Friday, September 30, 2022

Should The State Stay Out of The Marriage Business?

I have never really understood why the state is involved with marriage. I totally get religious marriages and contracts between two people for whatever they want, but why do we have this odd institution of civil marriage? 

Historically only the rich were civilly married and that was generally because marriage was considered an alliance between families. Love had little to do with it. It was all about property rights. 

A Slate article from eight years ago is still relevant

If civil marriage were to be abolished, we could replace that moribund institution with a more personalized, a la carte menu of contractual rights and responsibilities. (Religious marriage would be left intact, of course. Houses of worship will always retain the freedom to perform traditional rites and to be as inclusive or exclusive about them as they choose—the free exercise of religion is enshrined in the First Amendment of the Constitution.) Something like a standard civil union arrangement would still be available for traditional couples, but two roommates could share property in common and serve as health care proxies for one another without taking on any additional rights or responsibilities if they didn’t wish to. A tenant could have the right to continue living in the space she had long rented without being responsible for funeral rites or having any claim to her landlord’s property. A polyamorous triad could share legal rights and responsibility for any children that came of their relationship without our having to go through a protracted political fight over whether marriage should be allowed for more than two people.

Eliminating civil marriage would inject hundreds of billions of dollars into our economy because we would not be wasting all that money on litigation surrounding marriages, especially when they fall apart.  

Culturally, I would love to see the day when a person can call another person "wife' of "husband" simply as a a term of personal commitment rather than government decree. 

Thursday, September 22, 2022

Family Court Corruption

Here is a series of videos with an interesting perspective on family court corruption from someone with first hand experience. What happened to him when speaking out is especially telling. On of the most disheartening aspects of corruption in the legal system is that doing the right thing only makes it worse. 

Wednesday, September 14, 2022

How It Is Supposed To Work

Not only are attorneys not supposed to commit crimes, which they clearly did in my case, but they are not supposed to even discuss anything with their client which might lead to a crime. Nor are the supposed to conceal information from the court about a past crime.  

This is what is supposed to happen. But it doesn't.

The attorney-client privilege protects most communications between clients and their lawyers. But, according to the crime-fraud exception to the privilege, a client's communication to her attorney isn't privileged if she made it with the intention of committing or covering up a crime or fraud.

Because the attorney-client privilege belongs to the client, the client's intent determines whether the exception applies. Most courts will apply the exception even if the attorney had no knowledge of, and didn't participate in, the actual crime or fraud.

The crime-fraud exception applies if:

  • the client was in the process of committing or intended to commit a crime or fraudulent act, and
  • the client communicated with the lawyer with intent to further the crime or fraud, or to cover it up.

Whether the crime-fraud exception applies depends on the content and context of the communication. The exception covers communications about a variety of crimes and frauds, including (to name just a few)

  • suborning perjury" (asking an attorney to present testimony she knows is false)
  • destroying or concealing evidence
  • witness tampering, and
  • concealing income or assets

Saturday, September 10, 2022

A Lawyer's View On Attorney Maleficence

I ran across an interesting perspective by a lawyer on attorney maleficence. In many ways it is a warning to lawyers on the potential consequences if they commit crimes while representing clients. 

Lawyers generally think that their only liability risk comes from making mistakes in their representation of clients.  They think that so long as their representation of the client is negligence-free, no one is going to sue them based upon the legal work performed for that client.  Think again.

More and more often lately, lawyers are being sued along with their clients, and sometimes instead of their clients, for aiding their clients in some venture which a third party believes amounts to a tort or a breach of a fiduciary duty.  Two similar common law tort claims are used for this attack: civil aiding and abetting and civil conspiracy.  Together these causes of action are commonly referred to as “in-concert liability claims.”  There are a variety of ways that lawyers can be exposed to such claims, particularly if they are not thinking of this type of third-party exposure when they provide legal services to their clients. 

Most of the article discusses breaches of fiduciary duty by attorneys rather than outright crimes such as in my case but that is probably because our legal system tends to view crimes (especially fraud) committed by lawyers as part of their normal way of doing business. (which is why I say the judicial system is institutionally corrupt) 

I like the end where the article states that intentional torts (i.e. crimes) committed by lawyers are viewed by malpractice insurance companies as excluded from their policies. 

Moreover, because most in-concert liability claims involve an element of knowledge by the attorney, insurance companies may view these causes of action to be intentional torts.  The facts of the claim should be scrutinized carefully, particularly for claims of aiding and abetting torts, like fraud, where intent is a key element.  Since most policies contain exclusions for intentional torts, insurers may take the position that not only are such claims not covered for indemnity purposes, but there is no duty to defend as well. 

Actually it is both good and bad. Because lawyers would have to pay for damages from such crimes themselves, the judicial system makes such cases all but impossible to succeed no matter how strong the evidence.  This is exactly what has and is still happening to me. 

Thursday, September 1, 2022

Forgiveness For Lawyers

Wisconsin is such a nice state. Especially to their lawyers. If a lawyer is disbarred in Wisconsin, even if they are a convicted felon, they can petition to be reinstated after 5 years

In Wisconsin, a disbarred lawyer can petition to have a revoked license reinstated after five years. And many do, even those who've been convicted of felonies.

Although Minnesota may be the nicer state. Here prosecutors such as Ramsey County Attorney John Choi, believe lawyers violate no criminal statue when they lie to the court, which is called fraud upon the court.  Choi and his criminal division director Richard Dusterhoft, stated,  in writing, "there is no such crime in Minnesota". Well maybe they believe lawyers can freely commit fraud but that clearly isn't the law. 

As far as I can tell, no lawyer has ever been convicted of and possibly never even charged with fraud upon the court in Minnesota. As I read our statutory laws, fraud upon the court is one of only three crimes with no statute of limitations, the others being first degree murder and sex trafficking of a minor. 

Minnesota is truly the nicest state...if you are a lawyer. Victims not so much.