MC&A Newsletter
Volume VII  ::  October 2009
In 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.
Midwn Charles

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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 leniency.
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, 2009, www.nytimes.com
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.
Prior to 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.
Film 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.
Source: http://www.cnn.com/2009/CRIME/09/27/zurich.roman.polanski.arrested/index.html  and Karl Vick, "Polanski Faces Extradition for '77 Rape Charge." SF Gate, September 28, 2009.
MC&A is firmly committed to our valued clientele.  We provide services in the areas of litigation, criminal law, and general corporate and business law.

For more information about how we can be of service to you, call us at 212.551.3617 or send an email to midwin@charleslawfirm.com.

Midwin Charles & Associates LLC
230 Park Avenue, Suite 1000
New York, New York 10169

2008 Midwin Charles & Associates LLC
In This Issue
The Practice Corner
In The Spotlight
Recent News
The New Term Begins
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 mutual funds. 

Source: http://www.nytimes.com
For a more in-depth discussion on the Supreme Court, take a look at MC&A Newsletter Volume VI.
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