Former ‘Michigan law school’ student busted for practicing without a license

A former The Thomas M. Cooley Law School student pleaded guilty of theft by deception for practicing law without a license (or a law degree) in Walton, Kentucky. [Chillicothe Gazette via SBM Blog]

The man, Kelly Fulmer, apparently left law school a semester short of graduation. But he’s clearly not a quitter as he didn’t let that or a silly little thing like “I’ve never even tried to take the bar exam” stop him from playing attorney anyway.

Fuller also was active in the Walton community, where he was on the school board and was elected president. Way to be a role model, buddy! (The best part? The school board’s website had listed among his educational background as “Michigan law school.” But not that Michigan law school. That probably should have been the first sign that something was amiss, when he doesn’t actually say where he went to school). [ABA Journal]

Fulmer was caught when – surprise! – he botched a probate estate:

Boone County Sheriff’s deputies launched an investigation into Fulmer last fall after Florence lawyer Edward S. Monohan V became suspicious of his credentials. A woman had come to Monohan’s office saying she was unhappy with Fulmer’s representation.
After the allegation came to light, Fulmer resigned from the Walton-Verona school board, where he served as president.

According to KYPost.com, Fulmer’s unscrupulous handling of the estate of the his client’s father led Monohan to wonder whether Fulmer was even a lawyer:

Attorney Ed Monohan of Florence became suspicious when a client of Fulmer’s came to him concerned about the way her late father’s estate was handled.

“This estate was still open and the person was representing himself to be an attorney had control of funds he should not have had. He actually cashed the money too, which he should not have done because this was money that was not part of the estate but should have gone to the individuals,” said Monohan.

Monohan found records of numerous checks worth more than $300,000 had been cashed but not by the client.

When confronted, he says Fulmer came to him with a check replacing all the money.

Monohan said he did some digging of his own and found Fulmer’s bar license number found on court records to be false.

Fulmer had apparently been illegally practicing law for five years. Most of his work was in probate, although he handled a few civil cases and defended at least one drunk driving case, according to the KYPost.com and Chillicothe Gazette stories.

Judges, attorneys don the aprons for fourth time

Many an attorney has had to appeal to Michigan Supreme Court Justice Diane Hathaway.

On June 14, it’s her turn to appeal to you.

Hathaway, along with Macomb County Circuit Court Judge Kathy Viviano and Oakland County Circuit Court Judge Cheryl Matthews, will make up the “Grilled from the Bench” team for the fourth annual Bench Bar Culinary Challenge.

Taking place 5:30 p.m. at the Grosse Pointe Park home of Hon. Kirsten Frank Kelly of the Michigan Court of Appeals, the judges’ team squares off in a live cook-off against the “Grilled by the Hour” team of attorneys Jennifer Grieco, Amy Yu and Margaret Tobin.

In addition, other judges, magistrates and referees from Michigan will present their appetizers and desserts for attendees to sample and vote for.

All proceeds going to the WLAM Foundation Scholarship Fund, Alternatives for Girls, and Crossroads for Youth.

To learn more, contact Lavinia Biasell at (248) 351-7059 or lsb@maddinhauser.com.

Priest-penitent case headed for appeal?

A criminal case that could test 1,500 years of priest-penitent privilege could be headed toward the Michigan Court of Appeals.

Farmington Hills attorney Raymond Cassar said on May 25, 3rd Circuit Court Judge Cynthia Gray Hathaway made a good call when she said she wouldn’t mess with the age-old tradition, and law, that protects confidentiality between pastors and members of their flocks.

Cassar’s client, Samuel Bragg, now 18 years old, is accused of molesting a family member when he was 15 and the girl was 10 years old. In October 2009, the girl told the pastor at her church, where Bragg and his mother are also members, about the alleged molestation. Read Michigan Lawyers Weekly‘s story here. (Subscription required for full access.)

The pastor called Bragg and Bragg’s mother into his office to discuss what the girl had said. And according to Cassar, the pastor said that after lengthy questioning in the church office, Bragg confessed (though Bragg contends he never did). Later, the pastor, the Rev. John Vaprezsan, voluntarily gave police a one-page written statement to that effect.

At Bragg’s preliminary examination, 34th Wayne County District Court Judge Brian Oakley permitted Vaprezsan to testify, despite Cassar’s argument that MCL 600.2156 and MCL 767.5(a)2 clearly protects clergy-penitent communication as privileged and confidential.

Motions were due on May 18, and were argued Wednesday in front of Hathaway.

After Hathaway said she wouldn’t allow Vaprezsan to testify, Cassar said he was told by assistant prosecuting attorney Angela M. Povilaitis that it is her intent to to appeal at Michigan Court of Appeals. The Wayne County Prosecutor’s Office declined comment.

“Judge Hathaway said in court that it was obvious what my client was [in the pastor’s office] to do. He was there to seek counsel from his pastor,” Cassar said. “And she wasn’t about to interfere with that privilege.”

Can’t be fired for being a wiener…or rather, a whiner

If your clients don’t want their employees trashing the workplace on Facebook, you might want to advise them that they should say so. In writing. A Chicago car dealership didn’t, and is now defending itself for firing a salesman who made some unflattering remarks about … well, about the dealership’s decision to serve hot dogs at a sales event.

The National Labor Relations Board has issued a complaint against Knauz BMW, a Chicago area BMW dealership, alleging unlawful termination of an employee for posting photos and comments on Facebook that were critical of the dealership.

The employee, a car salesman, and coworkers were unhappy with the quality of food and beverages at a dealership event promoting a new BMW model. Salesmen complained that their sales commissions could suffer as a result. Following the event, the salesman posted photos and commentary on his Facebook page critical that only hot dogs and bottled water were being offered to customers. Other employees had access to the Facebook page.

The following week, the dealership’s management asked the salesman to remove the posts, and he immediately complied. Nevertheless, shortly after a meeting with managers on June 16, the employee was terminated for posting the images and comments.

The complaint alleges that the employee’s Facebook posting was protected concerted activity within the meaning of Section 7 of the National Labor Relations Act, because it involved a discussion among employees about their terms and conditions of employment, and did not lose protection based on the nature of the comments. Unless it is settled, the case will be heard by an administrative law judge on July 21, 2011, in the Chicago Regional office of the NLRB.

Source: NLRB

Battle lines drawn as MSC denies leave in black ice case

The Michigan Supreme Court’s denial of leave to appeal in Brown v. Taubman Co., et al., means that a slip-and-fall plaintiff can take her black-ice case to a jury.

The Court of Appeals had ruled that there was conflicting evidence whether the black ice was open and obvious. The MSC denied leave on a 3-3 vote.

Justice Brian K. Zahra sat this one out because he was on the Brown panel.

The black-ice issue needs to be addressed, said Justice Stephen J. Markman in his dissenting opinion.

This case illustrates the ongoing confusion in the law of this state concerning the “open and obvious” status of “black ice,” confusion that this Court has an obligation at some point to dispel. Instead, once again, we fail to afford guidance and direction on this matter, leaving in place conflicting and discordant decisions, and thereby enabling defendants and plaintiffs to each rely upon different precedents in support of their respective positions that “black ice” is or is not “open and obvious.” …

As the highest court of this State — a state in which snow and ice have sometimes been known to accumulate during winter months — it is our responsibility to address the confusing and inconsistent approaches in our caselaw and to clarify the rights and obligations of persons who must regularly confront these conditions.

True enough.

As to how it should be resolved, the black-ice battle lines are drawn in Justice Marilyn Kelly’s concurrence and Markman’s dissent.

Here’s Markman’s take:

The Court of Appeals, citing the existence of conflicting evidence, concluded that reasonable minds could differ regarding whether the so-called “black ice” was open and obvious. I disagree. A lifelong resident of Michigan should be well aware that during winter, when for several days snow has been falling, and when temperatures have been and remain below freezing, ice may form on parking lots. These factors are more than sufficient, in my judgment, to establish the presence of potentially hazardous conditions that would have alerted an average person of ordinary intelligence to discover and react to the “danger” upon casual inspection.

Just a minute, replied Kelly, you appear to be saying that all icy conditions are open and obvious:

The dissent opines that a lifelong resident of Michigan should be aware that black ice forms during the winter. Hence it is open and obvious even when invisible. If this position were adopted by the Court, people in Michigan would be on notice that, in winter, black ice is to be expected and no liability for falling on it exists. This proposition is unprecedented in Michigan law. As our Court of Appeals has astutely observed, black ice, defined as an invisible or nearly invisible coating of ice on a paved surface, is not by its nature open and obvious.

Well, Markman responded, if you just focus on the visibility aspect:

black ice will never be considered “open and obvious,” and property owners, to whom black ice is similarly invisible, will always be held liable for accidents arising from this condition.

Further, contrary to the analysis of Justice KELLY, “[t]he [‘open and obvious’] test is objective, and the inquiry is whether a reasonable person in the plaintiff’s position would have foreseen the danger, not whether the particular plaintiff knew or should have known that the condition was hazardous.” …

That “black ice” may have obtained in this case does not alter the reality that as wintry conditions persist in this state, a reasonable person will increasingly be alerted to the hazardousness of such conditions, and will increasingly be assumed to have encountered conditions fairly characterized as “open and obvious.”

Another black-ice case will find its way to the MSC in the foreseeable future and perhaps the Court will then seize the opportunity to provide needed guidance.

Until then, there’s plenty of a la carte precedent from which to choose.

MSC amends lawyer advertising rule

The Michigan Supreme Court has amended Michigan Rule of Professional Conduct 7.3 — Direct Contact With Prospective Clients — to require lawyers who engage in certain types of client solicitation to include the words “Advertising Material” as part of the pitch.

According to the staff comment accompanying today’s amendment:

MRPC 7.3 has been reformatted and describes the general prohibition regarding a lawyer’s solicitation, and also describes the types of communication that are allowed, including a lawyer’s general advertising, and a lawyer’s targeted communications to possible clients who are facing legal problems (as protected by Shapero v Kentucky Bar Ass’n, 486 US 466 [1988]). The amendment of MRPC 7.3 requires that inclusion of the term “Advertising Material” applies only to written materials, including e-mailed communications, but not to television or radio advertisements. The amendment also requires a 30-day period to pass before an attorney may contact a potential client after a death, injury, or accident.

The staff comment is not an authoritative construction by the Court.

The amendment takes effect Sept. 1, 2011.

The Court adopted the amendment on a 4-3 vote. Justice Diane Marie Hathaway dissented, stating that she would “decline to adopt.”

Justice Marilyn Kelly dissented, opting instead for ABA Model Rule of Professional Conduct 7.3.

Justice Stephen J. Markman dissented as well. Markman said he didn’t think the amended rule significantly addresses the problems of lawyer advertising. He also stated that the the amended rule places small firms at a distinct economic disadvantage:

Essentially, as in other states, the floodgates have been opened in Michigan concerning lawyer advertising, with fortunes now spent in this regard on television, radio, billboards, and 1-800-LAWSUIT telephone numbers.

In the face of this transformation of the advertising environment, this Court now issues a new rule focused upon which of the four corners of a postcard soliciting clients the words “advertising material” must appear.

The upshot is that those lawyers, and law firms, which engage in client solicitation by the hundreds of thousands will continue to engage in business as usual, while those lawyers, and law firms, which engage in client solicitation one person at a time will become more heavily regulated.

Further, the latter group will be prohibited during a 30-day period from soliciting business from certain categories of potential clients, while the former group will be allowed to continue soliciting such business during the same period.

For better or for worse, the United States Supreme Court has redefined the rules of the game for lawyer advertising, and I would not indulge in the illusion that by the measure this Court adopts today, we are doing anything of consequence to improve upon these rules.

Instead, all that we are doing is placing the small law firm at an increasing economic disadvantage to the large law firm in terms of client solicitation. I see little point to the new rule, and would not adopt it.

Pirated CD police, BitTorrent blitz, and grooming young gamblers

If you buy questionable CDs, saw Sylvester Stallone’s recent action flick via illegal means, or have ever dropped too much tokens on skee-ball (or allowed your kids to), you might relate to some recent national legal activity.

First, Wired reported about California legislation already passed by two state Senate committees to allow law enforcement to enter optical-disc plants and seize disc-stamping equipment, and pirated movie and music discs without a court warrant.

The Motion Picture Association of America and the Recording Industry Association of America are supporting the constitutionally suspect measure, which also allows fines of up to $250,000. The legislation, which is up for a vote in another Senate committee next week, comes as the federal government is also cracking down on pirated goods.

But in this day of independent record and video stores becoming as rare as The Beatles’ “Yesterday and Today” LP with the banned baby doll cover, you need not go to the brick-and-mortar store to find pirated goods. They’re all accessible on your computer via BitTorrents, and usually free.

Well, at least 23,000 people may be paying for what they accessed.

That’s because Wired also reported that a federal judge has agreed to allow the U.S. Copyright Group to subpoena Internet service providers — including Comcast and Road Runner — to find out the identity of everybody who illegally downloaded the 2010 Stallone romp “The Expendables.”

And it’s not an isolated incident. According to the report:

[M]ore than 140,000 BitTorrent downloaders are being targeted in dozens of lawsuits across the country … . [M]any lawyers are mimicking the Copyright Group’s legal strategy, which includes offering online settlement payments, in hopes of making quick cash. The litigation can be so lucrative — with settlements around $3,000 per infringement — that two companies are both claiming ownership to a low-budget movie called “Nude Nuns with Big Guns,” and both firms are suing the same downloaders.

Not all federal judges, are agreeing to allow a massive number of subpoenas in a single case, but many are. The U.S. Copyright Act allows damages of up to $150,000 per infringement, and the cases all demand the maximum.

Finally, a San Diego mother is suing Chuck E. Cheese’s for $5 million. She claims that kids who go to there are at risk of developing serious gambling habits in their quest to win tickets redeemable for dollar-store trinkets prizes.

Plaintiff’s attorney Eric Binink told the San Diego Union Tribune that the lawsuit’s real purpose is to prevent the company from keeping the machines in its game rooms.

“We don’t think that children should be exposed to casino-style gambling devices at an arcade,” Benink said, adding that the games take only a few seconds to play and some of them feature a roulette-style wheel.

The plaintiff also contends that the games are based on chance rather than skill, but at least one defender of Mr. Cheese, Scott Bullock at The Escapist, says any claim that a game like skee-ball doesn’t require skill is “clearly absurd.”

That being said, Bullock noted, as someone who was lured into the mouse’s lair as a kid:

I seem to recall spending a lot of time at the flashy-light roulette wheel, pumping in tokens and muttering, “C’mon … daddy needs a new alien pencil-topper!”

Fieger flight

Southfield personal injury lawyer Geoffrey Fieger is making no apologies for his new, demanding business model that requires lawyers to carry a certain number of cases at all times, and take three cases to trial every year, or face a financial fine.

But the new model is the thing that drove associate lawyer Arnold Matusz, who worked for Fieger for nearly 12 years, to leave the firm in May, along with his colleagues Paul Broschay and William McHenry, who will share office space with him when they open their new office on June 1, Matusz said.

Fieger Firm partner Ven Johnson told Michigan Lawyers Weekly last week (see story here) that he too left to open his own practice, and associate Rebecca S. Walsh is now listed on the State Bar of Michigan’s website at a Bloomfield Hills law firm.

In all, according to Matusz, nine lawyers have left the firm, starting with two appellate lawyers who left in December and February. He said he was the first of the trial lawyers to resign, and that was in late March, though he stayed on board for six weeks after giving notice.

“I’m thankful to the firm. I learned a lot working there,” Matusz said. “It was always a difficult place to work, but recently it became intolerable. I had substantial concerns about the new policies.”

The policies, he said, would have required trial lawyers to keep a caseload of 30 cases at all times. And if three cases didn’t go to trial every year, the lawyer would face having to pay a $25,000 fine.

“I didn’t have the control over which cases settled and which went to trial. The partners decided all that,” he said.

Fieger said he agrees that lawyers who don’t want to, or can’t, keep that pace should probably work somewhere else. And the departures — Matusz said there were nine, Fieger said there was not — have had no impact on the size of his firm.

“We have more lawyers this week than we did last week,” Fieger said.

He said the new, more rigorous business model is not just going to be good for his firm. It would be good for all firms.

“I expect lawyers to handle a certain number of cases to the best of their ability, and to try a certain number of cases in a year. We’re trial lawyers. That’s what we do,” Fieger said. “The reason Fieger Law has survived for this long, and the reason Geoffrey Fieger is still in business, is because of the high demands I put on these lawyers.”

Justices Taylor, Day O’Connor, go toe-to-toe on judicial selection

I never thought I’d see the day that I’d see such a collection of really smart people – who strongly disagree with each other – gathered in one place. But I will. That day will be June 14, and the place will be Wayne State University Law School, where retired justices of U.S. Supreme Court and Michigan Supreme Court, political leaders, and the plaintiff from the highly publicized Caperton v. Massey Coal Co. will gather to discuss reforms in judicial selection.

Retired United States Supreme Court Justice Sandra Day O’Connor will keynote the forum, and offering a counterpoint to her advocacy of judicial selection reform will be former Michigan Supreme Court Chief Justice Clifford W. Taylor.

O’Connor was in Michigan in February 2010 to participate in a symposium hosted by the American Board of Trial Advocates and Wayne State University Law School. At that time, she was spreading the word that it’s time for states like Michigan to consider the possibility that popular elections may be dangerous to justice. She noted that the 2009 Caperton v. Massey and the 2010 Citizens United v. Federal Elections Commission shine a light on the potential for money to have a corrupting effect on judicial elections.

The June event will be the first time Taylor will participate in this type of event – one that discusses reforming judicial selection – for the simple reason that he isn’t generally invited to participate.

“I don’t believe in merit selection,” Taylor said. “And I don’t usually participate in these kinds of things because they’ve historically not been interested in having anyone with a second view present their side.”
He makes it clear that he doesn’t like the idea of merit selection of appellate judges, and he doesn’t believe that it’s really “merit” selection to begin with.

“They’re only looking at it in the appellate courts. And the truth is, you don’t get many bums applying to be on Court of Appeals or Supreme Court,” Taylor said. “So if everyone who wants to serve is qualified, and they are, then you’re not selecting them based on their merits. You’re selecting them on the basis of something else. What does the selection panel resort to? Their opinions on controversial matters.”
He also makes no bones about his opinion that merit selection is elitist.

“The voters are informed as they want to be,” Taylor said. “And the system has worked pretty well.
Other speakers will include:

• Mark Brewer, chairman of the Michigan Democratic Party, and Robert LaBrant of the Michigan Chamber of Commerce, who will offer Supreme Court campaign practitioners’ perspectives on fundraising, advertising and opportunities for reform.
• Hugh Caperton, plaintiff in the U.S. Supreme Court case Caperton v. Massey Coal Co., who will offer a first-person account of how due process rights and free speech rights collide.
• Rich Robinson of the Michigan Campaign Finance Network, who will speak about what he calls Michigan’s failure of campaign finance accountability in Michigan Supreme Court campaigns.
• David Rottman of the National Center for State Courts.
• Rebecca Kourlis, former justice of the Colorado Supreme Court and executive director of the Institute for the Advancement of the American Legal System.

The event will be sponsored by the Judicial Selection Task Force, chaired by Michigan Supreme Court Justice Marilyn Kelly and Senior Judge James L. Ryan of the U.S. Sixth Circuit Court of Appeals. Advance registration is required for the forum. You can register online through the League of Women Voters of Michigan website at http:www.lwvmi.org. A $10 registration fee will cover parking and box lunch.

MSC orders amendments to MCRs

In orders released late yesterday, the Michigan Supreme Court took the following action on amendments to the Michigan Court Rules, the Rules Concerning the State Bar of Michigan and the Rules for the Board of Law Examiners:

Amendment of MCR 5.208
Notice to Creditors, Presentment of Claims

Issued: 5/17/11
Effective: 9/01/11

Staff Comment: The amendment of MCR 5.208 removes the requirement to list a decedent’s last known address on the Notice to Creditors form.

The staff comment is not an authoritative construction by the Court.
ADM File No. 2009-29

Amendment of MCR 6.005
Right to Assistance of Lawyer; Advice; Appointment for Indigents; Waiver; Joint Representation; Grand Jury Proceedings

Issued: 5/17/11
Effective: 9/01/11

Staff Comment: The amendment of MCR 6.005(H) revises the rule to clarify that appointed and retained defense counsel in a criminal proceeding either must file a substantive response to a prosecutor’s application for interlocutory appeal or notify the Court of Appeals that the lawyer intends not to submit a pleading.

The staff comment is not an authoritative construction by the Court.
ADM File No. 2008-28

Amendment of Rule 3 of the Rules Concerning the State Bar of Michigan and Rule 8 of the Rules for the Board of Law Examiners
Rule 3 Membership Classes; Rule 8 Recertification

Issued: 5/17/11
Effective: 9/01/11

Staff Comment: The amendment of SBR 3(E), submitted by the State Bar of Michigan, would clarify that an out-of-state attorney who voluntarily resigned from the Michigan bar would not be required to retake the Michigan Bar Examination if the person meets the criteria for admission without examination under Rule 5 of the Rules for the Board of Law Examiners. A similar change also is made in SBR 3(F) regarding emeritus members.

Finally, Rule 8 of the Rules for the Board of Law Examiners is amended to reflect that resigned or emeritus members who seek readmission are covered under Rule 8, which allows for recertification.

The staff comment is not an authoritative construction by the Court.
ADM File No. 2009-20

Proposed Amendment of MCR 3.501
Class Actions

Issued: 5/17/11
Action: Court declined to adopt either proposal; file closed.

The proposed amendment of MCR 3.501(B) in Alternative A would have required a change in circumstances to have occurred that would allow a party to file a supplemental motion for certification of a class within 21 days of the party’s knowledge of the changed circumstances. The proposed amendment also would have allowed a party to file a motion for revocation or amendment of the certification. The court as well would have been allowed to consider supplemental motions to recertify and revoke or amend the certification. The proposed amendment of MCR 3.501(B) in Alternative B would have clarified that only one motion for certification may be brought, and that once granted, the certification may be amended or revoked.
ADM File No. 2008-18.