The Lady of the Law

Ho NO! Mr. Spitzer: FBI wants some ACTION!

noreply@blogger.com (Charles M. Dulaney) — Tue, 18 Mar 2008 15:20:00 +0000

Many are puzzled, by Federal involvement in

Spitzer's Showcase of Shame.

Well it . . . it doesn't seem like it would be that hard to figure out.

Could be some of those stuffed shirts are looking for a "date" too.

In an unusual move, the Feds have chosen to involve themselves in a prostitution charge, which is normally a state offense, but the Feds "bring it" citing (perhaps improperly) the Federal Mann Act.

What next? Perhaps the FBI will ask Congress for federal resources to nab pickpockets.

Daniel Steven Parker, the lawyer who's representing Cecil Suwal, the 23-year-old woman accused of heading the prostitution ring, says his client will plead not guilty, but that she has never met Spitzer. "You have to wonder why the feds are looking at this," he says. "As a general rule, I'd think the federal government has better things to do than prosecute prostitution rings."

Federal prosecution of prostitution-related offenses are rare, Michael Bachner — a former prosecutor in the Manhattan DA's office — told the WSJ. He said to the extent Spitzer is charged it would likely be under the Mann Act, which prohibits transportation of people across state lines with the intent to commit prostitution. The purpose of the "the Mann Act, however, is to prevent and punish for forcing another person to travel against their will," Bachner said. "If Spitzer gets indicted, it would seem to me he would be indicted based on who he is rather than what he's done.

Those who frequent prostitutes are very, very rarely the subjects of a federal prosecution when clearly it's commercial and consensual." As for possible state charges, he said "customers are rarely prosecuted in the state" and charges that are brought are typically disposed of with a plea to disorderly conduct, "which is akin to a traffic ticket."

Legal Consequences Uncertain for Spitzer in Wake of Call-Girl Revelations

Daniel Wise and Mark Hamblett
New York Law Journal
03-12-2008

Based on publicly reported information about New York Gov. Eliot Spitzer's involvement in a call-girl ring, former prosecutors and white-collar defense specialists said Tuesday they are skeptical he could be charged with structuring -- the breaking down of payments into smaller increments to avoid the $10,000 threshold for reporting cash transactions.

"The crime of structuring requires that you act to keep the cash transaction under the $10,000 reporting threshold and it doesn't look like he needed [to break down] $10,000," said Kathryn Keneally, a Fulbright & Jaworski partner who specializes in white-collar criminal defense. "And it doesn't appear from what has been reported that it was cash -- they look like wire transfers."

Also Tuesday, several lawyers who specialize in discipline cases said Spitzer will certainly face scrutiny from the Appellate Division, 1st Department's lawyer discipline committee if he participated in the prostitution ring, though they said the severity of possible punishments are in doubt.

Spitzer reportedly was "Client 9" in a complaint filed by Southern District of New York prosecutors against the operators of the Emperors Club VIP. Client 9 allegedly participated in a $4,300 rendezvous with a prostitute last month in a Washington, D.C., hotel.

The decision on whether to go to a grand jury and seek a criminal indictment against the governor is up to Southern District U.S. Attorney Michael Garcia and his team in the office's public corruption unit.

In addition to the potential wire transfer problem identified by Keneally, there is another reason why a structuring indictment might not be brought, said Andrew C. Hruska, a litigation partner at King & Spalding who was senior counsel to former Deputy Attorney General Larry Thompson.

"To use it in a situation where you are not dealing with the profits of criminal activity would be an unusual use of the statute even if it might fit the bare language," Hruska said. "As in any white-collar case where there is not strict liability, the government has to prove intent -- the hurdle is to show there was the intent to avoid the currency reporting requirements."

While prosecutors may also be examining a potential crime of money laundering, one of the charges brought against participants in the alleged prostitution ring on Friday, Keneally said there might be problems in bringing such a charge against the governor.

"Money laundering requires the use of money that is already dirty -- the statute starts out with the funds having to be the proceeds of specific unlawful activity and this appears to be clean money," she said. "As one of my late mentors said, 'He didn't clean the money, he made it dirty.'"

Hruska was skeptical about a prosecution under the Mann Act, which makes it a crime to transport someone across state lines for immoral purposes.

"The Mann Act technically applies but generally is reserved for cases involving force -- sex transactions or illegal labor trafficking," he said. "It's the force that's the material part."

Hruska said he would be surprised if Garcia is not consulting with Attorney General Michael B. Mukasey or his top deputy on the matter.

"I would expect that on a significant public integrity matter that the criminal division would be consulted and, frankly, in a public integrity matter involving a senior public official, that the deputy and the attorney general would be consulted," he said. "That's consulted, but not necessarily making the decision."

Even on the chance that prosecutors may not have the strongest of cases to bring, the mere possibility of a grand jury weighing charges against Spitzer adds enormous force to the already overwhelming political pressure the governor is under.

"Where there is a violation of the law uncovered in the course of a grand jury investigation, prosecutors make that decision to present the violation to the grand jury -- that's the essence of prosecutorial discretion and lawyers in the government and lawyers defending the targets of an investigation understand that," Hruska said. "Any time you talk about a grand jury, that's a very serious matter, even just being called. That should not be used as leverage, but it's an act of concern for all lawyers involved in the process."

DISCIPLINARY PROCEEDINGS

For the 1st Department disciplinary committee, the operative question is what sort of sanction should be imposed on a lawyer who has patronized a prostitute, given a false name and used cash to conceal criminal conduct, according to the disciplinary experts. Those are the chief allegations about Client 9's activities.

The alleged criminal conduct, patronizing a prostitute, is punishable by a maximum of one year in prison under New York law and 90 days in jail under Washington, D.C.'s statute. The fact that Spitzer was apparently aware the prostitute traveled from New York to Washington could bring his conduct within the federal Mann Act.

The lawyers said, however, that it is doubtful violations of the Mann Act would be classified as felonies under New York law. New York's Judiciary Law §90 provides for the automatic disbarment of a lawyer who is either convicted of a felony under state law or a federal statute that has an analogue in New York classified as a felony.

Lawyers convicted of misdemeanors also face sanctions at the discretion of the disciplinary committee. Lawyers who are not prosecuted for clearly criminal activity could still be subject to disciplinary action as could those who commit non-criminal ethical violations.

The known facts about Spitzer's actions, without more negative information emerging, would place his case "on the borderline between a private admonition and a public censure," said Barry Kamins, of Flamhaft, Levy, Kamins, Hirsch & Rendeiro.

Richard Maltz, a former deputy chief counsel at the 1st Department disciplinary committee, agreed that in cases involving facts similar to those being attributed to Spitzer, involving a first offense and no apparent aggravating circumstances, the committee is "very likely" to issue a non-public letter of admonition. But, he added, because of Spitzer's position and the huge amount of publicity surrounding his actions, the committee might well issue a public censure.

A letter of admonition is issued by the committee and is not available to the public. A censure, by contrast, is available to the public and is issued by the Appellate Division only after the committee has filed formal charges and a finding is entered against a lawyer.

The lawyers disagreed as to whether Spitzer's position as governor and the state's best-known lawyer would likely subject him to harsher treatment.

Richard Godoski, of Godosky & Gentile, said that if Spitzer did not resign from the bar, he would be disbarred. The disciplinary committees are likely to view misdeeds by lawyers who are public figures as "reflecting more seriously on the legal profession," he said.

Michael S. Ross, a former state and federal prosecutor, said Spitzer would face "at least a public censure" but that it is "very possible" that he will not be more severely sanctioned.

The 1st Department will not look to the politics, Ross said, but sift through Spitzer's "frailties and accomplishments."

Should Spitzer resign as governor, Ross added, that would be an "acknowledgement of contrition and remorse which would be a very significant factor in evaluating the proper punishment."

Additional reporting by Joel Stashenko.

Editor's note: See a related story from The American Lawyer, Paul Weiss Pro to Defend Spitzer.

Importance of making a will

noreply@blogger.com (Charles M. Dulaney) — Fri, 14 Mar 2008 16:58:00 +0000

The government takes half your money while your are alive.

Surprisingly, 50% of South Carolinians appear to be PLEASED since that's how many South Carolinians let the Legislature do their estate planning.

If you die without a will, the legislature has crafted and estate plan that splits up all your worldly possessions giving NO consideration to your individual wishes. The government has decided how to divide everything you own.

We spend one-third of our lives working, saving, and sacrificing--its a real comfort to know the state has a plan for our assets that we spend a lifetime carefully accumulating.

If you have a nest egg and people that you love . . . and others you avoid the one time you see them during the holidays, you need a will!

If someone dies without a properly executed will in South Carolina the law is clear regarding the division of the decedent's estate. When a person dies intestate (lawyer speak for no will) leaving:

A spouse with no kids, then your spouse takes the entire estate.
A spouse with kids, then your spouse gets half and your children split what is left.
It is possible that South Carolina would get the estate if no heirs are living.

Quick! Name 5 ways your would rather give away your money than leaving it to the government. Pause.

Not very hard is it. Neither is making a will. In estate planning, the key is planning. Most people can create a will after one meeting with an attorney that will provide for the person's wishes throughout their lifetime. For most people a simple will costs between $300-$500. Relative to the size of a person's estate, this cost is extremely low. A will may very well be the best dollar for dollar value you can get from an attorney. (Have you ever been through a divorce?)

Hopefully, you got a chuckle out of the message thus far. It is my wish that we can maintain a light heart when it comes to estate planning. Many put it off because they do not want to consider the thought of their death. OK, this is a valid emotion, but let's face it, its not about you. For sure, we all want to provide for the one's we love, we do this all our lives. A will is nothing more than an explanation of how you want to continue to provide for those you love.

Here, some definitions are relevant. A person who dies leaving a will is frequently referred to as the testator, so called because the testator has left us with a testament, the will, that testifies to his or her wishes subsequent to death. How bad was that? Think of making your will as a simple addition to that long list of things you are already doing for your family.

Nuts and bolts, "giterdone."

When you meet with a lawyer take the following information.

TESTATOR

Testator's name, including any former names (if female, maiden name, if married, and last name in any previous marriages).
Testator's home and business addresses and telephone numbers.
Date and place of testator's birth. Date testator came to South Carolina, if not native born. Length of present residence in state. Length of residence in county.
Testator's marital history, including: name and address of present spouse; date and place of present marriage; location of present marriage certificate; names and addresses of previous spouses, if any; dates and places of previous marriages; previous marital history of present spouse; how previous marriages of testator and spouse were terminated; ff testator divorced, whether a property settlement agreement exists. If so, its provisions; provisions of antenuptial agreement, if any.

CHILDREN

Data on children of testator, with information pertaining to:
Each child of present marriage, including: name; date of birth;; sex; address.
Each child of a previous marriage, including: name; date of birth; sex; address.
Each deceased child, including: name; names and addresses of his or her heirs or next of kin.
Each spouse of a child, or of a deceased child, and each deceased spouse of a child, including: name; address.
Each grandchild, including: name; indication of which child of client is his or her parent; date of birth; sex; address.
Special physical or mental problems of spouse, children or grandchildren.

FAMILY HISTORY

Family history pertaining to:

parents of testator including: name; date of birth; address; or fact that parent is deceased.
Parents of testator's spouse, including: name; date of birth; address; or fact that parent is deceased.
Brothers and sisters of testator, and their children, including: name; date of birth; sex; address.
Brothers and sisters of testator's spouse, and their children, including: name; date of birth; sex; address.

OTHER PERSONAL INFORMATION

Names and addresses of other relatives of testator and spouse whom the will may affect.
Social security numbers of testator and spouse.
Occupations of testator and spouse.
Record of testator's military service.
Income of testator, from all sources.
Income, if any, of testator's spouse, from all sources.
Names and addresses of all persons receiving bequests, if not already listed.
Names and addresses of client's advisors and associates: securities broker, insurance agent, accountant, business partners.
Location of safety deposit box, if any.
Location and provisions of previous wills and codicils, if any.
Information on testator's estate, including:

Location, description and value of real property, residential, rental and business.
Location and amount of cash, including bank deposits, safety deposit boxes, etc.
Location and amount of savings bank and savings and loan accounts.
Type and value of securities, including trust deeds, stocks and bonds.
Personal effects, including jewelry, furs, and art, coin, stamp or other collections.
Household goods.
Motor vehicles, including those for personal use and those used in business.
Insurance and other death and retirement benefits, including:

Life insurance policies;
Annuity policies;
Health and accident policies with death benefits;
Death benefits, or retirement amounts, payable from place of employment, fraternal organization, etc.;
Insurance or other death and retirement benefits held by spouse.
Interests in business, such as sole proprietorship or partnership.
Other rights, such as royalties from patents or copyrights, mineral rights, etc.
Expectancies, such as expected inheritances, gifts, etc.
Estimated value of total estate.
Information on testator's liabilities, including:
Debts owed, installment or otherwise, secured or unsecured;
Liability on trust deeds or mortgages;
Other contingent liabilities, including pending lawsuits, etc.;
Outstanding obligations under agreements or court orders:

Prenuptial, postnuptial, and separation agreements;
Divorce or separation decrees;
Inter vivos trusts;
Contracts to bequeath property.
Gifts testator has made or plans to make, either outright, or as trusts, and gift tax returns files and their location.

Kind of will.

Simple.
Mutual will.
Joint will.

Provisions to be included in will, such as:
Funeral and burial directions:
Cremation;
Donation of body or part to science;
Type of funeral service;
Identification of cemetery deed and lot;
Tombstone and perpetual care trust or directions.
- Bequests and devises:
  - Marital deduction gifts;
  - Gifts in trust, with trust provisions;
  - Gifts of real property:
    - Residence, or right to reside in home for life;
    - Income or business property;
  - Gifts of personal property:
    - Household furniture;
    - Heirlooms;
    - Jewelry or clothing;
    - Other items of personal property;
- Gifts of businesses and business interests;
- Gifts of money;
- Gift of residue of estate;
- Gifts to charitable organizations.
Provisions for guardianship of minor children or incompetent dependents.
Testamentary trust.
Persons to be appointed executor or guardian and to serve without bond.
Successor executors and guardians, including a final bank fiduciary.
Status of testator's property subject to marital interest.
- Fee simple.
- Estate by the entirety.
- Tenancy in common.
- Joint tenancy.
Status of spouse's marital property.
Previous wills and codicils.
Antenuptial or postnuptial agreement.
Documents related to a prior divorce or separation, if any.
Divorce decree.
- Settlement agreement or award.
Insurance.
- Policies on life of testator.
- Policies under which testator is beneficiary.
Real property.
- Deeds.
- Mortgages.
- Leases.
- Options.
Personal property.
- Securities.
- Certificates of deposit and other term deposits.
- Chattel mortgages and other documents relating to pledged property.
- Chattel leases
Business documents.
- Employment contract.
- Stock in closely held corporation or partnership agreement.
- Buy-sell agreement.
- Stock options.
- Pension plan.
- Profit-sharing plan.
- Deferred compensation agreement.
- Social security benefits.
- Patents.
- Copyrights.
- Guaranties and other obligations in connection with business enterprise.
- Trust agreements under which testator is grantor, trustee or beneficiary.
- Documents related to previous gifts.
- Powers of appointment.
- Documents related to property held jointly.
- Documents related to contingent benefits, if available.
- Insurance policies under which testator is beneficiary.
- Trust indentures under which testator is beneficiary.
- Wills under which testator is beneficiary.

Well, OK, its not a simple undertaking. As with any prominent decision you make, estate planning should be allotted its share of careful deliberate thinking.

A will, thoughtfully applies your wishes and distributes your estate. Properly handled, it relieves you family from the burden of decision making during a difficult time. This will give you significant piece of mind, because it will reduce the conflicts that arise when when a grieving family must speculate about a decedent's intentions.