Wisconsin is the latest state to enact legislation authorizing powers of attorney for temporary delegation of parental authority.  Traditional legal solutions for empowering another person to care for one’s children involve petitioning the court for guardianship or for out-of-home placement through social services.  Parents not willing to go to such extremes might simply place children in the care of a relative or other trusted person, but this may present problems if health care or educational decisions must be made on behalf of the child.

Parents may have a variety of reasons for wishing to temporarily delegate parental authority.  A military parent may wish to execute such a power of attorney while on deployment.  Or a power of attorney may be used to manage the care of a child who is living away from home for school or while engaging in activities such as athletic training and competition. 

Where a child is at risk, however, a parental power of attorney may not be used to avoid protective services.  And many parental powers cannot be delegated under the power of attorney provision, such as the parent’s right to consent to marriage of a minor child, or to consent to military enrollment.  Neither can it be used to voluntarily place the child in foster care without the parent’s consent.

A number of states have similar parental power of attorney provisions in place, with some variation state to state.  For example, Ohio law provides for a Grandparent Power of Attorney (Ohio Rev. Code Ann. § 3109.52), specifying that the person caring for the child must be a grandparent, while the person delegating the authority can be a “parent, guardian, or custodian.” 

RESEARCH REFERENCES

To look for similar laws in other jurisdictions, on WestlawNext try a search in statutes for parental power of attorney.  On Westlaw.com, try “power of attorney” /s parent child.  If you’d like to see a more comprehensive list, you can also check the 50 State Survey for Indemnification, Conservator, and Guardianship Issues (on Westlaw), which includes listings for delegation of parental powers where available.

The recent debate between Republican presidential candidates produced a number of contentious moments, but none more so than Rep. Michelle Bachman’s rebuke of Texas governor Rick Perry’s 2007 Executive Order RP 65  (later rescinded by RP 74 )  requiring pre-teen girls to be vaccinated for the Human Papillomavirus (HPV).  Issues of public health and parents’ rights, morality and constitutionality, ethics and politics have all collided over this vaccine, and the debate will likely only intensify.

 With that in mind, I thought it would be interesting to see how many times this vaccine has been referenced in recent state executive orders, statutes, regulations and pending legislation.  On WestlawNext, I started with the following search in Netscan Executive Orders:

      h.p.v. human-papilloma! & vaccin!

It produced only one result, an executive order from Louisiana Gov. Bobby Jindal directing the creation of abstinence and HPV vaccine awareness programs. Coverage for Netscan Executive Orders dates back to 2008, so Perry’s 2007 EO does not appear.  But, the same query in Texas’ Historical Session Laws did provide a link to Gov. Perry’s response to the Texas legislature’s rebuke of his Executive Order.  See, TX Gov. Mess., 5/8/2007 at TX LEGIS 43 (2007)).

Next, I selected All State materials, and ran the same query.  At the time of this writing, the search produced 51 statutes, 27 regulations, 270 bills and session laws and 155 proposed and recently adopted regulations. Only 4 cases were retrieved with the search.

For some of the most robust results, I selected Secondary Sources for a list of 379 articles, including “Assessing Mandatory HPV Vaccination: Who Should Call the Shots?” from the Journal of Law, Medicine and Ethics.

For some of the most robust results, I selected Secondary Sources for a list of 379 articles, including “Assessing Mandatory HPV Vaccination: Who Should Call the Shots?” from the Journal of Law, Medicine and Ethics.

Over 2,285 results were produced in News sources on WestlawNext, over half of them published in the last 90 days.

It has been in the news for some time now that the United States Postal Office (USPO) is struggling to stay afloat. Given the financial struggles of our Post Office and the imminent likelihood of thousands of jobs being eliminated, will the legal community’s presumption of reliability of the postal service continue to be prudent? Or are we going to have to update some of these well grounded legal principles?

My concern with the struggles of the USPO is that both statutory and common law place a great deal of faith in the reliability of the postal service and many of our legal rights, obligations, and procedural rules are based on a presumption of reliability of the postal service. A Connecticut court held that, “’[the] mailbox rule,’ a general principle of contract law, provides that a properly stamped and addressed letter that is placed into a mailbox or handed over to the United States Postal Service raises a rebuttable presumption that it will be received.” Butts v. Bysiewicz, 5 A.3d 932.  In a recent Western District of Pennsylvania case, “The Court notes that under the common-law mailbox rule, ‘[i]f a document is properly mailed, the court will presume the United States Postal Service delivered the document to the addressee in the usual time,” i.e., three business days. In another case, the Ninth Circuit Court of Appeals stated that, “Section 7502 of the Internal Revenue Code and its accompanying regulation 26 C.F.R. § 301.7502-1(a) provide that if the envelope containing the petition has a United States Post Office postmark date which falls within the ninety-day period, the petition is deemed timely filed, even if actually received after that period.” Marquardt v. C.I.R., 9 F.3d 1552. In another case the Tenth Circuit stated that, “[m]ark of private delivery service would not be treated as United States Postmark, when determining whether taxpayer’s petition for redetermination of income tax deficiencies was timely, where petition had been mailed via certified mail.” Gibson v. C.I.R., 264 Fed.Appx. 760. The Federal Rules of Civil Procedure also rely on the USPO. A District of Colorado Court held that, “Service by mail is proper and is deemed completed upon mailing. Rule 5(b), Fed.R.Civ.P.”, Lash v. City of Trinidad, 2006 WL 3054305.

From a research perspective, you may find the following Westlaw Next searches useful:

Content set: All states and all federal, MAIL-BOX-RULE /S U.S. UNITED-STATES /5 POST!

USCA: SD(U.S. UNITED-STATES /2 MAIL! POST-BOX POST-OFFICE POSTAL)

News: DA(after 8/2011) & (U.S. UNITED-STATES /2 POST!) U.S.P.O. /50 STRUGG! DEFAUL! BANKRUPT! AFLOAT LAY-OFF (ELIMINAT! /5 JOB POSITION)

Other References

KeyNumbers:  Topic 378 is time.  Mailbox Rule Keynumber is 378k8.5.  Sundays and Nonjudicial Days is 378k10.

The US-RULESCOMM database contains documents released by the five advisory committees to the Judicial Conference of the United States.  Try these Westclips

(U.S. UNITED-STATES /5 POST! MAIL) U.S.P.O. or

(U.S. UNITED-STATES /5 POST! MAIL) (U.P.S. /5 MAIL! PARCEL) (PRIVAT! /7 MAIL COURIER PARCEL) U.S.P.O. FEDERAL-EXPRESS UNITED-PARCEL-SERVICE GLOBAL-MAIL AIRBORNE

Space shuttle Atlantis lifted off on July 8, 2011 from Cape Canaveral for a flight that lasted twelve days with four astronauts on board and made its last landing back in Florida on July 21, 2011. With this, the final flight of National Aeronautics and Space Administration’s (NASA) shuttle program, Americans and people world over are left wondering about the uncertain future of US space exploration and the Space Agency itself.

The Federal Register, FR, is a great resource on Westlaw to track the workings of various Federal Agencies including NASA. This database contains documents from the Federal Register. A document is a Rule or Regulation, a Proposed Rule, an Agenda appearing in the Unified Agenda, a Notice, an Executive Order, or a Presidential Proclamation. The Unified Agenda is a compilation of the agendas set by federal agencies that is published in April and October of each year. Each agenda includes regulations being developed for publication in the next year, regulations to be reviewed in the upcoming year, and regulatory activity completed in the past year.

To research NASA’s Unified Agendas, for example, try a search such as PR(“UNIFIED AGENDA” & N.A.S.A. “NATIONAL AERONAUTICS AND SPACE ADMINISTRATION”) in the FR database.

To particularly track what information NASA may be publishing regarding the future of space exploration or the space shuttle, create a WestClip in the Alert Center on Westlaw with a search such as PR(N.A.S.A. “NATIONAL AERONAUTICS AND SPACE ADMINISTRATION”) & (SPACE /5 EXPLOR!) SHUTTLE in the FR database.

Researchers interested in NASA regulations can find them in the Code of Federal Regulations, the CFR. You can try a search such as PR(TITLE /2 14 & CHAPTER /2 V & “NATIONAL AERONAUTICS AND SPACE ADMINISTRATION”)

On July 21, 2011, NASA Administrator Charles Bolden issued a statement about the final landing, “The future is bright for human spaceflight and for NASA. American ingenuity is alive and well. And it will fire up our economy and help us win the future, but only if we dream big and imagine endless possibilities. That future begins today.” You can view the statement at: 7/21/11 PRWIRE 10:34:00.

Minnesota, where the Reference Attorneys are located and where many of us have practiced, currently allows for the retainer of a lawyer by means of a nonrefundable retainer fee.  In fact, here in Minnesota it’s not uncommon for solo practitioners, particularly those practicing in areas such as criminal defense or estate planning, to use such retainer agreements almost exclusively.  Under the current writing of Minnesota Rules of Professional Conduct Rule 1.5:

All agreements for the advance payment of nonrefundable fees to secure a lawyer’s availability for a specific period of time or a specific service shall be reasonable in amount and clearly communicated in a writing signed by the client.

There is no requirement that the fee be held in a trust account, and if the client terminates the representation, often times that means forfeiture of the retainer as well.

Minnesota seems on par with other states in this respect.  See, e.g., In re Connelly (2002) 203 Ariz. 413, 55 P.3d 756 (Ariz. 2002) (stating because a non-refundable flat fee reflects a balancing of the risk to both client and lawyer, a flat fee can be larger than the fee generated by hourly rates without being excessive under the rules of professional conduct under Ariz. R. Prof. Cond. Rule 1.5); FL ST BAR Rule 4-1.5.  But see, CO ST RPC Rule 1.5 (“Nonrefundable fees and nonrefundable retainers are prohibited.”) (effective July 1, 2011); In re Stephens, 2006, 851 N.E.2d 1256  (Ind. 2006) (holding nonrefundable retainer provision of attorney’s malpractice employment agreement with client violated rule of professional conduct requiring that a lawyer’s fee be reasonable, as it locked client to attorney, thereby chilling client’s right to terminate the representation under Ind. R. Prof. Cond. Rule 1.5).

However the Minnesota Supreme Court recently opted to change language of Rule 1.5.  Under the new wording:

A lawyer may charge a flat fee for specified legal services, which constitutes complete payment for those services and may be paid in whole or in part in advance of the lawyer providing the services. If agreed to in advance in a written fee agreement signed by the client, a flat fee shall be considered to be the lawyer’s property upon payment of the fee, subject to refund as described in Rule 1.5(b)(3). Such a written fee agreement shall notify the client: (i) of the nature and scope of the services to be provided; (ii) of the total amount of the fee and the terms of payment; (iii) that the fee will not be held in a trust account until earned; (iv) that the client has the right to terminate the client-lawyer relationship; and

(v) that the client will be entitled to a refund of all or a portion of the fee if the agreed-upon legal services are not provided. . . . .

(3) Fee agreements may not describe any fee as nonrefundable or earned upon receipt but may describe the advance fee payment as the lawyer’s property subject to refund. Whenever a client has paid a flat fee . . . and the lawyer-client relationship is terminated before the fee is fully earned, the lawyer shall refund to the client the unearned portion of the fee. If a client disputes the amount of the fee that has been earned, the lawyer shall take reasonable and prompt action to resolve the dispute.

Minn. R. Prof. Cond. 1.5(b)(1) (effective July 1, 2011) as amended by MN ORDER 11-0005.

While not prohibiting nonrefundable language as expressly as Colorado, one can’t help but wonder if the de facto application of this amendment will have the same result. 

Under the new language of the rule, the nonrefundable fee is considered “the lawyer’s property subject to refund.”  The lawyer must return the unearned portion of the fee to the client if the relationship is terminated prior to the fee being fully earned.  This is where things get tricky…

How exactly does one know when a fee has been fully earned?  A typical flat-fee retainer would state a dollar amount for services to be performed, but not necessarily an hourly rate by which that would be computed.  Seemingly, though, such an hourly arrangement would be the only way to determine if the attorney has earned the fee on a quantum meruit basis upon termination of the relationship. 

As an illustration, if an attorney were to charge a flat, nonrefundable $2,000 retainer to represent a client in connection with a first-offense DWI, go into court for the initial appearance, get an offer for a diversionary program, and help his client enter a plea that day.  How would that attorney be able to establish a right to the full amount of the retainer if no hourly amount had been agreed upon for the purposes of such calculation?  And if that is the method of choice for the determination, is that not a de facto hourly retainer agreement, but with a cap on the amount the attorney can earn in the event the case proceeds to trial?

And then comes the issue of the impact on the lawyer’s accounting practices.  Presumably many attorneys working on flat-fee arrangements treated a nonrefundable retainer as money in the bank.  Literally.  But now, as the rule specifies that it is the lawyer’s property subject to refund, would the prudent lawyer put the money in trust so as to avoid an accounting headache should a refund be necessary?  Moreover, does the typical solo attorney used to working on flat fees have the facilities or business practices to track when a fee is earned so as to keep track of refunds?

Certainly this amendment to the rule raises some questions.  It will be interesting to see how this plays out over the next few years as attorneys adapt.

Additional Research References:

In response to our post on Regulation Identifier Numbers (RINs), a law librarian called to remind us that our warning related to searching by RINs and Docket numbers applies equally to the regulations.gov site.  She noted that,  “One of the many problems with the site is the lack of coordination over details such as the language in the Register that should tell folks to use the docket number or the RIN to locate the actual docket in Regulations.gov.”

 We also discussed one important note:  the availability of public comments.  Public comments are regularly requested by our customers.  Typically, we’ll refer customers to one of just two databases on Westlaw:

FTX-PUBCOMM: The FTX-PUBCOM database contains Public Comment Letters. The IRS solicits comments from the public on new or changed proposed regulations, on released Chief Counsel Notices, or on released Revenue Procedures, et al.

FSEC-MISC:  Federal Securities Exchange Commission – Miscellaneous Documents has Publicly Available Telephone Interpretations, Comments filed on proposed rule, concept or interpretive release, and policy statements.

We’ll also note that the agency often comments on submitted comments within the Federal Register.  See, for example 65 FR 38510-01.

Comment 6: Two comments indicated that the presence of some structure should not prevent the invocation of the provisions of 35 U.S.C. 112, 6. The commentors suggested that the third prong of the 3-prong analysis be modified to read that “the phrase ‘means for’ or ‘step for’ must not be modified by sufficient structure, material, or acts for achieving the claimed function,” citing Seal-Flex, Inc. v. Athletic Track and Court Constr., 172 F.3d 836, 50 USPQ2d 1225 (Fed. Cir. 1999), and Unidynamics Corp. v. Automatic Prod. Int’l, 157 F.3d 1311, 48 USPQ2d 1099 (Fed. Cir. 1998).

What may have been overlooked was  the comments section of Regulations.com where comments for a number of participating agencies might be read and submitted. 

Again, with the caveats… Not all agencies participate in the program.  According to regulations.gov FAQ’s

A Non Participating agency is a federal agency that publishes federal registers on Regulations.gov and in some cases receives comments through the website. Because these agencies do not participate in the program, the submitted comments are not visible through Regulations.gov. In order to view these comments, users should contact the agency directly. In order to find the contact, reference the section in the Federal Register entitled “For further information contact.”

 Finally, our caller also recommended the ABA Report to Congress and the President from the Committee on the Status and Future of Federal e-Rulemaking (pdf).

The Regulatory Information Service Center (RISC) assigns RINs to each regulatory action as directed by Execuitive Order 12866.  See section 4(b).  Also, the Office of Management and Budget asked agencies to include RINs in the headings of their Proposed Rule documents when publishing them to the Federal Register.  So, RINs make excellent search terms for tracking history of a rule.  For example, our patent practitioner readers will recall that the USPTO attempted to change rules related to continuation practice a few years ago until the Eastern District of Virginia stepped in (511 F. Supp. 2d 652).  To review the history of those proposed regs, try this in the FR:

Westlaw: 0651-AB93 0651-AB94

WestlawNext: advanced: 0651-AB93 0651-AB94

Here’s a break down of what these numbers mean.  The RIN consists of a 4-digit agency code (0651 for the USPTO) plus a 4-character alphanumeric code.  When an agency needs a RIN for a rulemaking, they contact the RISC.  RISC assigns a number where the first four digits are the agency number and then the next a unique four digit code. The first 4-digit RIN code that can be assigned  is AA00, the second is AA01 and so forth until you get to AA99.  After that, numbering begins at AB01, AB02, etc. 

Often we’ll search for the name of the agency (e.g. pr(patent /3 office)).  But, knowing the agency code might streamline this process and sophisticate your alerts.  Check out the list of agency and department agency codes RISC provided us last week:

AgenciesAndSubAgencies (pdf)

List of Agency Codes (xls)

But, there’s one important caveat.  We tested a number of queries and noticed a number of ‘missing’ RINs.  What the heck?  RISC wrote us,

Using the RIN to research rulemaking documents in the Federal Register can be helpful, but it will not be a perfect process.  Many agencies do not put the RIN on the document published in the Federal Register and sometimes print a document with the wrong RIN.  Therefore, you may get some desirable results from such research, but with lots of potential for error.  There has been an effort for years to get agencies to publish their documents with the RIN, but they do not always obtain a RIN for documents until later when they send one to OMB for review or report published actions to a rulemaking in the Unified Agenda.

*Contributors to this post include Reference Attorneys Judy F., Dan P.

On April 28th, 2010 the Supreme Court recommended changes to the Federal Rules of Civil Procedure. The Rules Update Order can be found at  2010 US ORDER 27. The changes went into effect December 1st, 2010.  Rules 8 (affirmative defenses), 26 (experts), 56 (summary judgment), and Form 52 of the Federal Rules of Civil Procedure were affected by the amendments. The amended versions are available on Westlaw, where you will also find the Advisory Committee Notes (locate within any of the four rules to: “2010 Amendments”)

Reference Attorneys have been swapping references which outline these amendments.  Here are a few favorites:

At the Rule: As noted above, find the heading for  “2010 amendments” within the rules.  Here you’ll find an in depth overview of changes made to each section.

821 PLI/Lit 517: Development in Federal Civil E-Discovery Pracitce, Current Issues in International Discovery and changes to the Federal Ruels of Civil Procedure, William R. Maguire of Hughes Hubbard & Reed LLP

89-NOV Mich. B.J. 22: 2010 Amendments to the Federal Rules, Thaddeus E. Morgan, Mark W. McInerney

[Editors thank Kirstin Keel, Scott Hamel, and Amy Albus for keeping us up to speed on this issue.]

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Saudis urging the U.S. to attack Iran.  Another Royal scandal.  Hillary Clinton ordering her diplomats to spy…

The Wikileaks saga continues with the latest “dumping” of over 250,000 diplomatic cables.  The fallout – and its impact on the individuals caught up in these missives – will be immeasurable.

The fallout for one individual though is fairly certain: Private First Class Bradley Manning.

Pfc. Manning is the U.S. military member allegedly responsible for illegally downloading these and other classified files (onto a CD-rom disguised as a Lady Gaga album) and making them available to Wikileaks.org.

Pfc. Manning. 23, is currently detained and awaiting court martial for his role in these leaks.  He stands charged with “transferring classified data” and “delivering national defense information to an unauthorized source.” He faces 52 years in jail if found guilty.

RESEARCH REFERENCES

The Uniform Code of Military Justice can be found on Westlaw searching in FMIL-USCA.  Search for pr(“uniform code of military justice”).  A natural language search of “leaking information” in Shanor and Hogue’s National Security and Military Law in a Nutshell (NSMILLAW-NS) retrieves 17 articles.  A broader plain language search through all secondary sources on WestlawNext for the phrase “leaking classified military information” results in 125 documents – including articles entitled Prosecuting the Press:  Criminal Liability for the Act of Publishing and The Classified Information Protection Act:  Killing the Messenger of Killing the Message?

According to the New York Times, Manning once wrote, “I wouldn’t mind going to prison for the rest of my life, or being executed so much if it wasn’t for the possibility of having pictures of me plastered all over the world press.” Given these words, perhaps it is safe to assume he understood the life-altering implications of his alleged actions.

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It appears that Minnesota voters are in for another recount.  The state gubernatorial election ended with the two leading vote-getters, Mark Dayton and Tom Emmer, separated by less than one-half of one percent. If the percentage remains less than one-half of one percent following certification by the State Canvassing Board, an automatic recount pursuant to Minnesota Statute § 204C.35 is triggered.  The last state-wide automatic recount came in 2008, when the battle between Senator Al Franken and former Senator Norm Coleman for a seat in the U.S. Senate did not end until nearly eight months after the election.

Being a Minnesota resident, the existence of this automatic recount statute was not news to me.  And, it’s not an uncommon research issue. So, my colleagues and I began to search for a 50-state survey.  The easiest place to look is the 50 State Surveys (SURVEYS) database, but we didn’t find a survey.  We did locate the Citizens for Election Integrity Minnesota (CEIM) website.  The nonprofit was formed after the 2004 election:

We were troubled by reports of electronic voting problems, the disenfranchisement of minority voters, discarded ballots and other voting irregularities. Our initial focus was supporting the Ohio recount to which we sent nine observers from Minnesota.

The site has a searchable database for recount laws.  We sorted for Initiating Method by Close Vote Margain and voila!  We found the CEIM very helpful and they appear to be doing great work but we did supplement with a few Westlaw queries including :

Texts and Periodicals: TP-ALL

Query: automatic! mandat! compulsory necess! requir! /5 re-count! /p percent!

Combined Statutes Annotated: ST-ANN-ALL

Query: AUTOMATIC! MANDAT! COMPULSORY NECESS! REQUIR! SHALL /10 RE-COUNT! & PERCENT!.

50-STATE SURVEY and WESTCHECK REPORT

We also considered the status of the exsisting statutes.  In the short time we had, we generated a 50-state survey and ran it through BriefTools (inserts Westlaw links and KeyCite flags):

Automatic Recounts (pdf)

Several statutes had pending or new legislation.  So,  we ran a WestCheck report which lists the proposed/adopted legislation:

Westcheck Report for Auto-Recount Stats (pdf)

Disclaimer: We believe these reports are complete.  They are fun for us to produce. But, we constructed them during our busy day-jobs.  These reports did not get the rigorous editiorial review the documents in the SURVEYS and REG-SURVEYS enjoy.

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