In their opinions

“[T]o the extent that plaintiff elected to do business with a lawyer, plaintiff thereby exposed herself to the machinations of the rules that govern that profession.”

– Court of Appeals Judges Deborah A. Servitto, Richard A. Bandstra and Karen M. Fort Hood, explaining why a nonlawyer plaintiff who said she was drumming up business for a lawyer could not enforce an alleged contract to split the resulting attorney fees.

Shalaan D. Fisher thought she had a good deal going with attorney Patrick Carron.

Look how wrong you can be.

Fisher’s complaint alleged that since 1995, Carron had been assuring her that it was completely above-board for an attorney, such as himself, to share legal fees with a nonlawyer, such as herself, in exchange for case referrals.

From the COA’s opinion in Fisher v. Carron:

Plaintiff alleged that she referred several clients to defendant under those terms, including the victim of a serious automobile accident. The complaint asserts that defendant subsequently informed plaintiff the latter’s case was settled for a certain amount and tendered payment to plaintiff of an amount allegedly reflecting her share of his contingency fee. Plaintiff subsequently learned that the settlement and defendant’s fee was actually much higher.

Fisher sued, claiming that Carron stiffed her. Fisher wanted contract damages and equitable relief.

Nothing doing. “I cannot make a lawyer pay a non-lawyer legal fees,” said Wayne County Circuit Court Judge Wendy M. Baxter.

Absolutely correct, said Servitto, Bandstra and Fort Hood.

MRPC 5.4(a) states that, but for exceptions not here at issue, “A lawyer or law firm shall not share legal fees with a nonlawyer.’ …

Because MRPC 5.4(a) prevents defendant from making payments in accord with an agreement to share a fee with a nonlawyer, that rule prevents plaintiff from collecting that share by way of an enforcement action.

But what about equitable estoppel? Fisher argued that:

because defendant had earlier assured her that their fee sharing arrangements were legal, he should be estopped from changing positions now in defense of her claim for proceeds due from such an agreement.”

The COA panel had a quick response:

[P]laintiff identifies no prejudice from having been misled to believe that the fee-sharing agreement was enforceable, other than her assertion that she has been underpaid according to that agreement.

However, not receiving the balance of a share of a lawyer’s contingency fee where she was not legally entitled to receive anything in the first place hardly qualifies as prejudice.

Further, the doctrine that an unethical contract is unenforceable would mean little if such a contract could be rendered enforceable upon a showing that one contract partner misled the other.


Raided supsects due in court today

Suspects arrested in yesterday’s FBI raids in Michigan, Ohio, Illinois and Indiana are expected to be charged today.

The suspects, said to be connected to the Hutaree militia group, could be in U.S. District Court in Detroit later today.
Says  The Detroit News:

At least seven people were taken into custody in raids by an FBI-led Joint Terrorism Task Force as part of an investigation into an Adrian-based unit of the Hutaree, a group that professes it is training in modern armed combat techniques for a prophesized coming battle with the Antichrist. …

“Jesus wanted us to be ready to defend ourselves using the sword and stay alive using equipment …,” one of the group’s purported leaders wrote on its Web site. “We, the Hutaree, are prepared to defend all those who belong to Christ and save those who aren’t. We will still spread the word, and fight to keep it, up to the time of the great coming.”

The group’s insignia, worn as a patch on military camouflage uniforms, is a cross-shaped sword and the letters CCR for Colonial Christian Republic. The Hutaree Web site features links to conservative Christian news outlets along with photos and videos of combat training sessions under the banner, “Preparing for the end time battles to keep the testimony of Jesus Christ alive.”

U.S. Attorney Barbara McQuade said in Detroit on Sunday, “There is law enforcement activity in progress, but I decline further comment because I don’t want to adversely affect its effectiveness.”

Texting-while-driving ban passes Mich Senate

LANSING, Mich. (AP) — The state Senate on Thursday passed a new, tougher version of legislation that would make it illegal to send text messages from cell phones while driving in Michigan.

The main bill in the package passed the Republican-led chamber by a 28-10 vote, with only Republicans in opposition. It now advances to the Democrat-led House, which isn’t expected to take up the new measure until returning from a scheduled two-week break that ends in mid-April.

The new Senate version would make texting while driving a primary offense starting July 1, meaning police could pull over and cite motorists just for texting. Fines would be $100 for a first offense and $200 for each offense after that.

Previous versions of the bill had made texting a secondary offense. That meant police would need some other reason to stop a vehicle.

Police have told lawmakers that making the violation a secondary offense would hinder their ability to cite motorists in time to prevent accidents. But some lawmakers doubt a tougher policy making texting a primary offense will pass the Legislature.

The texting ban has picked up momentum in Michigan recently because of publicity surrounding accidents caused by distracted driving. Police say a teenage driver killed in a January traffic accident in Ottawa County was exchanging text messages with his girlfriend, got distracted and crashed.

"People are becoming more aware about this issue," said Rep. Lee Gonzales, a Democrat from Flint and a supporter of a texting ban. "There’s a lot of attention placed on it."

The federal government has sought to crack down on distracted driving, urging states to adopt stringent laws against sending text messages from behind the wheel. More than half the states already have adopted measures that ban at least some drivers from texting. Several more are in the process of passing new laws addressing it.

Texting while driving is classified as a primary offense in at least 15 states.

According to the U.S. Transportation Department’s Web site, using a cell phone has the same affect on a driver’s reaction time as a blood alcohol concentration of .08 percent.

Obviously, texting while driving is a problem and needs to be curbed. But I think making it a primary violation instead of a secondary violation is bad policy for two reasons:

  • 1) Unless a person is dumb enough to hold his phone high enough so that the police can see that he is texting, police are going to be pulling over people for the act of peeking down, which could be for any number of reasons. Let’s face it, when you get a ticket, the real burden of proof won’t be on the officer to prove you were texting, but rather on you to prove you weren’t.  At least with speeding tickets, you had to actually, you know, speed. It will essentially become another way for municipalities to raise money, and without any real proof of a violation.
  • 2) If police can pull people over for peeking down, I can see TWD becoming the new “broken taillight” for pretextual traffic stops, sometimes referred to as “driving while black.” 

Feel free to disagree with me in the comments.

The Lord and the land

Daniel Dalton had never really fancied himself a writer, and certainly not a blogger. But a few weeks ago, he took to the keyboard, entered the blogosphere and launched, a web site which focuses on his area of expertise, religious land use.

It’s for lawyers who have an idea that RLUIPA is looming out there, but who don’t fully understand the Religious Land Use and Institutional Persons Act, said Dalton, co-founder of Royal Oak, Mich.-based Tomkiw Dalton plc, where he leads a team of expert land use attorneys.

Dalton also hopes the site will be a resource for church leaders.

“There’s just a lot of interest in this area of the law,” Dalton said. “For example, lawyers have asked me if  RLUIPA protect a church from eminent domain. Or does RLUIPA provide immunity for the variance process?”

The new site is, as far as Dalton knows, the only one to focus specifically as a resource for leaders of religious institutions and others affected by church property disputes and other cases pertaining to church law. It features a history of RLUIPA, an archive of religious land use cases and a blog that will offer Dalton’s unique insights and perspectives. Blog entries, which he posts a couple of times a week, will address such issues as eminent domain, property laws, religious freedom, church zoning and other topics pertaining to zoning appeals and land use.

So far, because the site only went live a few weeks ago, Dalton has received little feedback, except from people who already knew him and his work (and they say they like it). He has no set idea regarding what he’s hoping to accomplish, in terms of page views or new clients.

But he does have a vague idea about the site helping him to establish his brand, and set him apart as an expert in religious land use issues.

In 2009, while representing the House Where Jesus Shines in a case against the city of Bellmead, Texas, Dalton secured a $550,000 settlement on the day of trial, the largest RLUIPA settlement in Texas to date. Previously, Dalton won a landmark case in Carlinville, Ill., securing the rights to a former Wal-Mart building Carlinville Southern Baptist Church had purchased and also secured a cash settlement. He has done the same for several houses of worship in Michigan and many other states.  All of the cases centered around the municipalities’ desire to drive religious entities out of a community with the hope of having tax-paying entities take over existing buildings, a clear violation of RLUIPA.

Teabaggers ‘take aim’ at Census

The Teabaggers are “takin’ aim” at a new target: the Census. [The Detroit News].

With 10 questions, it’s one of the shortest U.S. census forms in history. But Joan Fabiano thinks it’s not short enough, saying the government is entitled to ask only one question: How many people live at a residence?

Across Michigan, people are flexing their political muscle by picking and choosing which questions they complete for the U.S. census, which was mailed to homes March 15.

"There are people who are only going to fill out what is required by the Constitution," said Fabiano, a Holt resident and organizer of Grassroots in Michigan, which seeks to promote individual liberty and limited government. "It’s a privacy issue and the federal government does not need to know anything they don’t have a right to."

On one hand, it’s kinda ingenious. They (supposedly) hate governmental spending. Any sabotage of the U.S. Census would ultimately result in less governmental spending. Somehow I doubt this is about more than civil obedience for the sake of it.

Who’s the boss?

Gov. Jennifer GranholmGov. Jennifer Granholm, in a sternly worded, hand-delivered letter, has told Attorney General Mike Cox to back off on participating in a Florida lawsuit challenging the federal health care reform bill signed into law earlier this week.

[I]t appears that you have intervened in this lawsuit not merely in your capacity as the Attorney General of Michigan, but have presented yourself as speaking for the state of Michigan. If that is the case, this position appears to have been taken by you unilaterally, without consultation with my office and, so far as I can determine, without consultation with the executive branch agencies specifically charged with regulating health insurance and protecting the public health.

The governor reminded Cox that he’s the attorney, she’s the client and, by the way, the constitutional boss, and he’s taking a position contrary to her interests.

Your position … is directly contrary to the position of this administration. Specifically, it is my view that this long-overdue federal legislation is constitutional and will bring much needed protections to our citizens and businesses. …

Under our Constitution, the duty of the Governor to enforce the Constitution and the laws of the state of Michigan is explicit and is superior to that of the Attorney General. This view is not only consistent with the position and actions taken by your predecessors, but with your own public statements over the past several years.

For example, on March 12, 2003, you told The Detroit Free Press: And any case where the state of Michigan is being sued or a state agency is being sued, she’s the boss, she’s the client. Unless it is clearly unconstitutional, I am obligated to do what she [Governor Granholm] says.

In a letter to me dated July 12, 2005, you declared that “[a]s our client, your wishes and the policy goals of your executive branch agencies are paramount.”

Two important changes since 2005, at least as the Florida lawsuit is concerned: Cox is running for governor and a significant number of Michigan voters don’t like the new health care law.

Granholm told Cox to do an about face.

I am directing you to intervene in the Florida litigation on behalf of the Governor, the state of Michigan, and the Michigan Department of Community Health to uphold the recently enacted federal health care legislation and to protect and preserve the important provisions afforded to our state and its citizens by the new law.

Attorney General Mike CoxMeanwhile, the reaction from the Cox camp was apparently one of studied indifference. The Michigan Information & Research Service’s Capitol Capsule reports

Cox Spokesman John Sellek said the AG’s office didn’t receive it until around 5 p.m. Once Cox had it in his possession, he apparently didn’t think much of it.

“It’s arrived, it’s somewhere here in a file folder,” Sellek said.

In short, Cox has no plans to stop his suit against the federal government, Sellek said. The Attorney General is empowered to intervene on the behalf of the citizens of Michigan and that’s what he’s doing in this case, which is something — as a former attorney general — she should be aware of.

The suit, according to most legal experts, has about as much of a chance as a snowball in, let’s say, Florida. See, The Michigan LawyerCox says he’ll challenge health care law.”

Update March 25, 2010: Here’s a fun fact about the Florida lawsuit, courtesy of the SBM Blog. See, “What’s NOT in the Attorney Generals’ Complaint Challenging the Constitutionality of Health Care Legislation?

Innocence Clinic chalks up win

The Wayne County Prosecutor’s Office dropped a murder charge against 36-year-old Dwayne Provience.

The Innocence Clinic at the University of Michigan had won a new trial for Provience after it had proved that evidence had been withheld in his 2001 conviction, reports the Detroit Free Press.

The prosecutor’s office had granted a new trial, but today dropped the charge because the only eyewitness has since recanted his testimony.