The Hon James V. Selena bench slapps Avenatti

https://docdro.id/nWCxmQQ

First, a bit of background for those of you who have not been following the legal spectacle that is Michael Avenatti closely.

Avenatti is now facing  two related California Bar Court proceedings on, respectively, the State Bar's petition to place Avenatti on "involuntary inactive enrollment" (not eligible to practice law) pending a merits resolution of the Bar's petition to disbar Avenatti for 13 alleged rule violations relating to his former client Gregory Barella, based on written testimony showing that Avenatti: (1) provided Barella with an altered settlement agreement; (2) failed to notify Barella for a year of his receipt of a $1.6M settlement installment; (3) misappropriated from the client trust account Barela's $840,000 share of the settlement; (4) repeatedly lied to Barella about the status of the settlement in aid of concealing his misappropriation.

Avenatti sought, and received a 45 day continuance of the Bar Court trial on the petition for inactive enrollment (to late September), claiming he has been denied access to his Egan Avenatti law firm servers containing the client files for Barella (and the four other clients that the US Attorney's Office for the CDCA has charged Avenatti for embezzling a total of $9M from), and cannot properly defend himself from the Bar and criminal charges until he obtains them.

Avenatti similarly filed a motion to abate the substantive disbarment matter until a final judgment is issued in the CDCA criminal matter.

Avenatti also pointed out that the discovery issue would be resolved by the Judge presiding over the CDCA criminal matter (James V. Selena) when when judge Selena ruled on Avenatti's motion for "unfettered, unsupervised access" everything on EA's servers "relating to the entirety of Avenatti's law practice and business dealings".

And boy did Judge Selena rule.

It is plain from Avenatti’s own description of the content of the Subject Devices that the majority of the content is irrelevant to this case. …[par.] Whatever rights Avenatti may have as managing partner of EA LLP or as attorney to keep copies the firm’s books and records, they do not expand the Government’s obligations under Rule 16.

In addition to the Government’s obligation to produce in accordance with Rule 16, Avenatti has two other avenues to review the material on the Subject Devices. First, the Government has offered to allow Avenatti to inspect its forensic copies of the Subject Devices at the IRC-CI’s offices to allow him to identify relevant information. … Second, the Receiver has offered to allow Avenatti to review the Subject Devices under the Receiver’s supervision and with the payment of associated costs.

There are alternatives, and Avenatti has chosen not to avail himself of either offer  Unfettered access is simply a different turn of phrase to conduct a fishing expedition through the Government’s subpoenaed materials.

 Ouch!

In a footnote, Judge Selena also reminds Avenatti that things are run a little differently in criminal court:

What may be appropriate and required in the context of civil discovery does not translate to criminal discovery.

The significance of Judge Selena's ruling resonates beyond the discovery issue in the CDCA criminal proceeding because it eliminates Avenatti's ground for seeking continuances of not only the criminal matters pending in CDCA and in the SDNY (where Avenatti is also seeking access  to seized devices) but in the two Bar matters as well.

Avenatti is currently facing a trial on extortion charges in the SDNY in November, a trial on the 36 count criminal indictment in the CDCA in May, 2020, and a trial of the State Bar petition for involuntary inactive enrollment in September of this year.

ADA Access Lawsuit Summary

In a prior thread, I suggested that I might consider voting for President Trump's reelection if he (among other things) accomplished a significant rollback of the private right of action under the ADA.  This resulted in a bit of criticism and questioning of what I have against disabled people.

I have nothing against the disabled, but it is not the normal disabled folks who file ADA lawsuits.  As I mentioned in the other thread, I subscribe to a service which provides me a daily summary of all new litigation filed in the Southern Division of the Central District of California (basically Orange County) and the Orange County Superior Court.  I'll go back to August 1 and list the plaintiffs who have filed disability cases (either under the ADA or our state equivalent) as well as the law firms representing them and the type of business they sued:

Forensic Data Collection in Dallas

Dear members of the Texas chapter:

I have a client with an office in the Dallas area who is in need of a data collection vendor to create forensic copies of a few hard drives for litigation preservation purposes.  Not surprisingly, I haven't had the occasion to hire such a service in Dallas before.  Billy/Pol Pot/anyone else in the northeast part of the Lone Star State, any recommendations?


P.S. It feels really odd using this forum for actual, legitimate professional purposes. 

Is it Time to Rework the Bar Exam?

I think most of us here are in agreement that, of all the AtL columnists over the years, Kyle McEntee is among the more credible.  He's got a new column on AtL today discussing some pretty harsh internal criticism of the Bar Exam by the National Conference of Bar Examiners (i.e. the group responsible for the MPRE, the multiple-choice section of the Bar Exam, and the essays and performance exams used in the Uniform Bar Exam).  Among the critiques are:

• The exam tests both too much and too little. That is, it should emphasize more lawyering skills and less subject matter knowledge. 

• The exam should utilize more writing, less multiple-choice, and additional methods like simulation.

• Jurisdictions should consider breaking the exam into different parts over more than just a few days.

• “The MEE is the least valuable component of the bar exam because it is not realistic: it requires answering short essays based upon memorization of the law, which is not consistent with how lawyers practice (e.g., with access to electronic databases like Westlaw or LexisNexis).

• The inconsistent passing scores implemented across states raise questions about the legitimacy of exam results; states need to agree on a definition of minimum competence.

• “The MBE tests arcane, obscure, or trivial aspects of the law that new practitioners should not be expected to know and are not reflective of minimum competence; the MBE tests too deeply on subjects; memorizing black-letter law for the MBE to answer multiple-choice questions (MCQs) does not mimic real practice because lawyers would look up the law and not rely only on memory in representing clients; too much focus on memorization; the MBE tests only memorization and no skills; the MBE questions are full of red herrings and intentionally tricky”

• “MCQs are not realistic or an effective way to test what lawyers do; if retaining MCQs for the MBE, reduce the number of questions or increase the amount of time allowed”

I agree with all of the above, especially the questions concerning the utility of the multiple-choice Multistate Bar Exam.  It's been more than twelve years since I sat for the Bar, but I recall the questions and subject matter were oddly focused on areas of the law that few practitioners need to know (i.e. tests for religious displays on public property, prayer in schools, the rule against perpetuities, and adverse possession).

That said, I disagree with the implication that a fast-paced, timed multiple choice test has no place in the Bar Exam because there are a few topics that attorneys do need to know off the top of their head and do not have the opportunity to research.  Specifically, I'm thinking of the rules of evidence (and, yes, I'm aware that this applies only to trial attorneys).  When in trial, a competent attorney must have a command of the rules of evidence.  You don't get a recess to research the applicable rules of evidence and rework your questions if the opposing attorney makes a valid objection.  Similarly, you need to know the rules yourself to keep the other side in check.  Objections not timely asserted at trial are waived for purposes of appeal, so there is literally no time to consult a rule book.  Unless and until we break out a law license into "trial attorneys" and "non-trial attorneys," a minimally-competent attorney must understand the evidence code.

Commenteriat, how do you feel about the MBE and how would you improve the Bar Exam?

Jones Day at it Again (Courtesy of IP-Law-Ass)

IP-Law-Ass pointed out on a recent thread that Jones Day is the subject of a salacious, new claim. Posted verbatim from his comment on CC's earlier post, The Update (ATL, take note. We can steal from comments and cross-reference our own content too):

Some mod should start a thread on the new complaint against Jones Day — lots of juicy details on their appellate group. Written by some very preftigiouf plaintiffs (see below), and they drop some sweet shade along the way (like mentioning oh by the way, Jones Day attempted to litigate and take out the FMLA, but failed).

Complaint:

https://static.reuters.com/resources/media/editorial/20190814/savignacvjonesday--complaint.pdf

Julia Sheketoff and Mark Savignac, the married plaintiff couple.

Her: NYU '10 grad; EDNY clerk; clerk for Justice Breyer (you may have heard of a little court called the SUPREME COURT?).

Him: HLS '11; NDIL, 7th Circuit, and Breyer clerk.

Breakdown of some highlights:

https://threadreaderapp.com/thread/1161714881931952129.html

Move Along, Nothing To See Here

Well, that was the corporate line at LeClair Ryan (no relation) until last week.  Now, there is something to see.  Namely a massive crater where the firm's COBRA obligations used to be.

Law360 lays out the nitty gritty here (https://www.law360.com/articles/1186656).

Question to the commune - what makes your firm different from LeClair Ryan (no relation)?  And in what ways is it similar?  Would you know the door was about to hit you in the backside well enough in advance that you could do something about it?

I'm particularly thinking about the dude they lured to start a practice back in May of 2018.  He said that for a year he knew nothing of the financial trouble (that was plastered all over the news for anyone to see).

Sick Daze

As I'm currently dealing with one of those medical issues that's disproportionately disruptive relative to its severity, i thought it might be a good time to talk about sick time.

My firm has unlimited sick time, but for extended absences they prefer that you work out a leave of some sort.

It's great because you don't have to worry about getting pay docked, and super helpful when there is a kid in school picking up all sorts of germs.

But the billable hour clock keeps ticking and there's work that needs to be done,  and the older partners need to be assured of adequate face time.

What say you all?

New Digs

Looks like we're all going to have to take a bit of time up get used to our new environs.  Good thing Disqus helpfully gave us a whole month to adapt before dropping the ban hammer.

In that vein, let's talk about office moves.  How do you handle moving to a new office (same firm or different)? Does your firm handle all the logistics? How do you like to keep your office decorated/ personalized?

Asking for a guy who's moving down the hall.

Disqus. Errr, let's chat.

Twenty women accuse CA appellate justice of inapporpriate remarks, touching; he calls it a “whisper campaign”

What to call a Commission on Judicial Performance trial seeking to defrock a setting justice? "Witch-hunt seems, well, counterproductive. So “whisper campaign” it is.

A lawyer for a Los Angeles-based state appeals court justice told a panel of judges Monday that sexual harassment charges against him stemmed from a “whisper campaign” in court hallways fueled in part by a female judge who enjoyed being at the center of attention.

During the first day of formal proceedings against 2nd District Court of Appeal Justice Jeffrey H. Johnson, his lawyer suggested Johnson was the victim of malicious gossip and that some of his accusers, including Justice Victoria Chaney, were not credible.

Chaney, who serves on the 2nd District Court with Johnson, has accused him of sexually harassing her for years, grabbing one of her breasts, patting her bottom and repeatedly asking her to have an affair with him. She and Johnson were appointed by former Gov. Arnold Schwarzenegger. 

Unfortunately for Justice Johnson, there are no shortage of character witnesses - and not the good kind.

The state’s first witness, Roberta Burnette, a private lawyer, testified that she met Johnson at the Jonathan Club in 2015 at a dinner sponsored by the Assn. of Business Trial Lawyers.

While they were seated alone at a table toward the end of the night, “he said to me, you know you are very voluptuous,” she testified. She tried to brush off the remark and changed the subject.

As their conversation continued, he eventually asked her to perform one sexual act on him, then another, she testified.

I like an appellate judge who gets right to the point, don't you?

Read more sexy details, here.