Welcome Kristin Fernandez!

In this week's post, we learn some “fast facts” about new council member Kristin Fernandez, who represents District II. We’re glad to have Kristin on SBM Council!

Where are you currently employed? Collins Einhorn & Farrell, P.C.

Where did you attend law school? Detroit Mercy Law.

What objectives/goals do you have related to your new position as Council Member? Assist in YLS council programming to reach the goals of the council.

Tell us your favorite thing about your geographic region in Michigan: Opportunity for outdoor activities, all year round!

Why did you choose to pursue a legal career? To serve as an advocate and protect the rights of others.

What is one (or two) pieces of advice you wish you knew when you were starting your legal career that you know now? As an attorney, you will always have a never-ending list of tasks to complete. I have learned that it is best not to worry about checking off all the items on the ever-growing list and instead - prioritize and set goals to feel accomplished at the end of each day.

What is the best part of your job? Advocating on behalf of my clients. 

What do you like to do in your spare time (i.e. hobbies and interests)? Walking my dogs, yoga, spending time with my husband and family.

If you could have one superpower, what would it be? Being able to fly (who wouldn’t).

If you could have lunch with any person, living or dead, who would it be? Why? RGB, she was an absolute champion for equal rights (my hero).

Updates with the Administrative and Regulatory Law Section & YLS

On December 2, 2020, the Young Lawyers Section co-sponsored a Zoom-based webinar with the Administrative and Regulatory Law Section on presenting cases before administrative law judges. The event featured the Director of the Michigan Office of Administrative Hearings and Rules (MOAHR), Suzanne Sonneborn as well as three administrative law judges: Adam Purnell from MOAHR’s General Adjudication area, Corey Arendt from MOAHR’s Benefits Services area, and Raman Buttar from MOAHR’s Unemployment Appeals area. Over 150 attorneys from private practice, government, and academia attended the event.

The topics of discussion were as diverse as the practice of administrative law itself and covered everything from pre-hearing conferences, the relaxed rules of evidence, to the recent challenges presented by conducting remote hearings. Throughout the presentation all the presenters stressed the importance of maintaining civility and collegiality even while zealously representing a client’s interest. Given the large array of topics covered in administrative hearings, the presenters also stressed to the participants the importance of knowing the controlling statutes and the differing procedural rules. They also emphasized to participants, the importance of knowing for their case, who would be the final decision maker. While in some instances ALJs can be the final decision maker, in many cases this authority rests with the head of a government agency or a separate board or commission who simply reviews the ALJs decision as a recommendation.

Overall, the event provided attendees with valuable insight into what administrative law judges look for in managing their cases and making their decisions. All three of the administrative law judges who participated in the event brought an incredible depth of knowledge and experience. Given the success of the event, it is definitely something the organizers hope to repeat in future years.

Dustin Kamerman

State of Michigan, Department of Licensing and Regulatory Affairs

Okemos

 

Deontology

Donald Trump needs a course in deontology. Of all the public servants, the President of the United States is the most important. He or she should render loyal and disinterested service to the Nation. Citizens should praise the President when he has done right and blame him when he has done wrong. To declare that there must be no criticism of the President or stand by him right or wrong is incongruent with American democracy. A President should also be measured and judged by good faith.  Good faith is an intangible and an abstract quality with no technical meaning or statutory definition. It encompasses an honest belief, the absence of malice and design or to seek an unconscionable advantage.

A lawyer as a witness, manager-prosecutor or defense counsel is duty bound to do the right thing not once in a while, but all the time. I am a member in good standing with the Michigan, Massachusetts & Texas Bars. It is my experience that the tone and tenor of the denizens in each jurisdiction are consistent with my views above.

As you know, the President's lawyers are officers of the legal system. If a lawyer offers material evidence before a tribunal and knows or later learns it was false the lawyer must take reasonable remedial measures, including disclosure of the true facts.

As an officer of the court a lawyer under Candor Toward the Tribunal and the corresponding ABA Model Rule is duty bound to take remedial measures and it applies to ancillary proceedings, including depositions. Lawyers are required to be truthful, reveal perjury and to avoid assisting or condoning criminal or fraudulent acts denigrating the justice system. Otherwise the attorney is subject to discipline including disbarment.

Evidence is the means to ascertain the truth at trial. Therefore, witnesses and relevant documents are fundamental in any trial to discover the truth at issue.

A President in America is not a king.  He has no immunity or executive privilege in this matter and proceeding.  To characterize bad acts and misconduct as maladministration is ludicrous.

Politics must be set aside in the interest of justice and for the American people. Nothing but the truth should be spoken about the President and his egregious acts. A technical or statutory crime is not required for impeachment. Abuse of power is sufficient.

To paraphrase U. S. Representative Adam Schiff, "if truth doesn't matter we are lost."

It appears that the outcome of the Impeachment Trial without witnesses and documents was a cover-up in plain view.

“Public service must be more than doing a job efficiently and honestly. It must be a complete dedication to the people and the Nation.”  Margaret Chase Smith, former Maine U.S. Senator

It appears that Donald Trump and his lawyers were willing to undermine our democracy to help his prospects for re-election. He wielded the powers of his office for personal benefit and not for the benefit of the people. It has been reported that Donald Trump stated unapologetically that there is nothing wrong with his conduct and would do it again.

The law under 18 USC Section 1001 makes it a crime to knowingly and willfully give false statements in any matter under federal jurisdiction. To prove that a defendant acted willfully the government must prove that he or she knew the statement was unlawful - not just that it was false.

I submit how difficult is it to show that a person knew his or her statement was unlawful - "the 2020 presidential election was rigged and fraudulent" when they cannot establish a scintilla of evidence.

For lawyers, Federal Rule of Civil Procedure 11: Signing Pleadings, provides in relevant part, that every pleading, written motion or other paper represents and certifies: it is not being presented for any improper purpose, not frivolous and that the factual contentions have evidentiary support. If the court determines that Rule 11( b) has been violated the court may impose an appropriate sanction on an attorney or law firm.

This is not a Democratic or Republican point of view. It is an accurate point of view anchored in the Constitution of the United States:

"We the people of the United States, in Order to form a more perfect Union, establish justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America."

In lieu of impeachment some asked Americans to wait until election day to determine Trump's fate. The electoral college has spoken. It certified the 2020 presidential election that demonstrates the will of the people and cements our democracy. To quote Bob Woodward in his book, Rage: "When his performance as president is taken in its entirety, I can only reach one conclusion: Donald Trump is the wrong man for the job."

A new era is beginning with Joe Biden as President of the United States. I refer back to Margaret Chase Smith, former Maine U.S. Senator: "It is high time we stopped thinking politically as Republicans and Democrats about elections and start thinking patriotically as Americans about national security based on individual freedom."

James A. Johnson

Southfield

http://www.jamesajohnsonesq.com/

Responsibilities to the Families We Serve

 Families are the foundation of our societies. The very nuclei on which communities are shaped and fueled. In today’s world, the concept of family has evolved and takes several forms, all of which are valid and valuable. Whether the family is comprised of two parents, one parent, blended families, adoptive families, or couples without children- whatever form a family takes we have a responsibility to protect them especially in the transition of a divorce.  As a family law attorney, I have been recently reflecting on the responsibility that myself and my colleagues have to the families we serve beyond just in the legal sense. In our role as family law attorneys we see families experiencing pain and vulnerability. Our clients come to us with struggles affecting the most intimate parts of their lives and look to us for counsel in getting them through the conflict. Unfortunately, because of mainstream portrayals of family law cases, many people approach the process with preconceived notions that they are gearing up for war, whether they are excited by the prospect or terrified. On the other hand, modern day family law trends are heading down a different, more amicable path and as a community we need to come together and change the narrative to educate and focus the public, clients, and colleagues on alternative dispute options.    

 As a result of family law’s nature, the emotions our clients feel are heightened as they come to grips with not only the dissolution of their marriage/relationship but also of their family as it was. These emotions mixed with fear and feelings of betrayal or hurt can become emboldened with the mainstream ideas of shark like attorneys and fierce courtroom battles as a means to level retribution against their former partner. This is where we, as family law attorneys, need to step in and rather than enabling a litigious spirit, educate our clients on the invasive and public nature of litigation, let them know about alternative dispute methods, and provide them with the tools to navigate the process and the future successfully. Some of the most difficult conversations I have with clients involves encouraging them to take the highroad even in the face of adversity. As a result, I have found that a dedication to alternative dispute methods and client awareness of their access to those processes can help clients feel empowered to carry on and keep harmful escalation at bay. It does no good to engage in the games and antagonization that are sometimes thrown around in these cases.

In the last couple decades, a lot of headway has been made in introducing mediation as a routine aspect of family law cases. In fact, many judges are trending towards ordering parties to mediate from the start.  Nevertheless, mediation and other alternative dispute resolution processes have not broken the mainstream surface yet as to many clients these are still foreign concepts. This reality is not helped by the sometimes desensitized and matter of fact approach some family law practitioners fall into when it comes to mediation.  The collaborative divorce process is even more of a foreign concept to clients and many attorneys. Collaborative divorce is a unique alternative dispute resolution method that takes a comprehensive approach to help families. Parties that agree to use the collaborative process retain a team of collaboratively trained attorneys, mental health and financial professionals, and any other experts that may be needed to systematically help them come to an ultimate, peaceful and lasting resolution. While this approach is not for everyone, it can be an invaluable tool for clients and attorneys to utilize in tempering the litigious spirit often connected to family law in favor of a team approach. The core principles of collaborative divorce, which specifically address the legal, emotional, and financial ramifications, can also be used with the more traditional routes, like mediation, to create hybrid processes for the specific needs of each family.         

The overreaching impact family law can have on our society dictates that today’s family law attorneys must break away from the litigious stereotypes of the practice. As the next generation of upcoming attorneys, we are in an important position to shape the future of family law and to do so we must genuinely immerse ourselves in the various alternative dispute methods and educate the public and our colleagues that litigation is rarely the best process to use in these very complicated and sensitive matters. Though, we must all be mindful that some rare cases do ultimately require litigation as the best form of advocacy for our clients depending on the circumstances. However, we all must make a conscious effort not to become negative advocates for our clients. Our actions and advice have consequences. It is our responsibility as the professionals to draw the line and realize that sometimes being an advocate and zealously standing up for our clients’ best interests means focusing on the bigger picture of a long term, lasting resolution reached by the parties themselves, rather than the judiciary. After all, no one is better equipped to know the specific needs of a family than the parties themselves, so let’s help bring together and empower our clients to be the authors of the new chapter in the lives of their families.     

Miriam M. Saffo

Nichols, Sacks, Slank, Sendelbach,

Buiteweg & Solomon, P.C.

Ann Arbor

Nsssb.com