Archives for September 2012

What is Jury Nullification?

Jury nullification generally refers to a jury’s decision to acquit a defendant even though the jurors believe the accused to be factually guilty of the crime.  Reasons include sympathy with the accused or distaste for the particular law being enforced.

Earlier this month, a Belknap County Superior Court Jury unanimously acquitted Doug Darrell, a 59-year-old Rastafarian charged with marijuana cultivation, after his lawyer, Mark Sisti, argued that a conviction would be unjust in light of the fact that Darrell was growing cannabis for his own religious and medicinal use.

It’s a legal concept known as jury nullification, a power that experts say has resided in the U.S. Constitution since the nation began but is rarely applied in modern courtrooms.

And it’s the basis for a new state law that permits the defense in all criminal cases “to inform the jury of its right to judge the facts and the application of the law in relation to the facts in controversy.”

Chuck Temple is a professor at the University of New Hampshire School of Law, where he is director of the criminal practice clinic. In his 27 years of practice, he said, he has always asked judges to instruct juries about nullification — but has never had a judge do so.

Temple said the new law, which takes effect Jan. 1, “changes the landscape of how criminal cases will be argued.”

Before, he said, “in the vast majority of criminal cases, there would be no arguments regarding jury nullification. … Now, it’s going to be an everyday occurrence in criminal jury trials.”

Read the entire story by Shawne E. Wickham of the NH Sunday News.

Are you a suspect in a criminal investigation?  The time to obtain the advice of an attorney is before you are arrested.  The Lawyer Referral Service of the New Hampshire Bar Association can refer you to competent and experienced criminal law attorneys who have achieved specific education and experience standards with felony cases.   Call 603-229-0002 or request a referral online.

 

Mortgage Settlement Fund Applications to be Mailed

PRESS RELEASE

Released by: Michael A. Delaney, Attorney General
Subject: Mortgage Settlement Fund applications to be mailed soon to New Hampshire residents
Date: September 19, 2012
Release Time: Immediate
Contact: James T. Boffetti, Senior Assistant Attorney General
Consumer Protection and Antitrust Bureau
(603) 271-0302

Attorney General Michael A. Delaney announces that approximately 7,600 New Hampshire residents who lost their primary residence due an improper foreclosure process between January 1, 2008 and December 31, 2011 should expect to receive notice by mail with important information about how to file a claim for funds under the National Mortgage Settlement. Attorney General Delaney encourages every eligible New Hampshire citizen to apply.

These funds are part of national mortgage settlement between 49 states and the five largest national banks. The amount of individual payments will depend on the number of people who file a claim and payments are likely to be in the range of $1,200 and $1,500 per borrower.

The foreclosure must involve one of the following five banks:

– Bank of America
– Citi
– Wells Fargo
– JP Morgan Chase
– Ally/GMAC

The deadline for filing a claim is January 18, 2013.

Notices are scheduled to be mailed beginning September 24, 2012.

If you think you might qualify and did not receive a form in the mail, please call 1-866-430-8358. For more information, go to www.nationalmortgagesettlement.com.

You can also call the Attorney General’s Mortgage Hotline at 1-866-522-4450.

This settlement is in addition to a separate Independent Mortgage Foreclosure Review Program being conducted by federal authorities. That program involves many more banks and a shorter time period [2009-2010]. If that review finds financial injury occurred as a result of bank misconduct, the borrower may receive remediation such as lump-sum payments, suspension or rescission of a foreclosure, a loan modification or other loss mitigation assistance, correction of credit reports, or correction of deficiency amounts and records. Lump-sum payments under that program can range from $500 to, in the most egregious cases, $125,000 plus equity.

The Request for Review Form for the federal program can be completed online at www.independentforeclosurereview.com.

Those forms must be submitted by December 31, 2012.

New Hampshire homeowners are encouraged to explore both of these options. For more information, please call the Attorney General’s Mortgage Hotline at 1-866-522-4450.

Foreclosure Sign

NH Lawyers Setting Things Right for Wronged Clients

In New Hampshire, what happens when a lawyer acts unethically and harms clients financially?  The rest of the legal profession rallies to provide a measure of relief to the victims and help restore faith in the legal system through the Public Protection Fund.

“There is no other profession that I am aware of anywhere… that has anything like this,” says Kevin Collimore of CullenCollimore, who recently stepped down as chair of the NHBA’s Public Protection Fund Committee. “When one steals from somebody, all of the others get together and compensate them.” The Public Protection Fund, established in 1998 by Supreme Court Rule 55, is supported by a mandatory court fee. The PPF is administered by a nine-member Bar Association committee, under the oversight of the Supreme Court.

The PPF recently experienced its biggest influx of claims against one attorney in its history, following the suspension in December 2010 of former Exeter bankruptcy attorney Brian McCaffrey, an attorney in NH since 1978.

By many accounts, McCaffrey was seen as an upstanding and friendly local guy. But after a complaint was filed, the New Hampshire Attorney Discipline Office launched an investigation that revealed that in scores of cases, fees for bankruptcy filings had been collected, but little or no legal work had been done, according to the ADO. It alleges that funds placed in client trust funds were mishandled. McCaffrey was suspended on an emergency basis.

The ADO turned over files for approximately 300 clients to attorney Philip Pettis, of the Boynton and Waldron firm in Portsmouth, who was appointed by the court to review the files and notify clients about McCaffrey’s suspension.

“I was just in a position to answer their questions and help them either transition to a new attorney or help them understand how to handle their case on their own,” Pettis said. “In many cases, I had to assure the client that I, the ADO, and other lawyers would do everything we could to help them address any pending issues with their cases or transition to a new attorney.” (See related story about how attorneys rallied to help many of McCaffrey’s former clients.)

Pettis also informed the affected clients about the Public Protection Fund and the opportunity to recoup the money they had paid to McCaffrey. The clients couldn’t claim against McCaffrey’s professional liability insurance, because he stopped paying on the policy around the time of his suspension. While some chose not to file claims with the PPF or didn’t meet the statutory deadline, 94 clients filed claims that averaged about $1,500 each. Many of the claimants were particularly vulnerable, relying on Social Security income, some suffering with disabilities or in the midst of a divorce. Members of the PPF committee, which included Kevin Collimore, Thomas Irwin, Keith Diaz, and Thomas Quarles, who recently moved from vice chair to chair, investigated and/or voted on each claim. Also, the late Roland Morneau, a longtime member of the committee, assisted in reviewing many claims before his retirement from the committee last year. The committee also includes public members Jay Haines and Sandra Keans, a longtime member of the NH House of Representatives, who voted on the claims. Because of the extraordinary workload, the committee sometimes operated remotely using a secure online spreadsheet, via technology supported by the NHBA, to track the progress of the many claims.

Some of the claims were rejected, because there was no proof of wrongdoing, but the majority of them were approved. In all, 81 claims totaling $120,000 were paid to former clients of McCaffrey. Most of the claims were investigated, approved and paid within six months.

This was only possible because of a new claims process for PPF claims of less than $2,500 that the New Hampshire Supreme Court approved not long before McCaffrey’s suspension.

Read the entire story by Kristen Senz of the New Hampshire Bar Association.

There are several option available if a client believes his/her attorney has done wrong.  Sometimes the issue can be a simple misunderstanding and a lack of communication between the client and the attorney.   Sometimes attorneys do make mistakes, in which case filing a claim against his or her malpractice insurance may protect the client (IF they have insurance!).  In the rare instance that an attorney defrauds a client, the Public Protection Fund is a safety net.

The Lawyer Referral Service of the New Hampshire Bar Association can help with a referral to a competent attorney who specifically handles Legal Malpractice.  All LRS attorneys are required to carry malpractice insurance.   A consultation with an attorney may be all you need to determine which option makes the most sense for your particular circumstances.  Call 603-229-0002 or request a referral online.

NH’s New Voter ID Law

Photo by Theresa Thompson

From the NH Secretary of State’s Office:

During the 2012 legislative session the legislature passed House Bill 1354, also known as the “Voter ID” Law. The new law will phase-in a photo identification requirement over a period of time.

This explanatory document is required under the “Voter ID” law as part of the process of educating the public about the law’s requirements and application and outlines the law’s requirements for 2012.

What type of photo ID will I need in order to vote?
For any election before Sept. 1, 2013, you will be asked to provide one of the following: Driver’s license issued by any state (even if expired); ID card issued by NH DMV (Division of Motor Vehicles); U.S. Armed Services ID card; U.S. Passport (even if expired); Valid photo ID card issued by either the federal government or a state, county or municipal government; Valid student ID card Other photo ID deemed legitimate by the supervisors of the checklist, the moderator, or the clerk; or Verification of identity by a supervisor of the checklist, the moderator or the clerk.

What if I do not have an approved photo ID?
Before November 1, 2012, any voter who does not present an approved photo ID will be informed of the new law and permitted to vote.  Between November 1, 2012 and September 1, 2013, any voter who does not present an approved photo ID will be permitted to vote after executing a “challenged voter affidavit.”

A voter who does not have an approved photo ID may obtain a free photo ID for voting purposes only by presenting a voucher from their town/city clerk or the Secretary of State to any NH DMV office that issues identification.

Is there any post-election action required by me after I vote without an approved photo ID?
After November 1, 2012, if you filled out a “challenged voter affidavit” in order to vote on Election Day, you will receive a verification letter from the Secretary of State, requesting confirmation that you voted in the election. If you do not respond in writing to the Secretary of State within 90 days of the date it was mailed, the Attorney General will conduct an investigation to determine whether fraudulent voting occurred.

Where can I get more information?  Your city or town clerk or the Secretary of State

Who Inherits Your Digital Library?

Photo by Amit Agarwal

Quentin Fottrell reports in The Wall Street Journal’s Market Watch, on what happens to your digital library of books and music when you die.

Many of us will accumulate vast libraries of digital books and music over the course of our lifetimes. But when we die, our collections of words and music may expire with us.

Someone who owned 10,000 hardcover books and the same number of vinyl records could bequeath them to descendants, but legal experts say passing on iTunes and Kindle libraries would be much more complicated.

And one’s heirs stand to lose huge sums of money. “I find it hard to imagine a situation where a family would be OK with losing a collection of 10,000 books and songs,” says Evan Carroll, co-author of “Your Digital Afterlife.” “Legally dividing one account among several heirs would also be extremely difficult.”

Read the entire article.

The Lawyer Referral Service of the NH Bar Association can refer you to attorneys who can advise you on matters pertaining to wills and estates.  Call 603-229-0002 or request a referral online.