Monday, August 31, 2009

Conjugal Rights for Pakistani Prisoners

According to a BBC news report, Pakistan's top Islamic court, The Federal Shariat Court, has ruled that prisoners in jails across the country must have greater conjugal rights and visits from spouses.

The court is said to have ruled that the lack of facilities in jails across the country that offer the necessary privacy for family visits had led to rising levels of homosexual sex, drug addiction and other immoral activities in national jails. The court ordered the authorities to construct such facilities so that families can meet with the necessary seclusion.

Read the full story here.


- Shashi K. Raina, Toronto

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Thursday, August 27, 2009

Legal Outsourcing

Financial Post's Julius Melnitzer writes on the growing trend of outsourcing legal work to India, after a decision by international mining giant, Rio Tinto, to do just that with its corporate-commercial legal work:

"It won't be long before inhouse departments start looking at the elements of even the largest transactions that are amenable to outsourcing," says Carla Swansburg, president of the Association of Corporate Counsel's Ontario chapter and senior counsel at Royal Bank at Canada. "I'm thinking things like due diligence, contract review, data collection, legal research and lease abstracting."

This type of thinking could spell the beginning of the end for the highly leveraged, associate-hour-heavy work that makes up so much of law firms' prized transactions.

...No one, including Rio's Ms. Cooper, denies the risks involved in outsourcing. But Ms. Swansburg, who worked at Osler, Hoskin & Harcourt and Ogilvy Renault before going in-house, says lawyers and clients diverge in their evaluation of the risks.

"The law firms almost always wave flags about quality and control, but their mistake is that they approach risk calculation in an extremely different way from in-house counsel," she says. "In-house counsel, whose budgets are being squeezed so hard, can't afford a zero-tolerance approach and they're being asked to analyze the cost-benefit equation much more closely these days.""

See the full story: Outsourcing is Taking Hold.

Rio Tinto decribes itself as "a leading international mining group, combining Rio Tinto plc, a London listed public company headquartered in the UK, and Rio Tinto Limited, which is listed on the Australian Stock Exchange, with executive offices in Melbourne."

- Shashi K. Raina, Toronto

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Wednesday, August 26, 2009

Texas Judge Keeps An Eye On Counsel - On Facebook

From Texas Lawyer, via Carole Elefant, the saga of Texas judge and social media aficionado, Susan Criss, continues:

Criss recalls that recently a lawyer told her she needed a continuance because of a death in her family. The judge previously had given the lawyer a weeklong continuance, but at a subsequent hearing the lawyer's senior partner, who appeared on her behalf, told Criss his colleague actually needed a month-long postponement, Criss says. "I knew from her bragging on a Facebook account that she had been partying that same week," Criss says. The judge says she told the senior partner at the hearing about her Facebook discovery and denied his request.

Another time, Criss says, she told the lawyers in her courtroom for a weeklong trial that she intended to go to a bench-bar conference and would miss a day of court. "Then that evening, I was on Facebook. I saw another lawyer post about the bench-bar conference. The lawyer who had been in my courtroom then wrote, 'Judge Criss is coming to speak at your conference Friday. Be nice to her so she will be in a good mood when I come back.' I wrote, 'I will be in a good mood when I come back.'" The lawyer who first posted about the conference then wrote to the friend, "Ha, ha you forgot Facebook was public," Criss adds.

We first wrote about Judge Criss a few weeks ago. See: Texas Judge Uses Facebook, Explores Social Media Ethics for Judiciary, Lawyers

- Garry J. Wise, Toronto

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Take My Mother-In-Law - Please!

An angry mother-in-law has had enough of being the punchline in her comedienne daughter-in-law's stand-up routine.

She is suing in New Jersey. Law.com has the story:
A New Jersey federal judge has been asked to order comedian Sunda Croonquist to shut up already with the Jewish mother-in-law jokes. Ruth Zafrin says in a pending suit that she is being falsely and maliciously tagged as a racist in her daughter-in-law's comedy routines. Zafrin's daughter and son-in-law, Shelley and Neil Edelman, also are plaintiffs in the suit, which charges the comedian depicts them in a false light with intent to harm. On Tuesday Judge Mary Cooper denied a motion to dismiss on procedural grounds.

- Garry J. Wise, Toronto

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The U.S. Torture Prosecutions

U.S. Attorney General's Eric Holder announced Monday that he has appointed an independent prosecutor to investigate allegations of torture against some CIA interrogators who questioned detainees captured in the previous administration's "war on terror." Law.com reports:
Career federal prosecutor John Durham, who is overseeing the investigation of the destruction of CIA interrogation tapes, was tapped Monday to explore potential violations of anti-torture laws rooted in the interrogation of certain detainees, Attorney General Eric Holder Jr. said in a statement Monday afternoon.

The Department of Justice internal watchdog, the Office of Professional Responsibility, submitted to Holder a report Monday that recommended the department re-examine earlier decisions, made under the Bush administration, to decline to prosecute apparent violations of anti-torture laws.

In reaching his decision to appoint a prosecutor, Holder also reviewed a 2004 report compiled by the CIA inspector general's office. "As a result of my analysis of all of this material, I have concluded that the information known to me warrants opening a preliminary review into whether federal laws were violated in connection with the interrogation of specific detainees at overseas locations," Holder said in a statement Monday.

The New York Times has posted the complete Justice Department report relied upon by the Attorney General. The Times has also published a number of related documents. Included are two reports that former Vice President Dick Cheney has previously demanded be released, which he claims demonstrate the "success" of the "harsh" interrogation methods that were implemented:
  • Khalid Shaykh Muhammad: Preeminent Source On Al-Qa’ida

  • Detainee Reporting Pivotal for the War Against Al-Qa’ida
  • The remaining documents released and posted by the Times were:
    • A 2006 letter from Steven G. Bradbury, then acting assistant attorney general, to John A. Rizzo, acting general counsel at the C.I.A., advising that the “conditions of confinement” in the agency’s overseas prisons were permitted by the Geneva Conventions (pdf).

    • A 2004 letter to Dan Levin, acting assistant attorney general, describing the C.I.A.’s use of interrogation tactics in combination (pdf).

    Constitutional attorney Glen Greenwald is highly critical of the limited scope of the Holder announcement:

    Holder's decision does not amount to the appointment of a Special Prosecutor, since a preliminary review is used, as he emphasized, "to gather information to determine whether there is sufficient predication to warrant a full investigation of a matter." More important, the scope of the "review" is limited at the outsetto those who failed to "act in good faith and within the scope of legal guidance" -- meaning only those interrogators and other officials who exceeded the torture limits which John Yoo and Jay Bybee approved. Those who, with good faith, tortured within the limits of the OLC memos will "be protected from legal jeopardy" (the full Holder statement is here).

    In theory, Holder's announcement does not foreclose the possibility that DOJ lawyers who authored the torture memos and/or those in the White House who authorized torture will, at some point, be investigated.

    ...As a practical matter, Holder is consciously establishing as the legal baseline -- he's vesting with sterling legal authority -- those warped, torture-justifying DOJ memos. Worse, his pledge of immunity today for those who complied with those memos went beyond mere interrogators and includes everyone, policymakers and lawyers alike: "the Department of Justice will not prosecute anyone who acted in good faith and within the scope of the legal guidance given by the Office of Legal Counsel regarding the interrogation of detainees." Thus, as long as, say, a White House official shows that (a) the only torture methods they ordered were approved by the OLC and (b) they did not know those methods were criminal, then they would be entitled to full-scale immunity under the standard Holder announced today.

    This quite likely sets up, at most, a process where a few low-level sacrificial lambs -- some extra-sadistic intelligence versions of Lynndie Englands -- might be investigated and prosecuted where they tortured people the wrong way. Those who tortured "the right way" -- meaning the way the OLC directed -- will receive full-scale immunity.

    This decision to investigate, and possibly prosecute, only low-level operatives - while shielding the actual architects of the Bush-Cheney torture policies - is unforgivable, a position also well- advocated in this comment from BNP.

    Whether or not torture is effective is not actually the issue. The real issue is that torture is just as illegal as bank robbery [see 18 U.S. Code 2340(a) and2340]. Until bank robbery is made legal, people who get caught helping themselves to a bank's money end up in rison. That's justice.

    If government officials want to commit torture without going to prison, then they need to pressure Congress to make torture legal.

    Until they do that, torture is a violation of law -- which means, at least in a nation that values equal justice under the law, that those who commit torture (or order underlings to do it) should be held accountable.

    Andrew Sullivan makes the broader point. With the inevitable, next Republican political ascendancy, pro-torture advocates will simply return to "business as usual." History will repeat itself unless the previous administration's torture practices are thoroughly discredited and legally repudiated:
    One political party in this country is now explicitly pro-torture, and wants to restore a torture regime if it regains power. Decent conservatives for the most part simply looked the other way. Unless these cultural forces in defense of violence and torture are defeated - not appeased or excused, but defeated - America will never return the way it once was. Electing a new president was the start and not the end of this. He is flawed, as every president is, but in my view, the scale of the mess he inherited demands some slack. Any new criminal investigation which scapegoats those at the bottom while protecting the guilty men and women who made it happen is a travesty of justice. If it is the end and not the beginning of accountability, it will be worse than nothing.

    Worse than nothing, indeed.

    - Garry J. Wise, Toronto

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    Tuesday, August 25, 2009

    Ontario's Open Adoption Registry: An Update

    Reader C.H. provides the following update on the opening of Ontario's adoption records:
    Some people I know have now received their identifying information.

    In cases that I know about, it seems that the father's name is not on the documents even though the mother has named him. I have been told this by people who fortunately have reunited but wanted to see if it was true about social workers omitting the unwed fathers name before 1980, even in cases where the mother names the unwed father and the father admits paternity. Possibly the information was whited out by others?

    The wording in the application forms is that the unwed father must be *named* on the birth registration in order to get the identifying information.

    I wonder how many fathers are going to find out that they are not entitled to identifying information (despite no disclosure veto being filed) because their name is missing from the statement of birth?

    Also see our recent report on the opening of Ontario's adoption records: Ontario Adoption Registry Records Opened, June 1, 2009.

    - Garry J. Wise, Toronto

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    Manslaughter Charges likely against Jackson’s Doctor

    According to L.A. 's coroner, pop star Michael Jackson died from a lethal dose of the powerful anesthetic propofol given in a cocktail of drugs.

    The findings, contained in court documents seeking a warrant to search Dr. Murray's home and offices in Houston, have lead authorities to suspect Dr. Murray of manslaughter.

    Read the full story here.

    - Shashi K. Raina, Toronto

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    The Blackberry Bar

    Lawyers Weekly writer Milton Kiang takes a look at the relationships between lawyers and our smartphones, and finds attitudes all over the map:
    Lang Michener LLP banking partner Eric Friedman says matter-of-factly: “Clients have an expectation that you’ll always be in touch with the office. Not all clients are like that, but with the increase in the use of BlackBerrys, more and more clients carry that expectation.

    “If you can’t provide that level of service, someone else will,” says Friedman.

    Borden Ladner Gervais LLP corporate partner Martin Donner says that according to a legal survey he read several years ago, a lawyer’s availability is what clients value most. Donner says he checks his BlackBerry on evenings and weekends. “I do it because I haven’t left the planet. If there’s something I can do to help out, I’ll do it. Clients’ needs aren’t confined to regular hours.”

    So where does one draw the line between work and personal life?

    “It’s a source of frustration,” says one second-year Calgary litigation lawyer, who didn’t want to be named. “I don’t want to have my work attached to me all the time. Whenever you check your BlackBerry, it creates work. It doesn’t make sense to be checking your e-mail [on holidays and weekends] because the whole point is not to be working.”

    Another Calgary lawyer, Clint Suntjens, a senior litigator with Litwiniuk & Company, refuses to carry a BlackBerry. “I don’t want to be checking my Blackberry 2 million times a day. Of course, if I’m in the office, I’ll check my e-mail messages.”

    See the full article - Smartphone Etiquette: Where to Draw The Line?

    - Garry J. Wise, Toronto

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    U.S. Health Care Debate: A Test of Democratic Party's Ability to Govern

    NY Times' Ross Douthat gets it right:

    In reality, the health care wrestling match is less a test of Mr. Obama’s political genius than it is a test of the Democratic Party’s ability to govern. This is not the Reagan era, when power in Washington was divided, and every important vote required the president to leverage his popularity to build trans-party coalitions. Fox News and Sarah Palin have soapboxes, but they don’t have veto power. Mr. Obama could be a cipher, a nonentity, a Millard Fillmore or a Franklin Pierce, and his party would still have the power to pass sweeping legislation without a single Republican vote.

    What’s more, health care reform is the Democratic Party’s signature issue...

    ...If the Congressional Democrats can’t get a health care package through, it won’t prove that President Obama is a sellout or an incompetent. It will prove that Congress’s liberal leaders are lousy tacticians, and that its centrist deal-makers are deal-makers first, poll watchers second and loyal Democrats a distant third. And it will prove that the Democratic Party is institutionally incapable of delivering on its most significant promises.

    - Garry J. Wise, Toronto

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    Monday, August 24, 2009

    Manitoulin Island, Ontario

    Greetings from Manitoulin Island, Ontario, where we are having a bit of August R and R. This photo was taken at Evergreen Resort, near Gore Bay.

    - Garry J. Wise, Toronto

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    Sunday, August 23, 2009

    Good Grief: President Hannity?

    Is Sean Hannity considering a run for the White House in 2012?
    Talk-show host Sean Hannity, a vocal opponent of Barack Obama's policies, said today he would not rule out a bid for the presidency in 2012.
    If so, a candidate will actually have emerged who will, by comparison. render Sarah Palin the better option.

    I did not think it possible

    Saturday, August 22, 2009

    Suaad Hagi Mohamud Launches $2.5 Million Law Suit

    According to National Post, Suaad Hagi Mohamud, the Canadian woman stranded in Kenya for over three months after Canadian embassy officials in Kenya wrongly branded her an imposter, has sued Canadian Government for $2.5 million.

    Ms. Mohamud, who was visiting her mother in Kenya, was detained and barred from leaving Kenya after authorities said her lips did not match her four-year-old passport photo. The embassy officials voided her passport and handed it over to Kenyan authorities for prosecution. She was able to return to Canada after DNA tests proved her identity.

    Ms. Mohamud’s lawyers want an inquiry launched to find out whether her race was a factor in the alleged mistreatment by Canadian officials. Her lawyers said Ms. Mohamud is owed an apology from Ottawa and a public inquiry into her ordeal.

    Read the full story here.

    - Shashi K. Raina, Toronto

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    Friday, August 21, 2009

    Recently Tweeted - August 21-09 Edition

    It's that time of week again, and this vacation edition finds us on the road, dodging tornadoes at home and detouring to avoid Hurricane Bill in the east.

    None of that, however, could ever delay delivery of yet another installment of Wise Law Blog's tweets of the week:

    That's a wrap. Enjoy your Friday, and have a great weekend.

    - Garry J. Wise, Toronto

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    Levitt's Lament

    Employers' lawyer Howard Levitt breaks the "bad news" to his Financial Post readers - Suing Employers Soon to Get Easier.

    On Jan. 1, the most dramatic changes to the rules of court since 1985 will be implemented. These rules will disable three of the most valuable weapons in employers' litigation arsenal-- costs, complexity and delay.

    The Small Claims Court jurisdiction will be raised to $25,000 from $10,000. The intent is to make legal rights accessible to workers of every strata. The incentive to pursue perceived rights will escalate in this forum, where self-representation is the norm and the costs of losing negligible.

    Lawsuits from $50,000 to $100,000 will also become simpler, faster and cheaper. The Simplified Procedure... will be expanded to include claims to $100,000. Until now, these larger claims were subject to unlimited examination for discovery; the new rules restrict them to two hours.

    Any lawyer can conduct a journey-man like mediation because much of the work is done by the mediator. Other than trials, which few dismissal cases reach, a lawyer's relative skill is best shown at discoveries. That is where admissions are obtained that result in settlement or make the result a foregone conclusion. Frequently, I have had employees make admissions at discovery that end their cases.

    Being cross-examined for hours or days, employees who are less prepared than at trial, face having substantial doubt cast on the veracity of their facts and their principles put under tortuous scrutiny, and often end up dropping the suit or accepting a minimal settlement to avoid a trial. That ability to weaken the employee's resolve is gone under the new rules: Two hours is seldom sufficiently formidable to concede early defeat.

    It is time for a new employers' playbook, apparently. What a stunning commentary and public admission as to defence tactics.

    It seems the time-honoured strategy of delay, out-spend, out-maneuver and 'interrogate into submission' will have only a limited future in employment law litigation Ontario.

    That kind of casts access to justice amendments in a whole new light, now doesn't it?

    - Garry J. Wise, Toronto

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    Will Massive Ontario Legal Aid Deficit Threaten Service?

    Legal Aid Ontario faces a budget shortfall of $56 million, and service cutbacks to may lie ahead, according to a report today by the Globe and Mail's Kirk Makin:

    The Ontario legal aid plan faces a staggering $56-million budget shortfall - a funding crisis that comes as it is already reeling from a boycott by senior criminal lawyers.

    In an internal memorandum obtained by The Globe and Mail, Legal Aid Ontario president and chief executive officer Robert Ward warned that the impact of the deficit promises to be "very significant," and will soon necessitate a cash infusion unless quick action is taken.

    The memo - written on April 9, 2009 - ascribed $40-million of the shortfall to a precipitous drop in funding this year from the Law Foundation of Ontario, which gives LAO interest payments that accumulate on its trust accounts, which are administered by lawyers.

    ..Association of Legal Aid Lawyers ...chairman Walter Van de Kleut said that government funding has failed to keep pace with inflation over the past two decades, a pattern that threatens the entire program.

    "Now, we are learning there are plans to impose so-called 'efficiencies' to the program," Mr. Van de Kleut said. "They want to 'rationalize' legal services - which is business-speak for degrading existing funding. Just when the poor and unemployed need a hand up, they're getting a slap down."

    - Garry J. Wise, Toronto

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    Wednesday, August 19, 2009

    Congressman Barney Frank is My Hero

    New York Congressman Barney Frank, via CNN, pushing back at a town hall meeting on health care reform:

    While Frank attempted to respond to all questions, he gave up when one woman compared health care proposals favored by Frank and President Obama to policies of Nazi Germany.

    "When you ask me that question, I'm going to revert to my ethnic heritage and ask you a question: On what planet do you spend most of your time?" Frank asked.

    "You stand there with a picture of the president defaced to look like Hitler and compare the effort to increase health care to the Nazis," he said, adding such behavior demonstrated the strength of First Amendment guarantees of what he called "contemptible" free speech.

    "Trying to have a conversation with you would be like trying to argue with a dining room table," Frank said to the woman. "I have no interest in doing it."

    - Garry J. Wise, Toronto

    Update - here's the video:

    - G.J.W.

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    Tuesday, August 18, 2009

    The Fallibility of DNA Evidence

    A New York Time article today highlights proof by Israeli researchers that DNA evidence may not be such a sure thing, after all:

    The scientists fabricated blood and saliva samples containing DNA from a person other than the donor of the blood and saliva. They also showed that if they had access to a DNA profile in a database, they could construct a sample of DNA to match that profile without obtaining any tissue from that person.

    “You can just engineer a crime scene,” said Dan Frumkin, lead author of the paper, which has been published online by the journal Forensic Science International: Genetics. “Any biology undergraduate could perform this.

    Tania Simoncelli, science adviser to the ACLU adds:
    “DNA is a lot easier to plant at a crime scene than fingerprints,” she said. “We’re creating a criminal justice system that is increasingly relying on this technology.”

    - Garry J. Wise, Toronto

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    Kinsella on Kinsella

    Richard Albert has a light-hearted and entertaining profile of Warren Kinsella, Liberal Party strategist extraordinaire, in The Politic today.

    See: Warren Kinsella: Prince of Darkness

    Most amusing is Mr. Kinsella's discussion of his 1997 electoral loss as candidate in B.C.'s Vancouver South riding:

    Honest to God: I ran because I felt I had a contribution to make. At the time, my wife thought I was crazier than usual–I think she voted against me, truth be told–but it was an honour and privilege. We hadn’t won the riding in a generation, but it seemed like the right thing to do at the time.

    Some folks insinuate that I was parachuted into the riding, but that isn’t true: I fought for months to get the nomination, and was thrilled when I won it at a nomination meeting. But a variety of factors (calling an election during the ’97 Winnipeg flood was one) led to my keester getting kicked.

    My wife, then pregnant with the second of four children, was delighted.

    - Garry J. Wise, Toronto

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