Defendant, a former federal prosecutor and prominent defense attorney, was indicted on charges including violations of the Racketeering Influenced and Corrupt Organizations Act. Reasoning that the RICO charges were inappropriate in light of the disparate nature of the substantive crimes that served as racketeering predicates, the district court dismissed. The Third Circuit reversed. On remand, the government filed a 33-count superseding indictment charging RICO violations, witness tampering (including facilitation of murder), participation in a cocaine-trafficking conspiracy, and tax evasion. The district court ordered the murder counts severed and tried them first, prohibiting the government from introducing evidence of two other witness-murder plots. The jury was unable to reach a verdict. After the jury was dismissed, the government, anticipating retrial, asked whether the court would adhere to its earlier evidentiary rulings. “Absolutely,” was the response, though the court noted that the government would be permitted to try to convince it otherwise. The Third Circuit vacated the ruling excluding evidence of the other plots and remanded for reassignment; the court’s statements before and after the earlier appeal indicate that its "impartiality might reasonably be questioned." View "United States v. Bergrin" on Justia Law
Petitioners, citizens of Mexico, entered the U.S. unlawfully in 1993 and 1998, respectively. Since 2000, husband has been seeking employment-based permanent residency. An individual who would not ordinarily qualify for lawful permanent residency because he entered without inspection, may apply as the beneficiary of a labor certification application or a visa petition filed on or before April 30, 2001, 8 U.S.C. 1255(i). According to the court, petitioners' former attorney provided incompetent, and at times ethically questionable, representation throughout the visa petition process, missing filing deadlines and sending associates to hearings without adequate information about the case, so that an IJ granted voluntary departure and the BIA affirmed denial of a motion to reopen. The Third Circuit denied review. The Due Process Clause does not guarantee an alien effective assistance of counsel in preparing, filing, and appealing a labor certification application and a visa petition before the start of removal proceedings. By the time removal proceedings began, petitioners had accrued more than one year of unlawful presence and would have been ordered removed regardless of counsel's actions. View "Contreras v. Attorney Gen. of U.S." on Justia Law
Posted in: Constitutional Law, Immigration Law, Legal Ethics, Professional Malpractice & Ethics, U.S. 3rd Circuit Court of Appeals
The United States Trustee, Region 3, appealed a district court’s reversal of sanctions originally imposed by the bankruptcy court on attorneys Mark Udren and Lorraine Doyle and HSBC for violating the Federal Rules of Bankruptcy Procedure. "This case [was] an unfortunate example of the ways in which overreliance on computerized processes in a high-volume practice, as well as a failure on the part of client and lawyers alike to take responsibility for accurate knowledge of a case, can lead to attorney misconduct before a court." At issue were two pleadings that HSBC’s attorneys filed in bankruptcy court. Both documents contained imperfect information and were filed with the court. The attorneys appealed the sanctions order arguing that the facts contained in the filed documents were "actually literally true." Upon review, the Third Circuit found that the statements therein were not wholly true, and faulted counsel for "rubber-stamping" the information taken from its computerized database without additional investigation as to their veracity: "[w]here a lawyer systematically fails to take any responsibility for seeking adequate information from her client, makes representations without any factual basis because they are included in a "form pleading" she has been trained to fill out, and ignores obvious indications that her information may be incorrect, she cannot be said to have made reasonable inquiry." The Court concluded the bankruptcy court did not abuse its discretion in imposing sanctions on Doyle or the Udren Firm itself. However, it found the lower court abused its discretion in imposing sanctions on Udren individually.
Posted in: Bankruptcy, Legal Ethics, Professional Malpractice & Ethics, U.S. 3rd Circuit Court of Appeals
After an injury trial, plaintiff's attorney called jurors to ask about the award of damages and assignment of fault between the parties, apparently believing that there had been a clerical error on the verdict form. After a juror informed the magistrate judge, the judge concluded that the attorney had violated ABA Model Rule of Professional Conduct Rule 3.5 by initiating post-verdict contact with a juror. The Third Circuit vacated, first holding that the attorney had standing to appeal. The judge abused his discretion and denied the attorney's due process rights by not following the disciplinary procedures outlined in Local Rule 83.2(b) of the District Court of the Virgin Islands and by failing to give sufficient notice and an opportunity to be heard prior to finding misconduct and imposing sanctions.
Posted in: Civil Rights, Legal Ethics, Professional Malpractice & Ethics, U.S. 3rd Circuit Court of Appeals
The company sought an extension of time to file a petition for a writ of certiorari from a decision of the Supreme Court of the Virgin Islands (48 U.S.C. 1613), on the ground that new counsel cannot meet the current deadline due to other professional commitments. Third Circuit rules provide that extension of the 60-day period in which to file a certiorari petition may be granted "for good cause shown." The court concluded that the stated reason did not amount to good cause, but granted the extension because the court had not previously addressed standards applicable to the required showing. An applicant for extension must show unforeseen or uncontrollable events, such as a death in the family, illness, or active engagement at trial.
After receiving two letters from the law firm, the plaintiff filed suit claiming that the firm violated the Fair Debt Collection Practices Act, 15 U.S.C. 1692e, by misleading him to believe that an attorney was involved in collecting his debt, and that the attorney could, and would, take legal action against him. The district court entered summary judgment in favor of plaintiff. The Third Circuit affirmed, finding that the "least sophisticated debtor" could conclude that an attorney, acting as an attorney, had reviewed his account and determined that he was a candidate for legal action. Disclaimers on the backs of the letters did not clarify that the firm was acting solely as a debt collector.
The defendants (Connelly firm) represented plaintiff in his divorce until July 2005. In July 2006 plaintiff consulted attorney, Downey, who notified the Connelly firm of a malpractice claim in October. In March 2007 plaintiff signed an agreement to file suit, but Downey did not file. In February 2008 Downey notified the plaintiff that he was terminating representation and stated that the limitations period on the malpractice claim ran out before Downey began representation. In 2009 plaintiff filed a malpractice suit against the Connelly firm, under a contract theory, and against Downey. The district court entered summary judgment in favor of all defendants. The Third Circuit reversed and remanded claims against Downey, applying the "discovery rule" rather than the occurrence rule to negligence by the Connelly firm. Although plaintiff knew that certain witnesses were not called during a 2004 hearing, he claims that he relied on the firm's assurances and did not have constructive notice of negligence until a July 2005 hearing. The question of when the limitations period began to run was for a jury.
The district court dismissed indictment of a criminal defense attorney and co-conspirators under the Racketeer Influenced and Corrupt Organizations Act (RICO), 18 U.S.C. 1962(c). The underlying criminal enterprises included murder of witnesses in drug cases, bribery of a witness, using the law office to sell cocaine and operate a prostitution business, wire fraud relating to real estate sales, and helping evade parole restrictions. The indictment adequately alleged facts to establish all sub-elements required to establish both a pattern of racketeering activity and an enterprise, as well as all of the other elements of a RICO offense. On a motion to dismiss, the court was required to accept the allegations as true. The government was not required to show a pattern of similar acts or that the enterprise had a "traditional" structure.