New Department of Justice Policy Bans Federal Prosecutors From Asking Defendants to Waive Ineffective Assistance of Counsel Claims Against Defense Attorneys

        The United States Department of Justice recently released a new policy that will ban federal prosecutors from asking defendants to waive any potential ineffective assistance of counsel claims that they may have against their attorneys as a condition of accepting a plea. Previously, federal prosecutors had the ability to ask criminal defendants, who pleaded guilty, to waive their right to bring claims sounding in ineffective assistance of counsel. Now, federal prosecutors may not include language that constitutes such a waiver in plea bargain documents, and waivers included in documents that were executed prior to the implementation of this new policy may not be enforced.

       A criminal defendant’s Sixth Amendment right to counsel may be violated if an attorney did not adequately and competently represent the defendant and the result of the defendant’s trial or sentencing would have been different if the attorney had competently represented the defendant. Attorney General Eric Holder has stated that this new policy is reflective of the Justice Department’s commitment to preserving citizens’ constitutional rights, namely the Sixth Amendment right to counsel and the Fourteenth Amendment right to due process. In addition, this new policy will ensure that individuals receive competent representation as they respond to the criminal allegations stated against them.

          The criminal defense lawyers of Brown Paindiris & Scott can help you navigate the criminal justice system. For more information, visit our website.   

       

Cell Phone Privacy and the Law

In 2014, the United States Supreme Court addressed the issue of whether a police officer may search a cell phone without a warrant. In Riley v. California, the Court held that police officers may not search a cell phone without a warrant, absent some extreme circumstances such as a terrorist attack or child abduction. The Court went on to describe a cell phone as a “minicomputer.”  The Court recognized a cell phone’s ability to serve as an address book, tape recorder or camera, among other functions, thus making the material stored on a cell phone of a private nature. 

The law is much clearer on law enforcement’s ability to search a cell phone, as compared to the law on whether a private individual can be civilly liable for the unauthorized search of a cell phone. Unauthorized searches of cell phones have increasingly become an issue in middle and high schools. Some students have sued their schools, alleging invasion of privacy or negligence after teachers and other school personnel have seized and searched the students’ cell phones. 

The cell phone privacy issue may also arise in the context of employment situations. An employee may potentially have a cause of action against his or her employer for the unauthorized search of a cell phone, so long as the employee had a reasonable expectation of privacy in the cell phone. Whether the employee had a reasonable expectation of privacy in an employer owned and issued cell phone, however, is questionable.

A recent decision from the United States District Court for the District of Connecticut discussed cell phone privacy in the context of a civil lawsuit. In Bakhit v. Safety Marking, Inc., the court denied the plaintiffs’ motion to inspect the cell phones of the defendants. The court discussed the Supreme Court’s decision in Riley, concluding that in the present case, the plaintiffs’ motion implicated the defendants’ privacy interests given the private material that was likely stored on the defendants’ cell phones.  

The issue of cell phone privacy, especially within the context of a civil lawsuit, is continuing to evolve. As technology becomes increasingly sophisticated, courts and lawmakers will likely need to set parameters regarding cell phone searchers, while taking into account the privacy interests of cell phone users.

BPS Attorneys Richard Brown and Kate Haakonsen to Moderate Panels at 13th Annual Connecticut Bar Association Bench-Bar Professionalism Symposium

On Friday, November 7, the Connecticut Bar Association, in collaboration with the Hartford County Bar Association and the State of Connecticut Judicial Branch, will sponsor “Raising the Bar: A Bench-Bar Symposium on Professionalism in the Judicial District of Hartford.” In its 13^th year, the Connecticut Bar Association Bench-Bar Professionalism Symposium brings together attorneys and judges for thoughtful discussions on the future of the legal profession. BPS Attorneys Richard Brown and Kate Haakonsen will be moderating two of the sessions at this event.

The event will feature a presentation on the maintenance of ethical standards and the preservation of professionalism in the legal profession, as well as a series of panels that will focus on professionalism topics and concerns specific to criminal, family, civil, probate, and real estate/business law. Attorney Richard Brown will serve as the moderator of the criminal law session, while Attorney Kate Haakonsen will moderate the family law session. Connecticut Attorney General George Jepsen will deliver the keynote address and will discuss maintaining and enhancing professionalism in his office, which is the state’s largest civil law firm.

To learn more about the November 7 symposium, click here.

Does Connecticut have Permanent Alimony?

In a word “No.”  There is nothing in Connecticut law which uses the term “permanent alimony.” Alimony, regardless of the form it takes, is simply referred to as “alimony.”  Almost all alimony orders terminate on the death of either party or the remarriage of the recipient.  This is commonly referred to as open-ended alimony because it has no specific end date.  Almost all alimony orders issued a court are subject to modification in the event of a substantial change in circumstances or if the payor proves that the recipient is living with another person under circumstances which reduce his or her needs (sometimes called “cohabitation”).  It is common for alimony orders to end on a specified date if alimony has not terminated earlier, but there is no specific term for this in Connecticut law.

Connecticut General Statute Section 46b-82 provides the courts with authority to award alimony. In deciding whether to award alimony, the statute requires a court to consider the following factors in determining the duration and amount of the alimony award: the length of the marriage, the causes for the annulment, dissolution of the marriage or legal separation, the age, health, station, occupation, amount and sources of income, vocational skills, employability, estate and needs of each of the parties, property distribution award, and if the parties have minor children, the desirability of such parent’s securing employment. The statute makes no explicit reference to the term permanent alimony. 

In Connecticut, open-ended alimony awards are fairly uncommon. The statute was recently amended to require a court awarding open-ended alimony to state with specificity its reasons for making this award. Once the court issues an alimony award, the parties may request modification or termination of that award upon a showing of a substantial change in circumstances pursuant to Connecticut General Statute Section 46b-86. 

Nationwide, many states have recently considered whether to eliminate “permanent alimony.” In Connecticut, legislation introduced in the 2014 session purported to make it easier to modify or terminate alimony when the paying spouse wants to retire or when the recipient spouse cohabitates with another person.  The bill failed to pass at the end of the session.

With questions on how alimony factors into your divorce, please contact the experienced family law attorneys of Brown, Paindiris & Scott, LLP.

The Connecticut Benefit Corporations Act Brings B-Corps to Connecticut

The Connecticut Benefit Corporations Act became effective on October 1, 2014. This law allows for the creation of a new business structure known as the benefit corporation or what is more commonly referred to as the “b-corp.” A benefit corporation has two functions: to maximize profits and to help society and the environment or to create specific public benefits. Connecticut is now the 26^th state to enact laws establishing b-corps.  More than twenty companies registered as b-corps with the Connecticut Secretary of State on the first day the law took effect. 

The non-profit company B Lab was formed in 2006 for the purpose of promoting the b-corp structure. B Lab’s goals in creating the b-corp were twofold: to create a business that could focus on issues beyond shareholder profit and to implement standards to aid consumers in distinguishing between a “good company” and a company that simply advertises as such. An example of a well-known b-corp is Ben & Jerry’s, which became a b-corp in 2012.

Directors and officers in a traditional corporation have a fiduciary duty to make decisions that will maximize shareholder profit. As compared to a traditional corporation, the directors and officers of a b-corp may consider other interests of the corporation, in addition to the maximization of the corporation’s profits. The Benefit Corporations Act provides that directors and officers may consider the following interests when making decisions for the company: the impact on the corporation’s shareholders, the impact on the corporation’s employees and others associated with the corporation, the interests of the customers and related public benefits, community and societal factors, the environment, and short and long-term interests of the corporation. 

The Connecticut b-corp law is unique in one respect. The law contains a legacy provision, which the b-corp can adopt after two years of existence. The legacy provision provides that if the b-corp is dissolved, its assets must go to a charitable organization or other b-corps with a legacy provision. Connecticut is the first state to include the legacy provision within its b-corp laws.

For more information about benefit corporations or for assistance with the formation of a benefit corporation, please contact the experienced business lawyers of Brown, Paindiris & Scott, LLP.

Latest Developments in Trade Secret and Non-Compete Law

BPS law clerk and UConn Law student Melissa Lauretti was a guest blogger for Seyfarth Shaw's Trade Secret blog, TradeSecretsLaw.com. Check out her post about the latest developments in trade secret and non-compete law here.

Is Your Internet Service Provider Putting You at Risk?

Popular Internet Service Providers (ISPs) like Google, Dropbox and Yahoo regularly scan content that users upload to their servers. This content may include pictures, documents and even private emails. File encryption may not always prevent ISPs from scanning the information. While ISPs cannot scan encrypted files, unencrypted files later downloaded and stored on ISP may be scanned, effectively eliminating the private nature of the files.

Federal law addresses the use of ISP scanned information, specifically proscribing the circumstances under which this scanned information may be disclosed. For example, ISPs are required to report suspected child pornography to the National Center for Missing and Exploited Children.

State law, on the other hand, prescribes the consequences associated with online security breaches involving personal information. Connecticut General Statute Section 36a-701b defines a security breach as the unauthorized access to electronic files that contain personal information. State law requires certain business owners to report security breaches to the Connecticut Attorney General's Office.  The failure to report such a breach may be deemed an unfair trade practice in violation of the Connecticut Unfair Trade Practices Act (CUPTA).

This law can create significant implications for Connecticut business owners and other professionals who store personal and confidential client information on ISPs. At present time, there is insufficient precedent to determine a company’s liability associated with such a breach. Business owners and other professionals need to be aware of the potential implications associated with using these ISPs for storing customer information and use best practices to guard against unauthorized access both inside and outside their organizations.

Connecticut Seeks to Become Desirable Spot for Businesses to Register

For many reasons, major companies have traditionally chosen to register their businesses in Delaware. Delaware is highly regarded for having a comprehensive set of business laws and a skilled judicial system that is capable of adjudicating the most complex corporate law disputes. As a result, Delaware generates more than $850 million in corporate tax revenues every year.

An Act Concerning the Modernization of Connecticut Corporation Law is a new initiative signed into law by Governor Malloy on June 5, 2014. The purpose of this initiative is to develop ways to attract large businesses to register in Connecticut. The law requires the Chief Court Administrator to create a special court docket that will adjudicate only corporate law disputes. The law also authorizes the establishment of the Commission on Connecticut’s Leadership in Corporation and Business Law, which will be comprised of lawmakers, attorneys, and other governmental officials, who will discuss possible strategies and make recommendations.  Changes that the Commission could recommend include revisions to the Connecticut corporate statutes and making more accessible the corporate records held in the Secretary of State's office. The Commission will submit a 10 year action plan due to the legislature in October 2015.

For all of your business law questions, contact the experienced and knowledgeable business lawyers of Brown Paindiris & Scott.

Washington Redskins Trademarks Are Out of Bounds

          The federal government has cancelled six registered trademarks of the NFL team, the Washington Redskins. The cancelled marks include THE REDSKINS, WASHINGTON REDSKINS, REDSKINETTES, as well as various stylized logos.

                                                  

Five Native Americans brought suit with the United States Patent and Trademark Office to cancel the Redskins’s trademarks that were registered between 1967 and 1990 which used the term “REDSKINS” to identify football-related services. In a recent ruling, the Trademark Trial and Appeal Board cancelled the Washington Redskins’ trademark registrations and held that the “Redskins” name was disparaging to a substantial group of Native Americans at the time of registration and violated United States Trademark law, (15 U.S.C. §1052), which prohibits the federal protection of names that may disparage or bring into disrepute individuals or groups.

            The ruling will not require the Washington Redskins to change its team name, but it will limit the ways that the team can use the legal system to prevent others from using the Redskins trademarks. There are significant advantages associated with federal trademark registration. For example, federal trademark registration enables trademark owners to obtain exclusive rights to use their trademarks nationwide on or in connection with goods and services listed in their registrations and allows owners to recover actual damages, punitive damages, attorney’s fees, and injunctions if they prevail in trademark infringement litigation. Nevertheless, the Washington Redskins’s trademarks are still eligible for common law trademark protection, which means that the team may still use its trademarks in commerce and prevent others from using its marks for monetary gain without authorization.

            The Washington Redskins plan to appeal the ruling, and during the appeal process, the team is entitled to federal protection of its trademarks. Although the impact of the cancellation of the trademark registrations is still unclear, the individuals who filed the lawsuit may still claim this as a victory as one of the purposes of the suit was to draw attention to the use of the term “Redskins” in an attempt to persuade management to change the team’s name.

            The lawyers of Brown, Paindiris & Scott can help you to protect your intellectual property, register your trademarks, and defend against claims of infringement. For more information, visit our website or contact Attorney Regina von Gootkin.