U.S. Supreme Court Justice Ruth Bader Ginsburg was celebrated by fellow Justice Elena Kagan and the New York City Bar Association this week, the Associated Press reports. Ginsburg "'has done as much as anyone in the last 40 years" to make the country more just and equal, Kagan remarked, the AP reports. Prior joining the bench, Ginsburg was a leading litigator in gender discrimination law.
According to this NPR report, a bankruptcy judge in North Carolina presiding over a gasketmaker's insolvency proceeding has torn into the actions of plaintiffs lawyers prosecuting cases against the defendant. For example, the judge described, according to NPR, how "in Texas, one plaintiff said his only exposure to asbestos was from Garlock — after his lawyers filed a claim with another company. In California, a plaintiff's lawyers misled a jury to make Garlock look worse. And in Philadelphia, lawyers made evidence of their client's exposure to 20 different asbestos products disappear."
Garlock was authorized by the judge to conduct discovery into the evidence used against the company in 15 cases, and Garlock is now suing several plaintiffs' law firms in complaints that are now under seal.
West Virginia's MetroNews reports that the WVU Law Innocence Project is "pushing legislation at the capitol which would require all police interrogations to be video recorded. Supporters of the bill believe it will reduce the chances of false confessions and ultimately false convictions."
Recording confessions is now considered a best practice to prevent innocent people from falsely confessing to crimes they didn't commit or being wrongfully convicted of crimes they didn't commit.
West Virginia has passed legislation establishing protocols to ensure investigating officers don't influence witnesses during lineups, MetroNews also reported.
The Scottish Parliament voted overwhelmingly in favor of same-sex marriage, STV reports. Now Northern Ireland is the only country in the United Kingdom where same-sex couples can't access matrimony.
Utah has filed its brief in the 10th Circuit defending the state's ban on same-sex marriage after a district judge struck it down as unconstitutional, Deseret News reports. One argument by the state is that there is nothing in the federal Constitution preventing Utah's citizens from limiting marriage to opposite-sex couples. A second argument by the state is "'redefining marriage as a genderless, adult-centric institution would fundamentally change Utah's child-centered meaning and purpose of marriage,'" the paper further reports. A third argument by the state is "that traditional marriage furthers the state's interests in accommodating religious freedom and preserving social harmony in the state, while redefining marriage would be a recipe for social and religious strife," the paper also reports.
The Washington Post reports that a lawsuit in Virginia challenging that state's ban on same-sex marriage might get to the U.S. Supreme Court before a case over Utah's same-sex marriage ban does. Oral arguments were just heard in the Virginia case, while a district court judge struck down Utah's ban already. That ruling is on appeal.
Even though the Utah case has advanced farther, "the Virginia cases are moving quickly, and some lawyers are hopeful they emerge through the appeals process as favored vehicles for an ultimate decision by the Supreme Court," The Post further reports.
Separately, a class action to challenge Virginia's ban on same-sex matrimony just got approval to proceed.
The American Civil Liberties Union of Wisconsin filed a lawsuit today to challenge that state's ban on same-sex marriage on the grounds that it violates same-sex couples their right to equal protection under the law, the Wisconsin State Journal reports. "'Lesbians and gay men in Wisconsin are denied the freedom afforded to different-sex couples in this state to have their loving, committed relationships recognized through marriage,'" the parties' complaint argues.
The Arizona Supreme Court has ruled that it doesn't violate due process for a Connecticut law firm to face a legal malpractice lawsuit in that state even though none of the firm's lawyers are licensed to practice in Arizona. Legal experts, however, said there is little chance that facing a lawsuit in another state will lead law firms to stop the practice of issuing opinion letters to out-of-state clients on tax shelters.
I covered the case in a piece for the Connecticut Law Tribune. Here's an excerpt:
The Arizona Supreme Court has ruled that a Connecticut law firm with no lawyers licensed to practice in Arizona can nevertheless be the target of a malpractice claim from two Grand Canyon State residents. But the ruling is not likely to curtail the practice of law firms writing opinion letters for out-of-state clients in tax matters, according to legal experts.
In exchange for a $50,000 fee, Bridgeport-based Pullman & Comley and partner D. Robert Morris prepared an opinion letter for Arizona plaintiffs Bill and Sue Beverage some 13 years ago. The letter opined that it would be legitimate under federal tax law for the Beverages to take advantage of a tax shelter known as a custom adjustable rate debt structure.
However, the Internal Revenue Service rejected the couple's tax return and their declaration of substantial losses related to the tax shelter. They ended up being assessed $3 million.
In a two-page opinion, Chief Justice Rebecca White Berch affirmed that the Connecticut defendants are subject to Arizona's specific jurisdiction—even though the firm does not have an office in Arizona and does not have any attorneys licensed to practice law there. Pullman & Comley now have to face claims of civil racketeering, fraud, breach of fiduciary duty, conspiracy, professional malpractice and negligent misrepresentation in Arizona.
Adam Chodorow, a professor who teaches tax law at Arizona State University Sandra Day O'Connor College of Law, said the Arizona Supreme Court decision won't cause firms to step away from issuing opinion letters on tax matters. Instead, he thinks firms are going to insert choice-of-forum clauses—which stipulate the court or jurisdiction in which any subsequent legal actions will take place—when they advise out-of-state clients about tax shelters.
"Any firm that wants to can insert a choice-of-forum clause in any contract with a client," Chodorow said, adding that such clauses are typically upheld by the courts. In this case, such a clause might have prevented Pullman from "getting stuck in court in Arizona."
Chodorow also said law firms that issue opinion letters are going to weigh the costs of potentially being sued by an unhappy clients in a far-off state against the benefits of the business they get from issuing opinion letters.
"I guarantee you, if the money is there, and the client base is there, they'll either accept the risk or assert the forum clauses," he said.
Stephen Utz, a professor at the University of Connecticut School of Law who teaches federal tax law and policy, said the case of Beverage v. Pullman & Comley highlights the risks involved in opinion letters.
As far as the IRS is concerned, taxpayers are still subject to tax penalties even if they have an opinion letter from a law firm stating that a certain investment, deduction or other financial maneuver is legal, Utz said.
"Some law firms don't do letters of this kind in order not to disappoint clients and not mislead them that something is going to be great" when it won't, he said.
Other law firms, however, not only give opinions on tax shelters but design them and market shelters, Utz said.
The IRS has made it more difficult for tax lawyers to give advice on tax shelters, Utz said. The agency has specific penalties for "material advisors," which may include lawyers, who don't report to the IRS when clients have consulted them about certain tax shelters, he said.
The penalties were "intended to be intimidating and to persuade some tax practitioners not to do this," Utz said.
Facing lawsuits in out-of-state jurisdictions over tax-shelter legal advice gone wrong is not what will dissuade law firms from doing this kind of legal work, Utz said. But, he added, penalties from the IRS will.
Gigaom's Jeff John Roberts wrote this week about the problems plaguing copyright law: "Copyright law is broken and the debate over how to fix it is dominated by extremists: those who support Hollywood hardliners on one hand, and those who defend the likes of Kim Dotcom on the other. The way forward lies somewhere in the middle and, if lawmakers can find it, they could create a system that provides more money and respect for creators while also ensuring that the next generation of BuzzFeeds or YouTubes can flourish." One solution, Roberts proposes is shorter copyright terms: "The best place to start is with shorter copyright terms. In early America, creators were able to protect their works for a 14 year term that could be renewed one time. Such a limit sounds about right for today when art is created, distributed and forgotten faster than ever before. Shorter terms might also make it easier for artists to persuade internet users to pay them in the first place."
Defense lawyers for the accused Aurora, Colorado, movie shooter are going to seek access to a reporter's confidential sources all the way to the U.S. Supreme Court, Reuters reports. The New York Court of Appeals ruled that state's shield law protects Jana Winter from having to reveal her sources in the Colorado criminal case.
(Hat tip to How Appealing, where I first saw this news.)
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