16 April 2012

Denver Attorney Suspended From SCOTUS Bar

Today's Order List from the U.S. Supreme Court, in addition to one grant of a writ of certiori,* a few GVRs (grant, vacate and remand orders where an appellate court decision where a writ of certiori was granted in another case on the same issue is returned to the appellate court for reconsideration in light of the new U.S. Supreme Court precedent), and a mind numbing list of matters in which relief was denied, including this entry:

Robert T. McAllister, of Denver, Colorado, is suspended from
the practice of law in this Court and a rule will issue,
returnable within 40 days, requiring him to show cause why he
should not be disbarred from the practice of law in this Court.

Mr. MacAllister, a high profile criminal defense attorney, was disbarred based upon a stipulation reached in June of 2011 from Colorado's state court bar for converting client funds. He acknowledged converting the funds, most of which had been frozen pursuant to a court order. The news account suggests that he was excellent at his job as a criminal defense attorney, a career in which he had thirty years of experience, but succumbed to temptation after facing financial ruin from unrelated business deals gone bad in the wake of the financial crisis (the parallel case of Tom Martino's bankruptcy comes to mind).

Disbarment is pretty much an automatic consequence for that offense (indeed, disbarment is the norm even when client funds are intentionally borrowed and returned without the knowledge of the client and without harm to the client arising), absent the most extreme mitigating circumstances, or a complete lack of intent that is promptly correctly when discovered.

Each federal court has its own list of lawyers admitted to practice before it that is separate from that of the state courts which have primary responsibility for admission to the practice of law. Reciprocal discipline in on federal court jurisdiction based upon a state bar membership sanction is routine, but not instantaneous.

* See below.

Certiorari Granted On International Copyright Issue

The issue in the case where certiorari was granted, Kirtsaeng v. John Wiley & Sons, Inc. is:

How do Section 602(a)(1) of the Copyright Act, which prohibits the importation of a work without the authority of the copyright’s owner, and Section 109(a) of the Copyright Act, which allows the owner of a copy “lawfully made under this title” to sell or otherwise dispose of the copy without the copyright owner’s permission, apply to a copy that was made and legally acquired abroad and then imported into the United States?

FWIW, I suspect that the Supreme Court will hold that Section 602(a)(1) trumps Section 109(a). This was the holding the divided three judge panel in the Second Circuit, from this case was appealed held and the 9th Circuit has also previously held in Omega S.A. v. Costco Wholesale Corp., 541 F.3d 982 (9th Cir. 2008), aff'd by an evenly divided Court, Costco Wholesale Corp. v. Omega, S.A., ___ U.S. ___, 131 S.Ct. 565, 178 L.Ed.2d 470 (2010). The U.S. Supreme Court probably decided to grant certiori in the absence of the circuit split in this case because Justice Ginsberg specifically identified the fact pattern presented in this case as an open question in a concurring opinion in Quality King Distrib., Inc. v. L'anza Research Int'l Inc., 523 U.S. 135, 118 S.Ct. 1125 L.Ed.2d 254 (1998), which addressed similar issues. The somewhat unsettled state of U.S. law on this point has been used as a defense to willful infringement penalties for this kind of alleged copyright violation in other cases.

While I am a sharp critic of U.S. intellectual property laws in many respects, on the grounds that its protections are far too expansive, impairs free speech considerations, and should be based upon principles of unjust enrichment rather than the metaphor of property rights, this is not one of the rules of copyright law that is obviously broken. The holding of the 2nd and 9th Circuits appears to reflect Congressional intent in this situation. It is hard to imagine what other rule related to importation that Congress could have sensibly meant in this context.

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