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Do-it-yourself Legal Services Booming
Law Center |
2008/01/06 11:15
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Tax giant H&R Block Inc. has a lock on one of life's two certainties. Now it is going after the other.
Two months ago, the Kansas City firm launched a new service --online and in-store software packages designed to help everyday people to write their own wills, trusts and estate plans at home without help from lawyers.
Selling do-it-yourself legal kits isn't a new idea.
An estimated seven in 10 Americans have no formal wills other than to follow individual state formulas for dividing property or providing for heirs. Of those with formal plans, the average age of the wills, when opened for final reading, is about 20 years old and potentially outdated by changes in estate planning law or family circumstances.
Block and others see potential business opportunities in the void.
Block has been peddling versions of its new WillPower and Home and Business Attorney through its tax offices and other outlets since at least 1996. Some competitors, notably Nolo.com in Berkeley, Calif., publisher of Quicken estate planning and legal documents, have been providing self-help legal information and forms to nonprofessionals since the early 1970s. Newer players, such as LegalZoom.com, a Los Angeles online service co-founded by O.J. Simpson attorney Robert Shapiro, even fill out the forms.
Competitors don't provide many precise sales figures. Nolo has disclosed that its Quicken WillMaker Plus sales increased nearly 33 percent during 2006. LegalZoom says that it has served 500,000 people since its opening in 2000, and that sales have been growing 50 to 75 percent a year. We The People, a storefront franchise that helps people fill out legal forms, has grown to more than 100 locations, including one in the Kansas City area, from just 25 seven years ago, according to its Web site.
These providers offer information or educational material, but they stop short of advising buyers in order to avoid what in many places would amount to practicing law illegally. They also cost a lot less than traditional legal help.
Basic, commercially available do-it-yourself wills and estate planning documents in most states run between $20 and $120. Hiring a lawyer to do the same work appears to run between $700 and $1,500 in many places, but can vary widely.
Which choice is right for you depends on your circumstances, authorities say.
"Those little kits could work if you have the training, education and expertise to use them properly," said Lee Davis, a Johnson City, Tenn., lawyer and president of the National Association of Estate Planners & Councils.
However, there also is lot of potential for someone insufficiently versed in legal matters to create major problems for heirs, for example by leaving out something important or using incorrect or ambiguous language, Davis said.
Hiring a lawyer also becomes an increasingly better idea if your estate becomes bigger or more complicated, or if your or your heirs' circumstances are changed by death, divorce, remarriage or some similar event, Davis said.
"Kits just don't cover all those conditions," he said.
Spending less than $20 for, say, Block's basic will and trust software or less than $40 for the expanded package, with software that helps fill out many other legal documents a household head or small-business owner might need, can be economical even if you need a lawyer's help with the final product, countered Jason Bass, a digital products manager at Block.
"We aren't a substitute for an attorney," Bass said, "but using the software to pull together and organize your records ahead of time will produce a significant savings in legal fees."
That is because organizing the documents is cheaper than paying your attorney's staff to do it, he said.
Block's new software products, linked with Acendi Interactive, a San Francisco developer of RocketLawyer.com and other legal self-help technologies, bridge a gap between traditional forms that consumers fill out themselves and new services like LegalZoom, in which the service fills out forms based on questionnaires the clients complete.
But, again, "we can't give advice and we don't," said Mike Turner, a LegalZoom spokesman.
Wills, trusts and other estate-planning documents generally are private documents that in all 50 states can be drawn up without a lawyer. Virtually anyone 18 or older can make a will.
But some rules vary. Kansas law doesn't recognize so-called holographic, or handwritten, wills, while Missouri law doesn't say whether it does. Individual states also have slightly different rules about witnessing the documents and notarizing some of them.
Many authorities broadly suggest using a lawyer, rather than online software or a legal kit, if your estate exceeds the $2 million exemption, above which federal estate taxes kick in. Online software or a kit probably is sufficient for simpler or smaller estates, particularly if most of the property being distributed is personal property.
But that isn't always true. Wills and trusts are so intrinsically private that "we really don't have a good idea what sizes are involved," said Turner.
On the flip side, even simple estate planning could get complicated. The current $2 million exemption from estate taxes, for example, is scheduled to jump to $3.5 million next year, disappear entirely in 2010, then drop back to $1 million after that. |
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Ulmer & Berne Elects 7 New Partners
Law Firm News |
2008/01/06 11:13
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Ulmer & Berne LLP, which is celebrating its 100th anniversary in 2008, announced today the election of seven attorneys to the partnership. Attorneys include John M. Alten, Christopher D. Cathey, Paul J. Cosgrove, Rebecca B. Jacobs, Eric M. Robbins, Richik Sarkar and Wayne M. Serra. Detailed information on the attorneys is below.
John M. Alten of the Firm’s Cleveland office focuses his practice on complex business litigation, product liability and financial services litigation. Mr. Alten represents public and private companies and individuals in all aspects of business litigation, including disputes related to contracts, licensing, securities, product liability, construction, insurance, consumer law and corporate control. He is well-versed in all forms of alternative dispute resolution.
Christopher D. Cathey of the Firm’s Cincinnati office focuses his practice on civil litigation with an emphasis on commercial, financial services, employment, creditors’ rights, and personal injury litigation. His experience includes successfully defending financial institutions and other business entities on contractual, commercial and consumer finance disputes. Mr. Cathey handles a broad range of employment litigation including non-competition, trade secret and defense of employee wrongful termination claims. He also represents individuals and self-insured corporations in tort and insurance claims involving wrongful death, catastrophic injuries and toxic torts. Mr. Cathey was recognized as an “Ohio Super Lawyer Rising Star” by Law & Politics and Cincinnati magazines (2006-2007).
Paul J. (P.J.) Cosgrove of the Firm’s Cincinnati office represents medical device, pharmaceutical, and other manufacturers in product liability claims on a local, regional and national level. Mr. Cosgrove has represented manufacturers in defense of claims involving products such as latex gloves, infusion sets, catheters and prosthetic devices. He also represents companies in defense of claims involving dietary supplements, antidepressants, diabetes drugs, and a variety of cardiac drugs in response to government investigations. He handles all phases of the defense of complex cases, including presuit risk management and counseling, fact and expert depositions, electronic discovery, dispositive motion practice, Daubert challenges, mediation, trial and appeal. Outside the context of life sciences product liability litigation, Mr. Cosgrove represents companies in defense of catastrophic loss claims involving a variety of products including pipelines, fireplaces, cranes and airplanes, and also is involved in commercial litigation. He was recognized as an “Ohio Super Lawyer Rising Star” by Law & Politics and Cincinnati magazines (2007).
Rebecca B. Jacobs of the Firm’s Columbus office is a certified specialist in employment and labor law. She represents businesses on employment-related matters, including wrongful discharge, discrimination, harassment, retaliation, employee leave, and wage and hour issues. She routinely counsels clients on issues relating to compliance with the Americans with Disabilities Act, the Family and Medical Leave Act, and other federal and state statutes. She has created and performed training sessions on topics such as sexual harassment, pregnancy discrimination, and employee leave laws. Ms. Jacobs assists clients in developing employee policies and independent contractor agreements. Ms. Jacobs also handles ERISA litigation and represents financial institutions on issues including business litigation. She was named an “Ohio Super Lawyer Rising Star” by Law & Politics and Cincinnati magazines (2006-2007).
Eric M. Robbins of the Firm’s Cincinnati office focuses his practice on intellectual property. He counsels individual and corporate clients as to securement, ownership, licensing, avoidance of infringement, dispute resolution, and enforcement of patents, trademarks and copyrights. He also prepares and facilitates ongoing prosecution of patent applications at the U.S. Patent and Trademark Office in the electrical, mechanical, and computer science arts. Mr. Robbins’ patent litigation experience includes Federal Court and International Trade Commission cases. He has previously been named an “Ohio Super Lawyer Rising Star” by Law & Politics and Cincinnati magazines.
Richik Sarkar of the Firm’s Cleveland office focuses his practice on business litigation, complex litigation and public law with expertise in business torts, contracts, corporate governance, securities and finance, real estate, real property taxation and education law. He represents financial institutions, school districts and various public and private corporations. Mr. Sarkar also works on alternative dispute resolution in the areas of commercial, product liability and public law. He is extremely active with Banking Law, Uniform Commercial Code, and Consumer Financial Services committees of the ABA Business Law Section and is on the Executive Board for the Business Law Section’s Young Lawyer Forum. Mr. Sarkar was recognized as an “Ohio Super Lawyer Rising Star” by Law & Politics and Cincinnati magazines (2005-2007).
Wayne M. Serra of the Firm’s Cleveland office practices in the areas of intellectual property creation and enforcement, with emphasis on software and computing device patents. Along with having represented two of the top United States patent filers, Mr. Serra has also counseled mid-sized and emerging companies on a wide variety of IP matters, including strategic portfolio advice, enforcement of intellectual property rights, and the evaluation, management, and monetization of patent portfolios. Mr. Serra previously served as Senior Intellectual Property Counsel for a medical imaging system manufacturer that is one of the top 200 companies in the Fortune Global 500. His experience also includes a substantial amount of patent litigation, licensing, and due diligence for technology transactions.
Ulmer & Berne LLP, established in 1908, is one of Ohio’s largest law firms. In 2007, the Firm was recognized in The BTI Consulting Group’s survey of corporate counsel as one of only 85 firms nationally that “delivers the best value for the dollar.” Also, in a survey of Fortune 500 companies by Corporate Counsel magazine, Ulmer & Berne has been chosen as a Go-To Law Firm® for both 2007 and 2008. Less than one-half of one percent of all the law firms in the US and abroad received this distinction.
A full-service Firm with 180 attorneys in Cleveland, Columbus, Cincinnati and Chicago, Ulmer & Berne represents publicly traded and privately held companies, financial institutions, pharmaceutical companies, family businesses, international joint ventures and affiliations, investor groups, start-ups and emerging businesses, public bodies and nonprofit organizations. For more information, visit www.ulmer.com. |
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Broward Sheriff Questions Law Firm's Audit
Law Firm News |
2008/01/06 10:30
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The Broward Sheriff's Office paid more than $1.3 million to a law firm with close ties to ex-sheriff Ken Jenne to do an audit of the agency's mishandling of its crime statistics -- but the firm never submitted a final report because BSO never asked for one.
Fort Lauderdale attorney Tom Panza's work over three years appears to duplicate much of the internal and outside reviews done by the FBI, the Florida Department of Law Enforcement, a Tallahassee academic group and BSO itself, according to sheriff's office officials.
The Broward state attorney's office launched a probe in October 2003 into allegations that BSO deputies manipulated crime statistics, in part by doctoring its numbers through the use of ''exceptional clearances.'' An exceptional clearance is when a crime is deemed solved despite the lack of an arrest.
Broward Sheriff Al Lamberti, who replaced Jenne after he pleaded guilty to public corruption charges in September, questioned whether the agency gained anything from Panza's work.
''He was paid a lot of money and BSO employees did most of the work,'' Lamberti said.
A team of sheriff's deputies reviewed clearance reports from several BSO districts and recorded their findings for Panza's firm to analyze, Lamberti said.
Panza, a personal friend of Jenne's, initially was hired to conduct a review of more than 10,000 criminal cases cleared by BSO deputies between 2001 and 2003. Panza's law firm was also retained to review the agency's recommended discipline for some 40 BSO deputies and to handle subpoena requests by the state attorney's office.
Panza's firm did exactly what Jenne requested, said Ed Dion, BSO's former general counsel, who left his post in October. The firm made many contributions, such as creating protocols for deputies to follow while probing the clearances, he said.
''His firm showed the deputies what to look for during their investigation,'' Dion said. ``Ken Jenne wanted an independent review and he wanted to find out where the problems were and how high up they went.''
Panza, whose law firm has performed audits for healthcare and other companies, strongly disagreed with Lamberti's assessment of his work.
''We were never charged with writing their policy and procedures [manual],'' Panza said. ``We were charged with determining they were deficient.''
Jenne, who is now serving a one-year prison term unconnected to the crime statistics probe, authorized the hiring of Panza's firm in the fall of 2004, when his agency was under a cloud of suspicion. There was no letter of retention that spelled out the scope of the work -- including goals, timetable and final audit.
When public agencies hire outside consultants to review a problem area, audits are routinely produced with recommended solutions. Indeed, a few months before hiring Panza, BSO paid about $100,000 to the nonpartisan Collins Center for Public Policy at Florida State University for a report on the agency's flawed crime reporting, which led to sweeping reforms.
Tony Alfieri, director of the University of Miami School of Law's Center for Ethics & Public Service, said ''the better practice'' would have been for BSO to establish a ''clearer scope'' of work with Panza's law firm at the beginning.
''The vagueness of the representation . . . casts doubt on the reasonableness of the hours billed,'' Alfieri said.
He suggested an ''independent review of the history of this relationship'' to determine whether Panza's firm should reimburse any money to BSO.
`NOT EXCESSIVE'
Panza sharply contested that view of his total billable hours and fees, which ranged from $125 to $250 an hour. ''They were not excessive,'' he said.
In the end, Panza said, his firm did not write up the final audit, even though he told The Miami Herald in spring 2005 that he would do so after the state attorney's office completed its criminal investigations.
Dion told The Miami Herald a final report wasn't needed.
''We didn't need a final report because Panza was sharing his findings with me and the sheriff,'' Dion explained.
Panza's law partner, Susan Maurer, who coordinated the firm's computer analyses of BSO's cleared cases, said they did a ''credible job'' that led to lasting reforms in the agency's policy and procedures manual.
But BSO officials say many of those reforms -- including suspending the use of a controversial database tool called Powertrac that pinpointed crime patterns -- had already been implemented by the sheriff's office by early 2005 amid harsh criticism of BSO's case clearance policy.
While BSO officials said Panza's work was helpful, the agency based much of its revised policy and procedures manual on recommendations by the Collins Center, the independent academic group.
''Nearly all of the information we used in our new law enforcement manual that I worked on in 2005 and 2006 came from the recommendations in the Collins Center report,'' BSO Maj. John Carroll said, including training for detectives in preparing clearance reports.
Patricia Windowmaker, BSO's compliance officer who worked on the policy manuals, agreed with Carroll.
She said that while Panza's work was ''helpful in some aspects,'' including creating an audit tool for detectives to use for investigative check lists, it was the BSO team that identified the questionable cases and deputies for internal affairs review.
''The team had to weed through all the clearances. We ended up sending 100 cases to internal affairs and as a result of the investigative team, BSO's internal affairs division opened 57 administrative cases involving 61 deputies,'' she said.
REPORT NOT FINAL
Windowmaker's report on the case clearances, policy reforms and disciplinary action meted out to deputies will be finalized when the state attorney's investigation is officially closed.
The report, now in a draft form, reached this conclusion: Windowmaker said that eight deputies found to have violated BSO policy were terminated, 19 deputies received suspensions and two received written reprimands.
In the criminal investigation, the state attorney charged six sheriff's deputies -- five of them from Weston -- with official misconduct and other offenses. Two of them pleaded guilty to lesser charges, one was acquitted and charges were dismissed against a fourth. Only one is awaiting trial.
Panza's law firm sent associates from his firm to sit in on all court proceedings involving the state attorney's case against BSO at a cost of tens of thousands of dollars.
Windowmaker said Panza's team did help with coordinating the turnover of agency records to the state attorney's office in connection with the criminal probe after relations became strained between BSO and the state attorney's office.
Windowmaker, a lawyer, said she was skeptical at first about an outsider, Panza's firm, handling the BSO subpoenas because the agency routinely did that work.
But she said the task grew so ''expansive'' that ''it was helpful having someone on the inside and someone on the outside'' dealing with some 900 subpoenas for more than one million records and e-mails.
''Tom Panza acted like a go-between, a buffer,'' she said. |
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Foley & Lardner Get the OK to Practice in China
Law Firm News |
2008/01/06 10:27
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Foley & Lardner LLP, a law firm with a practice in Detroit specializing in the automotive sector, has received permission from the Chinese government to open an office in Shanghai.
A few years ago, the firm began to sense a need to open a branch in China as it saw a growing number of Chinese companies interested in doing business in the United States -- and in Michigan -- and heard from its U.S. clients needing legal assistance navigating China's expanding economy and complicated legal system.
The firm's Shanghai license was granted in November, and it already has five people working there with plans to expand to as many as 20 in a few years, a firm official said.
"The rate of change in the legal and regulatory system there is mind-boggling, frankly. Most of it is going on and only getting translated some six to 12 months down the road," said Ken Duck, senior counsel at Foley, who works in the firm's Detroit office.
Having an office in Shanghai will allow the firm to have people on the ground communicating in the Chinese language with government officials on behalf of clients, he added.
Foley, with offices all over the world, opened an office in 2000 in Detroit. The Detroit office has about 40 people in it, and they deal with a wide array of topics.
In the past decade, the firm has been counsel on more than 200 public securities offerings that raised more than $10 billion.
The Detroit office is part of Foley's Midwest region, which includes offices in Chicago and Milwaukee. More than 1,000 attorneys work for Foley.
Foley's clients include JCI and Visteon, and the firm says it has more than $700 million in revenue annually, making it a top law firm in the country.
"Part of the thinking of setting up the Detroit office ... we represent a lot of the automotive industry, particularly in the supplier base," Duck said. "Really around the same time there was a big push for the auto suppliers to head over to China."
Prior to opening the Shanghai office, Foley's Catherine Sun, chair of the firm's Asia practice, already was making inroads in the country on the firm's behalf.
The firm provided international intellectual property counseling to the Chinese government's organizing committee for the 2007 Special Olympics World Summer Games, which were held in Shanghai last October.
While offering a full array of services, the firm plans to specialize in the automotive industry and life sciences.
It also expects to deal with issues surrounding intellectual property matters, a major concern for many U.S. companies operating in China.
"Recent studies indicate that 80% of market capitalization in publicly traded companies is tied to intellectual property assets," Sharon Barner, chair of the firm's intellectual property department, said in a statement. "As a result, businesses are placing more value on their intellectual property assets, making it more important for them to protect and enforce their rights in China."
In Detroit, the Foley office hears from a growing number of Chinese companies looking to do business in Michigan, Duck said.
"There is more discussion and hype than there is real investment at this point. But there are every day more and more companies coming to call ... looking to talk to suppliers and potential customers," Duck said. "With a lot of these investments, not just with China, there is a pretty long lead time in most cases, so you're looking at a couple years down the road before these companies will pull the trigger." |
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Jim Cooney & Mike Barnhill to Work Sheriff Controversy
Law Firm News |
2008/01/05 10:12
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Mecklenburg County officials, fearing a lawsuit over the controversy-filled effort to select a new sheriff, have hired a high-powered law firm and one of the state's highest-profile litigators to defend them.
Parks Helms, vice chairman of the county commissioners, said Friday that Charlotte attorney Jim Cooney will be one of the lawyers to defend the county should the sheriff's selection process wind up in court.
The latest legal question was raised Friday, when county commissioner Dan Bishop, a lawyer, sent a letter to county attorney Marvin Bethune questioning the constitutionality of the process the Mecklenburg Democratic Party's executive committee used when it chose Charlotte lawyer Nick Mackey as sheriff.
He cited several federal court cases that held that when a political party exercises a public electoral function such as nominating candidates to fill vacancies, it must follow federal election law.
In the special election last month, precinct representatives had weighted votes based on the precinct's votes for Democratic Gov. Mike Easley in 2004. For example, a precinct that cast 1,000 votes for Easley got 10 votes in the sheriff's contest.
Bishop says that flies in the face of the federal standard for "one man, one vote."
He wants the issue to be added to the Jan. 15 county commissioners meeting agenda.
Bethune said late Friday that, depending on the amount of research required, the entire board might have to authorize him to research the issue, and he wasn't sure if he would have to seek outside help.
The county hired Cooney to work on the sheriff controversy about two weeks ago, said Michelle Lancaster, an associate general manager for the county. Mike Barnhill, a Charlotte lawyer who has previously handled litigation for the county, is also working on the case. Cooney and Barnhill work for Womble Carlyle Sandridge & Rice, a firm with more than 500 lawyers.
Cooney most recently made headlines nationally as the attorney for Reade Seligmann, one of the Duke University lacrosse players charged in a racially charged sexual assault case. The players were exonerated, and prosecutor Mike Nifong has been disbarred.
Barnhill and Cooney are researching laws on the Mecklenburg sheriff's election, and are being paid $360 per hour, Lancaster said. She added that the lawyers give the county a good rate, considering they normally charge "in the $500 (per hour) range."
Helms and Jennifer Roberts, who chairs the commission, said the county has to proceed carefully on the issue. James Ferguson, a prominent Charlotte civil rights lawyer, has suggested he will sue the county if Mackey isn't named sheriff.
Other legal challenges could come as well, Helms added. If a sheriff is improperly selected, inmates could file challenges arguing they were unlawfully held.
Controversy has percolated for weeks surrounding the selection of a replacement for former sheriff Jim Pendergraph, who left Dec. 1 to take a job in Washington, D.C.
Mackey won the Democratic party's Dec. 6 election. But concerns have been raised about the former Charlotte-Mecklenburg police officer. He resigned from the force in 2003 while under internal investigation for allegedly falsifying hours worked.
A majority of commissioners, who would have to confirm Mackey as sheriff, have said they want to wait until the state Democrats rule on two grievances challenging Mackey's election.
Republican commissioners this week raised the possibility that the commission can legally bypass Mackey.
Bethune, the county attorney, originally told commissioners state law required the Democratic Party to pick Pendergraph's replacement.
But now Bethune and the Womble Carlyle lawyers are pointing to a second state law -- one that appears to give commissioners, not the Party, power to pick the new sheriff.
Commissioners report that their lawyers have said a 2005 N.C. Court of Appeals ruling gives precedence to the law that says the commissioners pick the sheriff. The ruling cites one of the laws in saying that if a sheriff wishes to resign, the commissioners appoint a new sheriff. In the next sentence, the ruling cites the other law and adds: "if a vacancy occurs for any other reason, it remains the responsibility of the county commissioners to select a new sheriff."
But other N.C. election law experts disagree. They note that the 2005 ruling came in a civil rights case filed by a Robeson County jail inmate, not an elections law case. |
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Fred Gray Sr. Speaks of Progress, Challenges
Law Firm News |
2008/01/05 10:05
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Civil rights pioneer attorney Fred Gray Sr. says black youth in the United States are at a crisis.
"The future of our next generation, while influenced by the past, must be defined by the actions of the present," Gray said. "... The time is now and the need is now. And we need to say young African-American children are at a crisis. And it's the truth and it's a fact."
Gray, 77, was speaking to a crowd of 300 Friday at the 33rd Annual NAACP Freedom Fund Banquet at the Columbus Convention & Trade Center. In a rousing 45-minute speech, the attorney recounted some of the landmark legal cases that were the backbone of successes won during the 1950s, '60s and '70s, but struck a cautionary tone that there are battles to be fought and victories to be won in the 21st century.
"I saw then a need to make a difference," Gray said, speaking of the days of the Montgomery bus boycott sparked by Rosa Parks' refusal to give up her seat on a city bus to a white man. Just 24 years old and fresh out of Western Reserve University in Cleveland, Gray represented Parks in her case and appeal with the aid of the NAACP Legal Defense team.
"The fight then was for civil rights for a people, a deserving people," he said. "Now the fight is for human rights, social justice and the salvation of a dying people and yet a great people."
Gray described the plight of poor blacks as a "cradle to prison superhighway" and read the statistics that show prison populations have a disproportionate number of blacks to the number in the population of the United States. He said it was up to the older community to show youth that being good citizens and following a path away from crime is good and proper.
"As we enter this new year, one of our missions should be developing young people into positive, prepared and productive citizens," he said.
Gray is senior partner at the law firm of Gray, Langford, Sapp, McGowan, Gray & Nathanson based in Tuskegee, Ala., and Montgomery, Ala. In a career that has spanned more than a half-century, Gray has been the leading legal figure in actions that integrated the buses in Montgomery; desegregated the schools of Alabama; and initiated the move for the Voting Rights Act of 1965.
At Gray's urging, then-President Clinton made an official apology in 1997 to the men who were participants in the Tuskegee syphilis experiment and was the moving force behind the establishment of the Tuskegee Human and Civil Rights Multicultural Center in Tuskegee, Ala.
Gray is currently president of the center, which will be reopening with new exhibits on black history in May. Named the first black president of the Alabama Bar Association, Gray has been honored nationwide and is the recipient of the American Bar Association's Spirit of Excellence Award and National Bar Association's C. Frances Stradford Award. |
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Stephen Abraham Argues Against Tribunals
Law Firm News |
2008/01/05 09:41
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Stephen Abraham, a Newport Beach lawyer and lieutenant colonel in the Army Reserves, hardly seemed like whistle-blower material.
A decorated intelligence officer, he served after 9/11 as lead counter-terrorism analyst at the Joint Intelligence Center at Pearl Harbor. He was a longtime Republican, a patriot devoted to protecting national security.
When he began a six-month tour of duty with the military tribunals reviewing the status of detainees at Guantanamo Bay, Cuba, he saw it as a "fantastic opportunity" to participate in a historic effort to help his country.
Instead, his account of the experience has become powerful ammunition for lawyers fighting for detainees' rights. In June, Abraham became the first insider to publicly criticize the tribunals created by the Bush administration as fundamentally unfair. His criticism, contained in an affidavit filed with the U.S. Supreme Court, figured in a rare decision by the court to reverse itself and hear arguments about whether detainees had been given an adequate chance to plead their innocence. Arguments were held in December, and a ruling is pending.
"We give rights to the most reviled of accused criminals," Abraham said in an interview last month. It is "beyond the power that we give to government to say to anybody, 'Whatever notion of fair play we have, it won't apply to you.' "
Abraham's stand has made him a hero in the eyes of human rights groups and detainees' lawyers. And it has put him publicly at odds with the military.
"Lt. Col. Abraham was not in a position to have a complete view of the . . . process," said Navy Capt. Lana D. Hampton, a Pentagon spokeswoman. Tribunal procedures "afford greater protection for wartime detainees than any nation has ever before provided," she said.
Abraham's six-month tour began in September 2004. Among other duties, he served as a liaison between tribunals and defense and intelligence agencies with information on the captives. He said he was struck immediately by the general nature of the allegations against detainees. And he was concerned that information potentially favorable to detainees was not being submitted to the tribunals. When he requested written statements that no such evidence existed, "the requests were summarily denied," he said in his affidavit.
With two other officers, Abraham sat on the tribunal of a detainee held since early 2002. According to his affidavit, the case "lacked even the most fundamental earmarks of objectively credible evidence." His panel determined that the detainee should not be classified as an enemy combatant.
He learned later that a new tribunal had been convened and reached the opposite conclusion. The entire process was biased, he said.
As a result of 572 reviews by the tribunals held mostly in 2004 and 2005, 38 detainees were judged to have been improperly classified as enemy combatants.
Said Thomas Wilner, a lawyer who has represented 15 Guantanamo detainees: "Stephen was the first person from the government who said . . . the process was a sham."
"It's very easy . . . in times of hysteria to go along with the crowd -- particularly when your superiors are ordering it -- and shave your principles a bit."
Despite his conservative politics, Abraham's stand was not out of character, said Steven Fink, his law partner. Fink describes his friend as a highly principled man who does not suffer fools gladly.
As a student at UC Davis, where his father was a professor of French literature, Abraham joined the ROTC. He was commissioned an Army officer after graduating in 1981 with a degree in anthropology. Of his decision to join the military, Abraham said the country had opened its arms to his father, a Holocaust survivor, and he considered that "a debt worth beginning to repay."
Married and the father of an 11-year old daughter, Abraham is an avid musician who plays the viola and violin. His two-man law firm handles real estate and other matters for small to mid-size businesses.
When Abraham learned that officers with legal and intelligence backgrounds were needed to staff the tribunals, he said, he was eager to offer his services. In preparation, he reviewed legal rulings and treaties on prisoners of war going back more than 50 years.
His tour coincided with contentious debate over whether habeas corpus -- the right to challenge the legal basis for detention -- extends to foreigners held as enemy combatants in the war on terror.
The Bush administration argued that the detainees had no such right, but the Supreme Court ruled in 2004 that there must be a process for reviewing whether they were being properly held. In response, Pentagon officials created the military tribunals.
The program faced a strict time limit, with more than 500 detainee status reviews to be completed in a few months. Detainees were not represented by lawyers before the three-member tribunals. They were not informed of much of the evidence against them. Nor was there a budget allocation for outside witnesses to appear on a detainee's behalf.
Midway through the six-month assignment, Abraham sent a memo to the unit commander, Navy Rear Adm. James McGarrah, seeking release from duty on grounds that it "may be in conflict with my obligations as an attorney." He said he did not get a direct response but was told informally that he would not be asked to serve on any more tribunals.
About three months later, Abraham returned to civilian life. There the matter would have ended but for the intervention of his sister, Susan J. Borschel, a lawyer in the Washington, D.C., suburban area.
Though she did not represent detainees, some of Borschel's colleagues did. In June, at her request, Abraham agreed to speak to those lawyers. At their request, he reviewed an affidavit that described the tribunal process.
Abraham said it reflected a "Pollyanna view" of the tribunal system that was "at best disingenuous."
Abraham responded June 15 with his own affidavit, which defense lawyers filed as part of their successful petition to the U.S. Supreme Court to reconsider a Kuwaiti captive's appeal of his detention.
Although they were once routinely described by U.S. authorities as "the worst of the worst," many detainees, according to their lawyers, were simply war refugees or other innocent bystanders snatched by bounty hunters and turned over for rewards. Most have been sent home -- without explanation or apology, their lawyers say.
Of 780 individuals held at Guantanamo, about 300 remain.
Among them is Abdul Hamid Al-Ghizzawi, the man cleared by Abraham's tribunal before a second panel restored his combatant status.
According to court papers by his attorney, Al-Ghizzawi has hepatitis B and tuberculosis, has not seen or talked to his family in almost six years and "is rapidly losing his mind as he sits in total isolation."
Abraham expresses some empathy for the man.
"He's about my age," mused Abraham. "He's got a daughter. He hasn't seen her in a long time. He's close to death." |
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Class action or a representative action is a form of lawsuit in which a large group of people collectively bring a claim to court and/or in which a class of defendants is being sued. This form of collective lawsuit originated in the United States and is still predominantly a U.S. phenomenon, at least the U.S. variant of it. In the United States federal courts, class actions are governed by Federal Rules of Civil Procedure Rule. Since 1938, many states have adopted rules similar to the FRCP. However, some states like California have civil procedure systems which deviate significantly from the federal rules; the California Codes provide for four separate types of class actions. As a result, there are two separate treatises devoted solely to the complex topic of California class actions. Some states, such as Virginia, do not provide for any class actions, while others, such as New York, limit the types of claims that may be brought as class actions. They can construct your law firm a brand new website, lawyer website templates and help you redesign your existing law firm site to secure your place in the internet. |
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