November 2010 Archives

November 22, 2010

Lawyers, Clients, San Diego Congressman, Guilty Pleas in General....

Former San Diego Congressman Randy "Duke" Cunningham has the memory of so many convicted defendants: "I didn't do anything wrong, it was my lawyers' fault. His claims are reported in the San Diego Union.

His former lawyers no longer represent him. Not hard to figure out why. After all, why would they when they explained the facts of life to a defendant who was absolutely certain to be convicted of accepting bribes. The evidence had been fully developed by Union reporters year ago, and in terms of public opinion the evidence was so crystal clear that his only hope was a plea bargain. The lawyers "couldn't be reached for comment." In fact, they probably can't comment on their discussions with their former client without violating the attorney-client privilege.

Duke accepted expensive gifts from contractors who benefitted directly from his votes. He lived on the boat of one of them, nicknamed "The Duke Stir," obviously named for the congressman. Oh, yes, he lived there free. He sold his Del Mar house so far over market that it caught the reporters' attention - he was able to use the inflated proceeds to move to prestigious Rancho Santa Fe. The buyer of his Del Mar home later sold it for a huge loss at fair market value, even though the real estate market had seen increased prices between the two transactions.

Let the poor guy rot in prison. Who cares that the government seizes his pensions to pay the unpaid back taxes on the bribes he accepted? I don't feel any more sorry for him that for Bernie Madoff - to sides of the same coin.

Duke claims he got sucked in because he couldn't say "No." The evidence shows that he solicited bribes because he deserved them. He was an arrogant bastard throughout his military and political careers, and now has gotten justice. He won't testify in accordance with his prior statements against one of the persons charged with having participated in his schemes - I assume he expects that person to rescue him financially for his newfound fidelity to his friend [more fidelity than he felt for the voters he represented.

November 3, 2010

Divorce, Appraisals, and Home Inspections...

A major issue in most of my divorce cases is the value of the family residence. Yes, even in this market there may be equity. The value is affected by the condition of the home, which is often a source of litigation. Usually, there is no home inspection to provide an objective view of the homes defects.

What family law lawyers call the "In Spouse" is the person most likely to end up with the residence; that party generally wants it cheap. The "Out Spouse" wants it dear - often he [or she] is getting a business or other assets offsetting the equity in the home. Sometimes the In Spouse simply has greater resources [separate property funds or family help, for example], and can afford to keep the house. The Out Spouse is often not in the running financially, so he [or she] wants a high value or the property sold for the maximum.

As you can expect, when asserting a value, to the In Spouse the house is a shack; to the former mate, it is a pristine palace. We see these arguments passed back and forth going back to the beginning of real estate. Usually, they are just arguments.

In San Diego, most of our judges want a neutral real estate appraiser, and we choose from a short list of the usual suspects to go to the home and ignore what each party says is good or bad about the house. The real estate appraiser we choose should have a lot of experience in divorce cases, so often does not put much stock in the claims of either side.

This is where a home inspection can help. There was a recent New York Times article on this subject.

Continue reading "Divorce, Appraisals, and Home Inspections..." »

November 1, 2010

Financial Problems, Divorce & Dementia

Over the weekend, an interesting article appeared in the New York Times relating to divorce, Alzheimer's, and financial problems.

The story begins with a sad story of a successful lawyer who simply lost track of his finances. His wife learned of the problem when she received a call from their homeowners' association to the effect that their dues were not being paid. He had also stopped writing checks to other creditors, and when she hired a forensic accountant to find their money learned that most of it had "just disappeared."

The article is part of a series on dementia, and points out that difficulty understanding finances, money and credit, is on of the first signs of the problem.

While a person may have sufficient capacity that no one will intervene, the unfortunate part is that they may no longer have the ability to make sound financial decisions. The American Bar Association has published guidelines for lawyers in this area. Unfortunately, in the divorce setting, the consensus seems to be that the lawyer who sees the problem cannot move to have a conservator appointed for his own client, and may not even be able to warn others of what he sees.