Tag Archive for 'attorney'

Notario Fraud: Common Immigration Issue

So-called “notarios” have lately earned an infamous place in the public spotlight.

“Notario” is a term used in Latin American to denote a legal official. The term also sounds similar to English word “notary,” who likewise is NOT a lawyer, but can certify documents, take depositions, and do some other quasi-legal work.

Neither Spanish “notario” nor the English “notary” denotes an attorney. However, recently arrived immigrants tend to confuse both for lawyers, legal advisers, or attorneys specializing in immigration. Confusion is exacerbated by what essentially amounts to immigration fraud by crooks, who advertise as “notarios,” or notaries who misrepresent themselves as having all the powers of an attorney. This situation is commonly known as notario fraud.

notario fraud Immigration Law

A newly arrived immigrant relying on help from a “notario” sets himself up for big trouble: loss of savings, denial of immigration status, and deportation. Unfortunately, before becoming fully established in the US, a newly arrived immigrant oftentimes becomes an easy and defenseless prey to unscrupulous con artists.

A legal professional may be engaging in notario fraud if he or she:

  • Charges unusually high fees for standard immigration paperwork.
  • Claims to have s special relationship with authorities.
  • Selling an otherwise free documents, such as immigration forms available online.
  • Filing asylum applications while your case does not qualify for asylum.
  • Guaranteeing receipt of permanent resident or citizenship status.
  • Working from a shady business on “referral only” basis.

Before going to a notario, think twice. Even better, do not even consider substituting a notarios’ services for advice from a qualified immigration attorney.

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Defending the Sandy Hook Personal Injury Lawyer

One of the (many) reasons the general public distrusts lawyers is that the public believes that lawyers take advantage of tragic situations in order to make the lawyers wealthier. For example, the 2012 December 14th mass shooting at Sandy Hook Elementary in Connecticut was a big disaster for all the students and teachers involved. Adam Lanza killed 26 people, including his own mother, before committing suicide. When attorney Irving Pinsky wished to represent a six-year old girl at the shooting for a claim of $100 million, Pinsky began receiving numerous letters, faxes and phone calls regarding Pinsky’s moral character.  A few of the messages even contained death threats. I do not believe that attorneys like Pinsky, and the clients they represent, deserve the scorn that members of the public throw at them.

I think some of the bad reputation acquired by attorneys comes from the perception that lawyers are taking advantage of trauma victims. Unfortunately, some of this perception is unavoidable.  People only seek legal aid when an aspect of their life becomes awful. Couples seeking a divorce go to family lawyers, people accused of a crime find a criminal defense attorney, and employees who lose their positions seek out employment lawyers to determine if their terminations were legal. The nature of the legal profession means that lawyers will show up when clients have a problem somewhere in their life.

What I find puzzling though, is that attorneys are hated for this and other professions are not. Surgeons, for instance, are only needed when someone has a complication somewhere in their body. Surgeons are not despised for healing their patients, yet attorneys are hated for representing their clients.

Sandy Hook SchoolPerhaps the cause of loathing for attorneys is the perception that lawyers make money off their clients. This does not make sense to me though. Truth is, not all lawyers make a lot of money. But even if all lawyers were rich, I do not see why that should be a sin particular to the legal profession. Legal advocacy is a job like any other, and lawyers should not be despised for doing their jobs. Surgeons are paid to work for people who are suffering, but surgeons do not receive the contempt of the community. Given that many lawyers work cases pro bono, without payment, and other lawyers work on contingency, it is arguable that a person could obtain legal services easier and cheaper than a surgery.

If money is the issue though, perhaps a possible explanation is the amount of money which could be earned. In the Sandy Hook story, $100 million was demanded. That is a lot of money for a household where the child is lucky to be alive. A few factors should be remembered though. First, the amount of money asked for must be higher than what the client expects or wants because this is the ceiling of what the defendants might have to pay. Second, given that the law requires actual injury before a party can bring a lawsuit, a good chuck of the money awarded will go towards medical expenses like therapy. Third, as mentioned above, the lawyer might get a percentage of the award (the standard is one-third, but this is negotiable).  All these factors mean that $100 million is not the amount which will actually be given.

The final point of interest is that lawyers, by advocating for their clients, must assign blame to a particular party. The actual party responsible for the Sandy Hook shooting, Adam Lanza, cannot be brought to justice. Pinsky, the attorney, was attempting to lay the blame for Lanza’s actions on the school district instead. Pinsky argued that Lanza’s actions were foreseeable given that the school lacked a safety plan for students.

The school district found the charge offensive. First, few people could have predicted a twenty-year old man would massacre an elementary school. Second, many of the teachers killed had shielded the children as the children attempted to flee. One injured teacher had pressed a door shut with her body while Lanza shot through the door. Third, Lanza had shot his way through the school’s locked doors, rendering the school’s protections worthless.

Pinsky’s claim was an understandable one though, even if the shooting is emotionally charged. Pinsky’s claim was not that the teachers and staff were uncaring or cowards. Pinsky believed the school should be accountable for the shooting because the school lacked a real response plan, making student injury from many types of disasters foreseeable.

I don’t know if this was true, but given that one of the functions of the judicial system is to uncover the truth, the idea was worth investigating. Sadly, Pinsky has since withdrawn from the case, citing contradictory evidence. I hope other lawyers are not discouraged from representing those in need by the mere notion of unpopularity.  The most crucial role that an attorney can take is to speak for those who have no voice.

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Defendant Appointed 3 Different Lawyers, Stabs Each in Court

Many people undervalue the Sixth Amendment, the right to an attorney, until they’re arrested and accused of a crime. One man, however, does not seem to appreciate the work his attorneys did on his behalf. On January 2nd, 2012, Joshua Monson killed Brian Jones over a sale of methamphetamine. Monson was subsequently arrested and charged with possession of methamphetamine and second degree murder.

Attorney Tom Cox was assigned to represent Monson before Judge David Kurtz at the Everett Courthouse in Washington State.  Monson borrowed a pencil while he waited in county jail. During the trial though, Cox was stabbed in the head by Monson with the pencil Monson had borrowed. Although Cox was not greatly wounded, Cox withdrew from the case and Judge Kurtz declared a mistrial. Gurjit Pundhar replaced Cox as Monson’s lawyer – and Monson also stabbed her in the head with a pencil. Judge Kurtz declared another mistrial and appointed a third attorney, Jesse Cantor, to represent Monson.

To ensure that the trial would proceed without another attorney stabbing, Kurtz ordered that an electrical cuff be trapped to Monson’s leg. Monson was always deprived of his weapon of choice, the county jail pencil. Although the state wanted Monson strapped down to a chair for good measure, Cantor argued against it, saying that the jury might be biased against Monson if they saw the defendant tied down to a chair like a mad man during the trial. Judge Kurtz agreed with the defense counsel.

During the prosecutor’s opening statement though, Monson obtained Cantor’s pen and stabbed Cantor in the head with the attorney’s own pen. Although Cantor wasn’t serious injured, Judge Kurtz declared that Monson had forfeited his right to an attorney and that Monson would be representing himself for the remainder of the trial – while tied down to a chair.

joshua monsonI think many readers will have one of two reactions to this story: “Monson deserves it,” and/or “well duh he’s guilty.” Although it is true that Monson’s own conduct is the reason Monson can’t have an attorney, the law in Washington State leaves it to the trial judge’s own discretion. Judge Kurtz did not have to deprive the defendant of his right to an attorney.  Although appointing Monson a new lawyer again is still an option, at this point it seems that Monson is playing games with the court. However, Judge Kurtz could have saved time by denying one of Monson’s previous attorney’s requests to withdraw from the case.

Indeed, the case Judge Kurtz cited in support of his decision, State v. Fualaau, had the trial judge deny an attorney’s request to withdraw from the case despite the fact the attorney had been assaulted by his own client. The Fualaau judge had ruled that there were no conflicts of interest in having a lawyer represent a client who had just attacked the lawyer. Although the law did leave the decision up to Judge Kurtz, his decision could have gone the other way.

Before Monson’s final attorney was stabbed, that attorney had argued that Monson should not be restrained to his chair since the restraints themselves might cause the jury to believe that Monson was guilty. Readers might be tempted to conclude that Monson is guilty based on his behavior in court, and that the trial is just a formality at this point. Please dispense yourselves of this belief. The legal system serves two functions, functions which are undermined by false assumptions of guilt based on behavior outside of the crimes the defendant is charged with.

The first function served by the legal system is the discovery of whether the defendant committed a specific crime. This might sound extremely obvious, but many people will look at a trial and ask “is the defendant guilty?” That question, however, is not the proper one. The real question behind a criminal trial should be “is defendant guilty of the crimes he (or she) is charged with?” Yes, Mr. Monson is very likely guilty of assault, but the actual charges are possession of meth and second-degree murder. Possession of an illegal drug and murder are separate crimes from assault; neither the jury nor the public should conclude that Monson is guilty of murder or possession of an illegal substance based on a trio of assaults.

The second, and lesser known, function of the legal system is assigning the proper punishment to the proper crime.  Punishment in order to give retribution for the victims, i.e. “an eye for an eye,” only works if the defendant loses the same amount the defendant deprived from the victims. If Monson is convicted of murder because of the assaults on the three attorneys, than the trial will not be a proper recognition of the loss of Brian Jones. The murder will be overshadowed and the victim’s sense that their loss is being corrected will be eroded. The rights of the victim are also deprived when the defendant loses his right to an attorney.  Although criminal law is about the authority of the state and the defendant’s crime, it is important that the judge’s decision reflects the interests of all parties involved.

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Covington & Burling Law Firm Gets Disqualified For Violating Duty To 3M

Lawyers often get a bad rap for being greedy amoral people who care more about securing their next paying client rather than protecting their current and past ones.  Nowadays this reputation is mostly undeserved.  However, it’s all the more unfortunate when stories like this one emerge to prove that bad apples still exist.

Legal powerhouse Covington & Burling LLP was recently disqualified from a case by a Minnesota judge.  Covington was representing Minnesota at the behest of the state’s attorney general in an environmental lawsuit again 3M Co., as in the company that makes the majority of your company’s office supplies.

In big cases like these, it’s not unheard of for a government prosecutor’s office to feel overwhelmed and turn to the private sector for help.  This case is no different.  So what’s the problem with a major law firm helping to prosecute a major corporation?  Nothing.  Except when the major law firm used to represent the major corporation currently being prosecuted.

Apparently 3M was a former client of Covington in the past.  But somehow the big firm lawyers failed to inform the court of this pertinent fact.  And that’s exactly why the judge decided to kick Covington to the curb.

You can probably guess the problems that could arise in a situation like this.  Imagine you’re in high school and you have a friend that you confide all your deepest and darkest secrets to.  Now imagine if you had a falling out with this friend who then suddenly buddies up with your sworn enemy.  What do you think the chances are that the whole school will know you wet yourself in terror whenever you see donuts?  Wait, hold that thought, the entire student body is clearing out every bakery in town.

And that’s why attorneys aren’t supposed to go against their old clients.

You may also be surprised to learn that there are actually ethical rules against this sort of behavior, too.  Every state’s bar association has their own version of lawyer conduct rules, but they all generally fall in line with the American Bar Association’s Model Rules of Professional Responsibility.  Basically, it’s a code of conduct that tells lawyers how to handle various professional moral dilemmas.  And chief among these rules is protecting your client’s confidences and secrets, which Covington allegedly failed to do by taking arms against its old client, 3M.

Like doctors, lawyers are entrusted with highly sensitive information from their clients.  It’s a necessity in order for the attorney to give the best representation possible.  The problem is that this same information, if misused, could be turned against those very same clients.  To prevent this, Courts and bar associations impose a duty on attorneys to protect their clients’ secrets.  And in the case of a conflict of interest between representing a new client against an old client, most state rules of professional responsibility only allow the lawyer to do so if they get an informed written consent from their old client first.  Some state bar associations go even further by requiring consent from both parties and the court.  And even still, a lawyer can be disqualified if the information they possess about the old client is directly relevant to the heart of the new lawsuit against them.

Unfortunately for Covington, the judge found the firm failed on all accounts.  The court held Covington “exhibited a conscious disregard for its duties of confidentiality, candor, full disclosure, and loyalty to 3M by failing to raise its conflicts” stemming from its previous representation.  Short of being disbarred, it doesn’t get more embarrassing than that for a renowned international law firm.

In practice, conflicts like these can lead to all sorts of problems for the new client, too.  Not only do they have to find a new lawyer, but sometimes their case can even be dismissed.

As for 3M, the company can breathe a temporary sigh of relief as the prosecution regroups.  But as horror movies have taught us, one must always be wary of the proverbial hand emerging from the lake.

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Judge “Dislikes” Facebook Class Action Settlement

Picture This: You’re chatting with some friends on Facebook when one of your friends posts a link to a book about dogs she just wrote. You click “Like” to support your friend’s interest and write a comment underneath the link. The next time you log on to Facebook though, you notice a new advertisement on the side of the social networking site. A small advertisement about dog food is there with your name and picture beside the product’s logo. Your previous comment is also there, except this time it’s being used to support a company you’ve never even heard of.

This story actually isn’t that far off base. Five Facebook users brought a class-action suit, a lawsuit involving many plaintiffs with a shared grievance against the defendant, against the social networking giant on behalf of 100 million other potential class members. The suit contends that Facebook is violating a California law which prohibits the use of a person’s name, photo or other personal information for the purpose of commerce advertising without the person’s consent.

This kind of lawsuit against Facebook isn’t unusual; Facebook is quickly becoming notorious for all sorts of privacy violations. Facebook’s procedure for handling these kinds of lawsuits is typically to make a settlement, change their privacy agreements and software a little, and then go on like nothing happened. This time, however, the judge blocked the settlement. The settlement was for a total of $20 million; $10 million for various charities, including privacy advocacy groups, and the other half for legal fees.

The disturbing part of this story isn’t the mass violation of privacy; sadly, this is a common occurrence on the internet now. No, the scary part is the question about the legal fees and the role of the plaintiff’s attorneys in the case. First, economists consulted by the plaintiffs estimate the case to be worth $103 million. While one side in a settlement can’t expect to get their exact amount, $20 million is very far from the estimate provided.

Second, the fact that none of the money goes to recovery for any of the plaintiffs is disheartening for a justice system which claims to be for the people. “Cy pres” payments were originally used to make trusts and wills which were impossible (because the money supposed to be given is less than the actual amount the deceased had) legal by adjusting the amount of inheritance given in the will. California courts, however, have used the doctrine to help promote the interests of parties bringing class action lawsuits. This case questions the true intent of the doctrine as the real plaintiffs in this case aren’t even directly benefiting from it.

To add insult to injury, half of the proposed settlement went to the attorneys to cover the costs of the lawsuit. Even if it is assumed that the attorneys were working on a contingency fee, a fee arrangement where the attorneys get a percentage of the money awarded by a judgment, a third of a settlement is the accepted standard. Half of a settlement is excessive, especially when the plaintiffs aren’t going to get a penny.

The most outrageous part though is that Facebook would have gotten off the hook. While $20 million is no small amount, given the company’s history on privacy, the settlement should have included some means to restrain Facebook from committing a practice which violates the public interest. Judge Seeborg was right to block the agreement, but the perplexing part was that the judge had to act at all. Where were the plaintiff’s attorneys when this one-sided agreement was being made? It makes little sense to hire an attorney if the lawyer won’t zealously advocate for the client(s). The privacy of 100 million users, and possibly everyone’s, demands more.

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