May It Please The Court
Quote of the Day - I was not lying. I said things that later on seemed to be untrue.
For Those Who Don't Remember Watergate. And A Reminder To Those That Do.Seeking advice from a lawyer in this example is a bit like going to see the doctor. You want to explain all of your symptoms to the doctor so you get the right treatment, and the problem you brought to the doctor is treated properly.
So it goes with a lawyer. To get the right advice, people who consult us are protected by the attorney-client privilege. Anything said to a lawyer is protected from disclosure, with certain exceptions like fraud and crime.
If, however, you're a public official representing your constituents, should you be able to consult a government attorney and invoke that privilege to protect your communications?
The Second Circuit Court of Appeal thinks so. Ultimately, it looks like the Supreme Court will get the last word, if the Department of Justice appeals. Existing law recognizes that the government can invoke the privilege, but the question is not fully resolved.
The 7th and the 8th Circuits have held that government cannot invoke the privilege, and when a grand jury undertakes a criminal investigation of a government employee, conversations with a government lawyer are not protected. It's a matter of public, not private, interest that controls.
Seems logical. Do we want our public officials hiding behind the cloak of an attorney? Do we want open meetings?
Or, on the other hand, do we want our public officials to have the best advice and full disclosure of all the facts to treat the symptoms correctly?
In Watergate, Congress grilled John Dean, President Nixon's attorney. Did he honor the privilege (5-minute video of testimony before Congress)? Hear him tell it.
Seems to me the Courts are asking the wrong question. Who is the government attorney responsible to? Who's the client here? The citizens or the government official?
Use It And Lose It. Just Don't Blame The Insurance Commissioner.You may have heard of the insurance industry's practice of use it and lose it. You know: make a claim and we won't renew your insurance policy, and we may even cancel you mid-stream.
What good is that kind of insurance?
The Insurance Commissioner tried to do something about it. In fact, he claims he's still going to try.
Despite today's court decision preventing him from doing so. The court ruled that the legislature didn't grant that extent of power to the Commissioner. Last year, he issued a regulation preventing the insurance companies in California from relying on "use it and lose it" underwriting practices to not issue policies. Insurers were using a databased called CLUE to find out if you or I had submitted a claim, and if so, we were blacklisted.
The insurance industry launched an attack against the Commissioner's regulation, and today, they appear to have won this round. Now, if you want to do something about it, contact your legislator.
Last year, the legislature had a chance to do something about it, but the bills died.
With all the rain we've had, it's going to be a problem for a lot of people in this state. Just what we need. We're going from brown mud to blacklisting.
Vlawging Is Back On MIPTC, New and ImprovedThe vlawg is back. Just uploaded the show from Thursday. It's a word-for-word reading, but don't expect that to continue all the time. It was uploaded to see how the quality, lighting and format fare.
Let me know what you think. Comments and criticism are welcome. You can submit audio comments (call 206-338-3088), or if you prefer, video comments. MIPTC will post those, too, subject to certain undefined, subjective standards. Or just send me an email.
Others are vlogging, but MIPTC is vlawging.
Blogger Ethics - Dealing With Plagiarism And CitationThe issue of blogger ethics is a very hot topic now, and rightfully so. While we're grappling with what blogging is all about, it's an easy thing to miss. That last link is an excellent analysis and good starting point.
The aspect of right and wrong isn't so hard to grasp. Many of us, if not all of us, already understand it. That said, mistakes get made. In fact, mistakes get made by mainstream media about bloggers. Take the recent example of the National Law Journal's article (subscription required), taken in large part from the UCL practitioner. The blogger, Kimberly Kralowec, was "flattered that the NLJ was reading my blog and relied on my work," but "disappointed" they didn't credit her.
When called on it, the NLJ issued a clarification here. Surprisingly, the clarification doesn't appear with the actual story, but that's typical of printed newspapers. Should the clarification appear with the actual story? It's not that hard to do on the web.
How can bloggers avoid the same mistake?
Provide credit where credit is due. Given that most bloggers have some advanced training in English, most of us have at least a passing understanding of plagiarism. If you're going to copy someone else's work, provide credit.
What's the format? Try this one out: Who, What, Where and When. List the author, the title of the author's work, the location (easy to do on the web with hyperlinks) and when the work was published. That information should pass even the toughest muster.
Sometimes, blogging is original ideas. Sometimes, it's commentary on someone else's ideas or news source. When you comment or copy, cite. It's that simple.
Blogging is coming of age, and it's time we start developing some ethical standards and common understandings. I'm not quite sure we're all ready for this level of commitment, though.
If Only Someone Would Advise MeYou're driving across country, filling up at every gas station. You live in New York, and you're on the way to California.
Do you have to pay the taxes on the gas in the states in between? Unfortunately, yes.
What if you were an airline, say Hawaiian Airlines, and you flew over international waters? Assume, for the purposes of this somewhat futile exercise, that you knew of an exemption for foreign trade (this link is not the correct exemption, and such an exemption does not actually exist). But, play along for a bit longer.
You might, if you didn't know any better, claim a $11.3 million tax credit. If you were Hawaiian Airlines, in bankruptcy, and seeking a way out.
Good thing you relied on someone else's advice.
The IRS tried to slap a $40 million penalty on Hawaiian Airlines for that little tax maneuver. Apparently, Hawaiian Airlines was later informed by Ernst & Young that tax advice was wrong, and the company restated its financials.
When the IRS sought its tax penalty, it got stopped by a Federal judge in Hawaii who ruled that because Hawaiian Airlines relied in good faith on tax advice, they didn't have to pay the $40 million penalty.
Now, about that gas tax....
MIPTC's Friday Series: Grape Radio Looks At Your Sommelier.As a companion service to MIPTC's Friday At The Movie series, my other buddies want to encourage you to drink some wine with that popcorn. So, give a listen to their podcast spotlighting blind tastings. Here's what the guys have to say:
Grape Radio #9: Did you ever notice a guy with that funny thing around his neck and a corkscrew in his hand? He is probably a sommelier, and you'll find him in top flight restaurants that call for top flight service. Today’s guest, Brian Harley, is the sommelier at one of Southern California premier restaurants. Since 1972, The Hobbit has been known as a unique dining experience, offering a seven-course, prix-fixe menu and of course, top wines. In fact, Wine Spectator Magazine has rated it as having one of the country’s finest wine cellars.
MIPTC's Friday At The Movie Series: Reel Reviews Looks at: Raging BullIt's Friday again, and time for another installment in the Friday At The Movies series, brought to you by my friend Michael Geoghegan. Here it is:
Reel Review #27: Raging Bull is widely acknowledged as the best film from the Eighties. With expert guidance from Director Martin Scorsese and amazing performances turned in by Robert De Niro, Cathy Moriarty and Joe Pesci - Raging Bull is not one to be missed. A brand new Special Edition DVD release makes now a great time to dive into this spectacular film.
Raging Bull DVD at Amazon
Testing The Boundaries of The Fifth Amendment's Public Use RequirementWhat is eminent domain? It's the right of the government to condemn your property without your consent for public use upon payment of just compensation. How's that for a mouthful?
Today's dispute centers on the definition of public interest.
New London, Connecticut, is the hotbed for this question. The City wants to condemn homes for a development to build a conference center, hotel complex, offices, condominiums, and eventually, an aquarium. The complex would be built by private developers.
The homeowners charge that it's essentially corporate welfare. The government, on the other hand, claims the condemnation falls within their power. Whatever the Supreme Court's decision is, it will have far-reaching effects.
It's the last phrase of the Fifth Amendment that we're fighting over.
How far does the government's power reach? Usually redevelopment is fairly easy, within some boundaries. Property is blighted, contaminated, run-down or some other problem exists. The citizens want the place cleaned up and returned to productive use.
What about the case here, where the homes in the Fort Trumbull area are fine? No one is complaining. The lawns are kept up, cars parked in the garage. Right there next to the Eagle, the ship I sailed on in the 1976 Tall Ships Race. It's Main Street America.
New London will make more tax revenue from the development. It will also provide more shopping and potentially a public aquarium.
Who's right? How would you want the Supreme Court to rule?