"End Story-- 2004"

Local radio station WKRQ-FM, in promoting the coming weekend, has come up with the phrase "Close the door on 2004," and we shall.

Before closing, though, we thought we'd follow another tradition and skim back over the year. ABCnews noted "The Year in Infamous Criminal Cases" this morning. FindLaw detailed "The Most Important Legal Developments of 2004," and CourtTV came up with the "20 Wackiest Courthouse moments."

Have a safe weekend.

National EMT Rules

Yesterday no less than some 105 publications carried stories about emergency response crews being leary about a set of rules being proposed nationwide. Most of these mentioned that commented were still being received through January 2005... but failed to mention where they were to be sent.

For anyone who's interested in EMTs, "first responders," or emergency service, the site to visit is that posted by the National Association of State EMS Directors @ http://emsscopeofpractice.org Instructions for submitting comments are contained in the posted draft.

IRS Issues Final 401(k) Rules

The Internal Reveneue Service released final regulations governing 401(k) plans Tuesday.

"The existing regulations covering these plans were last updated in 1994," the Treasury Department's press release states. "Since then, there have been significant statutory changes." The final regulations are posted online in the Federal Register (Dec. 29, 2004 Vol.69 No.249 Pp.78144)

Minnesota can't regulate internet calls

The 8th. Circuit Court of Appeals Tuesday upheld a lower court decision that a Minnesota utility could not regulate internet calls in the same manner that it does regular telephone service. (Vonage Holdings Corp. v. Minnesota Public Utilities Commission)

The FCC voted 5-0 on Nov. 9th. for a petition by Vonage asking that its product be declared an interstate service. Further information there is available through Tech Law Journal.

Earlier this month, the U.S. Supreme Court in a surprise move said it would hear a key telecom case (FCC v. Brand X Internet Services), which could decide whether broadband cable should be regulated as an unregulated information service, or as a telephone-like telecommunications service that can be required to make its lines available to competitors.

Israeli mobile phone restrictions

Israel's Communication Ministry announced last Sunday that it was amending licenses for mobile phone operators to restrict access of pornography only to adults having a code identifying them as adults.

Internet Security

A recent survey of computer security professionals revealled that while many believe compliance with increased government regulations has cut into their ability to secure computers networks, those networks are safer as a result. Still, almost one in five said they would be willing to leave their network unprotected on an around-the-clock basis, preferring to accept the risk to their network and the information contained in them.

Gov. Taft Names Hamilton County Judges

The Cincinnati Business Courier noted that Governor Taft has announced judicial appointments for the Hamilton County Municipal and Common Pleas Courts. The appointments come in the wake of the movement of two judges, Judge Ralph "Ted" Winkler of the Municipal Court and Judge Ralph Winkler of the Common Pleas court.

Judge Ralph "Ted" Winkler is moving from the Hamilton County Municipal Court to the Hamilton County Common Pleas court. His replacement, appointed by Governor Taft, is Judge Alex Triantafilou. Judge Triantafilou is a former assistant prosecutor and administrator of the Hamilton County Clerk of Courts office.

Judge Ralph Winkler is retiring from the Ohio State First District Court of Appeals, and is being replaced by Judge Sylvia Hendon, of the Hamilton County Juvenile Court. Governort Taft appointed Hamilton County Municipal Court Judge Karla Grady to replace Judge Hendon on the Juvenile Court. (see the Cincinnati Enquirer Local News Briefs from December 22, 2004).

Ohio Lawyers Weekly closes

Ohio Lawyers Weekly, which was established in 1997 and was,"the only source of timely coverage of all 12 Ohio Court of Appeals districts-- including thousands of decisions not reported in the OSBA Report," has announced it is suspending publication of both the paper and website as of today.

Ohio a "Point of Light", "Zany" in Two Reports on Courts and the Legal System

A Point of Light among Hellholes

Courts in Illinois, Texas, California, and West Virginia, among others, were named the 9 "Judicial Hellholes" of 2004 by the American Tort Reform Association. Ohio, on the other hand, was given the label of "point of light" for recent statutory changes establishing minimum medical requirements in asbestos litigation. (House Bill 292, 125th Legislature). The Ohio Legislature has other tort reform, in the text of amended Senate Bill 80, under consideration. S.B. 80 places limits on court discretion to award punitives outside the scope of statutory guidelines. The Legislature has passed or considered a number of other tort reform bills during the current session.

Zany for Rifle Range and Other Immunity Laws

The Center for Justice & Democracy issued its Zany Immunity Laws, in which Ohio gets a few mentions in relation to immunity for injuries occurring at your horse riding lessons and or noise generated by shooting ranges.

Thanks to Law.com for another interesting piece!

Possible Growth in Workers Comp Services for Lawyers

Local lawyers - and members of the Cincinnati Law Library Association! - were interviewed in a recent article in the Cincinnati Business Courier on the Ohio Supreme Court ruling in Cleveland Bar Ass'n v. CompManagement, Inc. (Webcite: 2004-Ohio-6506; Dec. 15, 2004). The Court held that non-lawyers appearing before the Industrial Commission and the Bureau of Workers' Compensation are not engaged in the unauthorized practice of law, so long as they conform to the rules set out in Industrial Commission Resolution R04-1-01.

The lawyers interviewed believe that the decision, although technically a "win" for the non-lawyer group representing participants in hearings, will lead to an increase in workers' compensation representation by lawyers, and at least one firm indicated they'd be adding an attorney to deal with the expected increase.

"Do-not-call" compliance

An article in yesterday's Enquirer reminded us that starting Jan. 1st. telemarketers are going to have to be checking their contact lists against the national do-not-call registry every 31 days, or face possible fines of up to $11,000.
The registry, established in October 2003, has more than 69 million telephone numbers, according to the article.

Phone numbers can be registered, or complaints filed at http://www.donotcall.gov or by calling (888) 382-1222. Both cell and home phones can be listed with the registry

Microsoft

The European Union court Wednesday ruled against Microsoft Corporation, ordering that it had to "immediately divulge some trade secrets to competitors and produce a Windows operating system free of the program that plays music and video," according to a MSNBC news report.
Internet News posted a second article, having a link to the ruling.

OMB Uniform Requirements for Agency Websites

The President's Office of Management & Budget in a Dec. 17th. memorandum for "the heads of executive departments & agencies" carried a subject line for policies for federal agency public websites.

"The efficient, effective, and appropriately consistent use of Federal agency public websites," the memo states, "is important to promote a more citizen-centered government"

DOL Announces Changes in Federal Labor Rules

The U.S. Dept. of Labor last week announced significant new revisions in its Fair Labor Standards Act child labor rules. The new regulations, taking effect on Feb. 15, 2005, make changes to occupations & work activities the DOL deems too hazardous for children.
An overview of "selected state child labor law standards" is available on DOL's website.

DOL also announced a proposal that would implement Wage Determinations Online, "replacing the current manual & paper-intensive processes with an Internet-based system."

Ham. Co. Clerk removes traffic tickets from website

Citing concerns of hacking and identity theft, Hamilton County Clerk of Courts Greg Hartmann Tuesday removed images of traffic tickets from the Clerk's website.

The Clerk's website is reported one of the most comprehensive in Ohio.

U.S. lags behind world in wireless use

A CNN.com article this morning relates that "an estimated 57% of the U.S. population chats on wireless phones-- not much greater than the percentage in much poorer countries like Jamacia, where 54% of the people have mobile phones, according to the International Telecommunications Union. By comparison, in Hong Kong there are 105.75 mobile subscribers for every 100; in Taiwan, there are 110."

The article also noted that "wireless companies were the No.2 sector for complaints to Better Business Bureaus in 2003, trailing only car dealers, and second-lowest in customer satisfaction according to the University of Michigan's index, second only to cable companies."

IRS Ethic Standards

The Internal Revenue Service issued stricter ethical standards for lawyers, accountants, and other professionals giving tax advice last Friday.

In an article in this morning's Court Index, IRS Commissioner Mark Everson is quoted as saying, "These new standards send a strong message to tax professionals considering selling a questionable product to clients. The new provisions give us more tools to battle abusive tax avoidance transactions and rein in practioners who disregard their ethical obligations.

We're on a roll with spam holdings

The U.S. District Court for the Southern District of Iowa Friday awarded internet service provider Robert Kramer $1.08 billion in what's believed to be the largest judgment to date against spammers. Articles on CNN and on the Clinton Herald's site.

A copy of the court's default judgment is posted on our resource page.

AG Report on Allen/Collins Affair

The Ohio Attorney General, Jim Petro, issued his report on the investigation the AG's office did at the request of the Hamilton County Prosecutor's Office. The report is a 55 page document, including a 16 page directory of exhibits that were included in the "9 large binders" the AG's office provided to the Hamilton County Board of County Commissioners. It's interesting reading, and a bit hard to find as it remained on the "press" side of the shop rather than in amongst the AG's opinions.

E-mail Guidelines

The Federal Trade Commission yesterday issued notice of final regulations facilitating the determination of whether an e-mail message has a commercial primary purpose and is subject to the provisions of the CAN-Spam Act.

"Med-Mal" Courts

An Ohio Lawyers Weekly article (subscription required) says "for those pushing for tort reform in Ohio, it looks like juries have already done the job."

1999, the article says, "could probably be the poster child for tort reform when jurors in 19 cases returned million-plus verdicts for a total of $128 million.... In 2003, only 10 plaintiff attorneys reported verdicts exceeding $1 million, and a total take of $61 million amounted to 55% free fall from 2002 when juries turned in 20 verdicts that topped $1 million and, all tolled, amounted to $111.13 million."

Medical Malpractice & wrongful death cases dominated the list.

An article on Medical News Today last Sunday reported that "70% of Maryland's OB/GYNs have been sued at least once for malpractice, with the average settlement exceeding $1 million."

And a Law.Com article (subscription also required) meanwhile foreshadows that "as debate over 'tort reform' continues across the country, several states are considering the creation of medical malpractice courts to help streamline what many view as costly, complex litigation...
"... Courts would likely be designed to eliminate juries and allow judges with medical expertise to decide cases, possibly with the help of court-appointed experts..
"While a medical malpractice court has yet to be created, the idea is being debated in at least four states-- Illinois, Maryland, Massachusetts and Pennsylvania-- through either legislation, budget maneuvers, or proposed pilot programs.

Blog, humbug

A CNN.com article "nicely" footnoting this morning's post relates "Grinch-like virus writers spreading variant of the so-called 'Zafi' worm inside holiday greetings."

"E-mails with the misspelled attachment 'Happy Hollydays' arrived in inboxes Tuesday, with the subject line 'Merry Christmas.' A worm is in the attachment.

"Spamatic"

Montgomery County (Md.) Circuit Court Judge Durke Thompson last Thursday ruled that that state's "anti-spam" law-- the first to penalize senders of junk e-mail-- was unconstitutional because it endeavored to regulate commerce outside of Maryland's borders.

Ass.'t Attorney General Steve Sakamoto-Wengel, however, said he believes the statute should be upheld, and plaintiff Eric Menhart, a 3rd.-year law student at George Washington University, has indicated that he will appeal the case.

The federal government and as many as 36 states have "anti-spam" legislation on their books, and appeals courts in California and Washington have both overturned lower court rulings declaring those states' statutes unconstitutional on similar grounds.

Internet law is developing, Sakamoto-Wengel observed in a CNN article yesterday. "There are going to be conflicting rulings," he said. "But the ultimate hope is that they all get resolved and we have clear rules over what the states can & can't regulate."

There is a good article on the Baltimore Sun's online (registration required) from Nov. 28th. backgrounding Mr. Menhart and this particular case.

Internetweek is carrying a story this morning, too, predicting increased amounts of spam thru the holiday season.

Also, our two previous "spam" postings might be of interest.

Google libraries?

A CNN.com article yesterday stated that "When students do research online these days, many educators worry, those are often about the only steps they take. If they can avoid a trip to the library at all, many gladly will."

CNN-Money carried an article telling of a Google project that will digitally scan the collections of seven libraries, including Harvard and Oxford, making them available online in the coming years.

This morning, there's an article on ABCnews about concerns that Google's "move to digitize research collections could spell the commercialization of libraries.

Supreme Court Monday

In its final sitting of 2004, the U.S. Supreme Court handed down 11 decisions, but failed to consider anxiously awaited rulings on the constitutionality of the federal sentencing guidelines.
"At the summertime urging of the solicitor general," a Law.com article relates, "the Court had expedited the handling of United States v. Booker and United States v. Fanfan to remedy the 'disarray' of the federal sentencing system in the wake of last June's Blakely v. Washington ruling, which struck down a state sentencing law similar to the federal guidelines. The Court heard arguments in the cases on the first day of its term in October, and many had expected decisions by November, but adjournment now means that the earliest a ruling could now come is Jan. 11, 2005.

The Court did decide that police "have the authority to arrest suspects on charges that later fall apart as long as they had a second, valid reason for the detention." It also refused to clarify "when police could use deadly force to stop fleeing criminal suspects, but did say a lower court got it wrong in allowing a lawsuit against a police officer in the state of Washington who shot a burglary suspect."

Ohio Child Custody bill

The Domestic Relations Journal of Ohio has been carrying articles about Ohio's pending substitute Senate Bill 185, introduced on Jan. 1st, and intending to replace the current version of Ohio's law with the "Uniform Child Custody Jurisdiction & Enforcement Act (UCCJEA)" approved by the National Conference of Commissioners on Uniform State Laws in 1997. (See Vol. 16 Issue 6 Pp. 93)

UCCJEA "revises the law on child custody in the light of federal enactments & almost 30 years inconsistent case law," the article recites. It is intended to "provide clearer standards for which the states can exercise original jurisdiction over child custody determinations," and "a remedial process to enforce interstate child custody & visitation determinations." A 16-page PDF explanation by the Office of Juvenile Justice & Delinquency Prevention is accessible online.

Kentucky,Maryland, Mississippi, New Jersey, and Pennsylvania have all passed some version of the Act, while Indiana's SB 280 died in the House in the 2003-2004 session, according to the NCCUSL Web site's UCCJEA Code Citation list and bill tracking service.

The American Bar Association has posted a table outlining the "child custody criteria" of the states, and FindLaw provides a link to pertinent state statutes.

House Bill 185, and its bill analysis, are available thru the Ohio Legislative Service.

Web-flex

"2004 was the year of the Netsky," Sophos senior technology consultant Graham Cluley said in a report covering a period from December 2003 to last month. Sophos is an international provider of virus & other types of security software.
"Netsky-P," allegedly written by German teenager Sven Jaschan in March, tops a list of the top ten viruses & hoaxes reported to that company.

An article posted by Enterprise Security Today comments that "virus writers took off their gloves in 2004, with the more inventive hackers focusing more on developing sphisticated malware for financial gains... One recent and quite worrisome example being the lastest generation of phishing attacks: those waiting for users to visit real banking websites and then monitoring & secretly recording login processes."

CNN.com this morning reports that computer-security experts, including former government officials, are urging the Bush administration to devote more effort to strengthening defenses against hackers and other online threats," including giving the Homeland Security Department more authority to oversee cyber security.

Meanwhile, a second news article on MSNBC.com reports, internet companies and law enforcement agaencies will be working more closely together to track down online scam artists involved in phishing.

Ohio and many other states are working on these situations. See my previous posting on spam laws and David's on Ohio's spam felony efforts.

Website Locating Harmful Chemicals in Communities

The National Library of Medicine (NLM), part of the National Institutes of Health, of the Department of Health & Human Services, has issued a press release announcing its new interactive website that shows-- geographically-- the amount & locations of toxic chemicals released into the environment in the U.S..

The site, called TOXMAP, is free and does not require any registration.

TOXMAP joins other web resources maintained by the group for consumer health information broadly (MedlinePlus.gov), research studies (ClinicalTrials.gov), and older American concerns (NIHSeniorHealth.gov).

Blogging

There are a couple of "blogging" & research articles out there this morning, for whoever's interested.

First is an clip linking a GAO report on "data mining" from BeSpacific.com that provides some interesting insight.

Law Technology News has a piece about building blogs, and there's an article on MSNBC news about "The Business of Blogging" which is pretty interesting.

Supreme Court/ broadband cable service

In a suprise move Friday, the Supreme Court announced it would review a key telecommunications case that could decide whether broadband service should be a largely unregulated information service or as a telephone-like telecommunications service that can be forced to make lines available to competitors.
The Court held its regular private conference Friday to discuss cases, but no announcement is expected at least until today. The case, FCC v. Brand X Internet Services, is from the 9th. Circuit Court of Appeals.

Article available on Law.com and FindLaw.

Ohio Close to Spam Felony

The Business First of Columbus for 11/29 reports that AOL feels as though it's received "an early and important holiday gift" as House Bill 383 passed the Ohio Senate and makes its last journey before being signed by the Governor. In light of the recent felony convictions in Virginia (see Law.com or CNN for coverage) that involved AOL, you can imagine their pleasure at new legislation coming along.

Although Ohio has had anti-spam laws since 2002, when it passed Senate Bill 8 and created civil penalties for improper use of commercial, unsolicited e-mail, this is the first felony spam law for Ohio. See Chuck's previous posting on spam for links to current spam laws in other jurisdictions.

Police Chief Can Hold 2 Public Positions; 7 Point Test

The Ohio Attorney General has issued an opinion that outlines 7 "questions used to determine whether two public positions are compatible". The opinion is in response to a request from the Preble County Prosecuting Attorney, who requested an opinion as to whether the village police chief could simultaneously hold the position of child abuse investigator for the county department of job and family services. The Attorney general indicated that he could, subject to the physical ability to perform both jobs and that he doesn't investigate child abuse reports within the jurisdiction of the village.

National Criminal Justice Reference Service

The National Criminal Justice Reference Service has a new website which some of our readers might find helpful. "NCJRS is a federally funded resource offering justice & substance abuse information to support research, policy, and program development worldwide." Linked sections include corrections, court systems, law enforcement, and "victims of crime."

Plain English Jury Instructions

An article on Law.com last week (subscription required) talked about the State of California's ongoing bid to improve communication between court systems and jurors. California stands alone, at present, as the only state to completely revise instructions from scratch.
Attempts at clarifying and simplifying jury instructions have been slowly spreading across the country for the past 20 years. "Arizona, Hawaii, Iowa, Michigan, Oregon, Pennsylvania, and Wisconsin," the article says, "have revised civil instructions to varying degrees."

A press release from the Ohio Supreme Court on Feb. 24, 2004, relayed its jury task force's proposal of several major reforms, including that "jurors are entitled to brief statements of a case" either by the court or counsel prior to the beginning of voir dire and interim summaries, especially in lengthy trials; and that "jurors were entitled to understand the proceedings in the courtroom and that 'plain English' should be used at trial and in jury instructions." A link to the recommendations is provided in that press release.

Retirement Matters

RIA/Thomson Publishing's Pension & Benefits Week newsletter has mention of a couple newsworthy retirement items.

The IRS has issued a set of proposed regulations that would permit distributions from a pension plan under a phased retirement program, if that program meets certain specific requirements. Under this approach, a plan could allow employees who phase in their retirement by working fewer hours to receive a portion of their pension benefit while continuing to work.
( IRS Bulletin 2004-47 )


Secondly, a Congressional Research Service report "surveying the state of automatic enrollments in 401(k) plans" was released last month.
"Automatic enrollment," also referred to as "negative election," is a process designed to increase participation in 401(k) plans, especially among non-highly compensated employees, by automatically enrolling new employees in their company's 401(k) plan at a set percentage amount of their pay-- typically up to 3%.
The Congressional Research Service is a legislative branch agency within the Library of Congress that serves as the public policy research arm of Congress.
The report is accessible at http://www.benefitslink.com/articles/20041014_rs21954.pdf

Use of Database to Check Jurors Drawing Fire

A Law.com article this morning relates concerns that prosecutors use a federal criminal records database to run background checks on jurors in an effort to disqualify some based on race. A mistrial in the case of Ohio v. Timothy Jordan has been requested.

Ohio Legal Services Consumer Legal Portal

Ohio Legal Services has developed a consumer-oriented legal portal, a set of pages focused on substantive areas of law that have links to informative articles or Web sites in those areas. The site, called the Ohio Law Library has advocates-only components as well, but the public aspect covers many common topics of interest to consumers, including healthcare, consumer rights, domestic violence, and wills.

The links are by no means comprehensive, but each one is annotated and explains why it was included on the site. The selective method is a great idea, since it points consumers directly to the information they seek, rather than just passing them forward to a site that must then be navigated before reaching the necessary information.

ND Ohio Ct Rule Changes on Costs for Jurys in Criminal Cases

The United States District Court for the Northern District of Ohio changed its local Criminal Rule 24.4 on November 1, 2004, to enable a court to assess costs to the defendant or counsel if a jury has been summoned or during trial, if the defendant pleads guilty. Civil Rule 54.1 of the local rules provides the same option in a civil trial.

Spam law

The Loudoun Circuit Court in Virginia's 20th. judicial circuit Wednesday handed down guilty verdicts in the nation's 1st. felony spam case. A Leesburg, Va. jury recommended that Jeremy Jaynes be sentenced to nine years in prison, and his sister, Jessica DeGroot, fined $7,500, following grand jury inductments charging them with sending e-mail with fraudulent and untraceable routing information, which had netted them some $24 million, according to Prosecutor Russell McGuire.

Virginia, an epicenter to Internet traffic in this country, is also home to one of the nation's "toughest anti-spam" law, according to legal experts. The federal "Can-Spam" law, which was seen as not applying in this particular case, bars disguising identities & collecting e-mail addresses from the Web, and commercial messages have to include opt-out options. "Can-Spam" also includes a provision which allows individual states pursue criminal charges against spammers.

Thirty-six states have passed "anti-spam" laws in answer to the growing problem not only to individuals, but business as well. Ohio's was approved in August 2002, with Indiana following suit in April 2003. The state of Virginia, as mentioned above, has one of the country's toughest anti-spam laws, approved five years ago in March 1999.

While Kentucky has not enacted any anti-spam legislation as of yet, Kentucky Supreme Court Rule 3.130(7.09)(3), as amended Jan. 2002, requires attorneys who advertise via written, recorded, or electronic means targeted at potential clients to include the words "this is an advertisement" prominently located in each communication. House Bills 314 (2001)
and 64 (2004), both died in session.

In 2003, twenty-one states enacted anti-spam legislation, with five more doing so this year, according to the National Conference of State Legislatures.

Ohio AG: No Concealed Weapons When Court Seals Record

The Ohio Attorney General issued an opinion on October 25 regarding the issuance of a concealed weapons permit to someone convicted of an offense enumerated in O.R.C. s.2923.125 but where the court has sealed the record of the guilty plea or conviction. The AG's opinion states that a sheriff may not issue a concealed weapons person to that person.

Ohio 2004 Election Cases

The Northern District Court for Ohio has kept a running list, linking their Web site to the opinions and orders being issued in relation to the election-related cases filed against Secretary of State Blackwell on issues of polling challengers and exit polling. The Notable Cases page appears to have links to all publicly available documents (there's nothing on the U.S. Court of Appeals for the Sixth Circuit's site this morning.

A better collection can be found on Findlaw's Election 2004 case page. This has linked in many of the documents released in the last 24 hours that are not yet available publicly on any of the court sites.

New AG Opinions on Employment, County Reimbursement, and Other Questions

The Attorney General of Ohio issues opinion letters. These four were issued on October 19.

The Attorney General's office responded to a request from the Adams County Prosecuting Attorney about whether a qualified veteran is available for employment and what job protections are available. Ohio Revised Code (ORC) 5901.06, 5901.07 and Ohio Administrative Code chapter 16, 5902-1-03.

In response to a request from Union County Prosecuting Attorney, the AG reviewed whether a board of county commissioners could increase a construction estimate to account for inflation. Ohio Revised Code (ORC) 6137.11.

The Madison County Prosecuting Attorney made a request regarding payment from the ambulance and emergency medical services funds for township trustee reimbursements, for a fire district employee's salary and benefits, as well as what proportion of expenses incurred by a fire district are owed from ambulance and emergency medical services funds. Ohio Revised Code (ORC) 505.24, 505.37, 505.84, 5705.10, 5705.19.

The Chairman of the Counselor, Social Worker and Marriage and Family Therapist Board requested an opinion on the scope a licensee has in making a diagnosis and in treating mental and emotional disorders. Ohio Revised Code (ORC) 4757.01

Electronic Discovery

There're several articles on e-discovery around this morning.

Sharon D. Nelson & John W. Simek have an article in the June GP Solo titled "Electronic Discovery: What Dangers Lurk in the Virtual Abyss"

Anita Ramasastry has an article on proposed federal e-discovery rules in Findlaw's Modern Practice magazine @ http://practice.findlaw.com/cyberlaw-1004.html . A link in that article will take the reader to the Federal Judiciary U.S. Courts page on "federal rulemaking" news to view those proposed rules. Comments on the proposed amendments are due by Feb. 15, 2005.

Judges, Lawyers, the Public & Google

Google is probably the best known Internet search tool to many, including doctors, lawyers, and judges along with the candlestick makers. An article in the October ABA Journal looks at how much judges and lawyers are relying on Internet search results, and offers a word of warning.

Amendment to 1st. District Court of Appeals Rule 16: Electronic Filings

The First District Court of Appeals has made several minor, clarifying changes to Local Rule 16 on electronic filing. Most of the changes were additions or corrections to rule definitions, and were not substantive in nature.

Questions or comments may be directed to Mark E. Combs, administrator at the Court of Appeals at 946-3500

National Jury Center Website

The American Judicature Society's National Jury Center has launched a "website on the jury," designed for use by potential jurors & court administrators, as well as the media, judges, lawyers, people in research, and members of the general public interested in the jury system.

The largest section of the site, juries in-depth, provides information on jury summons & eligibility, the process of jury selections, juror privacy, and recent efforts at improvement. Also included are sections on a jury's powers & decision making. Visitors can find the statutues from each state on juror note taking and asking questions.

Google tries text messaging

Google is trying out a new service that allows people to use mobile phones and other handheld devices to access its search engine.

Called SMS (Short Message Service) it "enables you to easily get precise answers to specialized queries from your mobile phone or other device..... No links. No web pages. Simply the answers you're looking for."

Quoted in USA Today, Georges Harik, director of Google's incubator Googlettes, said, "We're not charging anything for the service and we have no plans to do so in the near future. We're trying to see if this is compelling enough to get people to use it."

An explanation & overview of Google SMS is available at http://www.google.com/sms/

Antispyware legislation

The House of Representatives recently passed a bill 415-0 that would give the Justice Department the power to impose jail time for those convicted to trying to install spyware on machines without the users' permission.

Domestic Relations Court Form to Restrict Case Information on Internet

The Hamilton County Court of Common Pleas Division of Domestic Relations has issued a form motion (8.21) that can be filed with the court to request that the Clerk restrict case documents posted to the Court's Web site.

US 6th Circuit Reverses Approval of Contingency Fee in Bankruptcy

The United States Court of Appeals for the Sixth Circuit reversed and remanded a ruling by the Circuit's Bankruptcy Appellate Panel (BAP) that determined the Northern District Bankruptcy Court of Ohio had "pre-approved" a contingency fee agreement. Nischwitz v. Miskovic, Docket No. 03-3303 (6th Cir. 2004).

Mr. Nischwitz represented the appellee as part of its bankruptcy and used a contingent fee agreement. The case was resolved and Nischwitz applied for fees from the court based on the agreement. The court awarded "reasonable fees" which were substantially less than the contingent fee request. The determination was appealed twice to the Sixth Circuit's Banktrupcy Appellate Panel before ending up at the Court of Appeals, which reversed the BAP and remanded for the panel to determine if the trial court abused its discretion in its award.

US 6th Circuit Affirms Enjoinder of Capital Review Board

The United States Court of Appeal for the Sixth Circuit affirmed the U.S. Southern District Court of Ohio's ruling in Parks v. Finan (PDF), 2004 FED App. 0331P (6th Cir.). Parks entered the State Capitol grounds, preaching on one occasion and wearing a sandwich board proclaiming his religious beliefs on another, and was asked to leave until he received a permit. Parks sought an injunction against the Capitol Square Review and Advisory Board and Ohio State Highway Patrol from enforcing the permit requirement.

The trial court enjoined the review board, determining that the permit scheme was invalid with respect to individuals. In affirming, the court of appeals was not wholly persuaded that the permit scheme was entirely invalid.

Ohio Supreme Court Overturns Judges Order to Avoid Having Children

An AP wire on Findlaw refers to the Ohio Supreme Court's 5-2 ruling in State v. Talty (Webcite: 2004 Ohio 4888) that vacated the order of the trial court. The order, affirmed by the Ohio Ninth District Court of Appeals, imposed a condition on Talty to "make all reasonable efforts to avoid conceiving another child" during his 5 year probation. He was on trial for violation of nonsupport. The Supreme Court found the restriction overbroad (and discussed similar restrictions that were found acceptable in Wisconsin) but did not discuss the level of review - the defendant thought it should be "strict scrutiny" - as part of its decision.

"Frivolous" law suit legislation

Law.com has an article this morning about the U.S. House of Representatives passing H.R. 4571, reinstating manadatory sanctions against lawyers who file frivolous law suits under Rule 11 of the Federal Rules of Civil Procedure, and eliminate the current "safe harbor" provision that gives them 21 days to withdraw a suit after a motion for sanctions has been filed.

Grab a Patent (Image)

Gary Price's Resourceshelf blog mentioned this interesting utility for grabbing all of the pages in a U.S. Patent and Trademark Office patent search result at once, rather than having to view them one at a time. Normally, when you look at the filing images, you can only view the file (a TIFF image) one page at a time, and print or download each page separately.

The service is called Pat2PDF and does what it's name implies: it takes your patent number search and generates a single PDF of all of the TIFF images in the patent's file. The service is subscription-based, from $5 per document to daily and longer subscriptions. I didn't drop the $5 to see what the result looked like but PDFs are pretty straightforward at representing TIFFs.

I hadn't used the PTO service in a long time and found that I couldn't even view the patent images without having already installed a TIFF viewer for my browser. [A web browser will only open, normally, basic Web graphics files and Web pages. Anything else - sound files, video files, non-Web graphics, multimedia or "flash" files - requires a special helper program called a 'plug-in', which you must install and sometimes pay for on your own]. The Patent and Trademark Office has tested two free viewers and has links to where you can download AlternaTIFF and interneTIFF.

Pat2PDF is a great service if you regularly need to grab a whole patent in a easy to use format. Don't forget, though, that you can use a free PDF printer utility like PDF995 to print a single patent page to a PDF file, and these single page PDF files can be combined if you own the full version of Adobe Acrobat or another PDF editor, like PDF995's PDF995Suite. Considering the increasing adoption of electronic filing using PDF in the courts, you're likely to have (or need) one of these tools soon anyway!

Malpractice Insurance Limit of One Claim Per Person

An article in today's Cincinnati Business Courier indicates that the Ohio Supreme Court has ruled that a policy that effects a per person limit on medical claims will be allowed in a medical malpractice case. The opinion in Thomson v. OHIC Ins. Co., 2004 Ohio 4775, affirmed the Twelfth District Court of Appeals (2002-Ohio-6517) ruling, although on different grounds.

Additional Bail Considerations

Ohio House Bill 544, introduced August 31, 2004, proposes to "require a court to consider certain factors before setting bail for a person if the person is charged with an offense involving a victim who is a family or household member, to require the person to appear before the court before the court sets bail for that person, and to create the Domestic Violence Task Force on Bond Considerations."

Blakely "spin-offs"

A Wall Street Journal article (subscription required), this morning tells of "unproven allegations lengthening prison time."

The article relates how Laurence Braun, convicted by a New York federal jury of racketeering and conspiracy in 2002-- which merits a sentence of around 2 1/2 years-- had a judge who decided that Braun should also serve time for many of the 23 additional charges he had been acquitted of because those charges was "relevant conduct."

The U.S. Supreme Court will consider the issue of whether the Federal Sentencing Guidelines are constitutional on Oct. 4, this being the outgrowth of confusion and objections raised by the now renowned "Blakely v. Washington" case back in June.

Same-sex Parental Rights Issue

A National Law Journal article this morning on Law.com reports that "when courts in Vermont, four years ago, began recognizing the legality of same-sex marriages, it was only a matter of time before cases began emerging to test whether sister states would follow suit.

40 states have passed legislation since President Clinton signed the "Defense of Marriage Act" in 1995 prohibiting same-sex marriages, but three-- Vermont, Hawaii, and Massachusetts recognize them. Hawaii also offers reciprocal benefits in such instances.

Ohio tax incentive program

Last week we posted a note about Ohio's tax incentive program having been declared unconstitutional by the U.S. 6th. Circuit Court of Appeals. The topic is up once again with an article on Law.com this morning.

"If the decision stands," said Hollie Spade, executive director of the Office of Legal Services in the Kentucky Cabinet for Economic Development, " it certainly provides precedent for challenging several of Kentucky's programs." Other states are taking notice, too.

Critics of the 6th. Circuit's decision say such distinctions could be swept away by the force of the court's main ruling.... "If this is the law (and I don't believe it can be)," Professor Edward Zelinsky of Yeshiva University, Cardozo School of lLaw, "virtually every state tax incentive is challengeable on dormant commerce clause grounds."

"N.Y. judge's ruling affects 'high' court"

An article on CNN.com this morning relates a N.Y. judge's ruling that "it's O.K. to be drunk on booze or high while being on jury duty."

2004 Ohio Supreme Court Candidate Voter Guide

The Ohio League of Women's Voters has released its 2004 Ohio Supreme Court Candidate Voter Guide to the 7 candidates for 4 positions on the state Supreme Court, including the Chief Justice. Information includes education and practice experience, as well as a candidate statement.

IRS easements notice

The update newsletter from RIA's Tax-Exempt Organizations looseleaf service has an article in it about the Internal Revenue Service's cracking down on improper deductions of easements to non-profit organizations.
"A new notice and related news release warn taxpayers that the Internal Revenue Service will disallow improper charitable contribution deductions for transfers of easements (1) on real property to charities, and (2) in connection with purchases of real property from charities.
"Additionally, accuracy-related penalties may be imposed on taxpayers claiming such deductions & excise taxes, and other penalities on non-taxpayer participants in these transactions."

A copy of the IRS announcement and news release is available on their website.

New U.S. Government Manual

The new 2004-2005 U.S. Government Manual is now available online.

As the official handbook, this publication provides comprehensive information on agencies within the legislative, judicial, and executive branches of the Federal Government. It also has information on quasi-official agencies, international groups participated with, and boards, commissions, and committees.

Overtime Regs

The House of Representatives, Thursday, moved to block the Labor Department from carrying out its new overtime rules by a 223-193 vote.
(http://www.usatoday.com/news/washington/2004-09-09-dems-overtime_x.htm. )

Ohio tax incentive ruling to be appealled

The State of Ohio is going to be asking the 6th. U.S. Circuit Court of Appeals to reconsider its Sept. 2nd. ruling declaring Ohio's "investment tax credit" unconstitutional according to Associated Press articles.

The case raising the question is Cuno v. DaimlerChrysler, Inc.

ABA's Small-firm "Voice"

Despite the ABA Board of Governors' decision at its annual meeting last month to discontinue its Standing Committee on Solo & Small Firm Practitioners, opponents of the plan say they'll continue to press the issue. Article in Lawyers Weekly,USA

New Laws Effective in September

The Ohio Judicial Conference tracks legislative bills enacted by the General Assembly. These are bills that are enacted throughout September.

September 1 - 2: Medical Claims Requirements

House Bills 292 and 342 create minimum medical requirements for filing claims related to asbestos and silica personal injury claims.

September 3: Foster Caregivers

House Bill 117 as amended revises foster caregiver training requirements, allows the Department of Job and Family Services to seek injunctive relief, and adds additional offenses that disqualify prospective adoptive parents and caregivers.

September 13: Medical Liability Case Evidence and Experts

Defendant's may not use a statement of sympathy as evidence in a medical liability action, under House Bill 215, as well as other evidentiary issues, including the establishment of expert witness qualifications.

September 15: Unauthorized Practice of Law

House Bill 38 outlines the unauthorized practice of law, and the limits on the use of terms such as "lawyer".

September 16: Juvenile Custody Records

Records relating to juveniles custody will be required to be released to juvenile court and the superintendent of the school district in which the juvenile is entitled to attend school, according to House Bill 106.

September 23: Computer Hacking

Amended Senate Bill 146 on computer hacking amends sections of the Ohio Revised Code §§ 2901, 2909, 2913, and 2915, to expand the definition of "disrupting public services", "criminial mischief", and to increase penalties for unauthorized use of computers.

New Hampshire anonymous DUI tips

Several states have programs whereby motorists or other bystanders can report occurances of suspected drunken driving to authorities via cell phone or other forms of communication.

The New Hampshire Supreme Court, however, is giving police a set of guidelines to employ in this process.

The ruling came as a result of a case involving a Massachusetts woman charged with DUI after an unidentified caller had alerted police, who in turn did not observe any erratic behavior, but arrested the woman anyway based on the caller's information. The trial court threw the case out, saying the woman's being stopped violated her rights in that it was not made clear what the tipster had witnessed or how reliable that person was. The state appealled the decision, and New Hampshire's supreme court sent the case back with guidelines.
(http://www.theunionleader.com/articles_showfast.html?article=42988 )

Electronic Law Libraries in Prisons

The report of the California Performance review, called Government for the People for a Change, has been released and "Statewide Operations" recommendation 23 is to replace current legal publication purchases at jails with electronic kiosks powered by Lexisnexis's research databases. The report states that moving from $4 million in print publications to 300 kiosks would enable a savings of $1.9 million per year. Lexisnexis will apparently be providing free printing to the inmates.

The story popped up in Ohio because of the LN link, of course, and was reported by the Dayton Daily News (registration required).

Free CLE! Workers' Compensation

The Ohio Bureau of Workers' Compensation is holding its fall, one day conference called Workers' Compensation University at locations around the state. The Sharonville Convention Center will host the conference, available either September 27 or 28, 2004, for Cincinnati. Course materials will be available for continuing legal education credit. You can sign up online. Questions? Try e-mailing the BWC or calling 1-800-OHIOBWC.

"Electronic Government" news

There've been several items in the past couple of days relating to developments in "electronic courts & government" trends.


First of all, there was an article on USA Today's online version on Aug. 19th. about state and local governments increasing using electronic services. "


A Law.com article on Aug. 24th. relates a decision by Nassau County Supreme Court Justice Leonard Austin's tackling the growing, but largely uncharted, area of the law-- in New York, at least-- dealing with who bears the cost of electronic discovery.
"In issues over paper discovery," the article says, "a judge must determine whether the demanded material exists, whether its material & necessary for the case, and whether or not it's priviledged."
Ruling in what appeared to be an absence of precedent, Justice Austin applied the rule that governs paper document production: The extraction of information from an old computer will be borne by the side requesting it.


And finally, an article in the Aug. 17th. issue of U.S. Law Week relates the National Conference of Commissioners on Uniform State Laws' approving a proposed uniform law that would "streamline real estate transactions by gradually replacing paper-based land recording systems with electronic ones."
The law can be viewed @ http://www.law.upenn.edu/bll/ulc/urpera/Approvedfinal2004.htm

California Overtime Pay Ruling

Employers in California, at least, got bad news Thursday when the California Supreme Court unanimously ruled a class certification was appropriate for hundreds of wage-and-hour suits.

A Law.com article this morning relates the Superior Court of Los Angeles' having found that "employees had established by a proponderance of the evidence that common issues predominated" and declared the case a class action. Los Angeles' 2nd. District Court of Appeals, however, reversed that decision in 2002, holding that because "the employees' job descriptions were so different, regardless of their titles, there could be no class-- the first time that a California appeals court ruled that class certification was not appropriate in a wage-and-hour case.

California's Supreme Court disagreed, saying ".. individual issues do not render class certification inappropriate so long as such issues may effectively be managed. Nor is it a bar to certification that individual class members may ultimately need to itemize their damages."
(Sav-on Drug Stores Inc. v. Superior Court, 04 C.D.O.S. 7902,
2004 Cal. Lexis 7806, 2004 WL 1902370 (Cal.) )

Lexisnexis Continues Portal Partnership

The Dayton Business Journal reports that Lexisnexis and Plumtree have renewed their strategic alliance. As the two major legal research vendors continue to broaden their domains, the portal market has beckoned to each. But both Thomson-West and Lexisnexis opted out of building their own. Lexisnexis' portal ally has helped it get into some big firms, just as Westlaw developed customizable portlets, small components that could be embedded into portal products like those from Plumtree, Hummingbird, and iManage/Interwoven. Anyone using Microsoft's Sharepoint Server should take a look at the Westlaw components.

Indiana "Pro Se Guide to Appellate Procedure"

On July 22nd. the Indiana Supreme Court announced publication of its first "Pro Se Guide to Appellate Procedure."
The Guide, said David Lewis, Clerk of the Indiana Supreme Court, Court of Appeals & Tax Court, "promises to be an important tool for litigants attempting to navigate the complex appeals process without the assistance of an attorney."

There is a press release with more information @ http://www.in.gov/judiciary/press/2004/0722.html , or the guide itself can be downloaded at http://www.in.gov/judiciary/cofc

Law Librarians in Demand!

The August 20, 2004 print edition of Business First of Columbus highlights the legal profession, focusing particularly on corporate and litigation topics. Law librarians, ably represented by Maggie Toole of Schottenstein, Zox & Dunn, Susan Hanrahan of Vorys, Sater, Seymour and Pease, Nancy Clark of Jones Day's Columbus office, and Pat Christian of Squire, Sanders, and Dempsey, are the focus of one article that looks at the increasing demand of law firms for librarian skills. While demand for print resources is challenged by the cost and access of electronic resources, librarians are doing far more non-legal research than ever before. Law firms who look to law librarians solely for legal research assistance may be missing valuable skills; law firms not engaged in business research about opponents and clients may be omitting an important source of competitive intelligence.
Other topics include corporate e-mail retention policies and how they might reduce liability and electronic data discovery.

DOL Overtime Rules

The Department of Labor's new overtime & exemption rules go into effect today, amid headlines still using terms like "murky" and questionable.

Several of this morning's can be found at:

CNN http://www.cnn.com/2004/US/08/22/overtime.pay.ap/index.html
MSNBC http://www.msnbc.msn.com/id/5790276/

The Department of Labor's site is @ http://www.dol.gov/esa/regs/compliance/whd/fairpay/

Mayor's Court Registry

The Ohio Supreme Court on July 21st announced the inclusion of quarterly electronic reports of all active mayor's courts in Ohio.

To view these reports, go to the Supreme Court's website (http://www.sconet.state.oh.us ) and click on "Public Access to Mayor's Courts Registration & Reporting."

Searches can be done by county, court name, or court code. Information such as whether a particular Mayor's court is active, how large a caseload it has, and what types of cases are heard are posted, but court dockets or the outcome of cases are not.

Mississippi joins Casemaker

When it rains, it pours. The Casemaker database consortium now has 19 states participating, with the addition of the Mississippi Bar, as reported by the Columbus Business First. Colorado was state number 18, as reported here.

Blakely Implications for State Courts

The National Association of Criminal Defense Lawyers has a resource platform posted @
http://www.nacdl.org/public.nsf/newsissues/blakely?opendocument

The site lends access to decisions in Blakely, Hammoud, Pineiro, Booker, and other major related cases from around the country. The Department of Justice memorandum to federal prosecutors, and a lenghty list of news articles are also available.

Also posted are several state-specific commentaries including:

"Blakely v Washington: Implications for State Courts" (Nat'l. Center for State Court )
"Aggravated Sentencing:Blakely v Washington-- Practical Implications for State Sentencing Systems" (Vera Institute of Justice)

Colorado joins Ohio Casemaker

Columbus Business First reports that the Colorado Bar Association has joined the consortium of state bar associations led by Ohio. The addition of Colorado brings to 18 the states participating. Each state's appellate court opinions are added to the electronic database, and members of the bar associations of each state have access to all of the other state's opinions. Casemaker is the brainchild of the Ohio State Bar Association, whose goal is to have all 50 states' opinions included.

The legal research product is interesting because it is moving into a space that is below the threshold of the mega products like Thomson Westlaw and Reed Elsevier's Lexisnexis. Sites like Aspen's Loislaw, Versuslaw, Quicklaw, Fastcase, and National Law Library are providing 50 case coverage in various ways and with varying enhanced tools already. Getting the case law as a member benefit for the bar association creates substantial additional value by giving the members what is essentially a free option for part of their legal research needs that is far more reliable than what they might have on the Internet.

Kudos to our home town (Cincinnati!) Lawriter Corporation for providing the technology backbone to Casemaker.

Personnel Issues; At-Will in Ohio and More

The Daily Reporter, Columbus' daily legal paper, published a special feature today on personnel issues, heavily patronized with lawyer advertising as you might expect. There are interesting pieces on at-will employment, employment contracts, non-compete covenants, and workers compensation.

Blakely

With half of the legal profession waiting for the Supreme Court's decision on Blakely, the 2nd. Circuit has decided, for the time, at least, that the federal sentencing guidelines are constitutional, releasing a per curiam opinion in U.S. v. Mincy saying it was appropriate to give direction to lower courts given the "considerable consternation & concern" caused by Blakely.
( http://www.law.com/jsp/article.jsp?id=1090180337638 )

The case is posted on the 2nd. Circuit's website under "recent decisions" @ http://www.ca2.uscourts.gov

Federal Sentencing Guidelines

The eyes of most every criminal trial attorney are, or will be next month, at least glancing in the direction of the U.S. Supreme Court when it reconsiders Blakely v. Washington and its effect on &, constitutionality of , the Federal Sentencing Guidelines which were established back in 1984.

Justice Sandra Day O’Connor in her dissenting opinion, prophetically stated that, “The Court ignores the havoc it is about to wreck on trial courts across the country… Over 20 years of sentencing reform are all but lost, and tens of thousands of criminal judgements are in jeoprody.”

“Inside of the two weeks following Blakely,” the Aug. 2nd. issue of Lawyers Weekly, U.S.A. quotes Indiana University law professor Frank O. Bowman, III, “four federal circuit have reached four different results. And in a single federal district in Utah, four judges have had results somewhat different than the four courts of appeals.”

The outcome of the Supreme Court’s decision, though, may not be limited to just the federal arena. While Ohio, Indiana, and Kentucky do not, Alaska, Arkansas, Florida, Kansas, Michigan, Minnesota, North Carolina, Oregon, Pennsylvania, and Tennessee all have sentencing structures similar to the one being questioned in Blakely.

While there apparently no state sentencing systems – yet – having to contend with the sweeping turmoil being endured at the federal level, there are several websites where that kind of information is, or soon will be, available.

The U.S. Sentencing Commission’s website is @ http://www.ussc.gov/

The Ohio Sentencing Commission is @ http://www.sconet.state.oh.us/sentencing_commission/default.asp
Indiana’s Criminal Justice Institute is @ http://www.in.gov/cji/home

There’s the Indiana Law Blog @ http://www.indianalawblog.com/


The National Association of Sentencing Commissions (NASC) has already posted responses from Kansas, Michigan, Minnesota, and Pennsylvania; along with a "membership contact list" @ www.ussc.gov/states/nascaddr.htm )

And finally, Douglas Berman, professor of law , Moritz College of Law at Ohio State University, man-ages an impressive undertaking called “Sentencing Law & Policy” @ http://sentencing.typepad.com/

Overtime/ White-collar Exemption Alert

Thompson-West law publishers issued a memo yesterday saying that “a recent report issued by three former Department of Labor officials on the new Fair Labor Standards Act white-collar exemption regulations alleges that more workers will lose their overtime pay protection when the new rules take effect on August 23rd.

The report, part of a study commissioned by the AFL-CIO, “notes that judging the exemption status of a worker based on his or her ‘most important duty’ is much more subjective than examining how much time that person spends doing exempt work. As a result, the report concludes, employers will be able to classify more employees as exempt and thereby avoid having to pay them overtime wages.

“Meanwhile, a study recently released by the Economic Policy Institute (EPI), a Washington, D.C.-based liberal think tank, estimated that nearly six million workers will lose their right to overtime pay under the new regulations.” (http://www.epinet.org/briefingpapers/152/bp152.pdf )

Sunshine Seminars Announced by AG Petro

The Attorney General has announced the locations and dates for public seminars on Ohio's so-called Sunshine Laws - related to making public meetings and records open - at locations around the state. The meetings are open to the public but there is limited space
You can download the Ohio Sunshine Laws update from the AG's Web site, as well as a letter from the Attorney General..

Ohio Jury Reality TV

A documentary series called "In the Jury Room" produced by ABC News will take viewers into the jury deliberations of an Ohio court room. The participants in the case, in Judge McDonnell's court in Cuyahoga County, agreed to the ABC News crew filming the proceedings, although at least one of the attorneys was withholding judgment on the success of the endeavor. The case resulted in the jury recommending a life sentence without parole rather than the death penalty.

The focus on juries coincides with some policy efforts at the American Bar Association (ABA), where a recent poll conducted by the organization found that most people preferred jury trials and wanted to serve on juries.

Department of Labor Final COBRA Notice Rules

An article in Thompson/West’s July Mandated Health Benefits newsletter reports that now that the Department of Labor’s new COBRA notice rules have been finalized, “employers and plan administrators should review the new guidelines carefully and begin to address changes to their COBRA administration procedures & documentation as soon as possible. This is particularly important because noncompliance could lead to significant costs—including penalties under ERISA, unanticipated medical claims, and even attorney fees—if notice disputes are litigated. Additionally, DOL will likely be increasing audit activities on COBRA notice and election issues.”

“According to COBRA’s legislative history,” the article continues, “DOL has the authority to issue guidance only on matters related to COBRA notice & disclosure requirements. The Department of Treasury (through IRS) has the regulatory authority over all other substantive requirements. Similarly, the U.S. Dept. of Heath & Human Services (thru the Centers for Medicare & Medicaid Services) has jurisdiction over COBRA application to plans of state and local governments.”

The new rules create requirements—and, potentially, new liabilities— new time frames for certain notices, and new model notices for use as initial COBRA notices & qualifying event notices. This model notice is an update from the one provided in the 2003 proposed rules, and, as indicated in those proposed rules, DOL’s original model COBRA notice from 1986 may no longer be used to demonstrate good faith compliance.

The DOL final rules also include two additional requirements for plan administrators: a notice of unavailability of COBRA coverage, and a notice of early termination of COBRA coverage.

“Some plan administrators,” the article says, “are under the impression that they can rely on their COBRA service providers to ‘take care of’ the appropriate updates, a generally false assumption. COBRA service providers fill a valuable role in assisting plan administrators in complying with their COBRA administrative responsibilities, (but) COBRA service providers typically are not responsible for updating plan documents and summary plan descriptions (SPDs), or internal plan procedures that might affect qualified beneficiaries, such as identifying organizational units within the employer responsible for receiving notices of divorce or loss of dependant child statuses.”



West’s Mandated Health Benefits: The COBRA Guide is available at the Cincinnati Law Library to members for use in the library or to check out.

The new COBRA notice requirements are available online

Additional material is available by searching “COBRA notice requirements” on the Department of Labor’s website

New Circulation Policy Being Announced

Effective September 1, 2004, the Law Library circulation policy will undergo a few changes. They will be published in the September newsletter, or can be viewed @
http://www.hamilton-co.org/cinlawlib/resouces/policies/circulation.html

E-Filing Challenge in Franklin (OH) County

The 8/6/2004 edition of Columbus Business First discusses the challenges Franklin County Clerk of Courts is having upgrading its court filing system. Currently using microfiche when many counties, including Hamilton County and Cuyahoga County, have gone to electronic filing and Internet-based systems that eliminate much of the interactions citizens must have with the court clerk's office.

The United States Administrative Office of Courts has been implementing its case management / electronic court filing project and the use of this system in the bankruptcy courts has pushed electronic court filing across the country.

But as the Franklin County government is finding, the technology can be expensive, particularly when you have already adopted what has turned out to be an intermediate technology, like microfiche. Hopefully, as more courts gain current electronic capabilities, the cost for maintaining them will become increasingly manageable.

Ohio Supreme Court Reporter Changing to PDF

The Portable Document Format continues its role as the reliable document format for the legal profession. Many electronic court filing systems require the use of encrypted PDF files, as we do here Hamilton County, Ohio.

Now the Supreme Court of Ohio's Reporter of Decisions is making the switch as well. There is nothing inherently wrong with the Microsoft Word format, although some may feel uncomfortable downloading a file that has a high risk of computer virus and worm infection. The use of PDFs for the official opinions will settle that concern. If you haven't used the latest version of the free Adobe Acrobat Reader, the search capabilities are getting better within a document, enabling the reader to do more than just print a nice copy!

Unauthorized Practice of Law - Update on Cleveland Bar Ass'n v. Compmanagement

The Federal Trade Commission has filed an amicus brief in the Cleveland Bar Association's suit against Compmanagement, supporting neither side. The brief actually says that, "absent any evidence of consumer harm ...", the court should not severely restrict or ban lay practice before the Industrial Commission.

The Supreme Court of Ohio's Web site hosts a complete listing of briefs filed in the case at the Board of Commissioners on the Unauthorized Practice of Law home.

"Crawford"/"Blakley" not Retroactive

Thomas McAvoy, Senior U.S. District Court Judge for the Northern District of New York, has ruled "Crawford v. Washington" and "Blakely v. Washington" are not retroactive in their application.

Both "Crawford" and "Blakley" have created wide confusion, leaving trial courts speculating on their impact and eager for clarification. On Monday, Aug.2nd., the U.S. Supreme Court agreed to look at & settle whether federal sentencing rules were unconstitutional ( http://www.cnn.com/2004/LAW/08/02/scotus.sentences.ap/index.html )
The case before McAvoy (Garcia v. U.S., 04-CV-0465), raised both Crawford and Blakley issues which were addressed in his decision. Article in New York Law Journal on Aug. 6th. exemplifies.
( http://www.law.com/jsp/article.jsp?id=1090180295836 )

U.S. v. Leon Carmichael

The U.S. District Court for the Middle of Alabama, Northern District, on July 20th. , held that a criminal defendant, charged with drug conspiracy & money laundering, could set up a website on the Internet with photographs of DEA agents and potential witnesses asking for information from the general public about those people.

The Court, in explaining its holding, stated the website constituted the defendant's protected speech rights under the First Amendment, and his right to gather evidence in his defense under the Fifth & Sixth Amendments.

It is the first case of its kind in the country.

An in-depth, subscriber, article can be found @ http://www.lawyersweeklyusa.com/subscriber/archives.cfm?page=usa/04/802044.htm&QueryText=info%20via%20website )

Large Law Firm E-Billing Trends

The large (and mid-size) law firm technology association, LawNet, released a survey on e-billing in July. 68 law firms belonging to the group responded to questions related to invoice processing, vendor fees, and other process-oriented factors of electronic billing. LawNet maintains an excellent collection of white papers related to large law firm technology and business practices.

Charitable Donations of Automobiles

The July 30th. issue of RIA's Tax-exempt Organizations reports that the IRS has posted two new publications on its website; a donor's guide to car donations, and a charity's guide to car donations.

RIA makes the observation that "the issuance of these new publications, which make no reference to pending legislation, seems ill-timed since both the Senate and House have passed versions of the 2004 JOBS Act which would retroactively add more restrictive rules on charitable contributions of motor vehicles.

"In annoucing the release of the publications IRS Commissioner Mark Everson said,
'Supporting charitable activities through tax dedutible contributions is an important element of tax law and serves the national interest. But we encourage people to proceed carefully when donating vehicles. There are instances where the donations may provide little benefit to the charity.'"

"The Charity's Guide to Car Donations" is available online at http://www.irs.gov/pub/irs-pdf/p4302.pdf.

"The Donor's Guide to Car Donations" may be obtained at http://www.irs.gov/pub/irs-pdf/p4303.pdf.

A general "Tax Information for Charities & Other Non-Profits" is available on IRS's website at http://www.irs.gov/charities/index.html.

Achieving Partner Becoming Harder

An article in the Boston Business Journal reports that it is becoming increasingly difficult for associates to achieve partner in law firms, although once reached, the position provides increased financial benefits and employment security, as well as greater exposure to the business side of the practice. The National Association for Law Placement has recently studied second-career lawyers, and found that it neither helps - nor hinders - the path to partnership to have come to the legal profession after another career.

Ohio Files Brief in US Supreme Court Liquor Case

Ohio Attorney General Jim Petro filed a brief on behalf of 33 states with the U.S. Supreme Court, supporting a Michigan state law governing liquor sales from out-of-state vendors. See the Attorney General's press release. (Source: Cincinnati Business Courier)

NYSE electronic trading system

The New York Stock Exchange announced yesterday that it plans to scrap limits on electronic trading & expand computer-driven orders in a historic move that could erode the two-century dominance of its open-outcry auction system. ( http://www.msnbc.msn.com/id/5580331/ )

JFK

Researchers at the National Archives are using optical scanning in an attempt to preserve the only known sound recording of the gunshots that killed President John F. Kennedy. ( http://www.cnn.com/2004/US/Southwest/08/02/jfk.tape.ap/index.html )

Overtime Regulation Seminars

The Ohio State Bar Association will present continuing education seminars on the new federal overtime regulations & overtime in Columbus on Aug. 18th. and Cleveland on Aug. 25th.

"Microsites"

In the world of internet websites the longer it takes someone to find what they're looking for the worse it is. As a matter of fact, it's often the case that if they can't find it right away, they're likely to look somewhere else.

An article by Andy Havens, posted on llrx.com on July 26, says "it's pretty much an industry standard that 50% of all visitors to a website only look at the home page... They peek in the front window, and if they don't see exactly what they're looking for, they move on down the block.

Public Defenders

And this just out... Massachusetts' supreme court ruled last Wednesday that "a shortage of defense lawyers caused by low pay is violating poor defendants' constitutional rights, and said cases must be dismissed against suspects who go without a lawyer for more than 45 days.."

(http://www.law.com/jsp/article.jsp?id=1090180199661 )

More Blakely

***********************


Also... The July 20th. issue of BNA"s U.S. Law Week is carrying the headlines, "Post-Blakely Uncertainty about sentencing guidelines intensifies as Second, Fifth, and Sixth Circuits prescribe different responses."

A Law.com article on July 21st. relates U.S. District Judge Donald Graham in Miami, Florida, becoming the first federal judge in South Florida to declare a key part of federal sentencing guidelines unconstitutional. ( http://www.law.com/jsp/article.jsp?id=1090180148215> )

Re-hash

With the Department of Labor's new overtime regulations going into effect in just about two weeks now, the following links may be useful to some of our readers:

The Department of Labor’s “FairPay Overtime Initiative,” designed to
assist in the understanding of the new regulations
(http://www.dol.gov/esa/regs/compliance/whd/fairpay/main.htm )

“Employment Law Guide” at http://www.dol.gov/asp/programs/guide.htm

“Compliance assistance” at http://www.dol.gov/compliance/

“white sheets” on individual exemption requirements at
(http://www.dol.gov/esa/regs/compliance/whd/fairpay/fact_exemption.htm )

The Department of Labor has also issued new overtime security rules. The “Overtime Security Amicus Program” (http://www.dol.gov/sol/541amicus.htm ) is hoped to ensure employees better understand their rights, employers their legal obligations, and the DOL to be better able to effectively enforce the law.

Morning News

 
   Special Prosecutor Thomas J. Sammon of the Cuyahoga Prosecutor’s Office has reported that a grand jury looking into allegations of whether an imprisoned former stockbroker’s having bribed a public official connected to the state treasurer’s office does not implicate Treasurer Joseph T. Deters of any type of criminal misconduct.
  

 
   With the Department of Labor’s new wage regulations and “white collar” exemptions going into effect on Aug. 23rd., there remains much controversy and confusion making the transition to the new standards anything but smooth.
   A study be Hewitt Associates has found that at least 20% of all companies won’t be able to meet that deadline, and, with the number of overtime lawsuits having soared in recent years, that could spell trouble.

   USA Today  article @  http://www.usatoday.com/money/workplace/2004-07-26-overtime_x.htm

 


   Amber Alert    There is a statewide amber alert out this morning for four children missing from Miamisburg, Ohio.  Suspect is driving a green 1996 Ford Contour with license plate number  DGG 5925.
   Further information @  http://www.wcpo.com/news/2004/local/07/25/alert.html

Morning notes

 
     Dissenting justices, including Justice Sandra Day O’Conner, warned that the recent ruling in Blakely v. Washington, would undermine—if not destroy—federal guidelines, which were meant to reduce disparities among punishments handed out by different judges.
(http://www.cnn.com/2004/LAW/07/22/oconnor.sentences.ap/index.html )

 

   Quick action on the recommendations of the 9/11 Commission Report  is considered unlikely by many observers. An “executive summary” of the report is available  @ http://msnbcmedia.msn.com/i/msnbc/sections/news/terrorism%20&%20security/z_archive/911_report/cover_execsummary.pdf , with the complete 585-page report  available @

http://www.msnbc.com/modules/legal_docs/911report.pdf