IMO Advisory Letter No. 3-11 and Opinion No. 12-08 of the Supreme Court Advisory Committee on Extrajudicial Activities, New Jersey Supreme Court (9/19/13)
In this appeal, the Supreme Court held that a judge’s acting and comedy career is incompatible with the Code of Judicial Conduct and therefore he may not serve as a municipal court judge while continuing with that career.
United States v. Melvin, US 1st Cir. (9/17/13)
Civil Rights, Constitutional Law, Criminal Law
Defendant was indicted on a single count of possessing cocaine with intent to distribute. That same day, law enforcement officers interviewed Defendant at a proffer session, which was held pursuant to a written proffer agreement. The government promised Defendant it would not use against him any “statements made or other information” disclosed at the proffer session. After the proffer session failed, Defendant proceeded to trial. Despite its earlier assurances, the government presented at trial voice identification testimony from a police officer based on what the officer had heard at the proffer session. The testimony linked Defendant to an incriminating recorded telephone conversation. The jury found Defendant guilty. The First Circuit Court of Appeals vacated Defendant’s conviction, holding (1) admission of the testimony violated the proffer agreement and Defendant’s due process rights; and (2) the error was not harmless beyond a reasonable doubt. Remanded.
In re: Miller, US 3rd Cir. (9/16/13)
Bankruptcy, Legal Ethics
The Millers retained Ettinger in 2008 to represent them in a landlord/tenant dispute. Over 23 months, Ettinger billed $43,000. The dispute settled for $9,500. The Millers paid Ettinger $20,000, but even before the landlord-tenant matter settled, Ettinger sought relief in Pennsylvania state court to accelerate the speed at which he was paid. He petitioned to withdraw as a counsel, first based on alleged failure to pay and then due to professed “lack of cooperation.” Both petitions were rejected, though the Millers were ordered to make “good faith” payments. Despite their continued payments, Ettinger sued the Millers, who filed for Chapter 7 bankruptcy protection the following month. Ettinger filed an adversary proceeding in the Bankruptcy Court to prevent discharge of the Millers’ remaining debt to him, alleging fraud. The Bankruptcy Court rejected the complaint and imposed a $20,000 sanction against Ettinger jointly with his attorney. The district court vacated on the ground that the sanctions violated the “safe harbor” requirements of Fed. R. Bankr. P. 9011, which requires 21 days between serving and filing a sanctions motion, during which period the challenged conduct may be remedied, but refused to remand for further consideration. The Third Circuit remanded with instructions to permit the Bankruptcy Court to consider alternative avenues to impose sanctions.
Doe v. Gangland Productions, Inc., US 9th Cir. (9/16/13)
Civil Rights, Constitutional Law, Entertainment & Sports Law, Injury Law
Plaintiff is a former prison gang member and police informant. Defendants are producers of the documentary television series, “Gangland.” Plaintiff filed suit for various claims alleging that defendants’ failure to conceal his identity in an episode of “Gangland” endangered his life and cost him his job as an informant. On interlocutory appeal, defendants challenged the district court’s denial of their anti-SLAPP (Strategic Lawsuit Against Public Participation) motion to strike the complaint under California Code of Civil Procedure 425.16. The court concluded that defendants have met their initial burden under the anti-SLAPP statute where defendants’ acts in furtherance of their right of free speech were in connection with issues of public interest. The court also concluded that, at this juncture, plaintiff’s claims were not barred by the release he signed. It follows that plaintiff’s statements were not barred by the parole evidence rule. The court further concluded that plaintiff met his burden of showing a probability of prevailing on his claims for (1) public disclosure of private fact; (2) intentional infliction of emotional distress; (3) false promise; and (4) declaratory relief. Plaintiff failed to establish a reasonable probability of prevailing on his claims for (1) appropriation of likeness and (2) negligent infliction of emotional distress. Accordingly, the court affirmed in part and reversed in part.