Cert from SDFLA

Our appellate correspondent, Richard Rosenthal, writes in:


On Friday the U.S. Supreme Court granted cert on a fascinating case that originated right here in S.D. Fla. Without delving too much into details -- those interested can go to Wyner v. Struhs, 254 F. Supp. 2d 1297 (S.D. Fla. 2003) -- Judge Middlebrooks awarded "prevailing party" attorneys' fees to the ACLU of Florida after it successfully obtained a preliminary injunction that allowed a nude anti-war protest in a public park. But the catch is that after "winning" the preliminary injunction, the ACLU "lost" its request for a permanent injunction because the protest was was one-time deal, rather than a recurring performance. The Eleventh Circuit -- in an unsigned, unpublished opinion -- affirmed Judge Middlebrooks's award of attorneys' fees. Wyner v. Struhs, 179 Fed. Appx. 566 (11th Cir. 2006). Although that unpublished affirmance is not even binding precent within the Eleventh Circuit, it nevertheless conflicted with a Fourth Circuit ruling (Smyth v. Rivero, 282 F.2d 268 (4th Cir. 2002)), and the Supreme Court has now stepped in to resolve the conflict. After the Supreme Court's virtual elimination of attorneys' fees under the "catalyst theory," a Supreme Court ruling in this case could deliver yet another serious blow to civil rights organizations and other "do-gooder" litigants. Stay tuned.....

Padilla trial continued

Judge Cooke continued the Padilla trial until April 16, 2007. This was done, in part, to allow for the mental evaluations to take place.

Picking up on one of Rumpole's recent riffs (read his comments and responses by a Herald reporter) regarding article headlines, here is the headline for a recent Sun-Sentinel article about the Padilla argument in the 11th Circuit: "Lawyers for terror suspects pessimistic as appeals court considers conspiracy charge." So I read the article looking for quotes from the lawyers saying they were pessimistic. There wasn't one! The article, by Vanessa Blum, was well-written and informative, but the headline (which I'm sure wasn't written by her) was absolutely wrong and had nothing to do with the article. How does this happen?

Padilla case goes to Atlanta

The 11th Circuit heard argument today in Jose Padilla's case on Judge Cooke's decision to dismiss Count I of the indictment. More to follow later, but here's Vanessa Blum's (Sun-Sentinel) take of the argument. Heavyweights argued it -- Anne Schultz for the Government and Paul Rashkind for the defense. Both are chiefs of the appellate divisions of their respective offices.

More news and notes

I've been on a news and notes kick lately...

1. "Chief justice off mark on judges' earnings; Judicial pay shouldn't be tied to Congressional salaries": The Miami Herald contains this editorial today concerning Chief Justice Roberts' year end report that I covered here.

2. On Friday, a Broward jury found Michael and Robert McKay guilty of racketeering conspiracy as president and secretary-treasurer of American Maritime Officers, a national labor union based in Dania Beach. Vanessa Blum covers the quick verdict (after a long trial) here. "Defense attorneys for the men said they were shocked by the jury's decision and how quickly it was reached. 'I can't read the jurors' minds, but they certainly didn't have time to go through all of the evidence in the case,' said attorney Neal Sonnett. Lawyer Fred Haddad, who represents Robert McKay, said he would ask U.S. District Judge James Cohn to order a new trial." The case was prosecuted by Robert Tulley.

3. How Appealing blogs here about a new TV show about Supreme Court clerks: "What's next -- Howie Mandel hosting cert. or no cert.? Hollywood's quest to glorify U.S. Supreme Court law clerks will soon reach new heights (or perhaps depths) as Fox Television has given the green light to a new series entitled 'Supreme Courtships.' According to Variety magazine, 'Supreme Courtships revolves around the professional and personal world of six Supreme Court clerks. Tieche and Adelstein Productions ('Prison Break') principals Marty Adelstein and Michael Thorn will produce.' And The Hollywood Reporter says that 'Supreme Courtships, from 20th Century Fox TV and Adelstein Prods., is a comedic drama about the personal and professional lives of six Supreme Court clerks and their supervisors.'" Above the Law has more here.

4. "Pulling on a Fine Line: Case raises questions about when a N.Y. lawyer may advise snowbirds in Florida." From the intro to the ABA Journal article: "A licensed Florida lawyer may advise clients in that state on New York matters, even if he or she is not licensed in New York.So why can’t a licensed New York lawyer advise Sunshine State residents on New York matters, even though he is not licensed in Florida?" The article continues:

When immigration lawyer M. Ronald Gould raised that question in a lawsuit filed against officials of the Florida Bar, a federal district court gave him an answer he didn’t like.Gould filed his action after the bar, which has enforcement authority over Florida’s professional conduct rules for lawyers, nixed his plan to advertise his availability to advise clients on “New York legal matters only” out of an office in Miami.“I save them money because they don’t have to fly to New York to see a lawyer, and they don’t have to pay a lawyer extra money to come see them,” says Gould, who’s been admitted to practice in New York since 1961 and has lived in Florida nearly three decades. “Many people here still have business in New York, and I want to be available to them.”Gould’s suit argued that the Florida Bar’s restrictions on his advertising violate his free speech rights under the First Amendment and cited his “genuine and credible fear” that the bar would charge him with unauthorized practice of law (a third-degree felony under state law) if he went ahead with his plan. But in a decision issued Aug. 8, District Judge Federico A. Moreno granted the bar’s motion for summary judgment. Gould v. Harkness, No. 04-23178-CIV-MORENO (S.D. Fla.). Gould has appealed the ruling to the Atlanta-based 11th U.S. Circuit Court of Appeals.

"Two defense lawyers can keep fees Feds claimed were tainted"

That's the headline in today's Justice Watch from Julie Kay.

"Miami attorneys Ed Shohat and Bruce Lehr got their best holiday present from federal prosecutors. The government decided to let them keep $757,000 in legal fees from their clients, convicted businessmen Eduardo and Hector Orlansky, which the government had previously argued were tainted. The deal, which was approved by the Department of Justice last week, also gives the government a gift. The Orlansky brothers agreed to forfeit to the government another $750,000 from the sale of a luxury Manhattan condominium. *** Negotiations between Shohat and Lehr and federal prosecutors went on for several months. The consent order approving the deal was signed by Assistant U.S. Attorney Matthew Menchel and Shohat Dec. 28 and by the Orlanskys Dec. 29."

Now the fight turns to the oppressive guideline ranges:

"Meanwhile, Lehr has filed papers seeking a downward departure in sentencing for Hector Orlansky, based on, among other things, his client’s health. Orlansky, 61, has had cancer in his shoulders, colon and vocal chords; suffers from an inner ear disorder called Meniere’s disease; has high blood pressure and cholesterol; and suffers from depression and anxiety. In addition, Lehr argued, Hector Orlansky should get a lesser sentence because he had no criminal history prior to the fraud charges and was “well-respected in the fields of banking and finance.” If the pretrial probation office investigation is adopted by the court, Orlansky would spend a minimum of 151 to 188 months in prison, which would probably amount to the rest of his life. Shohat said he will file a downward departure request for Eduardo Orlansky soon. Judge Jordan has not set a sentencing date. Denied bond requests, the brothers are being held at Miami’s Federal Detention Center."

disclosure -- I'm quoted in the article.

And here's the pitch...

The DBR covers (here) the upcoming trial of sports agent Gustavo Dominguez, which is scheduled to begin in front of Judge Moore in Key West on January 16. "Federal prosecutors have indicated they will call Seattle Mariners shortstop Yuniesky Betancourt and Chicago Cubs catcher Henry Blanco to testify, according to Miami attorney Susan Dmitrovsky, who represents Dominguez. However, the government may have some difficulty in getting the players to testify as many players, including Blanco, are out of the country playing winter ball in South America, Dmitrovsky said." Also alleged: "Co-defendant Hernandez smuggled the wife and daughters of Chicago White Sox pitcher Jose Contreras into the country, and that Hernandez was taped by a cooperating witness admitting doing so. Prosecutors are not alleging that Contreras, who earned $9.6 million in 2006, was smuggled into the country. He is not expected to testify at the trial."

The case is being prosecuted by Ben Daniel and Nathaniel Mandel.

Betancourt's stats can be seen here.
Blanco's here.
Contreras's here.

News and Notes

1. The New York Times reports on Padilla here. The Government has been taking some hits in the press recently on this case and this is another example.

2. "Compensation: Empty-handed": That's the headline in this DBR article about Tom Tew's lawsuit against the Florida bar being dismissed with prejudice in federal court. "About 4,000 asbestos clients of disbarred attorney Louis Robles will have to find another way to recoup the $13.5 million their former lawyer stole from them after a federal judge threw out their claim against The Florida Bar. In an unusual class action suit filed last January, the plaintiffs claimed a security fund maintained by the Bar to compensate clients victimized by dishonest attorneys applied to them, and their claims should be paid in full. The suit argued that the Bar’s failure to pay a lump sum denied the plaintiffs their due process and equal protection rights under the U.S. Constitution. But U.S. District Judge Willis B. Hunt Jr. of Georgia disagreed in a dismissal order Dec. 22. He denied the plaintiffs’ claims with prejudice, barring them from re-filing. The judge, who handled the case after the recusal of Miami judges, concluded the 11th Amendment gives the Bar immunity because it is a regulatory arm of the state Supreme Court."

News and Notes

1. Listen to Nina Totenberg's story on Jose Padilla here. Lots of interesting stuff, including high-ranking government officials stating that it was the government's intent to incapacitate Jose Padilla. Totenberg quotes an official who says that it would be in the government's interest to have the Court declare Padilla incompetent and send him to a medical facility.

2. Justice John Paul Stevens says he is a "moderate conservative" in an interview about Gerald Ford. Fun to watch...

3. "Greenberg Traurig Reached $7.6 Million Settlment with FDIC": Greenberg Traurig agreed to pay the FDIC $7.6 million for its role as a legal adviser to the now defunct Hamilton Bank of Miami, according to a June settlement between the FDIC and Greenberg.