Monthly Archives: November 2009

Thank You FDR!

Thanksgiving has always been one of my favorite holidays. What could be more American than stuffing your face all day and watching the Lions lose again?

With this post, on this Thanksgiving Day 2009, I just wanted to take the time to thank FDR. On this day sixty-eight years ago, some two weeks before America’s entry into World War II, President Franklin Delano Roosevelt established our modern holiday by signing a bill officially establishing the fourth Thursday in November as Thanksgiving Day.

Of course, the tradition of celebrating a post-harvest holiday on Thursday in this country dates all the to the 17th century American colonies of Plymouth and Massachusetts Bay. In the autumn of 1621, probably the most famous historical Thanksgiving observance occurred when Plymouth governor William Bradford invited some local Indians to join the Pilgrims in a three-day long festival held to pay thanks for the bounty of the season. By the 17th century, celebrating Thanksgiving became an annual custom throughout New England and the colonies. President George Washington even got into the act, becoming the first president to proclaim a Thanksgiving holiday in 1789. At the request of Congress he proclaimed November 26 – a Tuesday – as a day of national thanksgiving for the ratification of the U.S. Constitution.

The modern holiday was celebrated nationally until President Abraham Lincoln declared Thanksgiving to land on the last Thursday of November in 1863. Then in 1939, FDR departed from this tradition by declaring November 23rd – the next to last Thursday that year – as Thanksgiving Day. In the American spirit, FDR did this to stretch Christmas shopping season, but also ended up causing a bit controversy in the process. Finally, FDR rectified his mistake by establishing the holiday through federal legislation on this day in 1941.

As far as the tradition of the presidential pardon for a certain fowl, custom calls for the president to “pardon” a live turkey, who then gets to live out the rest of its days at a children’s petting zoo. Although it is has been widely reported that this tradition began during the Truman administration, the Truman Library is unable to confirm that it ever took place. Some claim that the tradition dates back to a pardon issued by Lincoln to his son’s pet turkey.

Check out this video on Happy Thanksgiving!

Former Levinson Axelrod Attorney Sued Over “Gripe Site”

A New Jersey law firm is trying to shut down a disgruntled ex-employee’s “gripe site,” calling the website a cyber assault of “toxic fire” on its reputation. Former Levinson Axelrod attorney Edward Heyburn – who worked for the firm for six years – started his website “Levinson Axelrod Really Sucks” in late September, using the domain address The law firm’s website can be found at, and a quick search for the firm brings the mock site up at number two in the organic rankings.

As the litigation has progressed through the courts, Heyburn has continued to utilize his website to mock, insult, and degrade the firm and firm members. His use of social media has allowed him to post the litigation documents online at the site and he has expanded his campaign against the firm onto Twitter and Facebook. And last week YouTube removed two “Mock-U-Mentaries” from its website after the firm claimed copyright violations. Heyburn created his mocking movies by dubbing over the audio on Levinson Axelrod’s own promotional videos. The videos are still accessible on Heyburn’s site and he says will try to get YouTube to re-post them.

Levinson Axelrod accuses Heyburn’s online actions of being a “horrendous cyber-assault.” The brief seeking a TRO states that Heyburn’s site “attacks the professionalism of firm attorneys, creates the false impression that the firm loses all or most of its cases, misrepresents facts, deceives the viewing public, and disparages practices, procedures, attorneys and business to the extent that those viewing the material would not, if the material were believed, want to engage the firm or continue having the firm represent them in legal matters.”

For example, in his website Heyburn stated that partner Richard Levinson is “The Hypocrite Behind the Curtain.” But his comments don’t stop there … he claims that another partner David Wheaton is “a used car salesman with a law degree,” fellow firm member Ronald Grayzel is “one of the most overrated human beings alive” and “looks like death,” and Adam Rothenberg is a “man without friends.” He website further links to court opinions of cases that were lost by the firm, and he invites visitors to file a complaint against the firm, even providing a hyperlink to an ethics grievance form.

The firm claims that Heyburn’s gripe site violates the federal Anticybersquatting Consumer Protection Act and the Lanham Act, and also of disclosing proprietary information of the firm. And although Heyburn’s site names no clients specifically, the firm has accused him of disclosing confidential communications because he provides enough case specifics to identify clients. The Lanham Act governs trademarks like business names, and the Anticybersquatting Consumer Protection Act allows suits against those whose Internet addresses have the same name as someone else’s trademark or are confusingly similar.

Proceeding under either law, the firm must prove that Heyburn’s website has some impact on commerce, and a recently filed declaration appears to be an attempt to show that element. In that declaration, the firm points out that Heyburn’s “Levinson Axelrod Really Sucks” Facebook page lists the same e-mail address as his law office and that Heyburn posted letters he wrote on his firm letterhead on his gripe site.

In another declaration filed by the firm, Levinson Axelrod also utilized the services of Joe Devine, a search engine optimization expert. The expert also stated that the court needs to go beyond merely ordering Heyburn to cease using the domain name, the court should also prevent him from misdirecting Web traffic through meta tags and bar his use of hyperlinks to a replacement site.

In addition to the federal law claims, Levinson Axelrod has also sued Heyburn for unfair competition and breach of the duty of loyalty but not for defamation. According to Heyburn, that omission is a “concession that everything I said is true.” However, counsel for Axelrod says that a defamation claim is still possible. Once the website is gone, a defamation claim is still possible, along with product disparagement and intentional interference with business relations claims.

Interestingly enough Heyburn hasn’t worked for the firm for 5 years! He was at Levinson Axelrod from 1998 until 2004, when the firm fired him because he was planning to leave and trying to take clients with him. Now a solo practitioner in Robbinsville, N.J.,he says he spent the next few years litigating with the firm, and winning on issues such as vacation pay and referral fees.

Maybe this should make firms think twice about how they part ways with their attorneys.

ESI in the Criminal Context

In the arena of civil litigation, the rules governing the preservation, collection, production, and use of electronically stored information (ESI) have been developing rapidly over the last few years. Spurred in part by the Sedona Principles which were a precursor to the 2006 amendments of the Federal Rules of Civil Procedure in 2006, litigators at least have some guidance to deal with some of the complications presented by the voluminous amounts of electronic evidence.

On the other hand, criminal defense lawyers and prosecutors are pretty far behind their civil counterparts in dealing with these new electronic issues and have no formal procedural rules to shed light on the proper conduct concerning ESI. However, in what will be a leading Fourth Amendment decision, Chief Judge Kozinski explains why a search on a computer is much different than a search of a briefcase or file cabinet.[1] In a case of the Information Age meets the Constitution, the difficult challenges presented by the nature of ESI create problems in the context of search warrants as well.

In particular, the Fourth Amendments prohibition on unreasonable search and seizure contrasts with the vastness of information stored on a computer. What if a forensics expert is investigating a hard drive for evidence of a drug ring, but comes across computer porn? These are the new problems that plague prosecutors as the Fourth Amendment’s requires particularity in identifying ‘‘the place to be searched and the . . . things to be seized,’’ but vast amounts of information can be stored on a digital devices.

And courts have had a hard time consistently applying the Fourth Amendment’s ‘‘particularity’’ standard to ESI. While some courts have imposed ex ante restrictions on the government, requiring that warrants for ESI searches focus specifically on particular files or types of electronic evidence, other courts have permitted more generalized descriptions of computer equipment to be searched and have generally given the government no limits when examining and using data on the theory that all data in a computer is in ‘‘plain view.’’

Comprehensive Drug Testing involved Major League Baseball players caught up in the BALCO steroid scandal. Major League Baseball hired Comprehensive Drug Testing (CDT) to test the urine of a segment of professional baseball players for illegal performance-enhancing drugs. In 2004, federal agents executed search warrants at CDT, an independent medical testing laboratory, seeking information about 10 baseball players who had allegedly obtained steroids from BALCO laboratories.

During the search, the government made copies of the BALCO’s computer directories, which included drug testing data for more than 100 other baseball players, as well athletes in other sports. On the basis of the information in these BALCO computer directories, the government obtained additional search warrants relating to the approximately 100 other baseball players who were listed in the database as having tested positive for steroids. In an en banc decision by the Ninth Circuit Chief Judge Kozinski flatly rejects the government’s electronic version of the “plain view” doctrine. Under the government’s view, agents should be allowed to rummage through computer files at will because the data is in “plain view.”

Kozinski also mandated that the government must be honest and the government must limit computer searches to data identified in the warrant. This means that officers can’t search for the “hash files” of known child porn while looking for urine testing records. Kozinski further stated that a person segregating the seized data has to be either a government techie who is not the investigating agent, and who promises not convey information about the non-responsive files, or an independent party, like a special master.

The reasoning of this case should serve as some further guidance until criminal codes are re-written to deal with ESI much as the civil codes have been updated.

[1] See United States v. Comprehensive Drug Testing.

Attorney Credits on YouTube

Check out Attorney Credits on YouTube. As part of our new outreach to our attorney clients, we have decided to reach out through social media outlets to gauge the pulse of the legal profession. As part of this outreach, we have begun posting video clips about current legal topics and questions on YouTube.

Something that has always interested me is the intersection of law & technology. For many reasons, attorneys are averse to technology and have chosen to ignore it for the most part. Unfortunately, technology is not just a fad, it is dynamic force that continues to shape society everyday. These changes in society are then reflected in the practice of law – whether it may be e-mailing clients or creating a Facebook account for your practice.

How will technology continue to shape the practice of law in 2010 and beyond? That’s what we want to know and we want to know what you think.

Super Lawyers to Rank Law Schools

People love lists — George Carlin even joked that the reason there are 10 commandments is strictly for marketing purposes — and ranking law schools and lawyers in no exception. Many have even opined that ranking law schools has undermined their goal of educating future attorneys because schools are so concerned about a high ranking that they forsake other educational goals.

That hasn’t stopped Super Lawyers from ranking law schools according to the number of Super Lawyers that they produce. According to the Super Lawyer website, “Super Lawyers is a listing of outstanding lawyers from more than 70 practice areas who have attained a high degree of peer recognition and professional achievement.” The magazine first started out publishing ratings of lawyers, and they will now do the same for the institutions that graduate future attorneys.

On Tuesday, Super Lawyers Magazine announced its first annual “performance-based” ranking of 180 U.S. law schools — a byproduct of the lawyer rankings that the publication generates each year across the country. However, unlike the U.S. News & World Report rankings to which the legal profession has become so accustomed that rates law schools based on criteria like grades and admission test scores, Super Lawyers uses only one factor to rank laws schools ¾the number of “super lawyers” each school has graduated.

According to the Magazine, since these lawyers constitute the upper echelon of practicing attorneys, the law schools that graduate a lot of them must be doing something right. According to Super Lawyers publisher William White, “In the real world — the world of clients and juries and judges — no one cares about your GPA or LSAT score. All that matters is how good and ethical a lawyer you are.”

Number one on the list – Harvard Law School, followed by the University of Michigan. Nice to see my alma mater, the University of San Diego School of Law, rank #61 on the list. Where does your law school rank? Or do you even care? We want to hear about it.

Thinking of Going Solo?

Many of you work at law firms that have recently experienced layoffs or know of lawyers who are thinking about leaving their firms for other reasons.

Legal Vertical Strategies is hosting an event on Dec. 3 that is targeted specifically to this audience. The program, “Legal Transitions: Business Considerations for Starting a Law Firm,” is aimed at helping lawyers understand the business side of law and providing practical advice to those who have started or plan to start their own firms. The program is certified for 1.5 hours of CLE, and we are offering it free of charge to advance registrants.

You can find more information about the event and our Legal Transitions Services at

Chapter 13 Bankruptcy Issues

In our current economic turmoil, attorneys must be versed in bankruptcy issues more than ever.

Schedule I? Schedule J? The 910 Rule? Sorting through the maze of forms and law can be a daunting task even for the most seasoned practitioner.

Join U.S. Trustee David L. Skelton in Chapter 13 Bankruptcy Issues for an excellent discussion of the mechanics of the trustee’s office and commonly litigated areas in the bankruptcy process. A Chapter 13 Trustee for the Southern District of California, Mr. Skelton highlights the common mistakes that are made by attorneys by thoroughly analyzing the Chapter 13 Bankruptcy Plan, Lien Avoidance Plan Provisions, and Form B22C, and counsels attorneys on how to avoid the pitfalls and thoroughly and fully represent your clients.

Finding the Right Web Developer To Build Your Website

Need a website …

but just don’t know where to start?

Due Diligence When Selecting a Web Development Firm explores the many questions that attorneys face when choosing a firm to construct a website for their practice.

At this point in time every legal practice needs a website — that stopped being a question a long time ago. The question of the day is how to properly select a proper web development firm that fits with your practice. Join Jose Rosa of WebJuris as he discusses the questions that attorneys need to ask before hiring a web developer to design your website, and how to find the best firm for the job. Areas covered include why attorney websites fail, ownership of the site, how to spot a good firm, how websites can help to streamline your practice, and the future of attorney websites.

Litigious Lawyer Blames Airport For Divorce

If you look up Stanley G. Hilton’s name on the State Bar of California’s website’s “attorney search” you will quickly find that he is no longer eligible to practice law. However, that has not stopped the former civil litigator and former active member of the State Bar form suing just about everyone under the sun for his failed marriage – and better yet he is claiming $555 million in damages.

Hilton’s 16-page suit against San Francisco International Airport (SFO) blames no less than a total of 37 organizations for the termination of his marriage and seeks $15 million in damages from each of the parties. Targets of the 60 year-old Hilton’s lawsuit include the city and county of San Francisco, the airport and every airline based there, airline engine manufacturers and even the real estate agencies involved in the sale of his house. Some call it the shotgun approach to litigation – while others simply call it ludicrous.

In court papers, Hilton stated that his wife of 13 years divorced him and took their young triplets with her last year because of around-the-clock jet noise at SFO. The air and noise pollution – which he likened to bombs dropping in a war zone – were the obvious cause of his recent health and professional woes. “The marriage went downhill almost immediately upon moving to this location,” he told the Monterrery County Herald. “The house became extremely uncomfortable with the smog and the noise, and it caused enormous problems that led to the divorce,” he told the Herald. Given his track record, we wouldn’t be surprised if Santa Clause was listed on his next court filing.

Hilton is perhaps best known for his $7 billion class-action lawsuit against President George W. Bush and his cabinet following the 9/11 attacks. The suit alleged that “defendants Bush et al LET IT (911) HAPPEN ON PURPOSE.” In another suit, Hilton also sued a property management company and on-site manager along with Otis Elevator Company for the demise of his marriage. He is seeking $25 million from each party because he got stuck in an elevator.

Hilton has a law degree from Duke University and is a former civil litigation attorney with more than three decades as an active member of the California State Bar. He served as a counsel to Senator Bob Dole from 1979-80 and as an aide to state Senator Dan O’Keefe from 1980-81. Citing moral turpitude, the State Bar of California barred him from practicing law in August.

This brings to mind Washington, D.C., administrative law judge Roy C. Pearson. If the name doesn’t ring a bell, Pearson was the guy who sued his dry cleaner for $65 million over a missing pair of suit pants.

And you thought Casablanca was just for Humphrey Bogart?

Back in south Florida after a trip to Morocco, high-profile attorney Scott Rothstein has been sued and will be soon facing criminal charges for allegedly operating a fraud scheme out of his law office. Rothstein is the 2002 founding co-partner, managing shareholder, chairman, and chief executive of the Rothstein, Rosenfeldt and Adler law firm. According to the Broward Beat his client list includes: Citicorp, J. C. Penny, Ed Morse Automotive Group, National Beverage, Silversea Cruise Lines, Supra Telecom, and Wells Fargo.

Some put the alleged fraud as high as $1 billion dollars. In a suit filed November 4, the law firm of politically-connected Fort Lauderdale attorney Scott Rothstein alleged that he set up a side business that sold phony legal settlements to outside investors with promises of guaranteed high returns. Rothstein is a Republican fundraiser for former president George W. Bush and Governor of Florida and United States Senate candidate, Charlie Crist. The two founders of the firm says that trust accounts set up by Rothstein that contained about $500 million two weeks ago are now empty.

And the story wouldn’t be complete without an electronic suicide note. Late last week Rothstein sent a frantic mass text message to his the partners at his firm that indicated that he seemed to be contemplating suicide.

“Sorry for letting you all down, I am a fool. I thought I could fix it but got trapped by my ego and refusal to fail and now all I have accomplished is hurting the people I love. Please take care of yourselves and please protect Kimmie (Rothstein’s wife). She knew nothing. Neither did she nor any of you deserve what I did. I hope God allows me to see you on the other side. Love, Scott.”

Rothstein’s investment scheme involved purchasing fabricated structured settlements. The investors would make up-front cash payments to individuals owed money from the court cases to buy the right to collect the full amount of the settlements later. The investor was guaranteed a minimum of 20 percent investment returns in as little as three months.