WILMINGTON, Del. —

Homeowners facing foreclosure throughout Delaware are now receiving vital assistance thanks to a new law endorsed by Attorney General Beau Biden.

Sponsored by Representatives Helene Keeley, John Kowalko, Robert Gilligan and Mike Ramone and Senator Bethany Hall-Long, House Bill 59 created the new Office of Foreclosure Prevention and Financial Education in the Attorney General’s Office. HB 59 was part of a bipartisan package of legislation drafted by the Department of Justice and enacted this year that responds to the foreclosure crisis.

The new office, part of the Attorney General’s Consumer Protection Unit, is headed by Gerard Kelly, who most recently served as Deputy State Bank Commissioner where he focused on consumer outreach and education. Kelly is a former member of the Wilmington City Council and a bank loan officer. The office will complement ongoing Department of Justice initiatives on mediation and outreach, and foster better communication between consumers, the Attorney General’s Office, other state agencies, and other entities.

“This office is an important new resource for consumers who have fallen behind on mortgage payments, are facing foreclosure, or simply want to have a meaningful conversation with their lender about their loan,” Attorney General Biden said. “We’re focused on making sure that homeowners understand the foreclosure process, that they know all of their rights and responsibilities, and that they are able to consider all of assistance available to them, including the mandatory foreclosure mediation program that will begin next January.”

The office is a key point of contact for consumers and is equipped to advise homeowners on their rights at every stage of the foreclosure process and direct them to available resources and information they need to make educated decisions. In cases where foreclosure fraud is suspected, the office will provide referrals to the Consumer Protection Unit for evaluation.

Rep. Keeley said that prior to HB 59, resources for homeowners facing foreclosure were scattered across several groups and state agencies, which made the process difficult for consumers. Placing those resources into the Office of Foreclosure Prevention and Financial Education in the Attorney General’s office streamlines the process, she said.

“While everyone appreciates the efforts of the various state agencies and groups trying to help homeowners, having what is effectively one-stop shopping under the Attorney General’s office will greatly benefit consumers,” said Rep. Keeley, D-Wilmington South. “Homeowners only need to know one phone number, one place to go to get the help they need with foreclosures and financial literacy. This represents a huge step forward in combating foreclosures and helping homeowners get back on their feet.”

Of the 13,000 Delaware homeowners currently in the foreclosure process, approximately half are at a stage where Delaware’s foreclosure mediation program can be helpful, and all homeowners facing foreclosure have options and resources available to them that they can discuss with the office.

Sheriff sales of foreclosed homes increased 33% statewide during the first 10 months of 2011, climbing to 2,166 from 1,628 during the first ten months of 2010. Among Delaware counties, Sussex recorded the biggest jump, 63% to 551 sales from 339 last year. Statewide foreclosure filings for the first 10 months of 2011 totaled 3,749, representing a reduced pace from the record 6,400 filed in all of 2010, but remaining at a historically elevated level.

FOR MORE INFORMATION

Biden urged homeowners to contact the Office of Foreclosure Prevention and Financial Education by calling the Attorney General’s Mortgage Hotline at (800) 220-5424, e-mailing mortgage@state.de.us, or visiting www.attorneygeneral.delaware.gov/mortgageforeclosure. In addition, homeowners can contact Gerry Kelly directly at (302) 577-5092.

Credit: Smyrna/Clayton Sun-Times

As social media and mobile devices and apps (“social-mobile”) continue to proliferate in the corporate enterprise, these new forms of collaboration and information sharing are putting a new spin on compliance issues. There has been a tidal wave of publications and seminars of late that address many of these issues. Topics range from preventing trade secrets from leaking on Facebook to the ethics of monitoring current and potential employees in and out of the workplace.

Garnering much less attention are the compliance and risk issues that new marketing initiatives using social-mobile can present. To minimize such issues, legal departments must develop a working relationship with both marketing and IT in order to fully understand how information acquired through social-mobile initiatives is being collected, stored, and utilized by the company, and to assess the impact on the company’s electronic discovery, records retention, and regulatory compliance obligations.

In the U.S., several hundred state laws govern data captured by companies, including social-mobile data. These laws include statutes regarding data security and breach response, records retention and destruction, and data privacy regulations aimed at protecting personal information of employees and customers. An alphabet soup of federal regulations (e.g., HIPAA, COPPA, FACTA/FCRA, ECPA, and the VPPA) also governs this data. As emerging technologies continue to challenge societal expectations of privacy, new methods for collecting, storing, aggregating, and sharing information continue to push the boundaries of our legal frameworks. As a result we are now seeing:

• Major data breaches reported almost daily.

• An upswell in class actions related to privacy violations along with new damage theories.

• Significant increases in FTC and other agency scrutiny and fines.

• An increased focus of public and political attention on data privacy and security issues.

These create significant risks for any company caught unprepared in the social-mobile data frenzy.

TIP OF THE ICEBERG

As companies increase their efforts to collect, use, and share social-mobile data, they should expect legal challenges to increase.

Last year, the Wall Street Journal examined 101 popular smartphone applications and found that more than half transmitted a phone’s unique identifier to third parties without users’ permission, and 47 sent the phone’s location to third parties. Five apps went further, sending users’ gender, age, and other personal data to third parties. Negative publicity and several lawsuits against the companies publishing these apps have heightened awareness, but the problem hasn’t abated. A recent patent application filed by Apple describes a framework for deploying and pricing ads based on information derived from consumer’s browsing and searching activities and the contents of their media library. It also describes using the contents of friends’ media libraries to better target ads, and explains how Apple could tap “known connections on one or more social networking Web sites” to accomplish this. Given the intent to leverage what many consider personal and private information, the company would be well advised to develop a well-thought-out legal and compliance strategy regarding the collection and use of this data before they deploy the technology.

If these examples seem extreme, consider that last week IBM announced a new retail technology solution that enables retail stores to offer targeted third-party products and services to consumers at checkout. The solution lets shoppers use mobile devices to scan orders, redeem digital coupons, access loyalty points, and pay for orders at self-service pay stations. The related compliance issues are significant for retail establishments large and small.

Further complicating the issues is the pervasive legal ambiguity and inconsistency as to what information is protected and subject to regulation among jurisdictions. There has also been an expansion in the definition of protected private information. For example, the California Supreme Court, in Pineda v. Williams Sonoma, recently held that customer ZIP codes are private information subject to protection under a state law governing what information can be collected as part of face-to-face credit card transactions. Federally, Congress and the Supreme Court have shown an ever increasing interest in defining geo-spatial reference data on smartphones and IP addresses as private information.

Unfortunately, most companies still view social-mobile data as marketing information, not as private, protected records. But along with the ability to tie this data to specific individuals comes the need to treat it like other private information. This is especially true when the data is used for purposes unrelated to why it was originally collected.

BEST PRACTICES: SEVEN PRIVACY & RISK PRIORITIES

To avoid privacy-related lawsuits targeted against the use of social-mobile data, it’s vital that companies have a clear plan about what they are collecting, how they are collecting it, how they are storing it, who it’s being shared with, what level and type of consent they have to use it, and how long the information will be kept. Here are seven best practices for counsel to keep in mind:

1. Visit your own websites and social media pages, and download and use your company’s apps. Give as much attention to what is on your public website and how your company is using customer apps — especially the app license and use agreement — as you do to the internal policies for records management, records training, and legal holds training.

2. Pay special attention to “digital safes” and other tools that store personal and private customer information. How is this data managed and what practices, processes, and controls are in place? It’s especially important to consider what is implied by your brand (are you a security company?) or explicitly found in your marketing materials.

3. Have a conversation with your CMO soon. Just as you engaged with IT a few years ago, you now need to engage the marketing department. What are its business goals? What is it doing now and what is it planning for next year, especially in the area of customer engagement and social-mobile apps?

4. Revisit your privacy policy based upon what your company is actually doing. Then “operationalize” your policies. Design them for execution rather than aspiration. That is, engage with the lines of business and those in the IT organization that will be enforcing the policies.

5. Modernize your records and retention program. Provide meaningful, actionable guidance on what information to retain, how to retain it, how long to retain it, and where to retain it. Provide procedures, not just policies, on what can and cannot be done with information during retention.

6. Understand the sources and atomic structure of today’s highly complex information. Where does it originate? What form does it take? Who has access to it over its life? How is it assembled and aggregated? How is it used and reused? Is it sold, bartered, or shared with third parties? How can it be dismantled for disposition?

7. Work with the CIO to design governance and disposal into IT systems, instead of trying to apply it after the fact.

While today’s privacy environment is highly complex and dynamic, a well-conceived plan and thoughtful dialogue can help you on your journey.

Credit: David White, Daily Business Review

Editor’s note: This term of the U.S. Supreme Court is shaping up as a blockbuster, with issues of health care reform, affirmative action, high-tech surveillance, and church/state separation already on the docket or soon to be considered. With attention focusing on the Court, the drumbeat in favor of allowing cameras in the Court is likely to increase in intensity — and the Court is just as likely to say no. NLJ Supreme Court correspondent Tony Mauro wrote about the Court’s objections to camera access in a recent article in the Reynolds Courts & Media Law Journal. A condensed version of the article appears below.

The Supreme Court has never allowed the broadcast news media to bring the tools of their trade — cameras and microphones — into its courtroom for coverage of its proceedings. Unlike almost every other public institution in the United States, it has been able to maintain such a ban to this day, ignoring the successive winds of change brought by radio, television, and the internet.

That defiant stance is born of fear of change, nostalgia, a self-interested desire for anonymity, but most of all exceptionalism: the Court’s view of itself as a unique institution that can and should resist the demands of the information age.

“We operate on a different time line, a different chronology. We speak a different grammar,” Justice Anthony Kennedy once said in response to questions from members of Congress about allowing cameras in. As recently as June, when Chief Justice John Roberts Jr. was asked about cameras in the Supreme Court, he acknowledged that many states have allowed cameras in, but said, “The Supreme Court is different, not only domestically but in terms of its impact worldwide.”

Neither Kennedy nor Roberts explained why that “differentness” justifies keeping cameras out of the Supreme Court, however. In this article I examine whether the Court’s exceptionalist self-image or the other reasons it offers for its resistance to cameras can or should stand in the way of the demands of the modern era for access and transparency.

Why are the cameras kept away? In part it is because the Court can keep them away, as it always has. One by one, major institutions in the executive and legislative branches of the federal government, and all branches of state governments, have let the cameras in — some eagerly, some reluctantly. But the Supreme Court has resisted the trend altogether, and the other branches, as well as the public, have not insisted otherwise.

THE COURT REMAINS HIDDEN

As a result, the Court is allowed to deprive the public of an educational feast. Justices debate endlessly the importance of oral argument to their deliberations, but its value and content as a public event are undeniably important. And yet, it is not visible to the public, beyond the 250 or so members of the public, the bar and the press who are able to view it in person. As the momentum of the information age has brought almost every government institution into greater public view — even the Central Intelligence Agency has a YouTube channel — the Supreme Court remains hidden, at least in terms of visual coverage of its proceedings.

Over the decades, the Court has flirted with the idea of cameras. In 1988, it allowed an unpublicized demonstration of how cameras would work inside the Court chamber. Led by then-media lawyer Timothy Dyk of what was then Wilmer Cutler & Pickering — now a judge on the U.S. Court of Appeals for the Federal Circuit — a coalition of media organizations wanted the justices to see how far video technology had advanced, and how unobtrusive cameras could be. Cameras were brought in at 7 a.m., three justices sat in their regular seats and posed questions to Dyk to replicate an oral argument. Then they watched the videotape. Nothing came of the demonstration.

Under pressure from Congress, the Judicial Conference undertook a more formal experiment in the lower courts. Camera coverage of civil proceedings was permitted on an experimental basis in two appeals courts and six district courts. The experiment, which ran from 1991 to 1994, went well. “Overall, attitudes of judges toward electronic media coverage of civil proceedings were initially neutral and became more favorable after experience under the pilot program,” according to a Federal Judicial Center evaluation.

In spite of its success, however, the experiment did not come close to winning over the federal judiciary. Outside influences ranging from the Clarence Thomas confirmation hearing in 1991 to the O.J. Simpson trial in 1995 set back the cause for years.

During a judicial conference in 1993, then-justice Byron White candidly offered one of the most fundamental reasons for the Court’s disdain for cameras. “I am very pleased to be able to walk around, and very, very seldom am I recognized” because of the absence of television coverage of his court, he said. “It’s very selfish, I know.” Interestingly, White predicted that someday the Court would be made up of justices supportive of cameras who would ask, “What was wrong with those old guys?”

INCREMENTAL STEPS

That has not yet happened, but the Court has made incremental steps. Better late than never, in 2000 the Supreme Court launched its own website, a generally user-friendly site that enabled readers to access the Court’s docket and opinions quickly for the first time.

Also in 2000, the Court took perhaps a more important step by allowing audio recordings of certain high-profile oral arguments to be released to the media shortly after they occurred. The Court did so in response to a request from C-SPAN in the historic cases of Bush v. Palm Beach County Canvassing Board and Bush v. Gore, after turning down a request from the major broadcast networks for live television or radio access. For several terms thereafter, the Court approved same-day release of audiotapes of a handful of major cases each term. That tapered off as the Court became uncomfortable about deciding which cases warranted special treatment. Now, the tapes of all arguments — newsy or not — are released on the Friday of the week they are argued, guaranteeing they will arrive too late for use in same-day news coverage.

These changes have been viewed as welcomed improvements in public access to the Court, but they fall short of the biggest and most public-minded step the justices could take — namely, allowing television and radio broadcast of Court proceedings on a par with the way other public institutions are covered. In fact, it sometimes seems that the small concessions are aimed at warding off pressure to take that larger step. Justice Samuel Alito Jr. implied as much when he was asked about cameras in the Court during a 2007 appearance at Pepperdine University. He rattled off the innovations in access to transcripts and audio, and asked why “that extra bit of information,” the video, was so important.

The Roberts Court, now six years old, is in some ways the Court that Byron White predicted it would be back in 1993. Refreshed by four recent vacancies, the Court now has younger members who don’t remember a time without television. Most of them are battle-hardened when it comes to television, because of their experience with confirmation hearings that have become highly polarized and almost always contentious.

THE EXCEPTIONALISM ARGUMENT

Yet the justices still resist. The root of almost every objection the justices have expressed about camera access is the justices’ deeply held feeling that their Court is exceptional — unlike any other public institution. The Supreme Court is not like any other court, they say. It is also unlike the other two branches of government, both of which are led by officials who stand for election — as do many, if not most, state judges. As life-tenured justices, the theory goes, the members of the Supreme Court stand above and apart from the political fray. They are the most powerful, largely invisible, government officials in the nation, if not the world.

“We teach, by having no cameras, that we are different,” Kennedy once said.

From that uniqueness, the justices conclude that the Supreme Court should remain immune from the glare of the broadcast media. But does that conclusion really follow from the Court’s exceptionalist view of itself? It could be argued, in fact, that justices’ unique independence makes the broadcast of their proceedings more justifiable, not less so, than for other institutions.

Although cameras might, and probably do, distort the behavior of elected officials bent on pleasing their constituents, they should have little negative effect on contemplative, life-tenured judges who insist they are apolitical. If they are truly independent and different, one would think that Supreme Court justices should be uniquely inattentive to the presence of cameras and should be able to carry on undisturbed.

And if the Supreme Court has unique worldwide impact, as Roberts said, then why should its work not be televised? Using the Court’s global influence as an argument for invisibility seems contradictory, unless Roberts is suggesting that the Court’s stature would somehow shrink by becoming more visible. I would argue the opposite. When the Supreme Court is under intense scrutiny — whether during the 1993 release of the Thurgood Marshall papers, or in the context of controversial decisions ranging from Snyder v. Phelps to Bush v. Gore — the Court usually emerges favorably as an institution that strives to be fair and get it right, even if the result is unpopular.

In September 2010, the Judicial Conference, which sets policy for the lower federal courts, voted to undertake another three-year experiment with camera access that echoes the pilot project of nearly 20 years earlier. Spurred again by pressure from Congress, the conference decided the time had come to take another look.

What comes next in the long and spectacularly unsuccessful campaign for cameras in the Supreme Court? We wait, yet again, for the results of another three-year experiment with broadcast of a limited category of civil proceedings in lower federal courts. In his June remarks, Roberts said, “I’ll be very interested to see what the results of the pilot program look like. I’m sure we will take that into account.” He reminded his audience of a recurring architectural motif at the Supreme Court: depictions of tortoises at the base of outdoor lamps and elsewhere. “That’s to indicate we move slowly but surely on a stable basis.”

Those who argue for cameras in the Supreme Court are not, however, asking for sudden, destabilizing change. The justices have had more than 60 years to contemplate the impact of cameras on their cherished institution — longer than that, if one includes the era of newsreels. During that period, the Court has become a powerful force in American society — more muscular than ever before, in fact, on issues of life and death, privacy and new technology, commerce and communications. It is unique and exceptional, but not in ways that should make it invisible. The Supreme Court is far from the fragile flower that its protectors make it out to be by shielding it from a news medium that is no longer new or especially threatening. Courts throughout the world have allowed broadcast coverage for years or decades and survived.

SUPPORT FROM NEWEST JUSTICES

The Court’s newest justices seem to know this, and may be able to work on reducing their colleagues’ timidity. In 2009, after seeing the Court’s oral arguments from the perspective of a U.S. solicitor general, Justice Elena Kagan said, “I think if you put cameras in the courtroom, people would say, ‘Wow.’ They would see their government working at a really high level.” Justice Sonia Sotomayor, who saw courtroom cameras as a judge on the 2nd U.S. Circuit Court of Appeals, also appears to be a fan.

If they work on their colleagues inside the Court, while at the same time the three-year experiment with civil proceedings at the district court level shows positive results, then maybe, just maybe, in three years or so, the Supreme Court will realize that the time has arrived to allow cameras in. Even a tortoise crosses the finish line eventually.

Credit: Tony Mauro, The National Law Journal

By Barry Ritholtz

Defendants to be Held Criminally Accountable for Filing Tens of Thousands of Fraudulent Foreclosure Documents

Carson City, NV – The Office of the Nevada Attorney General announced today that the Clark County grand jury has returned a 606 count indictment against two title officers, Gary Trafford and Gerri Sheppard, who directed and supervised a robo-signing scheme which resulted in the filing of tens of thousands of fraudulent documents with the Clark County Recorder’s Office between 2005 and 2008.

According to the indictment, defendant Gary Trafford, a California resident, is charged with 102 counts of offering false instruments for recording (category C felony); false certification on certain instruments (category D felony); and notarization of the signature of a person not in the presence of a notary public (a gross misdemeanor). The indictment charges defendant Gerri Sheppard, also a California resident, with 100 counts of offering false instruments for recording (category C felony); false certification on certain instruments (category D felony); and notarization of the signature of a person not in the presence of a notary public (a gross misdemeanor).

”The grand jury found probable cause that there was a robo-signing scheme which resulted in the filing of tens of thousands of fraudulent documents with the Clark County Recorder’s Office between 2005 and 2008,”said Chief Deputy Attorney General John Kelleher.

The indictment alleges that both defendants directed the fraudulent notarization and filing of documents which were used to initiate foreclosure on local homeowners.

The State alleges that these documents, referred to as Notices of Default, or “NODs”, were prepared locally. The State alleges that the defendants directed employees under their supervision, to forge their names on foreclosure documents, then notarize the signatures they just forged, thereby fraudulently attesting that the defendants actually signed the documents, which was untrue and in violation of State law. The defendants then allegedly directed the employees under their supervision to file the fraudulent documents with the Clark County Recorder’s office, to be used to start foreclosures on homes throughout the County.

The indictment alleges that these crimes were done in secret in order to avoid detection. The fraudulent NODs were allegedly forged locally to allow them to be filed at the Clark County Recorder’s office on the same day they were prepared.

District Court Judge Jennifer Togliatti has set bail in the amount of $500,000 for Sheppard and $500,000 for Trafford. The case has been assigned to Department 5 District Court Judge Carolyn Ellsworth who will preside over the case.

Anyone who has information regarding this case is asked to contact the Attorney General’s Office at 702-486-3777 in Las Vegas or 775-684-1180 in Carson City.

Read the indictment by visiting: http://bit.ly/TraffordSheppardIndictment

The Michigan Supreme Court ruled 4-3 in favor of Mortgage Electronic Registration Systems (MERS) Wednesday, allowing thousands of previously halted foreclosures around the state to resume.

The decision overturns a lower court ruling from April that had blocked MERS’ foreclosures because the company doesn’t own or have any interest in the homeowners’ debt. MERS isn’t a bank or lending institution itself, it acts as a middleman to help speed up transfer of properties.

Ingham Co. register of deeds Curtis Hertel Jr. says MERS was responsible for more than a quarter of the county’s foreclosures during the last 4 years.

“The Supreme Court’s decision affirms MERS’ business model and will allow the Michigan real estate industry to get back to business as usual,” said Bill Beckmann, MERS’ President and CEO in a statement sent to us. “This will allow homeowners to resolve title issues and buyers to move forward with the purchase of foreclosed properties, which is good for neighborhood stability.”

In Michigan, companies like MERS don’t need a court to foreclose. They can simply post an ad in the paper and post a notice on the door once a homeowner is in default in a process known as foreclosure-by-advertisement.

Hertel Jr. says the extra delays the original court ruling added had helped homeowners fighting foreclosure have a fighting chance of staying in their homes.

“It gave time for people to work out reasonable modifications and it gave time for people to recover financially,” said Hertel Jr., who strongly disagrees with Wednesday’s ruling. “This decision takes that time away.”

Credit: http://www.fox47news.com/news/local/134030473.html

BY JIM MILLER

SAN FRANCISCO — Redevelopment supporters’ lawsuit to overturn a key part of this year’s state budget package confronted a sometimes-skeptical California Supreme Court on Thursday.

The case challenges state lawmakers’ June approval of a bill to dissolve the anti-blight agencies and a second measure that allows cities and counties to form new agencies as long as they pay hundreds of millions of dollars to ease the state’s budget problems.

Redevelopment supporters contend the measures violate the state constitution, and their attorney likened them Thursday to a bank robber’s stickup. A lawyer for the state argued that the constitution gives lawmakers the right to dissolve the agencies to help balance the state budget.

The outcome has major implications for Inland Southern California, where more than 50 agencies are among the most active in the state. The agencies collect growth in property-tax revenue to finance projects ranging from new sewers to shopping malls.

Some justices’ questions Thursday suggested that the court could uphold the law phasing out the agencies while rejecting the law creating a replacement program. That is a worst-case scenario for the agencies.

“How can it be any clearer?” asked Justice Goodwin Liu, the court’s newest member, after he read legislative text that said the bill dissolving the agencies, Assembly Bill 26, would remain in effect if the second bill, Assembly Bill 27, was deemed invalid.

“Twenty-six is the whole ballgame for my clients. It’s like the death of them. They can live with 27,” said attorney Steven Mayer, representing the plaintiffs.

Chris McKenzie, League of California Cities executive director, said afterward that he thinks a court majority will side with the plaintiffs’ argument that the budget violates last year’s Prop. 22. The successful initiative was meant to prevent the state from taking local money.

“We believe they both will go down together,” McKenzie told reporters outside court, referring to the two bills.

A lawyer for redevelopment foe Chris Norby, an Orange County assemblyman who filed court papers backing the state, said he thinks justices will reject the suit. The campaign for Prop. 22 never mentioned protecting redevelopment, attorney Christopher Sutton said.

The lawsuit is on a legal fast track, and the court is expected to rule by mid-January, when cities and counties that want to keep redevelopment are due to make their first payments under the new law.

Both sides have significant stakes in how the court rules.

Cities and counties stand to lose an estimated $1.7 billion in redevelopment money in 2011-12 and about $400 million every year thereafter. Instead of helping to finance projects to revitalize aging downtowns or attract new businesses, most of the money will go to schools.

For the state, the case represents the second-largest potential budget hit of any lawsuit challenging this year’s spending plan. Losing the case would further erode a budget package that already is falling short of optimistic revenue projections.

Lawmakers also are watching closely. Several pro-redevelopment lawmakers voted for the twin bills only after assurances that cities and counties would continue to have redevelopment as option.

Supporters say the agencies are a crucial source of business development, affordable housing and jobs during a down economy. But Gov. Jerry Brown and other critics said the agencies subsidize wealthy developers and force the state to reimburse the local money diverted from schools.

About a quarter of all property-tax dollars go to redevelopment in Riverside County and about 30 percent goes to redevelopment in San Bernardino County, the highest rate in the California. They were the only counties to file briefs in support of the lawsuit. Most counties are wary of, if not opposed to, redevelopment because it reduces their property tax revenue. An attorney for Santa Clara County joined the state’s lawyer Thursday in defending the law phasing out the agencies.

At Thursday’s hearing, Mayer said last year’s Prop. 22 prohibits budget maneuvers designed to take money from local governments.

Lawmakers, he said, clearly intended to take redevelopment money — but still allow the agencies to exist — when they approved the two-bill package in June.

Justice Carol A. Corrigan seemed to agree, saying, “It’s hard to argue it’s a voluntary payment.”

But Deputy Attorney General Ross Moody said redevelopment agencies are not constitutionally protected. The June legislation still allows cities and counties to have redevelopment, he said.

Redevelopment supporters, Moody added, “took a gamble” in suing the state. If the court upholds the law dissolving the agencies but rejects the replacement program, cities and counties will be left with nothing.

“They could have accepted the new fiscal reality we’re in,” he said.

Credit: http://www.pe.com/local-news/politics/jim-miller-headlines/20111110-redevelopment-attorneys-argue-before-the-california-supreme-court.ece

By Debra Cassens Weiss

A Connecticut judge has ordered lawyers representing a divorcing couple to exchange passwords to their clients’ Facebook and dating websites.

Judge Kenneth Schluger ordered the password exchange in the divorce of Stephen and Courtney Gallion, according to the Forbes blog The Not-So Private Parts. The judge cautioned in a Sept. 30 order that the exchange should be carried out by the lawyers, and neither spouse may post messages purporting to be the other.

Stephen Gallion’s lawyer, Gary Traystman, told the blog his client believes the social networking accounts will provide evidence about Courtney Gallion’s ability to take care of their children. Stephen Gallion is arguing for full custody.

According to the story, other judges have issued similar orders. “In ‘normal’ discovery, a litigant is usually asked to turn over ‘responsive material,’ not the keys to access all that material and more,” the story says, “but it seems that judges are applying different standards to social networking accounts.”

Credit: http://www.abajournal.com/news/article/judge_orders_exchange_of_facebook_and_dating_website_passwords_in_custody_f/?utm_source=maestro&utm_medium=email&utm_campaign=weekly_email

In this months issue of INLAND EMPIRE, Mr. Frank J. Lizarraga, Jr. was profiled as one of the best lawyers in the Inland Empire.
Covington & Crowe LLP is headed by the Managing Partner, Frank J. Lizarraga, Jr., who has had an active law practice for over 25 years specializing in general and complex civil litigation.

By Debra Cassens Weiss

Halloween can be fertile ground for lawsuits.

There have been suits over neighbors’ Halloween displays, suits over haunted house injuries, and suits claiming sexual harassment due to remarks about Halloween costumes, according to an article in the New York State Bar Association Journal (PDF).

Cases from the last several years include:

• A Florida woman sued her neighbor for defamation, harassment and emotional distress because of Halloween decorations that included an insane asylum sign that pointed to her yard and a fake tombstone with an inscription she viewed as a reference to her single status. It read, “At 48 she had no mate no date/ It’s no debate she looks 88.”

• A man who created tombstones lampooning his neighbors filed a First Amendment suit against police for asking him to take them down. One of the tombstones read: “Bette wasn’t ready, but here she lies ever since that night she died, 12 feet deep in this trench, still wasn’t deep enough for that wenches stench!” The Chicago-based 7th U.S. Circuit Court of Appeals ruled the police officer was entitled to qualified immunity.

The article also chronicles “the most infamous haunted house case” in which a New York appeals court ruled in a suit by a homeowner who wanted to rescind a home purchase because it was inhabited by ghosts. The appeals court noted that the seller had told the media about ghosts. As a result, the court said in its 1991 opinion, the seller was “estopped to deny their existence and, as a matter of law, the house is haunted.”

Credit: http://www.abajournal.com/news/article/defamatory_tombstones_and_haunted_houses_spur_halloween_lawsuits/?utm_source=maestro&utm_medium=email&utm_campaign=weekly_email

By James Podgers

With all due respect to basic paper and direct conversation, email and other electronic vehicles are becoming the dominant forms of communication in today’s world.

But while email, text messaging and cellphones offer speed, efficiency and convenience that are hard to resist, they can have downsides. One is the fact that electronic communications never really go out of existence. And as two recent ABA ethics opinions point out, that can raise important confidentiality issues for lawyers when they communicate with clients.

Formal Opinions 11-459 (Duty to Protect the Confidentiality of Email Communications with One’s Client) (PDF) and 11-460 (Duty When Lawyer Receives Copies of a Third Party’s Email Communications with Counsel) (PDF) were issued Aug. 4 by the ABA Standing Committee on Ethics and Professional Responsibility.

A COMPANY COMPUTER

Both opinions use the same hypothetical fact pattern as a starting point.

An employee of a company retains a lawyer to advise her on a potential workplace claim against the employer. The company provides the employee with a computer for her exclusive use in the course of her employment, but it’s customary for employees to occasionally use their computers for personal reasons. A written policy of the company states that it has a right of access to all employee computers and email correspondence, including those relating to personal matters. Despite that policy, the employee has used her computer at work to communicate with her lawyer about her possible claim against the company.

Opinion 11-459 discusses what steps a lawyer must take to prevent third parties from gaining access to email communications between the lawyer and a client.

“Whenever a lawyer communicates with a client by email, the lawyer must first consider whether, given the client’s situation, there is a significant risk that third parties will have access to the communications,” the opinion states. “If so, the lawyer must take reasonable care to protect the confidentiality of the communications by giving appropriately tailored advice to the client.”

The “significant risk” factor should not be underestimated. There are many reasons why companies monitor computer—and employer-issued smartphone—use by employees, including productivity, security and protection of reputation. Companies may scrutinize employee emails as part of their compliance obligations or in the course of internal investigations. More over, email sent or received through a company’s network is captured on servers, and can be read and copied by third parties, even if the employee thinks she has deleted it.

The opinion notes that the law is evolving on the question of whether an employee’s client-lawyer communications located on an employer’s server are privileged. But it focuses on ethics implications of the risk that such communications may be seen by others and held admissible in legal proceedings.

“Given these risks,” the committee concludes, “a lawyer should ordinarily advise the employee-client about the importance of communicating with the lawyer in a manner that protects the confidentiality of email communications.”

A lawyer’s duty to warn the client about the risk of using workplace devices to communicate with the lawyer is grounded in Rules 1.1 and 1.6 of the ABA Model Rules of Professional Conduct. (The Model Rules are the direct basis for lawyer conduct codes in every state except California.)

Model Rule 1.1 requires that a lawyer provide competent representation to a client, and Model Rule 1.6 requires a lawyer to refrain from revealing “information relating to the representation of a client unless the client gives informed consent.”

Comments to Rule 1.6 state that the duty requires lawyers to “act competently to safeguard information relating to the representation of a client against inadvertent or unauthorized disclosure” and to “take reasonable precautions to prevent the information from coming into the hands of unintended recipients.”

The opinion says a lawyer should address the issue promptly with the client. “In particular, as soon as practical after a client-lawyer relationship is established, a lawyer typically should instruct the employee-client to avoid using a workplace device or system for sensitive or substantive communications, and perhaps for any attorney-client communications, because even seemingly ministerial communications involving matters such as scheduling can have substantive ramifications.”
LET THE COURT DECIDE

Formal Opinion 11-460 picks up the hypothetical with the employee filing a lawsuit against the company. The company then copies the contents of her workplace computer and gives it to outside counsel. In reviewing the material, the outside counsel notices that some of the emails are marked attorney-client confidential communication. Does the company’s counsel have an obligation to notify the employee’s lawyer that the employer has accessed this information?

Although courts may recognize a legal duty under these circumstances, Opinion 11-460 concludes that “the Model Rules do not independently impose an ethical duty to notify opposing counsel of the receipt of private, potentially privileged e-mail communications between the opposing party and his or her counsel.”

ABA Model Rule 4.4 states, “A lawyer who receives a document relating to the representation of the lawyer’s client and knows or reasonably should know that the document was inadvertently sent shall promptly notify the sender.” But the opinion makes the rule inapplicable to emails because they are not “inadvertently sent” when they are retrieved by a third person from a public or private place where they are stored or left. Documents are “inadvertently sent” when they are “accidentally transmitted to an unintended recipient, as occurs when an email or letter is misaddressed or when a document is accidentally attached to an email or accidentally included among other documents produced in discovery.”

Ultimately, the decision on what to do with communications that one party thought were confidential might best be made by a court, states the opinion. “Even when there is no clear notification obligation, it often will be in the employer-client’s best interest to give notice and obtain a judicial ruling as to the admissibility of the employee’s attorney-client communications before attempting to use them and, if possible, before the employer’s lawyer reviews them,” the opinion states.

“This course minimizes the risk of disqualification or other sanction if the court ultimately concludes that the opposing party’s communications with counsel are privileged and inadmissible.”

Credit: http://www.abajournal.com/magazine/article/read_all_over_two_new_opinions_describe_need_to_keep_email_from_wrong_hands/?utm_source=maestro&utm_medium=email&utm_campaign=tech_monthly