Military Courts-Martial: What lies ahead?

Lawyer Blog Post 2011/01/26 14:37   Bookmark and Share

Its a normal Tuesday morning. You report for work as usual but soon after your immediate supervisor pulls you aside and says to you: “NCIS (or OSI, CID, or base police) is here and wants to see you now.” You are ushered into an office, the door is closed behind you and two agents identify themselves as law enforcement and show you their badges. What do you do?

The first thing you need to be aware of is that if you are suspected of having committed a criminal offense in the military, you have the right to remain silent and not answer any questions regarding the alleged offense. You also have the right to speak to a military defense lawyer before making any statement to investigators. These rights are guaranteed by the U.S. Constitution and the Uniform Code of Military Justice (UCMJ). Of course, simply being aware of and invoking your rights does not guarantee that charges will not be brought against you. In many instances, attempting to interrogate the suspect in an effort to gain a damaging confession or admission is the last step taken by criminal investigators after perhaps many weeks or months of investigation.

If you find yourself in this situation, the early assistance of an experienced military defense lawyer is essential to presenting your best defense in court. Criminal charges in the military can be prosecuted at many levels depending on the severity of the allegations. Minor infractions may be handled by administrative means or through non-judicial punishment (NJP or Article 15) while more serious charges may be referred to a special or general court-martial. Assuming the allegations are serious enough to bring to court, the likely next step is preferral where an individual (usually a legal clerk or technician) swears to the charges before an officer authorized to administer oaths. You are entitled to receive a copy of the sworn charges.

What happens next depends on whether the government intends to refer the charges to a special or general court-martial. In the military, final charging and forum decisions are made by the Convening Authority (normally the commander of the unit or organization you are assigned to). The Convening Authority is usually not a lawyer but may have a judge advocate assigned to the staff to provide legal advice. Typically, if the commander is a Flag or General officer, they will have a staff judge advocate (SJA). Smaller commands may have a non-lawyer officer who has received some training as a collateral duty legal officer. In addition, the command may receive advice from the prosecutor (called a Trial Counsel) and various law enforcement agencies.

As you can see, the government has a wide array of resources at its disposal and the odds may seem stacked against you. The government, however, always has the burden of proving guilt beyond a reasonable doubt and there are other procedural and Constitutional safeguards you are entitled to. It is therefore essential that you have the assistance of counsel to assist you in defending your case. If you have been charged with a criminal offense in the military or know that you are under investigation, contact an experienced military defense lawyer to protect your rights.

http://ericroperlaw.com/blog/military-courts-martial-what-lies-ahead/55/

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There Is No Bar to Bringing a 23(b)(3) Class Action and a FLSA Collective Action Together

Lawyer Blog Post 2011/01/19 23:00   Bookmark and Share
January 19, 2011

Yesterday, the Seventh Circuit held that there is nothing in federal law that prevents a party from seeking class certification under Rule 23(b)(3) and a collective action under the FLSA in the same lawsuit in Ervin v. OS Restaurant Services, Inc., Case No. 09-3029. In reaching this decision, the Court reversed a decision by the district court, which found a "clear incompatibility" between the FLSA proceeding and the proposed class action. The Seventh Circuit is the first federal appellate court to weigh in on this issue.
Lessons:
  1. A plaintiff may bring a 23(b)(3) class action and an FLSA collective action within the same lawsuit.
  2. Application of federal procedure does not rest upon whether the case was removed to federal court or originally brought in that court.
  3. If you are going to argue a practical problem with your opponent's argument, make sure to have a real-life example of that problem in action.

http://indianalawupdate.com/entry/There-Is-No-Bar-to-Bringing-a-23b3-Class-Action-and-a-FLSA-Collective-Action-Together

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7th Circuit Will Not Allow You to Resign from Its Bar to Avoid Disbarment

Lawyer Blog Post 2010/12/10 23:01   Bookmark and Share
December 10, 2010

We here at the Indiana Law Update sincerely hope that none of our readers ever need to apply yesterday's decision from the 7th Circuit in In re Wick, Case No. D-10-0015 to their own practice. However, it is an interesting decision dealing with how the Court will treat a request to resign from its bar.
Lessons:
  1. The Seventh Circuit will not allow you to resign from its bar in order to avoid attorney discipline.

http://indianalawupdate.com/entry/7th-Circuit-Will-Not-Allow-You-to-Resign-from-Its-Bar-to-Avoid-Disbarment

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Residential Real Estate Disclosures Must Be Made in Sale to Living Trust

Lawyer Blog Post 2010/12/07 23:02   Bookmark and Share
December 7, 2010

I.C. Chapter 32-21-5 abrogates the common law rule of caveat emptor with regard to representations made in a statutorily required Sales Disclosure Form. Yesterday, the Court addressed a related issue in Rex Breeden Revocable Trust v. Hoffmeister-Repp, Case No. 03A04-1003-CT-18 -- whether these rules apply to any residential real estate sale to a living trust. The Court found the statute ambiguous and limited its language to sales from one person to that person's own living trust.

In this case, a homeowner sold a home to a buyer. However, the buyer did not buy the property directly; rather, he purchased it using a living trust. A dispute arose concerning whether the seller had made misrepresentations about the residence and the buyers eventually brought suit. The parties filed cross-motions for summary judgment and the trial court granted the seller's motion. The buyers appealed.

At issue was whether I.C. Chapter 32-21-5 applied to the sale. I.C. § 32-21-5-1(b)(9) states that this Chapter does not apply to "[t]ransfers to a living trust." The buyer argued that this language clearly exempted this sale from the Act. The seller argued that this could be illogical. The Court found this language ambiguous -- arguably because the parties disagreed over its interpretation.

http://indianalawupdate.com/entry/Residential-Real-Estate-Disclosures-Must-Be-Made-in-Sale-to-Living-Trust
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Managing Outsourced Work

Lawyer Blog Post 2010/09/06 21:33   Bookmark and Share
Outsourcing has become easier with modern technologies like the Internet.  I suspect outsourcing will become even more popular as businesses seek greater efficiency and as professional services become more specialized.

If you are a business handling confidential client information, outsourcing comes with risks and responsibilities.  The risks are fairly obvious.  Sensitive information in the hands of third parties presents opportunities for identity theft, fraud, and other illegal or unseemly activities.  In many cases, you cannot closely monitor third party activities or easily hold them accountable for mishandling information or breaking confidences.

Such risks probably do not outweigh the benefits of outsourcing, but they should perhaps inspire your adhesion to policies and procedures designed to minimize them.  For example, maybe all your clients should know about and give explicit written consent to your outsourcing, even if your outsourcing seems like a commonplace, obvious, or implied part of the service being offered.  Although you may have good relations with your third-party vendors, keep in mind that the good relations are yours, not your clients’.  Even if you regularly outsource to a firm which you know and trust and which has its own professional responsibilities, your clients may have personal reasons for avoiding contact with your vendors of first choice.

You may also wish to formally evaluate the credibility of third-party vendors you hire to perform outsourced work, perhaps maintaining a list of credentials for being eligible to handle confidential information.  Explaining these concerns to your clients, and the steps you’ve taken to mitigate them, will inspire confidence in your services.
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Wesley Snipes and the Eddie Ray Kahn “Con”

Lawyer Blog Post 2010/09/06 17:42   Bookmark and Share

Stephen Hudak of the Orlando Sentinel writes about the criminal tax conviction of Wesley Snipes tax advisor, Eddie Ray Kahn:

While Wesley Snipes fights to stay out of prison, a Lake County tax protester earned an additional 20 years behind bars for advising the movie star and 4,000 other clients how to beat the Internal Revenue Service.

Eddie Ray Kahn, 67, who operated a “tax defier” organization from a rented second-floor office in downtown Mount Dora, and three other Florida men were convicted of conspiracy in federal court in Washington.

All worked for Kahn’s American Rights Litigators, which prosecutors described in a sentencing memorandum as “the Walmart of tax fraud,” selling bargain-priced schemes to help people dodge tax obligations.

Kahn was convicted as a co-defendant in Snipes’ trial in 2008 and received a 10-year sentence in that case. But federal court records say his now-defunct organization, which operated for seven years as American Rights Litigators or the Guiding Light of God Ministries, had a presence in all 50 states and more than 4,800 paying members in the U.S.

http://blog.pappastax.com/index.php/2010/09/06/wesley-snipes-and-the-eddie-ray-kahn/
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