MC&A Newsletter
Volume V  :: May 2009
The Market
MC&A continues to bring you the latest news on the legal market in this economy.  Our goal is to take a positive spin on the current economic climate.  That said, reports have surfaced that small and mid-sized firms have an opportunity to grow in this economy.  While large firms are shedding staff and attorneys at record pace - due in large part to lack of work and large overhead costs - small firms are absorbing clients who once only hired large firms.  This is because clients are first and foremost, looking to cut litigation costs and save money.  Small and mid-sized firms have always faced challenges in attracting and keeping large clients but now it appears as though they are enjoying a moment in the sun.  Let's hope it is not temporary.

Source:  Midwest's Midsize Law Firms Faring Better Than Large Urban Rivals, Lynne Marek and Tresa Baldas, April 27, 2009,
Op-Ed Corner
Prosecutorial discretion plays an important role in the criminal justice system because prosecutors have wide latitude in deciding what cases to prosecute and how to charge those cases.  This immense power is made clear in the case of sexting.  A recent phenomena - or more or less an updated version of typical childhood games - sexting involves teenagers sending sexual messages and naked pictures of themselves to friends, girlfriends, and/or boyfriends over instant message (IM), text, and/or email.  It is quite prevalent too.  The National Campaign to Prevent Teen and Unplanned Pregnancy and asked 1200 teens about their sexual behaviors in cyberspace and the response showed that 39% of teens (ages 13-19) are sexting and around the same number of teens are receiving such messages.  Half of those teens are sending or posting nude or semi-nude pictures of themselves.

One would think that sexting is harmless.  The problem is, however, that sexting is technically child pornography -- a felony -- in almost every state and worse yet, teens and their parents do not know this.  Sexting is technically child pornography because it involves sending nude or semi-nude images by cell phone or electronic media by and/or to an underage person.  In recent months, teenagers across the country who are sexting have been arrested and charged with child pornography.  In Greensburg, Pennsylvania, six teens were charged as juveniles with possessing child pornography after three girls sent nude or semi-nude pictures of themselves to boys and in Middelton, Ohio, a 13-year-old boy is facing felony pandering obscenities charges after taping a sex act and showing it to friends at a skating party.

Charging teens with child pornography has major implications that are severe.  If convicted of child pornography -- in addition to being a convicted felon -- the teen must register as a sex offender and remain on the list for several years - all for behavior that normal teens have always done, but without the assistance of technology.  Take for example the case of Phillip Alpert of Orlando, Florida.  The 18-year-old's girlfriend sexted him naked pictures of herself and when they broke up, he mass e-mailed the photos to friends and other students to get back at her.  Alpert was charged with sending child pornography, to which he pleaded no contest but was later convicted.  He was sentenced to five years probation and required by Florida law to register as a sex offender.

While we wait for legislatures to catch up to technology and carve out the parameters of sexting and how it relates to child pornography, if at all, prosecutors should act as a filter, exercise their discretion and refrain from charging such cases as child pornography.  This is not to say that there should be no punishment when teens violate privacy laws, etc.  Instead, punishment should mirror the level of offense and not contravene legislative intent of the law.

One prosecutor has got it right.  George Skumanick Jr., a district attorney from Wyoming County, Pennsylvania, gave 20 students from a local high school who were caught allegedly sexting the choice of probation and sex education classes or be charged with sexual abuse of a minor.  This is the essence of prosecutorial discretion because Skumanick understands that the facts surrounding the alleged crime do not meet the legislative intent behind the crime.  Parents should be aware of this issue, bite the bullet, and talk freely with their teens about sex, the distribution of obscene images over the web and their cell phones, and its legal ramifications.  Otherwise, their 18-year-old with a promising future could end up a convicted felon and on the local sex offender list.

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

© 2008 Midwin Charles & Associates LLC
In This Issue
The Market
Op-Ed Corner
Recent News
Midwin Charles recently appeared on CNN Headline News programs Showbiz Tonight and Prime News and Tru TV's (formerly Court TV) Best Defense to discuss recent legal, political, and social issues.  For more information on future televisions appearances, go to

MC&A successfully mediated a settlement agreement on behalf of a client and prevented litigation on breach of contract and labor claims.

MC&A continues to service clients in foreclosure related litigation and proudly announces consulting services in consumer lending matters involving Truth in Lending Act and Real Estate Settlement Procedures Act violations. For more information, call 212.551.3617.

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