Asbak: March 2009

Friday, March 6, 2009

Top Stories

Authorities Search For Missing Prosecutor
By CHRISTIAN NOLAN
Joseph Kristan Jr. has been a juvenile prosecutor in Connecticut for 30 years. On Jan. 15 his family thought he was headed to work, as usual, at the Rockville courthouse. But he never arrived at work, never came back home, and was reported missing to State Police later that day. He has not been seen since. Family members have, however, heard from him since. He has sent letters with return addresses in Florida, Tennessee and Mississippi. But efforts by the family to contact him at the addresses have been unsuccessful. State police have not released a lot of details, but according to spokesman Lt. J. Paul Vance, the following is known: Kristan left his family’s South Windsor home on Jan. 15 wearing a black down jacket and baseball cap. He was driving a red Chrysler convertible with the Connecticut license plate of 599-UBA. Investigators believe he took about a weeks worth of clothing with him. Kristan is described as 5-foot-10, 178 pounds, green eyes, gray hair with a receding hairline, a goatee, tri-focal glasses, olive complexion and a four-inch scar on the back of his head. Investigators and family members have not publicly stated any possible motive for Kristan’s disappearance.

Bill Would Allow Judges to Alter Mortgage Terms
A plan to give debt-strapped homeowners a chance to lower their mortgage payments through bankruptcy courts won approval in the U.S. House of Representatives on Thursday, but is facing a much tougher road in the Senate amid because of lending industry opposition. The legislation would give bankruptcy judges — who now can modify loans for such items as cars and student loans but not for primary residences — new power to reduce the interest rate and principle on a home mortgage. Supporters regard the threat of a mortgage modification in bankruptcy as a crucial tool to prod banks to negotiate with homeowners for more affordable terms. Critics argue the measure will create a flood of bankruptcy filings that ultimately will drive up mortgage rates and further destabilize the housing market. The House bill is the product of a compromise between dueling Democratic factions. A group of moderates and refused to support the measure unless it included several changes the banking lobby had sought. The resulting compromise would bar homeowners from getting loan modifications in bankruptcy court unless they have first tried to work out a deal with their lenders and have no other way of affording their mortgages. It also would let judges consider whether the home loan company had made a reasonable offer to change the terms to those embodied in President Barack Obama's housing plan — allowing the homeowner to reduce his monthly payments to about one-third of his income. – Associated Press

Web User Challenges Suit By Yale Law Students
A Texas man is seeking the dismissal of a lawsuit filed by two female Yale Law School students who say he made sexually charged slurs against them on the Internet. A lawyer for Matthew Ryan of Austin was scheduled to appear in U.S. District Court in Hartford Friday afternoon for arguments on the motion to dismiss. Attorney Joseph G. Fortner, of Halloran & Sage in Hartford, represents Ryan, who is one of more than 20 defendants being sued by the two women, who are not named in the proceedings. The women accuse Ryan of making defamatory comments about them on a law school discussion forum on the Web site AutoAdmit, including anti-Semitic slurs and a false claim that one of the women had a sexually transmitted disease. Ryan says in court documents that he has never made statements on the Internet that he believed affected people in Connecticut.
– Associated Press

Reports: State To Lose 60,000 More Jobs
The latest quarterly report from University of Connecticut economists says the state probably will continue to feel the impact of the recession for at least another 15 months. The report predicts that the state will likely see the loss of another 60,000 jobs during the next 15 months. The authors of the UConn quarterly review say the state has already lost between 28,000 and 30,000 jobs as a result of the recession. UConn economist Steven Lanza says the pace of layoffs is speeding up. He says when the quarterly report came out with its winter edition in December, it included projections of between 11,500 and 42,000 jobs being lost over the next two years.
– Associated Press

Submit Your New Partner Information
The Law Tribune’s annual New Partners Yearbook will be published March 16. Even in a souring economy, law firms have sent dozens of announcements about new partners in their ranks. If you want your firm to be included, log on to www.newtofirm.com, fill out the questionnaire and make sure you provide a high-resolution color photo of the new partner. Also, please make sure you label the photo with the partner’s name. We will accept submissions until this Friday, March 6.

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Featured Columnist

Friday, March 6, 2009

Nothing Funny About Drinking And Driving
By AMY GOODUSKY
Usually, this column is devoted to the lighter side of the legal profession. Maybe, as a music reviewer once noted about my vocal performance, the column is "occasionally somewhat pleasant" to read. What I wish to say here may not really be pleasant, to write or to read, and certainly is not intended to be funny. More

Governor’s Seizure Should Shake Up Judiciary
By NORM PATTIS
Governor’s Seizure Should Shake Up Judiciary BIO: Norm Pattis is a criminal defense lawyer and civil rights attorney in Bethany. He blogs most days at normpattis.blogspot.com. By NORM PATTIS Buried deep within Gov. M. Jodi Rell's proposed budget is a provision that would get a lawyer disbarred, were the lawyer foolish enough to act on it. But the governor is no lawyer. She is the head of the executive branch. And she is asking the legislature to help her rob a fund created by the judiciary for purposes of helping clients and lawyers in need. What will be done to stop her? At issue is the Client Security Fund. This fund is a creature of the judiciary. Its stated purpose is to provide relief to clients who lose property or money as a result of the dishonest conduct of lawyers. It also funds a crisis intervention and referral service for lawyers who crumble under the weight of the world. Lawyers are assessed an annual fee to go into this fund, which, constitutes a trust. The governor's budget proposes that the state seize $2 million from the fund to help meet the current shortfall in revenues. It has folks in the judiciary seeing red, and not just red ink. It seems a doubtful proposition as a matter of law that these funds can be seized without so much as wink and a nod to the separation-of-powers doctrine. We have three branches of government, after all. To the judiciary falls the regulation of lawyers and the relationship between lawyers and clients. If the judiciary creates a fund by taxing lawyers and then puts those monies in trust to assure that both lawyers and clients are protected from the vagaries of life, what possible legal theory supports an executive or legislative branch seizure? I hope the judiciary is considering a constitutional challenge to this proposal. When a lawyer dips into to a trust fund for an unauthorized purpose, he or she faces disbarment, if not criminal prosecution. When public charities run afoul of accounting requirements, the Attorney General's office has plenty to say. What precedent supports the governor's seizure of trust funds? Of course, Rell is nothing if not shrewd. So perhaps she is bluffing. Perhaps this feint at what looks to be a form of theft is merely a way of laying siege to a different fortress. "What? I cannot violate this trust? Oh, well, then I shall have to do what I hesitate to do: I shall tax legal services, even if that means the costs of those services shall increase for clients." The economy is in tatters and the state's budget is awash in red ink. Revenues are needed. But so are savings. What is the governor doing to cut state expenses? I saw a recent list of the top 250 wage earners in state service. The salaries ranged from $1.6 million for UConn basketball coach Jim Calhoun to a low of $217,000 for an emergency room physician. Buried within the list are registered nurses making a quarter of a million dollars and a whopping $400,000 for the state's top prison doctor. These salaries are, I suspect, well above the mean for lawyers. There is something obscene about these salaries for state employment at a time in which many folks face unemployment and the loss of homes. The state's safety nets will be stretched mighty thin in a time of crisis. Among those safety nets is the Client Security Fund. Sucking the life out of the Client Security Fund makes no sense. Need a few extra million? Give the state's basketball and football coaches a call. They're swimming in cash.

Decision of the Day

Arbitration Not Condition Precedent To Litigation
CASE: Liebig v. Farley
COURT: New London J.D., at New London
DOC. NO.: 08-5005405
COURT OPINION BY: Martin, J.
DATE: Feb. 13, 2009 PAGES: 22
Although the parties agreed in 2002 to arbitrate claims that arose from the defendant financial planner’s assessment of the plaintiff’s financial condition, arbitration did not constitute a condition precedent to the plaintiff’s suit alleging that in 1995 the defendant wrongly advised her to obtain a reverse mortgage. Plaintiff Beonne Liebig’s complaint alleged that defendant Andrew Farley persuaded her to obtain a reverse mortgage in the amount of $383,098 in 1995. Allegedly, Farley attended the closing and signed as a witness on the mortgage deed. When the plaintiff’s health deteriorated, Farley allegedly paid the plaintiff’s bills and managed the plaintiff’s investments. The plaintiff’s complaint alleged that Farley failed to inform her she was a member in a class action suit of individuals who were defrauded about the terms of reverse mortgages, and he invested the $6,000 the plaintiff received as a settlement. In 2007, the plaintiff sold her property for $2.4 million and was required to pay $1.7 million in non-contingent interest, contingent interest and maturity fees. The plaintiff sued Farley and his employer, Ameriprise Financial Services, alleging breach of contract, breach of fiduciary duty, and violation of CUTPA, the Connecticut Unfair Trade Practices Act. The defendants moved to stay, pending arbitration. Although the parties agreed to arbitrate claims arising out of a 2002 contract to supply advice about the plaintiff’s finances, the court was not persuaded that arbitration constituted a condition precedent to litigation of the plaintiff’s complaint. One contract governed the assessment of the plaintiff’s finances and investments in 2002 and restricted the scope of arbitrable disputes to those subjects. Other contracts that the parties signed were likewise restricted. The plaintiff’s allegations pre-dated the signing of the arbitration contracts. The court denied the defendants’ motion to stay, pending arbitration.

More decisions...

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