Archive for May, 2006

O’Scannlain Finds Friends in Highest Court

May 31, 2006

Sure it’s bad news for would-be government whistleblowers, but a ruling by the U.S. Supreme Court yesterday threw a nice bone to Ninth Circuit Judge Diarmuid O’Scannlain.

In a 5-4 opinion split along the court’s standard ideological lines, Justice Anthony Kennedy overturned a Ninth Circuit ruling, writing that when “public employees make statements pursuant to their official duties, the employees are not speaking as citizens for First Amendment purposes, and the Constitution does not insulate their communications from employer discipline.” The ruling came in Ceballos v. Garcetti, the case of a Deputy Los Angeles District Attorney who was disciplined for revealing inaccuracies in a deputy sheriff’s affidavit that was used to obtain a search warrant.

Near the beginning of his opinion Kennedy pointed to O’Scannlain’s special concurrence to the Ninth Circuit opinion as a guidepost. “Agreeing that the panel’s decision was compelled by Circuit precedent,” Kennedy wrote, O’Scannlain “nevertheless concluded Circuit law should be revisited and overruled. Judge O’Scannlain emphasized the distinction ‘between speech offered by a public employee acting as an employee carrying out his or her ordinary job duties and that spoken by an employee acting as a citizen expressing his or her personal views on disputed matters of public import.’ In his view, ‘when public employees speak in the course of carrying out their routine, required employment obligations, they have no personal interest in the content of that speech that gives rise to a First Amendment right.’”

Kennedy adopted O’Scannlain’s reasoning, leading to a hearty debate over whistleblower rights — and outcry from whistleblower advocates, who say government employees now have less incentive than ever to pipe up.

Justin Scheck


Big Spenders Vie for SF Superior Bench

May 30, 2006

For San Francisco’s judicial candidates, this spring is proving to be one heck of an expensive job interview.

Both have spent in the neighborhood of $100,000 — or more — so far. And both have reached into their own pockets for substantial money to finance their campaigns; local attorney Eric Safire has loaned his campaign $75,000, while retired judge Lillian Sing has loaned herself $45,000.

She’s done the best when it comes to raising hard, cold cash — from other people — bringing in $76,249 to Safire’s $47,932 between March 18 and May 20, according to recently filed campaign finance reports. (Safire may have made up for some of that discrepancy in spending power, though, with $40,057 in other kinds of contributions, like donated party space and food, compared to $1,420 for Sing.)

Sing got more cash, though, by bringing in more four-figure checks, from generous givers that include local retirees and business people, as well as attorneys such as local lawyer Leanna Dawydiak ($1,320), and Cotchett, Pitre, Simon & McCarthy partners Joseph Cotchett ($2,500) and Bruce Simon ($1,000). As expected, Sing also got some help from several of her fellow colleagues on the bench, though none of them even matched the generosity of Judge A. James Robertson II ($560), or the two court clerks who ponied up at least $1,000 apiece.

Safire, who entered the race later than Sing and has never run for office before, managed to score occasional contributions in the thousands, including from U.A. Local 38 ($1,000). But the bulk of his cash fundraising came from small-firm or solo attorneys, buttressed by checks from Public Defender Jeff Adachi ($500), a smattering of other lawyers in the PD’s and district attorney’s offices, and various retirees, professors, bail bondsmen and the like. He also managed to get a bigger check than Sing from Deputy Public Defender Daro Inouye, who appears to be the only contributor so far to donate to both races, giving $120 to Sing on April 5, and $200 to Safire on April 11.

Pam Smith

Would-be DA’s Count Their Money

May 30, 2006

The primary election may still be a week away, but the money race for Santa Clara district attorney hopefuls has come to an end.

Surprisingly (or not), the three who’ve reported numbers all have cash left in their coffers — some more than others. The two who end up making the November runoff will probably need all the money they can get their hands on. The primary is next Tuesday.

Pulling in the most contributions in this final leg was Judge Dolores Carr with $88,120 — which includes a $10,000 loan she made to herself — according to finance disclosure statements filed with the county elections office last week.

The filing period covered March 18 through May 20.

Carr spent $152,538 of her stash, which included a $60,972 check to Comcast Cable. She has an ending cash balance of $73,662, but still $54,310 in unpaid bills.

Coming in second was Deputy DA James Shore with $48,731, according to his contribution report. Shore spent $143,373 this filing period, and has $16,783 left going into next week’s primary. His unpaid bills total $400.

Chief Assistant DA Karyn Sinunu added an additional $40,388 to her campaign war chest, according to her latest filings. More than $85,000 of the $201,889 Sinunu spent this period went toward campaign literature and mailings.

Sinunu reported an ending cash balance of $14,559, with an outstanding debt of $8,064.

Assistant DA Marc Buller’s latest figures still have not reached the election’s office yet. He could not be reached for comment today.

Julie O’Shea

Attorney Poaches Wife From Milberg Weiss

May 26, 2006

It’s always nice to score a top partner from a leading firm (even if it’s being indicted). But for Whatley Drake partner Joe Whatley Jr., getting Edith Kallas to bring over her practice group from Milberg Weiss had an additional perk: Whatley now gets to work with his wife. The pair got married in December, Whatley said Friday, and ever since, he’s been trying to convince her to move to his hometown, which he calls L.A. No, not that L.A.

“I’m trying to get her to move to lower Alabama,” he said. “When you say you’re from L.A. in Alabama, it’s lower Alabama.”

Whatley’s feeling less urgency now that he’s opening an office in New York. But he was never too confident in his ability to get Kallas to give up New York for Birmingham. “I don’t think I’ll be successful,” he said.

Justin Scheck

Chief Justice Swears in Sullivan

May 26, 2006

It may have taken Kathleen Sullivan two times to pass the California bar exam, but she sure got royal treatment for her successful repeat performance.

On Thursday, the former Stanford Law School dean and current of counsel for Quinn Emanuel Urquhart Oliver & Hedges was sworn in by California Chief Justice Ronald George. In private in his San Francisco chambers.



Kathleen Sullivan and Ron George

Sullivan, who took a lot of grief over last year’s failure and was even denied pro hac vice status by the Supreme Court in a big case earlier this year, found out on May 19 that she hurdled the barrier the second time.

Guess the chief justice felt he and the court owed Sullivan some personal face time and congratulations.

Supreme Court spokeswoman Lynn Holton said late Friday that it isn’t unusual for George to swear in new bar members in person. Plus, she said, George — a Stanford graduate — and Sullivan have many personal connections.

Among them, Holton said, Sullivan provided pro bono assistance in developing an amicus curiae brief submitted by the Conference of Chief Justices in Republican Party of Minnesota v. White, 536 U.S. 765, the 2002 U.S. Supreme Court ruling that invalidated a Minnesota requirement that judges not discuss political issues. George once headed the Conference of Chief Justices.

Nonetheless, way to go Kathleen.

Mike McKee

Report: Milberg Attorneys Desperate to Escape

May 26, 2006

No one’s surprised that Milberg Weiss is falling apart under the threat of an indictment; indeed, many plaintiff lawyers seem to think that’s the whole point of charging the firm, rather than just its partners. But the speed with which resumes have been going out is nonetheless striking to some competing class action attorneys.

“We’re getting inundated with resumes and calls,” said one. The feeling in New York is that many Milberg lawyers have little choice: with securities firms vying to attract large institutional investors as their clients, it’s more important than ever to avoid tainting the politicians who run those funds.

And that’s hard when you’re indicted: over the last week, New York Attorney General Eliot Spitzer has returned funds from Milberg, and the Ohio Attorney General has fired the firm as a result of the charges.

Justin Scheck

Ken Starr Has Something to Say

May 24, 2006

The constitutional fight over marriage in California, though civil, has already exhibited a certain potential for absurdly crowded courtroom scenes. And with the litigation now headed for the First District Court of Appeal, oral argument may get even more zooey.

Kenneth Starr, the former independent counsel who made Bill Clinton’s life so hard, is now co-counsel for some amici in the marriage cases. And he filed a motion this week asking that the justices add 10 minutes to the clock when they get to oral argument, so his clients can make their points about the pros of a one-man, one-woman institution.

This is interesting on a couple of levels. For one thing, it’s the second time so far this year that Starr, dean of Pepperdine’s law school, has popped up in a prominent case in California. He also joined the defense team for Michael Morales, a death row inmate attacking California's lethal injection procedure in federal court.

Then, this latest move also highlights the continuing tension between the camps fighting to maintain the ban on gay marriage. Starr says his clients (including the Church of Jesus Christ of Latter-Day Saints) and other amici that have joined his motion want to venture into arguments that Attorney General Bill Lockyer refuses to make, like how the definition of marriage can affect children’s development. “Naturally, the pro-same-sex marriage parties dispute our arguments and conclusions,” Starr wrote in his motion, filed Monday. “Somewhat surprisingly, however, the attorney general does so as well. Indeed, the attorney general reserved some of his sharpest criticisms for our positions.”

To anyone who’s been watching the ongoing litigation, this isn’t really surprising. Lockyer, a Democrat who’s emphasized his support for domestic partnerships, made clear at the outset that he’d limit his arguments to less-controversial territory. Still, despite their differences of opinion, he’s not about to try to muzzle Starr. He just won’t help him. “He doesn’t object to the addition to oral arguments so they can say their peace, as long as it doesn’t come out of our time,” spokesman Tom Dresslar said Wednesday. (Corrected: He said this Wednesday, not Thursday as we had originally written.)

Some litigants arguing for gay marriage are going just a bit further. While not technically opposing Starr’s request, lawyers at Heller Ehrman and the National Center for Lesbian Rights filed a short brief Thursday to “call the court’s attention” to a few things. Namely that, with six consolidated cases, there are already eight sets of attorneys with a stake in oral arguments, and two of them have put forth arguments very similar to Starr’s. And, counting 13 amicus curiae briefs in the cases, they suggest it’s “likely” a number of their authors would ask to be heard if Starr’s motion is granted.

Pam Smith

U.C. Gets Enron Cash to Pay Pricey Expert

May 24, 2006

The University of California got some good news out of Texas this morning: U.S. District Judge Melinda Harmon granted its request for reimbursement in a chunk of the ongoing Enron litigation, letting the UC Regents get paid for some expensive expert fees they’ve wracked up as lead plaintiff in several class actions against Enron and associated companies.

That includes the $125,000-a-month consulting fee that was being paid to Lawrence Irving, a retired federal judge the regents had hired to serve as a liaison with the lead counsel in the case, Lerach Coughlin Stoia Geller Rudman & Robbins, and to advise UC on its responsibilities as lead plaintiff.

While Irving’s fee may be a small piece of the more than $7 billion in settlements the Lerach firm has extracted from the Enron defendants so far — “the largest class action settlement in the world to date,” William Lerach said in a Tuesday phone call — it would’ve been a noticeable piece of the UC payroll had Harmon not ordered that settlement funds go to reimburse the school.


Judge Drops Milberg Case, Citing Conflict

May 24, 2006

The sizable club of lawyers who want nothing to do with last week’s indictment of Milberg Weiss has gained a new member: L.A. federal Judge Dean Pregerson. The judge had handled the case since June, when it kicked off with the indictment of former Milberg client Seymour Lazar — accused of taking kickbacks from the firm — and Lazar’s lawyer, Paul Selzer, suspected conduit for those payments.

In an order recusing himself from the case, Pregerson wrote that “when the Court applied for appointment to the bench, a partner of defendant firm, William Lerach, was among the various legal, business and elected officials who wrote supporting the application.”

“Further, the Court has presided over at least one lawsuit that I can recall which was brought by the defendant firm on behalf of its clients,” he continued. “In the course of that lawsuit, the Court issued orders which, among other matters, approved attorneys’ fees and costs. The Court anticipates that issues involving the work done by the firm in connection with its various cases and the fees it received, will be a subject of the trial. Therefore, because the Court is mindful of the necessity to avoid presiding over matters in which its impartiality might be reasonably questioned, recusal is appropriate.”

It’s not clear whether anyone else on the L.A. federal bench got a recommendation from Lerach, the former Milberg star partner who left in 2004 to form Lerach Coughlin Stoia Geller Rudman & Robbins, and who remains unindicted — though the Milberg indictment accuses him (as “Partner B”) of several illegal acts. What is clear is that the judge to whom the case has been assigned, Christina Snyder, is no stranger to Milberg Weiss. She has presided over several cases involving the firm, including an ongoing series of suits against the oil and gas industries filed by Milberg.

Justin Scheck

Troubled Prosecutor Gets New Assignment

May 23, 2006

This hasn’t been a very flattering year for Santa Clara prosecutor Benjamin Field.

The deputy has been plagued by prosecutorial misconduct allegations — first by the San Jose Mercury News in January and most recently by the Sixth District Court of Appeal, which called Field’s tactics “deceptive and reprehensible.” (.pdf)

News leaked today that Field won’t be prosecuting homicide and gang cases any more. Instead, he will be joining the economic crimes unit, where he will be handling intellectual property, major fraud and real estate cases.

Field insists that the reassignment has nothing to do with the hoopla surrounding his track record in the courtroom.

“It was my request,” Field said. “I’ve been here 13 years. I’ve handled violent murders and rapes almost that whole time.”

Field, who was once eying a bid for DA, said he wanted to try something different.

“It’s a new challenge,” he said.

Earlier this month, the Sixth District reversed a jury verdict in a sexually violent predator case Field prosecuted in 2005.

The court reversed the defendant’s commitment order, finding that Field has ignored two in limine orders stating that he not tell the jury that the defendant would be sent to a state hospital, not prison, if found guilty.

Disregarding the court’s order, Field specifically made reference to the consequences of a true finding in his rebuttal argument before the jury.

— Julie O’Shea