On the Record

On the Cover:  Welcome to the first Monday in October! This morning marks the Supreme Court debut of Maryland Attorney General Douglas F. Gansler and Assistant Public Defender Celia Anderson Davis, who will argue over a Hagerstown man’s child sex abuse conviction. The question is whether a request for counsel, years earlier, should have stopped police from questioning the suspect without a lawyer after they obtained additional information. Read the main story, some advice from Gansler’s predecessor, and a preview of the new term.

In the News: The Court of Appeals heard argument in a legal malpractice case that challenges the “case within a case” methodology … the ban on self-represented lawyers claiming attorneys’ fees applies even to bad faith or frivolous actions, the Court of Special Appeals holds … Maryland Legal Services Corp. renews its quest for a higher filing-fee surcharge … Sen. Ben Cardin finds a civil audience for his health-care talk at UB Law… and a former CBS Early Show personality appeals a ruling that knocked out his medical malpractice claim.

Also:

• Paul Tiburzi remembers the time he argued against the D.C. lawyer who went on to become Chief Justice of the United States;
• An Owings Mills man got a $588,000 verdict in his lawsuit against a home-improvement contracting firm, but will also seek to hold the contractor individually liable;
• Read the Week in Review and our Law Digest, this week with cases from the Court of Appeals, the 4th Circuit and the U.S. District Court for Maryland.

On the cover: With their progressive pilot potentially on the chopping block, the OPD’s Neighborhood Defenders in Park Heights are defending not only their clients but their problem-solving approach. Also, Caryn Tamber talks to University of Maryland law professor Danielle Citron about her research into online gender harassment and the law.

In the news: An EPA official says the agency wants more weapons in its arsenal; Maryland’s top court upholds a sex-abuse conviction based on the testimony of a 6-year-old victim; Mike’s Train House is sued for infringement; and an offshoot of the “driving while black” case will be the subject of a rare Court of Special Appeals en banc hearing.

 Also:

• Verdicts & Settlements features the case of an HIV-positive teacher who was fired from his job at a private elementary school in Arnold.

• Before there was “The Power of Nice” or his success as a sports agent, there was the Modern Bar Review Course. In My First/Business, Ron Shapiro reflects on the lessons learned from his initial foray into commerce.

• In Opinion/Commentary, Jack L.B. Gohn weighs in on the narrowing difference between blogs and journalism, while Edward J. Levin points out a key requirement under a Maryland deed of trust: naming an individual as the trustee. 

• Catch up with our Week in Review and the Law Digest, this week with cases from the Maryland Court of Appeals, Court of Special Appeals and the Office of Administrative Hearings.

Before two federal environmental lawyers talked about recent government victories during Friday’s ABA section meeting, Bruce Gelber discussed a recent government loss in the Supreme Court involving Superfund sites.

In May, the high court ruled Shell Oil Co. was not liable as a party that arranged to dispose of hazardous materials under the Comprehensive Environmental Response, Compensation and Liability Act at a contaminated California site.

Gelber, chief of the Justice Department’s Environmental Enforcement Section, said the ruling will not impact many other Superfund cases due to an “atypical fact pattern, including the contaminant not being waste or byproduct.”

“The rumor of CERCLA’s demise has been greatly exaggerated,” he said. 

 The high court also upheld a ruling that apportioned liability to another company connected to the groundwater contamination. Gelber said the government does not dispute the divisibility rule, only its application here.

The goverment will continue to resist divisibility in Superfund cases where it believes the harm is “not theoretically apportioned,” he said.

Gelber concluded with some advice for the private practice lawyers in the audience.

“Tell your clients to create a paper trail that shows you undertook some steps to show how dangerous it can be to handle your material,” he said.

Talk about a cold case.

A U.S. District Court judge recently ruled that the federal government will have to prove a Philadelphia jewelry dealer stole rare, gold 1933 ”double eagle” coins from the U.S. Mint - 75 years ago, according to The New York Times.

Around 500,000 of these $20 coins were minted before President Roosevelt issued an executive order that made owning large amounts of gold coins illegal as he moved the country away from the gold standard. Two coins ended up in the Smithsonian, and most of the rest were melted down, according to the Times.

Other coins did survive, however, and the only one sold at public auction went for $7.6 million. So imagine Roy Langbord’s surprise, then, when in 2003 he discovered 10 double eagles in a long-forgotten family safe deposit box. The Mint authenticated the coins five years ago but said it would be keeping them because Langbord’s grandfather stole them. Langbord and his family claim his grandfather acquired the coins legitimately before the ban was enacted.

The government has until the end of the month to prove the coins were stolen or else they will have to return them to Langbord. Observers believe it will be nearly impossible for the government to prove its theft theory.

Or, if I may put words into their mouths, the government’s chances are significantly less than a coin flip.

A vote on U.S. District Judge Andre M. Davis’ nomination to the 4th Circuit could be scheduled as soon as next week, according to The Baltimore Sun’s Maryland Politics blog.

Since taking office, President Obama has made 17 Article III appointments to the federal judiciary. So far the full Senate has approved just one: Justice Sonia Sotomayor, who heard her first case on Wednesday.

Sorry, still no word on when DLLR Secretary Tom Perez might be able to follow his staff to the Justice Department.

My expense report consists primarily of parking receipts and courthouse document copies. So I was impressed when I read a former legal secretary charged more than $46,000 on a company credit card to finance her side business - male exotic dancers.

Jarriette Richie, 41, was charged in Washington, D.C. federal court with fraud last week, according to The Washington Post. Richie worked at Saul Ewing LLP’s Washington office for three months in 2007, according to court filings. The credit card belonged to a lawyer whose firm merged with Saul Ewing, and all information related to the card was kept “in a locked room near Richie’s desk at Saul Ewing,” according to court filings.

Richie’s side businesses was Show N Tell Entertainment, which catered to female audiences and was based out of Richie’s Clinton home. The fraud charges stem from her planning an August 2007 trip to a Puerto Rican resort featuring the male performers. She used a personal credit cart to cover a $5,000 deposit, but then charged more than $21,000 on the company credit card for airline tickets and more than $25,000 for expenses at the resort, according to court filings.

Richie was released on her own recognizance following her initial court appearance Sept. 4, and her next hearing is scheduled for Sept. 18.

The U.S. Senate could vote today to confirm Andre M. Davis to the 4th U.S. Circuit Court of Appeals and Thomas E. Perez to be assistant U.S. attorney general for civil rights.

The Senate, which goes on summer recess after today’s session, plans to try to get through as many outstanding presidential nominations as possible before leaving Washington, says a Senate aide. No word yet on whether Davis, a U.S. District Court judge in Baltimore, or Perez, who heads Maryland’s Department of Labor, Licensing and Regulation, is on the Senate’s agenda. 

The Senate will return from recess on Sept. 8.

Deep in today’s WaPo story about the deadliest crash in Metro history is this nugget:

The first lawsuit against Metro as a result of the crash was filed yesterday, and more are expected. The parents of Davonne Flanagan, 15, of the District sued in federal court, charging “negligent operation” and “negligent maintenance” on the part of Metro and the train’s operator.

Imhotep Yakub and Dawn Flanagan are seeking $950,000 for Davonne’s fractured leg and his pain and suffering. They are represented by Lawrence Lapidus, of the D.C. office of Karp, Frosh, Lapidus, Wigodsky & Norwind. (The firm also has offices in Rockville and Alexandria.)

A search of the PACER system shows no other suits filed against WMATA this week in D.C. or Maryland’s federal courts.

Tiger Woods, Phil Mickelson and Padraig Harrington aren’t the only ones who missed a round of U.S. Open golf Thursday at Bethpage State Park in Farmingdale, N.Y.

But former Bethpage manager Neal E. Trabich, whose golf course development ventures bankrolled by a pair of Maryland investors have him ensnared in a handful of civil lawsuits here and in New York, was kept away by more than a few pesky raindrops. Trabich is serving a four-month prison sentence for bribing a Suffolk County legislator to steer another lucrative golf course operation deal his way.

Meanwhile, in U.S. District Court in Baltimore, far away from those soggy greens in Long Island, the Maryland investors’ attorney, Steven B. Gould, and one of Trabich’s former attorneys, Andrew Radding, continue to argue — heatedly, in court papers — over sanctions stemming from a deposition in which Trabich’s wife improperly invoked spousal privilege. In addition to an attorney fee award (potentially, $14,000) against Mrs. Trabich, Gould wants Radding’s firm to pony up for telling her that the privilege might be available to her.

I couldn’t make it to the confirmation hearings in the Senate Judiciary Committee, so I’ve been reading the reviews with great interest.

Baltimore federal judge and 4th Circuit nominee Andre M. Davis drew high praise from Sen. Barbara Mikulski, who said she’d been waiting eight years for someone worthy of filling the Murnaghan seat. He drew opposition from groups who think he’s too conservative when it comes to the Americans with Disabilities Act, at least as it relates to employment cases.

But according the Associated Press, Wednesday’s toughest questioning came from Sen. Russ Feingold. The Wisconsin Democrat grilled Davis about a blind spot the nominee had, and cured, some five years ago.

In 2004, Davis was invited to join the board of the Foundation for Research on Economics and the Environment — that’s FREE, as in free-trips-for-judges to their seminars. Davis accepted the invitation but resigned in 2005 after asking the judiciary’s Codes of Conduct committee to weigh in.

Davis assured Feingold he had seen the error of his ways. However, he refused to be drawn on the question of why other judges remain on FREE’s board — essentially telling Feingold he was not his brethren’s keeper. An age-old issue, that one, but I don’t imagine it will keep him off the appellate court.

Anybody know yet how Tom Perez fared?