Thursday, December 29, 2022

Two-Faced Dusterhoft

Richard Dusterhoft is the type of person who irritates me. Not only did I catch him red-handed obstructing justice but he just kept doubling down on crime once caught. 

Late last year Dusterhoft left is job as director of the criminal division at the Ramsey County Attorney's Office. Why? Was it because he didn't want to work in an environment where crime was not only regularly committed but regularly covered up? Sort of. But not crimes committed by the prosecutors office. He left because  of "his frustration with policies he says are designed to keep offenders out of jail."

This is the same guy who as criminal division director at the Ramsey County Attorney's Office told me, in writing:

"You specifically suggest that your ex-wife’s attorney committed “fraud upon the court” and mention there is no statute of limitation on such a crime. That is probably because there is no such crime in Minnesota. A person could be held in contempt of court by a judge. Absent that, there is no other similar charge."

 The U.S. 10th Circuit Court disagrees:

"Fraud upon the court is fraud which is directed to the judicial machinery itself and is not fraud between the parties or fraudulent documents, false statements or perjury. ... It is where the court or a member is corrupted or influenced or influence is attempted or where the judge has not performed his judicial function --- thus where the impartial functions of the court have been directly corrupted."

Dusterhoft not only ignores crime committed by lawyers, he believes they are immune to fraud, at least when committed upon the court. 

His statement that he left the county attorneys office because it was too soft on crime wins the award for the most two-faced, disingenuous statement of the year. 

Friday, December 23, 2022

Too Far

Although it may sometimes seem like I am anti-lawyer, I am not that way at all. In fact, I have a huge respect for the law and those lawyers who use it to ensure justice and equality.  What I do not like are lawyers who use the law as a weapon to commit crime. If I am anti anything, I am anti-crime and anti-corruption. 

When I head the story of a lawyer who was denied entry to see the Rockettes at Radio City Music Hall in New York City, which she was attending with her daughter, because she worked at a legal firm which was in litigation with the Rockettes owner MSG, I thought it was ridiculous. Note that the banned lawyer did not even work on the case. It was guild by association. This seems is a clear case of a corporation using its leverage to punish the employees at a law firm in order to influence the case outside of the law.  

We can do better. 

Tuesday, December 20, 2022

Love It!

A judge has ordered a U.S. lawyer who defended two Russians accused of operating a large botnet to pay Google's legal fees. It just goes to show there are a few good judges out there. 

The defendants, who initially pursued a strategy of counter suing Google for interfering in their sprawling cybercrime business, later brazenly offered to dismantle the botnet in exchange for payment from Google. The judge in the case was not amused, found for the plaintiff, and ordered the defendants and their U.S. attorney to pay Google’s legal fees.

I hope every lawyer and judges hears about this case. Lawyers do not have legal immunity to crimes they commit when they are representing a client. We cannot continue to turn a blind eye to such actions.  

Friday, December 9, 2022

Intentional Torts Not Covered By Malpractice Insurance

If an attorney makes a mistake they are covered by malpractice insurance (assuming they carry it), but if they intentionally commit a crime, well that is a different matter. Most if not all malpractice insurance policies do not cover crimes such as fraud. 

Not that this matters much because the reality is that crimes committed by attorneys are so common they has become normalized. Attorneys are rarely held accountable for such crimes. Rarely but not never

Aiding and abetting and conspiracy claims find their roots in criminal law.   In the civil context, they lead to liability for those who help other actors or a main actor (usually for lawyers it is the client) to commit some tort against a third party.  In practice, this often involves a claim that the lawyer helped the client either commit a fraud on a third party or breach some duty (usually a fiduciary duty) to a third party.

A number of jurisdictions have common law protections for attorneys that can shield them from aiding and abetting claims.  These cases say, as a general matter, that attorneys are privileged to perform honest legal services for their clients and they are protected as a matter of public policy from liability arising out of the those honest legal services.  The theory underlying these cases is the concern that if attorneys are worried about being sued by third parties for representing their clients, then attorneys cannot be effective advisors and advocates for their clients.  These cases are typically older than the cases that allow in-concert liability claims against attorneys, and therefore, while they should be used to respond to such claims, these cases may or may not be persuasive to a reviewing court.  Of course, the question of whether an attorney who aids a client to commit a tort is performing honest legal services that public policy would wish to protect could be another weakness to this argument.

My own  case is a bit different in that Nelly Wince knowingly committed fraud herself. Yet even with overwhelming evidence the legal system just ignores it. 

Our society will be a whole lot better off once lawyers are held accountable for their crimes. I do believe this will happen but it will be a long road to get there. 

Thursday, December 1, 2022

The Supreme Court is OK With Corruption

The Supreme Court is apparently OK with corruption

The first case centered on whether Joseph Percoco’s conduct in taking a $35,000 payment from a real estate developer when managing Cuomo’s re-election campaign in 2014 is covered by a federal law that requires that “honest services” be provided to the public. Percoco says that because he was not working for the government at the time, he had no duty to provide honest services.

The second case involves Louis Ciminelli, a real estate developer based in Buffalo, who was convicted of wire fraud for seeking to rig the bidding process for redevelopment contracts in the city. His lawyers argue that his conduct in ensuring that his company would be a preferred bidder, which involved trying to influence the selection criteria set by the state to benefit his company, did not rise to the level of fraud.

Justices seemed sympathetic to the defendants during both oral arguments. In Percoco's case, a majority of the nine justices appeared concerned that allowing nongovernment employees to be criminally charged would draw in other influential figures in the halls of power, such as lobbyists. Conservative Justice Neil Gorsuch remarked that Washington is "full of such persons."

So I guess public officials taking bribes and bid rigging are jut fine because such crimes are so common. 

A lawyer recently told me that the issue with my case is not that my facts are in question nor is it that the law isn't clear. The issue is that such crimes are just so common the justice system ignores them. That my friends is called institutional corruption. It could well be the downfall of our country.