Tuesday, September 28, 2010

Ohio Supreme Court Recognizes Common Law 'Self Protection' Exception to Statutory Attorney-Client Privilege

The Ohio Supreme Court this morning held that the state recognizes a common law "self protection exception" to attorney-client privileges that permits an attorney to testify concerning attorney-client communications where such testimony is necessary to establish a claim for legal fees on behalf of the attorney or to allow an attorney to defend against a charge of malpractice or other wrongdoing in litigation between the attorney and a client.

"The Court also found that attorney work product, including mental impressions, theories, and legal conclusions are subject to discovery when a showing of good cause is made, if the information sought is directly a matter at issue in the case, the need for the information is compelling, and the evidence cannot be obtained elsewhere..." ( See Squire, Sanders & Dempsey, L.L.P. v. Givaudan Flavors Corp., Slip Opinion No. 2010-Ohio-4469 )

The issue here was whether the common-law self-protection exception to the attorney-client privilege, permitting an attorney to reveal attorney-client communications when necessary to establish a claim or defense on the behalf of the attorney, applies as an exception to ORC 2317.02(A), which provides that "An attorney (shall not testify ) concerning communications made to the attorney by a client in that relation, or the attorney’s advice to a client, except that the attorney may testify by express consent of the client…" [ Note revision to statute effective 9/13/2010 ]

Justice Terrence O’Donnell wrote with regard to the "self-protection exception" that the concept & issue, in fact "dates back over 150 years to its articulation by New York Supreme Court Justice Selden in Rochester City Bank v. Suydam, Sage & Co. (N.Y.Sup.Ct.1851). There, Justice Selden wrote, '[w]here the attorney or counsel has an interest in the facts communicated to him, and when their disclosure becomes necessary to protect his own personal rights, he must of necessity and in reason be exempted from the obligation of secrecy [sic].' (emphasis added in part.)

"Since that time," O'Donnell continued, "this exception has become firmly rooted in American jurisprudence. The Supreme Court of the United States recognized it in Hunt v. Blackburn (1888) … and courts and commentators have accepted the self-protection exception as black-letter law defining which communications are subject to the attorney-client privilege… Ohio's case law recognizes that the attorney-client privilege does not prevent an attorney from testifying to the correctness, amount, and value of the legal services rendered to the client in an action calling those fees into question," as well, as seen in In re Butler's Estate (1940).

Monday, September 27, 2010

Interstate crime gun report

Almost half of all guns crossing state lines and then used in crimes in 2009 were sold in just 10 states, including Ohio & Indiana, according to a report released today by Mayors Against Illegal Guns, an association of more than 500 mayors led by New York's Michael Bloomberg and Boston's Thomas Menino, the Associated Press said this morning. The other states comprising that 50-percent were Georgia, Florida, Virginia, Texas, Pennsylvania, North Carolina, California, and Arizona. Of that group, Georgia has ranked first the past four years, with Virginia and Florida consistently rounding out the top three.

Ranked by "number of crime guns exported per 100,000 people", Mississippi led the top three followed by West Virginia and Kentucky.

Virtually all of the guns recovered in crimes were originally sold by licensed gun dealers in the U.S, according to the Bureau of Alcohol, Tobacco, Firearms & Explosives (ATF),., the report said. "Then entering the illegal market through via theft or robbery, gun dealers who participate in illegal or negligent sales, straw purchasers who buy guns on behalf of criminals, and subsequent sales by unlicensed, private sellers at gun shows and elsewhere, who are not required by federal law to conduct background checks."

Friday, September 24, 2010

Kentucky rejects question of multiple DNA tests

"Inmates in Kentucky are entitled to only a single DNA test of old evidence regardless of what, if any, results an initial test produces, the Kentucky Supreme Court ruled yesterday," according to a Cincinnati.com article this morning.

"The decision is the first time the limits of Kentucky's law have been defined in the seven years since testing has been allowed," the article says, but, while the court only looked at the case, the decision could affect DNA testing requests by other death row inmates. ( Bowling v. Kentucky )

"-While 47 states allow access to post-conviction DNA testing -- Oklahoma and Massachusetts don't -- the laws vary in scope and substance from state to state. Kentucky's law includes a provision that allows for multiple DNA tests, but only if the person making the request can show that the requested exam is significantly different than prior tests and may resolve an issue not covered by previous tests."

Two recent noteworthy DNA cases are the U.S. Supreme Court's decision last year holding that DNA tests were not constitutional rights in District Attorney’s Office, Third Judicial District v. Osborne; and the Ohio Supreme Court’s last May holding that prior DNA testing was not 'definitive' if new testing methods were now available that could detect information that old tests couldn’t, in State v. Prade.

Tuesday, September 21, 2010

"New Media" and the Courts

Results from a first-of-its-kind nationwide survey on "new media" and the courts made public late last month suggest that "state judges and court staff recognize the potential impact of social media on the administration of justice and are taking a close look at both the ramifications and opportunities."

The survey findings were part of a year-long national collaborative research project conducted by the Conference of Court Public Information Officers, an organization of more than 100 communications professionals working in state and federal courts in the United States and worldwide, which for the first time measured the impact of new media on the courts, and identified the cautious approach courts have taken toward new media because of the effects on ethics, court proceedings and the ability of these new communication tools to support public understanding of the courts.

Their press release stated that "While only a fraction of courts around the country have established their own social networking sites, almost all the respondents agreed that judges and court employees needed to be educated about the so-called ―'new media'---from Facebook and Twitter to smart phones---and learn how their use might one day impact day to day operations in their courthouses."

The report itself addressed three "areas of study" (effects on court proceedings, possible effects on ethical considerations for judges & court employees, and effects on courts’ ability to promote understanding & public trust and confidence in the court system).

Likewise, the report identified & explored in detail, seven categories of "new media" technology impacting the courts:
  • Social media profile sites such as Facebook and MySpace

  • Microblogging sites such as Twitter

  • Smart phones, tablets & notebooks, including Droid and Blackberry

  • Monitoring sites such as Google’s social search that "include the large and increasing body of sites that aggregate information about Internet traffic patterns andwhat is posted on social media sites, displaying analyses of how a particular entityis portrayed or understood by the public."

  • News categorizing, sharing & syndicating sites including blogs, RSS, Digg, and del.iciou.us

  • Visual media sharing sites such as YouTube and Flickr

  • Wikis."Websites that allow for the easy creation and editing of multiple interlinked Web pages via a Web browser using a simplified markup language or 'WYSIWYG' (what-you-see-is-what-you-get) text editor." Wikipedia is the best known of these.

The Ohio Bar Association last May approved a new jury instruction to limit access to new media while Ohioans serve on juries, advising jurors not to obtain any information about a criminal or civil trial from outside sources such as Twitter, Facebook, YouTube or their iPhone while serving on a jury. A Supreme Court announcement at that time said "before a trial begins, jurors are warned to refrain from discussing a case and seeking outside information about a case and to limit their knowledge about the facts of the case to what is presented in court," making note of the yet to be completed above study.

Last week it reported that "at least one Ohio court has found success using one of these tools and other new media technology.” The Ninth District Court of Appeals opened a Twitter account in 2009 and started its own blog in July. Last week, it unveiled an application Court Administrator C. Michael Walsh developed for Android-based smart phones that will give driving directions to the courts, provide access to the court’s local rules, and allow for one-touch calling to the clerks of court in each of the district’s four counties (Lorain, Medina, Summit and Wayne). It also includes links to the court’s Web site, for the Supreme Court of Ohio, and the clerks of court for the four counties.

"New Media and the Courts - The Current Status and a Look at the Future" [ executive summary ]
[ full report ]

Monday, September 20, 2010

Ohio/regional foreclosure news

With the Columbus Dispatch reporting last week that foreclosure filings in Ohio had risen18.6 percent last month, compared with August 2009, according to RealtyTrac, a California foreclosure service, and 2.5 percent during the first six months of this year according to figures collected by the Ohio Supreme Court, and headlines relating that "banks repossessed 95,364 properties last month, up 3 percent from July and an increase of 25 percent from August 2009, even as the number of properties entering the foreclosure process slowed for the seventh month in a row," and sources such as USAToday noting that "concerns are growing that the housing market recovery could stumble amid stubbornly high unemployment, a sluggish economy and faltering consumer confidence," another trend is being seen.

A Bloomberg News article yesterday relayed that "Fannie Mae and Freddie Mac, the largest U.S. mortgage-finance companies, and their regulator, the Federal Housing Finance Agency, 'are concerned about borrowers who have an ability to pay but who choose to default on their mortgages,' FHFA acting director Edward DeMarco told a Congressional subcommittee hearing last week."

New York-based Morgan Stanley said in an April 29 report that about 12 percent of residential-loan defaults in February were strategic, meaning homeowners decided not to make payments even though they could afford to. The rate was about 4 percent in mid- 2007.

Then in a survey done last May of 2, 967 Americans – 1, 937 of whom were homeowners – the Pew Research Center last week released findings saying that "While a majority of Americans (59%) say it is 'unacceptable' for homeowners to stop making their mortgage payments and abandon their homes, more than a third (36%) say the practice of 'walking away' from a home mortgage is acceptable, at least under certain circumstances -- two-in-ten (19%) saying it's acceptable and an additional 17% volunteering that it depended on the circumstances…" [ Full Report ]

There is some "gray" in this otherwise gloomy picture, though, as Bloomberg this morning reported that GMAC Mortgage is halting all foreclosure actions on homeowners in 23 states, including Florida and Illinois, which, along with California, Michigan and Arizona account for more than half of all filings in the United States. Ohio, Kentucky, and Indiana are also being reprieved.

Wednesday, September 15, 2010

New Online Map of State Legislatures

Sabrina Pacifici at LLRX.com relays that the Library of Congress via Thomas has a new online interactive map of state legislative links, providing "mouse-over and text based links to state legislature websites for U.S. states, territories, and key links to other legislative information." ( Here )

Changes to Ohio Supreme Court Primary Election Law Proposed

With the Southern Ohio District Court already considering the issue, Supreme Court Justice Maureen O'Connor was quoted yesterday as saying that that Court should move to reduce political influences by eliminating partisan primary elections.

O'Connor, the Republican candidate for chief justice – and, along with the entire bench of the Ohio Supreme Court, a defendant in the District Court's case -- told the Columbus Dispatch that "it's 'peculiar' for judicial candidates to run in partisan primary elections and then drop party labels when they run in the general election." "Others," the Dispatch said, "including current Chief Justice Eric Brown, say the answer is to allow candidates to publicly declare their party affiliations throughout the election season. But O'Connor, speaking to about 25 lawyers at a luncheon yesterday, said the court should stay away from partisan politics as much as possible."

The District Court case, filed back in July, questions why "Ohio is the only state in the union in which judicial candidates participate in partisan primary elections, but are then restricted to non-partisan statuses in general elections." The suit also challenges "two provisions of the Ohio Code of Judicial Conduct: Rule 4.2 (B) (4), stating that a judicial candidate shall not, 'After the day of the primary election, identify himself or herself in advertising as a member of or affiliated with a political party;' and Rule 4.4 (A), stating that 'A judicial candidate shall not personally solicit or receive campaign contributions."

Plaintiffs in that case were denied a temporary restraining order to keep the state from printing its absentee ballots last week, which they have appealed to the 6th. Circuit. That not withstanding, the case is scheduled for hearing on Nov. 9th..

See Previous Postings Here and Here

6th. Circuit Court of Appeals judge confirmation

The United States Senate has confirmed Nashville attorney Jane Branstetter Stranch to join the U.S. 6th Circuit Court of Appeals in Cincinnati, it was reported yesterday. Stranch, a labor and employment lawyer who has worked on the AFL-CIO Lawyers Coordinating Committee, takes the seat previously held by Judge Martha Craig Daughtrey, who is now serving as a semi-retired senior judge.

Judgepedia's Background & Summary
Senate Vote Summary

2009 FBI Crime In the United States Report

Historically, crime increases during a recession. That has criminologists scratching their heads and wondering as they reviewed the data and pondered the reasons for significant statistical declines in crime nationwide last year -- the third straight decline -- according to the FBI's annual report on violent crime, released Monday.

There was an overall drop of 5.3 percent in violent crime and a total decline in reported property crimes of 4.6 percent for 2009, according to a CNN news article yesterday. "Robbery dropped by 8.0 percent compared with 2008; aggravated assault declined by 4.2 percent, and forcible rape dropped 2.6 percent… Property crimes dropped for the seventh straight year in 2009. Nationwide, slightly over 9.3 million property crimes were reported. Motor vehicle thefts plunged more than 17 percent, while larceny fell 4.0 percent and the estimated number of burglaries dropped 1.3 percent."

A USAToday article reported that "last year Ohio saw a drop in violent crime reported to police, mirroring the national trend, and that the state's 5 percent decline in violent crime was accompanied by a 3.9 percent dip in property crime. Burglary was an exception."

Ohio had a grand total of 38, 332 violent crimes in 2009, according to the FBI report, compared with 39, 997 in 2008 and 37, 935 ten years ago in 2000. Of its 377, 553 property crimes last year, 104, 213 were burglaries. That compared with 102, 544 burglaries out of its 391, 862 property crimes in 2008. Kentucky and Indiana had 11, 159 and 21, 404 violent crimes, respectively, last year, compared with 12, 646 and 21, 263 in 2008.

Of the violent crimes in Ohio last year, 249 violent crimes & 7, 197 property crimes were reported by the Hamilton County sheriff's office. Butler County had 67 violent crime reports and 825 property crime; and Clermont had 105 violence crime and 1, 633 property crime reports. Figures for Warren County were unavailable. ( See Table )

Reports From Previous Years (1995-2009)

Monday, September 13, 2010

Ohio adult guardianship bill

A bill seeking revamp Ohio's provisions for adult guardianships was introduced in that state's House of Representatives last week.

Included in amending current ORC §2111.02, the HB 578 specifies that "If the person for whom the guardian is to be appointed is an adult, the person must be a qualified respondent as described in section 2112.21 and have the opportunity to have the assistance of counsel in the proceeding for the appointment of such guardian…"

The bill would also "apply to guardianship and protective proceedings begun before the effective date of this act, regardless of whether a guardianship or protective order has been issued pursuant to those proceedings."

Cincinnati passes cellphone texting ordinance

Cincinnati City Council last week approved an ordinance banning the sending, reading or writing of text messages while driving in city limits. The ordinance also bans accessing the Internet while driving, but does not prohibit drivers from talking on a cell phone while driving or entering information into a GPS navigational system, as long as the vehicle is stopped and not in the traffic flow.

The ban, a misdemeanor offense carrying a $100-fine, is still considered a "primary offense", which means police officers can stop motorists for just texting violations. It goes into effect in 30 days. ( Ordinance )

Other Ohio cities including Toledo, Columbus and Cleveland have similar bans, a USAToday article Friday morning said. There are also several texting bills in Ohio's House of Representatives, including HB 415 which passed back in March, and Senate Bill 160, which has just been introduced.

An MSNBC.com article the same morning also said that " Indiana has a ban on texting or using the phone while driving, but only for drivers under 18, and that Kentucky recently instituted a similar ban, issuing warnings until Jan. 2, 2011, after which the ticket is $25. Police there said enforcement of the new law has been difficult."

Thursday, September 09, 2010

Lawsuit targeting Ohio campaign donation statute

Ohio Revised Code §3599.45, originally passed in 1978, bars doctors and health service providers from contributing to candidates for state attorney general or county prosecutor officials who prosecute Medicaid fraud.

Last Friday, nine Cleveland, Ohio doctors filed suit in U.S. District Court saying the provision is too restrictive and violates their First Amendment rights. "The doctors support President Barack Obama's health care overhaul and challenged the state law after they were told they could not contribute to Ohio Attorney General Richard Cordray's re-election campaign," plaintiffs' lawyer was quoted in a recent USAToday article. "The doctors wanted to back Cordray, a Democrat, after he refused to join other states in a lawsuit to block the health care law."

"Simply put, Ohio law assumes plaintiffs are fraudsters whose voices must be silenced," the lawsuit says. "Such a stigma is unwarranted and violates plaintiffs' right to free speech."

Ohio Secretary of State Jennifer Brunner, however, feels that lifting the ban on the contributions would not be in the public's best interest. "The attorney general's office directly prosecutes Medicaid fraud cases and lifting the ban would allow contributions that could have the effect or the appearance of unduly influencing decisions of those entrusted with protecting the public welfare", she told the Associated Press.

Brunner also said that while the attorney general normally defends the secretary of state in lawsuits, a special counsel would be appointed here to avoid any conflict of interest.

Second Campbell County, Ky. jail suit

"Eight current or former Campbell County jail inmates have filed a federal civil rights lawsuit claiming they have been denied medical care while locked up at that detention center," the Cincinnati Enquirer reported yesterday – the second such action filed against that institution. Class action status is also being sought. ( 1st. Case’s Complaint )

"The problems at the Campbell County jail relative to medical issues for inmates are not only serious, but continue despite litigation," the inmates’ lawyer said. Claims in the suit include allegations that several inmates have died because they have been denied medical care. ( Article )

Tuesday, September 07, 2010

Ohio election procedure lawsuit

A lawsuit, filed in Ohio's Southern District U.S. Court last Wednesday, is challenging that state's "increasingly popular absentee ballot system of voting," a Dayton Daily News article Friday morning said.

"Voters are subjected to different rules depending on which county they live in, violating the equal protection clause of the U.S. Constitution, attorneys for the four southern Ohio plaintiffs, all Republicans, argue in the lawsuit, asking District Judge Susan Dlott in Cincinnati to require all 88 counties to follow the same procedures for mailing and processing absentee ballots." The lawsuit also notes that some Ohio counties mail applications for absentee ballots to all voters, while others don't, the article said, and that some counties, such as Montgomery County, prepay the postage for voters to mail back their absentee ballot application while others do not. ( Complaint )

Although plaintiffs filed a motion for a temporary restraining order to prevent county boards of elections from mailing out ballots, the article indicated that some board of elections, including Hamilton County's, have already their mailed ballot applications.

Thursday, September 02, 2010

Self-insured compliance guidance for appeals & reviews

Non-grandfathered self-insured plans for the first time have detailed, prescriptive claims appeals and review processes they must comply with, and if a plan does not strictly adhere with those procedures, its determination can be summarily reversed, a Thompson news alert last week said.

Employee Benefits Security Administration (EBSA) Technical Release 2010-01 provides an enforcement safe harbor for non-grandfathered self-insured group health plans, normally not subject to state rules but covered under federal ones. Under the interim safe harbor, agencies implementing health reform will not take enforcement action against a self-insured group health plan that complies with either:
  • state external review processes -- self-insured plans may choose to voluntarily comply with state external review provisions; or
  • the methods described in the technical release, which are based on the Uniform Health Carrier External Review Model Act promulgated by the National Association of Insurance Commissioners (NAIC).
The technical release also describes in detail the procedures and deadlines for self-insured group health plans regarding various stages of standard reviews and expedited reviews.

Federal closing cost rules

New federal rules requiring mortgage lenders, as of Jan 1, to give borrowers more reliable estimates of closing costs appear to be working -- one reason being that, in many cases, they must now make up the difference between the estimate provided and the actual total. USAToday yesterday observed, however, that whether it was also costing borrowers more money was uncertain.

They referred to a recent survey by Bankrate.com that found, on average, "origination and third-party fees on a $200,000 purchase mortgage added up to $3,741 — a 37% jump over last year's average of $2,739."

That survey said in four of the past five years, New York and Texas have occupied the top two spots as being the most expensive states for mortgage closing costs; Utah, California, and Alaska rounding out the top five. Last year, Ohio was 9th., according to Bankrate; it's now showing as being 13th.. Indiana was least expensive last year, but climbed up to the No. 35 slot this year, while Kentucky stayed consistent at 44-45.

Bankrate's 2009 survey
State Rankings

HUD Real Estate Settlement Procedures Act information

Wednesday, September 01, 2010

Utah "concealled carry" permits

While about 200,000 Ohioans have obtained permits to carry concealed firearms through their own state, nearly 2,000 – 1,885 to be more precise -- have bypassed Ohio's requirements and gotten licenses from Utah -- without even going there, according to an article in The Columbus Dispatch yesterday.

"Ohio requires applicants to undergo 12 hours of handgun-proficiency training before they're eligible for a license to discreetly pack heat," the Dispatch relates. "Utah requires applicants to take a certified course but doesn't specify any number of hours of training – and Ohio adds the names of permit holders to a law-enforcement database, which is public record, while Utah doesn't…But because the two states honor each other's handgun licenses, a resident of Ohio can take a Utah-certified course in Columbus or other Ohio city, send $65.25 to the Utah Department of Public Safety, pass a background check and be eligible to carry a handgun in public establishments all across Ohio."

Between April 2004, when Ohio's concealed carry law went into effect, and December 31, 2005, 67, 984 licenses had been issued. Last year, 56,691 licenses were issued, and another 16,443 renewed; and in the first two quarters of this year 26,887 licenses have been issued here, with 7,788 renewals.

Ohio currently has concealed carry reciprocity agreements with 20 other states, including Kentucky and Michigan; Indiana honors Ohio permits, but Ohio does not reciprocate theirs.

Ohio Attorney General "concealed carry" information