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Monday, November 28, 2005

Another cross-posting. The Second Circuit is on the verge of deciding whether, in considering a challenge to the substantive validity of an individualized education program (IEP) in special education cases, a court may consider retrospective evidence. That issue had not been considered in the administrative proceedings or by the district court, so the Second Circuit remanded the case to the district court to decide that issue. The decision in D.F. v. Ramapo Central School District can be found here. This post will also be posted on my other blog, The FAPE Page, which deals with special education issues.

Wednesday, November 23, 2005

Class Attorney's Fiduciary Duties. Where a party, who is technically part of a class, but enters an appearance in the class action by his own attorney, he cannot sue the class attorney for breach of fiduciary duty. Because he had his own attorney, he was not represented by the class attorney. The decision in Schick v. Berg can be found here.

Tuesday, November 22, 2005

Reduced fees. Well, there's one attorney who probably will take a hit in his business now that the decision in In re Goldstein has been released. David Goldstein, for reasons that are not clear, took an inordinate amount time to consummate the settlement of a wrongful death action in which he represented the plaintiff. Different explanations for the delay were given to different parties at different times in the case. At any rate, despite the delay, Goldstein asked for his full contingeny fee. The magistrate judge balked, noting that a number of Goldstein's cases had languished because of his lack of attention and disregard of court orders and that she had previously recommended sanctions against him in another case. The magistrate judge issued a recommendation that Goldstein's fees and expenses be radically reduced. The District Court adopted the recommendation. The Court referred the case to the Grievance Committee for the First Department and for the Eastern District of New York. Goldstein appealed.

The Second Circuit held that the District Court had the authority to reduce his fees and its decision to do so in this case was not an abuse of discretion. The Court stated: "Goldstein's arguments regarding the reduction of his fees demonstrate no error, much less and abuse of discretion. When asked to provide evidence of his disbursements, he did not do so. That failure and the treatment of his client, who had to personally seek the court's aid in forcing Goldstein to complete the settlement, slone justify the reduced award."

The Second Circuit held that it did have jurisdiction to consider an appeal from that part of the District Court's order, referring the matter to the disciplinary committees because the order had reputational consequences and potential costs in responding to the referral. This jurisdiction is limited. The Court may only review in such a case "for prejudicial procedural error, clear error in findings of fact, and abuse of discretion in the sanction imposed." Under the circumstances of the case, the Court affirmed this section of the order as well.

The decision in this case can be found here.

Monday, November 21, 2005

A3G Revealed! Not that it's news anymore, but blogger Article III Groupie of Underneath Their Robes is no longer anonymous and he's a federal prosecutor. And now that it's known that David Lat is the infamous A3G, he has closed down the blog. For more info, click here. This post is not really about the Second Circuit, but I don't want to be the only legal blogger who didn't mention it.

Tuesday, November 15, 2005

No chill. The Second Circuit has held that a public employee alleging retaliation for having exercised his or her First Amendment rights is not normally required to show that the State's conduct had an actual chilling effect. Morrison v. Johnson can be found here.

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