Articles Posted in Ethics

Michigan statutory law provides that for every Michigan DUI case the offender must be subjected to substance use evaluation prior to sentencing. More specifically, Michigan Compiled Laws sec. 257.625b indicates that such individuals must undergo a screening and assessment to determine if the person would benefit from “rehabilitative services,” which may include such things as alcohol or drug education or treatment programs.

What is a NEEDS Survey?

Your substance abuse assessment and screening prior to your Michigan DUI sentencing hearing will be conducted by the court’s probation department. To accomplish this the probation officer will administer a 130-question mostly multiple-choice test called a NEEDS survey. The purpose of the NEEDS survey is to assist the probation officer, and therefore the judge who will be sentencing you, in determining if they believe you could benefit from substance use treatment. If so, then you will be ordered into such treatment at sentencing. This will also become a “rehabilitative aim” allowing the court to rebut the statutory assumption against jail or probation on a DUI offense. You will be charged a screening fee for this test. You can pay this in advance, and if you do not, you will be ordered to pay the screening fee when you are sentenced for your DUI.

Barone Defense Firm Partner Michael Boyle recently obtained a great result for a client charged with several gun and assault crimes. But that wasn’t the end of the story. It was only the beginning.

A Judge told my client he’s lucky. Is he right?

Imagine you are charged with a combination of three felony gun and assault crimes. Next imagine that if you’re convicted of these crimes, you’re facing a possible total sentence of 8 years in prison. And on top of that, you could also end up having to pay several thousand dollars in fines and costs. Now, imagine that after facing all that, you end up with two misdemeanors, no jail time and a small fine. Sound good? The Judge presiding over the case thought so. He told our client he was “lucky” to have gotten such a great deal. But was it luck, or was it the result of hard work and good lawyering?

Love is Blind. Justice is Blind. But here is what we SEE in Divorce and the Criminal Justice System.

The Criminal Defense Attorneys at the Barone Defense Firm focus their practice on specific and complex criminal defense cases, like those involving allegations of criminal sexual activity and abuse. These criminal sexual conduct (CSC) and child abuse cases are handled in the District and Circuit Criminal Courts when charged by the State or County Prosecutor, and in the Family or Juvenile Court when authorized by Department of Health and Human Services (DHHS) often referred to as Child Protective Services (CPS). The may also often have a federal component, especially when allegations involve allegations of possession, receipt or production of child pornography.  We have found that such allegations arise out of or are raised in the backdrop of divorce. The allegations of criminal sexual conduct and child abuse often come immediately preceding, during, or soon after divorce papers are filed, and therefore, the divorce is the common denominator.

According to the statistics in the 2018 State of Michigan’s Department of Community Health Report there were 56,374 marriages, and possibly not surprisingly, 28,186 divorces. This number may be surprising to the romantic, and validating to the cynic, but all can reasonably agree that there are significant emotions involved when a marriage is ending.  These emotions, when coupled with children being involved, can lead to allegations for legal leverage and quite frankly to hurt the other party. Motivated by money, or custody, or fear, or anger, allegations of criminal sexual conduct or child abuse put the accused in a very difficult position emotionally and legally.

Jury nullification occurs when a jury returns a verdict that is contrary to the law given them by the Judge. In a criminal case jury nullification occurs when the jury, while believing the accused to be guilty, nevertheless return a verdict of not guilty. Usually this happens when the jurors either don’t like the criminal law in question or don’t believe that the criminal law is being appropriately applied. When a jury does this they are thought to “judge” the law.

An example of nullification in Michigan’s recent past would be the not guilty verdicts rendered in three of the five trials against Jack Kevorkian in the late 1990s. Dr. Kevorkian was accused of helping individuals voluntarily end their lives. Called “assisted suicide,” Dr. Kevorkian had created what was referred to as a “suicide machine” that could be operated by the individual wishing to end their life. This case represents a perfect example of and instance where jurors “judged” the law unfavorably, or at least the application of that law, and returned verdicts contrary to the judge’s instructions. For a fictional portrayal of this case, with Al Pacino playing Jack Kevorkian, see: You Don’t Know Jack.

The Kevorkian cases demonstrate that in Michigan the jury has the power but not the right to nullify the law. Understanding what is meant by the statement that jurors have the “power” but not the “right” to nullify requires a much more detailed explanation of nullification, and this series of articles serves to provide this explanation.

Cyber-attacks in general are on the rise.  In 2020 we witnessed security breaches at Solarwinds, Twitter, and Marriott and many other businesses. But hackers are no longer just focusing on the big giants.  Today’s headlines include prominent law firms who are falling victim to cyber-attacks.  Recently, we saw Jones Day law firm on the defense of a cyber-attack.  Jones Day, who has many prominent clients including former President Donald Trump, had files stolen and posted on the dark web.  But Jones Day is not alone, many law firms lack strong cybersecurity programs, thus making them prime targets to cyber-attacks.

Today, bad actors continue to scope out new targets.  Law firms are an attractive target because of the sensitive data that they retain.  Many law firms have access to highly confidential corporate data in addition to sensitive individual personal data.   Law firms house highly sensitive information like financial data, corporate strategies, trade secrets, business transaction information, and other private information.  In all these cases, law firms have both a legal and ethical obligation to protect their client’s data.  As lawmakers attempt to enact legislation to protect consumer’s data, this ever changing legislative landscape is often difficult to maintain and implement.

Relying on in-house counsel or your IT department is not enough.  To ensure your law firm is ready for a data breach, it is critical to have a cybersecurity attorney on retainer.   IT security professionals are stretched thin.  Many outsourced IT resources have multiple clients that they service.  In an environment where we find a shortage of security expertise, recruitment and retainment of IT security staff is a challenge.  They are often difficult to find and if you are lucky to have a dedicated IT security professional, rarely do they understand the law.  State, local and sometimes international laws have specific legal requirements for the protection of private and privileged information, an IT team cannot manage on their own.

Attorney and Practice Magazine recently invited Patrick Barone “membership” as one of Michigan’s Top 10 Attorneys. The bar to entry?  Payment of either $295 for 2020, $295 for 2021 or $590 for both years. Subsequent to payment, Mr. Barone would have available to him a host of impressive materials, from a nice looking website badge to a all plaque to be proudly displayed on the office wall.

Lawyer Ratings Have Become Big Business

In the last decade lawyer ratings have become big business. Most of them consist of a few lawyers getting together and deciding they can get rich by offering paid-for credentials to other lawyers. Several times per month at the criminal defense lawyers at the Barone Defense Firm receive solicitations to be listed on this “top 10 list,” or that “nation’s best list,” usually with the only bar to entry a small payment of usually about $300-$500.

Michigan’s Attorney General Dana Nessel recently announced that two technicians, formerly responsible for the maintenance and calibration of hundreds of breath testing devices used throughout Michigan, have been charged with multiple felony counts for allegedly falsifying records.  Their names are Andrew Clark and David John.

Mr. Clark and Mr. John were both “Class IV” operators of the DMT. Class IV is the highest of the four operator classes, and this level of certification allows the operator to perform 120-day inspections. During the 120-inspection the operator checks for linearity and if problems arise, it is possible for the inspector to re-calibrate the DMT. If done improperly, this could result in inaccurate breath test results, wrongful DUI arrests and wrongful DUI convictions. The criminal cases against them allege that Mr. Clark and Mr. John committed forgery in producing false documents indicating, among other things, that they had performed 120-day inspections when none had occurred.

The breath test device used to test drivers arrested for DUI in Michigan is called the DataMaster DMT. Michigan currently has more than 200 DMTs in service, and all of them are serviced by 3 technicians. The State was essentially divided in half north to south, creating an Eastern and Western side each of which was handled by a separate technician.  The northern part of the State, including the upper peninsula, was handled by a third operator.

Intense competition amongst attorneys in efforts to gain new clients has caused increasing numbers of lawyers to violate their code of professional conduct. Such unethical business practices have become commonplace on the internet. For example, at least one state has found that using another lawyer’s name to gain web site traffic subjected the lawyer to bar sanctions. As held by the North Carolina State Bar Ethics Committee:

It is professional misconduct for a lawyer to engage in conduct involving dishonesty, fraud, deceit, or misrepresentation. Rule 8.4(c). Dishonest conduct includes conduct that shows a lack of fairness or straightforwardness. The intentional purchase of the recognition associated with one lawyer’s name to direct consumers to a competing lawyer’s website is neither fair nor straightforward. Therefore, it is a violation of Rule 8.4(c) for a lawyer to select another lawyer’s name to be used in his own keyword advertising.

This practice is sadly is a low to which more and more lawyers have stooped. The answer to “why” is pretty straightforward. In the last 20 years, competition for DUI clients has reached proportions that could almost be called cut-throat. This at the same time that competition at all levels has increased exponentially.

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