life.
Source: "A Legal Battle: Online Attitude vs. Rules of the Bar" by John Schwartz, September 12,
The New York State Bar Association will host a continuing
legal education class on Twittering, Linking, Posting & Friending: Legal
Implications of Social Networking. Go to www.nysba.org/2009NovemberTwittering
for more information.
A Cap on Attorney Fees
Manhattan-based attorneys may be in
for an unpleasant surprise after winning in lawsuits litigated outside of their
home district. In Simmons v. New York City Transit Authority, the United States Court
of Appeals for the Second Circuit reduced a Manhattan-based attorney's fees by
21% - from $213,000 to $168,000 - refusing to permit the attorney to collect
the usual hourly rate he charges in Manhattan because the case was litigated in
Brooklyn, where hourly rates tend to be lower.
this decision, the "forum rate" - the average rates that attorneys in a
particular area charge - was just one of several variables courts considered in
awarding reasonable attorney fees to the winning party. Out-of-district attorneys could collect their
home district's higher fees if they could establish the reasonableness of such
fees. Under the Simmons decision, however, an attorney seeking a rate higher than
that available in the forum must show that no in-district attorney possessed
the "special expertise" required to litigate the case or, alternatively, that
no competent in-district attorney was willing or able to take the case.
It will be interesting to see
whether the capped fees will dictate which attorneys take these kinds of cases,
or even dictate the resulting case law.
Source: Daniel Wise, "Circuit Sets Tough Fee
Standard Based on Rates Paid in District."
NYLJ, August 04, 2009.
Director Roman Polanski's Arrest
Raises Various Legal Concerns
The recent news of the arrest of filmmaker Roman
Polanski in Zurich on a 30-year-old crime raises a host of interesting
issues. In 1978, Polanski was indicted
for giving a drug to a minor, committing a lewd act upon a person less than 14,
rape of a minor, rape by use of a drug, oral copulation, and sodomy. He pled guilty to one count of unlawful sex
with a minor in exchange for a sentence of time served for the 42 days he spent
undergoing psychological evaluations. On
the day before he was to be sentenced, Polanski fled the U.S. for France after
learning that Judge Laurence Rittenband had indicated that he would refuse to
honor the plea bargain and instead would sentence him to 50 years in jail.
Now 76 years old, Polanski -- who has dual
French and Polish citizenship -- has successfully escaped extradition by
avoiding countries that have extradition treaties with the United States. Extradition is the process by which one
nation obtains the surrender of an individual from another nation. This process exists to overcome our
principles of sovereignty - that each nation has authority over the individuals
within its border. The U.S. currently
has extradition treaties with over 100 countries, allowing the federal
government to extradite foreign nationals who have committed violent crimes
against nationals of the U.S. Although
the U.S. does have an extradition treaty with France, the treaty permits French
authorities to refuse to extradite its own citizens. This made France a safe-haven for Polanski.
Polanski's anticipated arrival in Zurich
certainly allotted U.S. authorities the notice necessary to issue the arrest
warrant, but this was certainly not his first trip outside the French safety
zone. Polanski owns a chalet in Gstaad,
a resort town in Switzerland, which he has frequented at various times
throughout the past 30 years. With this
kind of open access to Polanski outside of French protections, it is a wonder
that U.S. authorities have waited until now to seek extradition.
Samantha Griemer, the victim in this case, was
13 years old in 1978. She has since
publicly forgiven Polanski for his crime and has repeatedly alleged that
judicial misconduct was the driving force behind Judge Rittenband's decision to
dishonor the plea agreement. While one
would not expect the victim of such a crime to forgive the perpetrator, the
true surprise comes from the support Polanski has received from Hollywood. Martin Scorsese, Woody Allen, Penelope Cruz,
and Monica Bellucci are among the many celebrities who have spoken out in
support of Polanski. Those who support
Polanski claim that the case should be closed because of his advanced age, the
amount of time that has passed since the crime was committed, his talent as a
film director, the victim's own desire that Polanski be left alone, and the
fact that Judge Rittenband's sentencing decision was based on his infatuation
with the media attention he received from this and other high-profile
cases. According to court records, the
judge was so fascinated with his public image that he had his staff to keep a
scrapbook of news clippings.
Some believe that Polanski's celebrity status is
the reason he was able to evade justice for three decades; others believe it is
the reason he is still being pursued for an old crime for which his victim has
publicly stated her forgiveness.
Regardless of its effect, it is undeniable that Polanski's fame has
influenced the case.
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|Midwin Charles will appear on the final show of TRU TV's (formerly Court TV) Courtside with Jack Ford on November 13, 2009 from 11:00AM-1:00PM.
Midwin recently appeared on CNN HLN shows Showbiz Tonight, Prime News, and Nancy Grace
to discuss legal and social issues surrounding the arrest and
extradition of Roman Polanski, the disappearance of Haleigh Cummings,
the extortion attempt of David Letterman, and the cease and desist
order and other issues regarding TLC's television show John and Kate Plus Eight.
For more information on future TV appearances,
|The New Term Begins
On Monday, October 5, the Supreme Court
began its new term. The Court is set to
hear cases that will have a significant impact on us all.
Issues facing the Court this term
include bankruptcy, corporate compensation, and the extent of government
regulation of the economy. Given the
current state of the economy, regulation is no longer considered a taboo
subject. Two such cases in which the
Justices must determine the Court's stance on economic regulation involve the
creation of a regulatory board after the infamous Enron scandal and the role of
courts in determining the amount of compensation paid to investment advisers to