Kohn: Larry, the holiday season is upon us, and people will be
attending office parties. Can they have a glass of wine two hours
before they drive home or is that going to get them into trouble?
Wolf: The reality is that one glass of wine or that one beer
for the averaged-sized person twp hours before you’re stopped
is legal. Once you have that second drink, however, you’re bordering
on being convicted and potentially placing someone else’s life
and your life in danger.
But there’s another reality that’s important:
if a police officer smells any alcohol on your breath, he is not
going to be impressed when you explain that it was only one glass
of wine two hours ago.
That comment is going to fall on deaf
ears and, consequently, even after a legal battle where you’re
found “not guilty,” you’re still facing the financial cost of
that battle as well as the emotional cost of being arrested, taken
to a jail, booked and fingerprinted.
There is no up-side to drinking and driving
– none. There is even no reason to have that one drink two hours
before because even if you are never really ultimately convicted
of an offense, there’s still a high price to pay.
If someone wants to have a drink at a
holiday party, prearranging for a designated driver would be a
viable option.
Kohn: What are some of the current issues being debated with
the new drunk driving law?
Wolf: No one condones individuals going out and intentionally
drinking and then driving and, God forbid, causing injuries to
a loved one. But at the same time, with the new laws that have
been imposed since July 1, 1990, some individuals who are loosing
their licenses are not really committing any offense. Let me give
you an example.
Let’s say a good citizen, a law abiding
man who is at his daughters wedding, has a glass of champagne
at the opening toast and then a second glass on the final toast
when the bride is leaving. On his way home, he’s stopped by a
law enforcement officer and given a breath test and hour later.
He blows into the machine which registers an .08. If no voice
is raised in that mans defense, 1) he’s going to be convicted
of first time drunk driving, 2) he is going to spend $1,000 in
fines, 3) he’ll go to alcohol school and 4) most importantly,
he’s going to loose his license for four months.
This could be someone who, for the last
40 years, has supported his family, his community, diligently
gone to work every day to run his business, and has never even
had a traffic ticket.
With the new “stop and snatch” law, the
DMV will not accept evidence as to the accuracy of that breath
test. Due to a potential margin of error in that machine, an .08
would really be an .07, in which case, the man would not be violating
the law.
Now imagine that this individual has no
viable way of getting work, or if he’s a salesman, doing his work,
except by driving. Certainly, he doesn’t need to break the law,
but he does need to support his family. Society has now forced
him to become a criminal for every day of his four-month tenure.
Kohn: Do you have tips for people who find themselves in this
situation?
Wolf: Yes. They should always demand a hearing, and they should
always consult with an attorney as soon as possible after the
offense. The reason for that is that the forms that have been
drafted are so confusing that they leave the individual unclear
as to not only what their rights are but even what the procedure
is to enforce those rights.
The reality is that in order to try and
save ones license in time, a hearing must be requested within
10 days of the arrest. The way that form reads, that 10 day requirement
is unclear. It also leads the arrestee to think that he has to
appear in Sacramento for the hearing, which precludes many people
from even requesting a hearing. So, do contact an attorney as
soon as possible.
The best tip, however, is never to drink
and drive!
- Take detailed notes of your interactions. Include taped discussions
with wit nesses or other parties involved.
- Meet and or review every client or file personally. A disgruntled
client today could end up being a snitch tomorrow.
- Carefully review all police and accident reports, looking out
for any suspicious inconsistencies,
- If you are suspicious, investigate before accepting the case.
- Trust your instincts.
- If you have information that proves the case is fraudulent,
first confer with your own trained counsel.
- Don’t sign your name to any document without careful review.
- Watch out for “rental car” accident cases.
- If you are contacted by law enforcement, immediately contact
legal counsel experienced in these matters.
DOES A DEATH IN A STAGED ACCIDENT EQUAL MURDER?
In the first of its kind prosecution, a personal injury attorney,
tried for the accidental death occurring during a staged accident
ended in a mistrial. Bold new theories of second degree murder
under a new theory of “vicarious liability” are being tested.
See People vs. Antick, 15 Cal 3d 79 @ p.86 (1975), Taylor
vs. Superior Court, 3 Cal. 3d 578, 584 (1970), People vs.
Gilbert, 63 Cal.2d 690, 704 (1965). Call me for updates.
LEGAL OPINION:
BIG BROTHER “DISTRICT ATTORNEY” IS WATCHING YOU
By Lawrence Wolf, Attorney at Law
State and federal agencies, along with the implementation of
more effective communication devices has resulted in the “enforcement
of insurance fraud in multiple folds” states Los Angeles District
Attorney Loren Naiman, assigned to the Special Insurance Fraud
Task Force. “We now meet at least once a month to discuss leads
in addition to jointly targeting individuals. I’m currently working
with a task force involving the Federal Bureau of Investigation,
Internal Revenue Service, Postal Department, Department of Insurance,
Los Angeles Police Department, and the State Bar of California.
There will be more MAJOR arrests before year’s end”.
“Los Angeles County is the fraud capitol of the world” states
Los Angeles District Attorney Lenny Schaeffer, although the fraud
is tending to move out of Los Angeles County into surrounding
areas. We’re still working on cases and they’re still coming in”.
How does a suspected insurance fraud case come to the attention
of state and federal authorities? “First”, say: Loren Naiman,
“all insurers have Special Investigative Units (SIU’s) to investigate
fraudulent claim practices. These SIU’s send in documents on suspicious
activities, developing leads in other cases. Second, we get cold
calls from the public and recently, have received numbers of calls
from attorneys who just realized their offices had been taken
over by people signing their names”. Third, “a disgrun led client
or just a plain snitch” says Lenny Schaeffer.
Whether an insurance fraud case is prosecuted federally or locally,
is by agreement, whichever route maximizes punishments. Once an
attorney is “caught up” in the alleged fraudulent loop, full disclosure
and cooperation with the authorities may affect criminal liability
and the threat of disbarment.
Assume an attorney is involved in insurance fraud, he does not
know if he is a “target”, but players around him are dropping
like flies and he wants to minimize his exposure. Lenny Schaeffer
devises that, “generally we tell them about a standard letter
that we offer, taking a statement under oath agreeing that it
can’t be used against them except for impeachment and for the
purpose of perjury. However, the attorney must agree that any
evidence developed independently can be used against them. Looking
at all the evidence, we have some type of plea agreement can be
worked out perhaps avoiding debarment”.
NEVER attempt to contact the District Attorney’s office or any
investigative agency directly. It is critical to use and experienced
legal counsel who is also familiar with all of the players.
Capping is illegal in California – having someone who goes out
to sign people up is not. “Keep an eye on who’s coming into your
office. Review your files, look for patterns, similarities, inconsistencies”
cautions both Naiman and Schaeffer.
Lawrence Wolf is a sole practitioner with
office in Century City. A Judge Pro-Tem and successful criminal
attorney, featured speaker and talk show host, Mr. Wolf is a recognized
expert on criminal law, consumer fraud, juvenile justice and drunk
driving.
Criminal Law Insurance Fraud Telephone
Checklist
- Bad Deviation/Commissioner
L.A. (213) 351-5151
- O.C.
(714) 834-4793 6AM-3PM
(714) 647-4581 after 3PM
- O.R. Release
L.A. (213) 974-5821
- L.A. County Jail
(213) 780-2600
- Sheriff’s Crime Lab
(213) 974-4647
- L.A.P.D. Crime Lab
(213) 237-0058
- Consumer HOTline
(800) 927-HELP (in California)
- Department of Insurance Fraud Division
(213) 278-5000
- State Fund Fraud Hotline for Workers Compensation Fraud
(800) 683-7283
- Work Release
(213) 974-0124
DRUNK DRIVING ALERT
DMV CAN BE STOPPED
Incredible success has been obtained in overturning
DMV Drunk Driving Administration per se suspicions based upon
DMV’s OWN records. “Check the four corners” of each document,
and give special attention to blood and urine result records.
Call (310) 277-1707 for inside info.
LEGAL OPINION:
Insurance Fraud Has Placed Attorneys Under Siege
By Lawrence Wolf, Esquire
Attorneys have become the targets of police stings as the result
of law enforcement’s crackdown on insurance fraud. Law enforcement
is reacting to an outcry of employers and citizens who have been
hit in the pocketbook by insurance fraud. California law now broadly
defines fraudulent activity, expanding an attorney’s vulnerability
to prosecution. Since the laws enactment, extensive funds to combat
fraud have now become available. The result is that attorneys
are under siege.
“We’ve stepped up stings and fraud investigation considerably,”
reports Dennis Zine, Traffic Enforcement Supervisor with the Los
Angeles Police Department. “Our investigations are starting to
target teams of lawyers, doctors and front men who operate fraud mills. Unfortunately, there is no way for lawyers to spot signs
of a sting operation.”
You Can Protect Yourself. Not all attorneys
caught by a police sting have participated in fraud willingly
or knowingly. It is vital to take precautions not to become the
target of these crackdowns. First, be aware of a fraudulent or
staged accident that are considered as red flags by the
police. (See “Signs of a Staged Accident or Police Sting.”)
I also recommend that if you do suspect fraud, you take the following
precautions to protect yourself from prosecution:
- Decline a case you suspect is fraudulent and write a detailed
memorandum including your questions and suspicions.
- Take detailed, copious notes of your interactions. Include taped
discussions with witnesses or other parties involved in the case.
- If you have information that proves the case fraudulent, such
as knowledge that a second vehicle doesn’t exist, you may want,
after conferring with your own trained counsel, to report it to
the police.
- If you are contacted regarding a case by law enforcement, or
if you suspect that you have become a target, immediately contact
legal counsel experienced in these matters.
No attorney wants insurance fraud to continue, but being innocent
of any conscious wrongdoing is not enough to protect oneself.
Lawrence Wolf is sole practitioner with offices in Century
City. A Judge Pro-Tem and successful criminal attorney, Mr. Wolf
is a recognized expert on criminal law, insurance fraud, consumer
fraud, juvenile justice and drunk driving.
Signs of a Staged Accident or Police Sting
Police who operate insurance fraud stings search for specific
signs when attempting to ensnare attorneys and other professionals.
Additionally, staged accidents frequently do not appear criminal
in any way. Attorneys who miss the less obvious signs may imperil
their profession and practice.
The following signs are considered as red flags by police
investigators and will trigger further investigation by them.
If you encounter these signs, consider the case carefully. You
may want to report your case to an insurance fraud hotline after
consulting with legal counsel. (See “Insurance Fraud Hotlines.”
On the other side)
- The driver of a vehicle admits to no injury, yet asks to be
referred to a doctor.
- A second vehicle involved in the accident does not exist.
- The second vehicle was driven by the client’s friend or relative.
- Repeat clients who appear to be “accident prone.”
- Client’s medical claim request is disproportionate to the property
damage sustained.
- The client requests an advance on a potential settlement before
agreeing to maintain your services. Such clients may approach
three or more attorneys with the same request. It is, of course,
illegal to pay a third party for a case.
Don’t become a victim of a staged accident or the target
of a police sting!
Did You Know…
…A New Alcohol Detection Devise Is Mandated for Repeat
Offenders
A new California law targets repeat drunk
drivers by requiring installation of an ignition interlock device
in their automobiles. This breath analyzer system prevents drivers
who have consumed any alcohol from starting their vehicles.
The law, effective July 1, 1993, requires
drivers with one or more prior convictions to use the device for
up to three years. An estimated 65,000 people yearly will be subject
to the law, according to the State Dept. of Motor Vehicles. The
cost of leasing the device and enrolling in a required course,
called the Ignition Interlock Responsible Driver Program, is $600
to $700 per year.
A difficult to master pre-set code prevents
others from starting the car for the driver. And a “rolling restart”
requires motorists to pull over and re-take the test, preventing
alcohol intake on the road.
Studies have shown that repeat offenses
by convicted drivers can be reduced by up to 65% from use of the
ignition detection system. About 20 states now use similar devices.
The program could be used as a creative
sentencing alternative when jail time is mandated. Possibly, sentences
could be reduced by employing the device, especially for aggravated
first time offenders.
Insurance Fraud Hotlines Here
are current phone numbers to call should you suspect insurance
fraud or abuse:
- Nat’l. Ins. Crime Bureau Hotline (800) TEL-NICB
- California State Dept. of Ins. Consumer Hotline (800) 927-HELP
- State Fund Fraud Hotline, for worker’s compensation fraud (800)
683-7283
Remember: Always consult with trained legal counsel
first.
Lawyers Must Retain Their Right to Advertise
Lawyers who take advantage of the media’s many advertising
venues have recently come under fire. It’s been argued that advertising
on radio, and especially television, places the profession in
an unsavory light.
But used properly, media advertising
can be valuable to attorneys trying to make themselves available
to a wide audience and to potential clients.
I spoke to Jeffrey Berns of Berns
& Ghiglia in Canoga Park about their extensive advertising
campaigns, their advertising philosophy and their results. For
every fifty inquiries Berns & Ghiglia receives from a radio ad,
one is secured as a client; yet, during the free consultation,
the other 49 callers often receive valuable guidance as they are
apprised for their rights.
Berns & Ghaglia and my firm have found
radio advertising to be more cost effective than television since
it has fewer production requirements. Radio also has prove to
reach our target audience in their homes, offices and – perfect
for Southern California – their cars.
The professionalism and honesty with
which one advertises is really the issue here. Berns & Ghiglia
supports state bill AB208, recently introduced by Assemblyman
Paul Horcher (R-Whittier), which targets fraudulent advertising
techniques such as: deceptive contingency fee arrangements; claims
of immediate cash settlements; guarantee of outcomes; impersonations;
dramatizations.
The State Bar’s Lawyer Advertising Task
Force also has issued recommendations to supplement Rules of Professional
Conduct 1-400 that bar false, misleading or deceptive ads and
those that omit material facts.
By all means, measures such as these
are needed to curtail questionable ads. But it makes no sense
to assume that there is no value or respectability in any
lawyers advertisements. Our firms have value to offer and we believe
in the right to let people know we can help them.
With proper guidelines, responsible lawyers
should be allowed every opportunity to advertise widely. We should
not give in to any attack that compromises that right.
WOLF REPORT
UPDATES
DRUNK DRIVING “STOP & SNATCH LAW”
In our premiere issue of the Wolf Report (Fall 1990), we strongly
advocated the implementation of the provision to the new “Stop
and Snatch” Law whereby first offenders would still be allowed
to drive to and from work. At that time, no provisions were made
permitting first time offenders to continue to drive in the course
of their employment.
Those provisions that we advocated have now been enacted. First
time drunk driving offenders who have had their licenses revoked by the DMV for four months, may now apply for and receive a restricted
drivers license from the Department of Motor Vehicles. Upon proof
of insurance, payment of a $100 fee and enrollment in a first
offender program, that first time offender may now receive a restricted
drivers license which permits them to drive to and from and during
their course of employment as well as their alcohol program. Other
defenses continue to be developed on a daily basis.
CONTESTING RADAR TICKETS STILL FOOLPROOF IN L.A.
Illegal speed traps still exist in some parts of Los Angeles
County. Outdated engineering surveys are still being received
as inadmissible evidence in some courts. As explained in a previous
issue of the Wolf Report (Fall 1991), the court cannot receive
any testimony regarding these violations. These cases
still remain a guaranteed winner!
INSURANCE FRAUD PLACES ATTORNEYS UNDER SEIGE
The targeting of attorneys by police stings continues to flourish.
The successful prosecution of alleged fraudulent activity by attorneys
and doctors has been an encouraging force to law enforcement resulting
in an expanding financial warchest, which continues to feed the
prosecution of doctors and lawyers for insurance fraud.
Take precautions – don’t become
the target of one of these stings! Watch out for
the “red flag” signs of a staged accident (see Wolf Report, Fall
1993).
LEGAL OPINION:
CRIMINAL DEFENSE FOR THE CIVIL PRACTITIONER: A Nuts and Bolts
Primer
By Lawrence Wolf, Attorney at Law
As a Civil Litigator, you may find yourself in a position of
assisting a former or new client in handling what initially appears
to be a relatively simple criminal matter. This “nuts and bolts”
primer will give you a roadmap through one of the Criminal Justice
Systems pitfalls you may encounter on your trip and alert you
when you need the assistance of an experienced criminal attorney.
- That Midnight Phone Call.
The surprise “midnight phone call” from a client who’s
just been arrested is not an uncommon occurrence. When this happens
(and it will…) you need to know the quickest way to handle your
client’s release. That is going to be through the assistance of
a bail bondsperson. What if your client is unable to post a bond?
Try to have their bail reduced by a bail commissioner, if not,
you’ll have to prepare for the first court appearance called “the
arraignment”. At the arraignment, a bail hearing can be made to
try to successfully have your client released.
- Tips for Successful Preparation for the Bail Hearing.
1. Contact the OR officer immediately for
an OR report.
2. Initiate discussion with an investigating officer and/or the
prosecuting attorney.
3. “Pack” the court with relatives and good character witnesses.
4. Prepare for alternatives to incarceration, such as residential
treatment programs or house arrest (see telephone check list).
- Retainer Fee Agreements.
Unlike civil case, once you become an attorney of record
it is often impossible to be relieved by the court. It is critical
to obtain your retainer BEFORE becoming the attorney of record.
Remember, any retainer in excess of $1000.00 must be in writing.
- Pre-Filing Negotiations
If you are retained PRIOR to the filing of a criminal
matter, a successful resolution can be obtained with timely intervention.
It is critical to establish, when possible, open lines of communication
with the alleged victim, prosecuting attorney, and investigating
officer. Successful pre-filing negotiations should be geared with
an eye towards dismissal through civil compromise, informal diversion,
an office hearing or reducing a felony charge to a misdemeanor.
KNOW YOUR PROSECUTOR! The better relationship you have with the
prosecutor the stronger the likelihood a successful resolution
will occur.
- Alternative Sentencing.
Being an effective and successful advocate for your
client begins at the inception of the case. You must immediately
begin to prepare for “alternative sentencing options” other than
incarceration. These alternatives consist of treatment, rehabilitation
and alternative community sentencing. Local jails, community service
and crafting YOUR OWN alternative sentence are only some of the
examples available to assist your client. Please note the phone
numbers in the Criminal Law Telephone Checklist in
this report.
Ethical Dilemma – BEWARE!
Take the Wolf quick – quiz on ethical
considerations:
1. Your criminal defendant tells you
he’s going to perjure himself on the stand. Your options are:
a. Persuade your client to tell the truth
b. Persuade your client not to testify
c. Withdraw as his/her attorney
d. Put your client on the stand without questions, assistance
or support.
2. How long must you retain a criminal defendant’s
case file?
a. Until the end of the case
b. Seven Years
c. Until the death of the defendant
Criminal Law Telephone Checklist
- Bail
Bondsperson
Chicks Bail Bonds (310) 545-4513
- Bail Deviation/Commissioner
L.A. (213) 351-5151
O.C. (714) 834-4793 6AM-3PM
(714) 647-4581 after 3PM
- O.R. Release
L.A. (213) 974-5821
- L.A. County Jail
(213) 780-2600
- Sybil Brand
(213) 267-2611
- LAPD Operator
(213) 485-2121
- L.A. County Operator
(213) 974-1234
- Sheriff’s Crime Lab
(213) 974-4647
- L.A.P.D. Crime Lab
(213) 237-0058
- House Arrest
(310) 424-7711
- HAM Program
(213) 484-2849
- Farm Program
(909)593-3036
- Work Furlough
(818) 308-5542
- Work Release
(213) 974-0124
Tip Your Client:
A Little Knowledge May Diffuse a Dangerous Situation!
Advise Your Clients:
- If stopped for “Driving under the influence,” you are not required
to take any field sobriety tests (touching the nose or walking
a straight line). However, you are required to submit to a chemical
test.
- To keep in mind that, often, the DMV’s only source of information
is what you volunteer.
- Not to make any statements to the authorities at the scene of
an accident or arrest. You may not realize how your statements
could be used against you. Situations such as these call for a
lawyer who will deal with the police most cautiously.
- Police do have the right to stop and search a car if they have
probable cause to believe a law is being violated.
- Any involvement in a hit and run is an involvement in a crime.
You should call an attorney for criminal advice immediately.
LEGAL OPINION:
New “Stop & Snatch” Law Severe, But Not Hopeless
by Lawrence Wolf, Esq.
The new “Stop & snatch” law that went
into effect July 1, 1990 enacts much more severe penalties than
before for “driving under the influence”. Under the law, any driver who is found to have a .08 or above blood alcohol level
will immediately have their driving license confiscated. First
offenders will lose their license for four months while repeat
offenders will be denied a license for one year.
California, like other states, was
under pressure to pass this law or risk loosing federal transportation
funds. Although no one should ever drink and drive, in my opinion
the new law is unduly severe, particularly for first time offenders.
I feel strongly that there should be
a provision whereby first time offenders could still drive to
and from work. The law would accomplish the same results in
terms of alcohol awareness and restriction while not impeding
one’s ability to work.
While there have been some amendments
to the bill, each change has made it harsher, such as lowering
the acceptable alcohol levels and extending suspension periods.
Despite the severity of the law, if
your clients get into this situation, all is not hopeless. There
are ways to attempt to defend against it. One way is to suggest
they get a commercial license which requires that they pass
a commercial written and driving test in a vehicle that carries
ten or more passengers. A mini-van is an appropriate example.
Other defenses exist and are being
developed daily. Watch for updates in upcoming newsletters or
contact me directly at 213/277-1707.
Did You Know?
…that a conviction on a traffic ticket is not always a conviction?
Many people don’t realize that paying
a fine on a traffic violation is equal to a conviction and traffic
point on ones driving record.
It’s important to know that one has
180 days after the conviction date to reopen the case and prevent
that violation from going on the record. Thus, there is a six-month
period when a conviction is not really a conviction.
This is particularly useful information
if your client has accrued several traffic violation points.
Someone’s license can be revoked if they have four points in
a year, six points within two years and eight points within
three years.
You can help your clients by going
into court and challenging the ticket or requesting traffic
school to remove it from their records.
Checklist
If you get the surprise mid-night wake-up call from a client who
has gotten his or her own surprise and is calling from jail, here
is a checklist of the information you should get:
- The name and phone number of a family member out of custody.
- The clients booking number and his location.
And you’ll want to advise your client:
- Not to make any statements
before consulting an attorney who is experienced in dealing with
the matter at issue.
- Of the name and number of a good bailbondsman (feel free to
call us for a reliable referral).
If your clients license has been suspended or revoked, you should
ask the DMV for a hearing. Depending on the reason for the suspension,
their license can be reinstated if:
- They lost their license
because they had no insurance or they had too many points.
- They can show a change of circumstances.
Would You Believe?
The Case of the Incompetent Lookout:
Two years ago, a case came our way that
was very unusual. I went to go see a man who the police accused
of being a lookout during a burglary. They maintained that my
client was waiting in the gateway car while his two friends robbed
a nearby house.
My client, however, firmly declared his
innocence, telling me that he had known nothing about the burglary.
The police, on the other hand, felt firmly that they had their
man.
On the surface, it did not look good
for my client: when the police arrived on the scene, they had
caught the two thieves and did find my client sitting in the car.
He insisted that he had simply accepted
his friend’s invitation to “come along for the ride” and hadn’t
thought anything of it when they stopped at some ones house for
a minute. Besides, he protested, it was an impossible notion that
he would be a lookout!
And he was right, when the police finally
learned the truth, they were terribly disconcerted. My client’s
case was thrown out while his two friends stood trial and were
convicted. My client, you see, was blind!
Tip Your Client:
A Little Knowledge may Diffuse a Dangerous Situation
Advise Your Clients:
- It is critical to contact an experienced attorney immediately
upon being contacted any individual involved in law enforcement.
Never wait to see what develops or hope that
it just goes away.
- Carrying a firearm within the interior or a vehicle is legal
only if the firearm is unloaded and not concealed.
- If stopped for “driving under the influence”, you are not
required to take any field sobriety tests (touch the nose or
walking a straight line). However, you are
required to submit to a chemical test.
- Not to make any statements to the authorities at the scene
of an accident or arrest. You may not realize how your statements
could be used against you. Situations such
as these call for a lawyer who will deal with the police most
cautiously.
- Any involvement in a hit and run is an involvement in a crime.
You should call an attorney for criminal advice immediately.
LEGAL OPINION:
Criminal Fraud in Hollywood – Beware of Rackets, Cheats and Scams!
By Lawrence Wolf, Esquire
The entertainment industry is a fertile field for fraud. Between
the psychological attraction of fame and fortune and the undeniable
opportunities for talented people to make large sums of money,
which they may have difficulty keeping track of, Hollywood abounds
with crimes of fraud. Unfortunately, much of it goes unreported.
Since avoiding these situations is often preferable to reporting
them, here are some of the rackets, cheats and scams to warn your
clients about and hopefully some ways to prevent them:
- Embezzlement.
Unfortunately, “creative types” tend to disengage themselves
from the details of their financial affairs, placing equal amounts
of trust and temptation at the feet of one person. That person
is often called a “Business Manager.” Robert Youngdahl, Los Angeles
Deputy District Attorney for the Major Fraud in the Entertainment
and Motion Picture Division, reports that fraud is more often
brought to light during recessionary times. “When the Business
Manager tends to forget whose money he has,” warns Mr. Youngdahl,
“he invests it without authorization, and assumes that the
profit will allow him to pay it back. However, in tough times,
the investment doesn’t pay off what he anticipated and his embezzlement
comes to light more quickly.” This individual may start
out with no intention of stealing. However, when they are dealing
with some one who making enormous amounts of money, and no one
else is looking into the finances, they rationalize that their
client will never notice the “temporarily” missing funds. Since
Business Managers are not legally required to be licensed, it’s
important to advise a celebrity to choose one who is licensed
as a CPA or an attorney so that there can be a background check
made for complaints. It is also vital to install a double check
system with a qualified second party, and accurately maintain
copies of all documents.
- Investments.
Business Managers often recommend an investment to a celebrity
but rarely disclose the “kickback” they receive as a result. They
take greater risks with their clients money, than with their own,
and if the deals works out, are in a position to skim the profit.
Thus, any investments should be closely monitored by a third party,
such as an attorney or CPA. Investing in the entertainment industry
is even riskier. Most industry investments are either in the production
or the distribution end, however, in both instances, one will
often loose money thanks to what is called “creative accounting”
– something not illegal and difficult to prove. A good example
is of a major studio that recently offered ten limited partnerships
for the distribution of a grouping of movies. This was legal,
federally-qualified investment for people who wanted to distribute
movies from a major company. The 30-page, four-color prospectus
talked about the quality of the movies, profit projections, number
of theaters, etc. Comments Mr. Youngdahl, “I think the offerings
were about $30 million each. Of all ten, only one made any profit
– and that was a fluke!”
- Forging a Letter of Intent.
It is not uncommon for a promoter with a script to forge a letter
of intent from a bankable star to use it to bring commitments
from other stars. He will also use it to raise investors or a
line of credit at a bank. If there is suspicion that the letter
is not legitimate, the star will be contacted. Although the star
does not want the phony letter to continue circulating, often
the last thing he or she wants is to testify in court. Consequently,
the celebrity is often unwilling to assist law enforcement. However,
if funds are advanced based upon reliance of the forged signature,
your unsuspecting, innocent client will probably become the target
of a criminal investigation.
- Failure to Report Crimes.
Similar to rape victims, fraud victims may feel victimized by
the system and the perpetrator. The celebrity not only fears that
disclosure will bring humiliation but also blacklisting. Reports
Mr. Youngdahl, “We still have a town where you don’t tattle.
If somebody steals from you, you probably work it out or write
it off. People are afraid to get a reputation for taking things
to law enforcement. After all, how can you be in a major production
and not see someone skimming somewhere?” It can take courage
to report an act of fraud; however, it only takes wisdom to avoid
it. If you can help your clients act prudently, you’ll see them
stay out of fraud’s way.
Checklist
Keep This on Hand for the Midnight Phone Call
If your client ends up in jail, you may get a frantic midnight
phone call. If that person is a celebrity, that situation could
be even more delicate. Here is a helpful list to keep at your
home and office to make sure that everything is covered:
- Urge your client to stay calm. Assure them that you or an experienced
associate will help them.
- Advise them to maintain a polite, well-mannered demeanor with
the police. It won’t help to antagonize anyone.
- Advise them to resist asking for special treatment.
- Get your client’s location and booking number.
- Get the name and phone number of a family member.
- Advise your client not to make any statements before consulting
further with you or with an attorney who is experienced in dealing
with the matter at hand.
- Assure your client that if you are not the appropriate attorney,
you will contact someone who is.
- Advise your client of the name and number of a good bailbondsman.
(Feel free to call us for a reliable referral.)
Did You Know?
…that there are new ways to get a driver’s license reinstated?
Not everybody who is convicted of drink driving is a hopeless
case. Sometimes there are special circumstances, as well as successful
rehabilitation. Normally, a person who receives a second conviction
for drunk driving will lose their driver’s license for one year.
However, there is a procedure, often unknown and unused, that
can result in reinstating their driver’s license after only six
months. Please feel free to call us for specifics.
Contesting Radar Traffic Tickets Temporarily Foolproof
in Los Angeles
Since precedent has shown that traffic
court will favor radar over an alleged violator’s testimony, it
is no wonder that few people even attempt to contest a radar traffic
ticket.
However, there is now a new strategy
for fighting these tickets – a strategy that is guaranteed, especially
in some Los Angles courts. According to vehicle code section 40802,
a speed trap – which is illegal – is defined as “as any section
of highway where a radar device is used when there is no engineering
and traffic survey conducted within five years prior to the date
of the alleged violator.”
In other words, in order for a radar
device to be legally used, an engineering survey of the roadway
must have been conducted within the last five years. If not, then
the court can not receive any testimony regarding the violation.
The last speed survey for some Los Angeles
areas was done June 1, 1986, therefore, at the present time, no
testimony can be taken regarding those tickets.
A Guaranteed Winner!
LEGAL OPINION:
Juvenile Court or Criminal Court: Strategic Applications for Trying
a Juvenile as an Adult
by Lawrence Wolf, Esq.
Numerous factors need to be considered
when weighing advantages and disadvantages of the juvenile court
system versus the criminal court system.
If the juvenile is accused of a serious crime, it is more advantageous to remain in the juvenile court
system where an attempt can be made to rehabilitate the minor
versus solely punish him.
I accomplished this in a case where an
early plea in a juvenile court murder case, prior to the filing
of the anticipated fitness hearing, short – circuited the prosecution’s
attempt to have the minor tried as an adult and resulted in keeping
the minor in the juvenile court.
However, depending on the level of evidence
that the prosecution may have against the minor, it may be more
desirous to have a jury of twelve deicide his fate rather than
the judgement of a single juvenile court judge.
This could be especially applicable when
considering the rules of evidence that apply in an adult court
compared to a juvenile court. A critical example is that a minor
may be convicted in a juvenile court by the uncorroborated testimony
of an accomplice whereas in adult court a conviction cannot be
had upon the testimony of an accomplice unless it has been corroborated
by other evidence. (In re Mitchell P. [1978] 22 C3d 946).
Another strategic advantage to having
a minor tried as an adult is in the case of a less serious offense.
Whereas the adult court would punish the offender with a small
fine, the juvenile court could take custody, removing the minor
from the home.
Another consideration arises when the
minor has turned 18 at the time of adjudication. Under Rucker
v. Superior Court (1997) 75 CA 3d 197, it was held that the minor,
who had turned 18, may instigate the fitness proceedings and waive
the benefits of juvenile court, thus answering the charges as
an adult in the criminal court.
In contrast, the court held In Anna S.
(1979) 99 CA3d 869 that a minor under the age of 18 but over the
age of 16 may not demand to be found unfit; therefore, the minor
must be 18 prior to adjudication in order to demand that he be
held as an adult.
(Be sure to read “When is a Juvenile
Tried as an Adult?”)
When is a Juvenile Tried as an Adult?
If a minor is over sixteen years old at the time of the commission
of an offense, the Juvenile Court may have a hearing to decide
if the minor should be prosecuted in juvenile court or adult court.
In court, these five criteria determine if the juvenile will be
found “unfit”:
1. The minor’s sophistication.
2. The period necessary for rehabilitation of the minor.
3. The previous delinquent history of the minor.
4. The prior attempted rehabilitative efforts made.
5. The seriousness of the offense.
Checklist
Here are current phone numbers of self-help groups/programs which
might be of help to your clients:
- Alcoholics Anonymous
(213) 387-8316
- Battered Wives and Help for Batterers (Forte Foundation)
(818) 788-6800
- Because I love You
(Parent Support Group)
(213) 659-5289
- Children of the Night
(818) 908-4470
- Cocaine Anonymous
(213) 839-1141
- District Attorney for Child Support Violations
(213) 728-1000
- Emotions Anonymous
(213) 285-3002
- Families Anonymous
(800) 736-9805
- Fathers Are Forever
(818) 846-2219
- Marijuana Anonymous
(213) 964-2370
- Narcotics Anonymous
(213) 283-1745
- Prostitutes Anonymous
(818) 905-2188
Family Court Has No Duty to Warn Against
Perjury
By Lawrence Wolf, Esquire
The situation often arises where an
attorney has a client in a spousal or child support hearing
who is called to testify as a witness regarding their ability
to pay their wages in substantiation of support payments. Recent
cases has shown that it is prudent to advise one’s client of
his rights against compelled self-incrimination, as established
by the Fifth Amendment, and the ramifications of perjury because
the family court has no legal obligation to issue such warnings
during the proceedings.
Authority was established in People
v. Berry, C.A. 4th No. D0114717 (91 Daily Journal D.A.R. 6604),
where it was held that a family court does not need to inform
a parent in family court of his Miranda rights before testifying.
In that case, the father, Michael Berry,
was in a child support modification proceeding where his payment
was reduced and set to be taken from his wages. At a later hearing,
he testified under oath that the money was being taken from
his pay although the County had no record of receiving it.
When testimony showed that those statements
were false, he was subsequently tried and convicted for perjury.
He appealed, claiming that his appearance on an “Order to Show
Cause” created a duty on the part of the court to advise him
of his Fifth Amendment rights before he testified. He contended
that since any testimony that showed noncompliance with the
original order might subject him to contempt proceedings, the
family court review hearing should be considered the equivalent
of a criminal matter.
However, since there were no circumstances
present that would have indicated to a judge that Berry was
giving anything but truthful testimony, it was held that the
court was under no duty to advise Berry of his Fifth Amendment
rights.