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EX-BROBECK PARTNER LANDS AT MCDERMOTT Former Brobeck, Phleger & Harrison partner Kenneth Korea landed a new job this week at McDermott, Will & Emery’s Silicon Valley office. Korea, who was elected to partner at Brobeck just months before the firm pulled the plug, said he chose McDermott because of the technical and litigation talent in the Palo Alto outpost of the Chicago firm. His hire brings to 36 the number of lawyers in the office, according to the firm. Korea spent two years at Brobeck following a three-year stint at Skjerven Morrill. The San Jose-based Skjerven announced it was shuttering just days after Brobeck made its dissolution public on Jan. 30. A 1993 graduate of Northwestern University School of Law, Korea spent three years as an assistant U.S. attorney in Florida before coming to work in Silicon Valley. — Renee Deger FREE SPEECH DOESN’T TRANSFER TO ATTORNEY NEW YORK — A citizen may have a right to address a public body, but that free speech right cannot be transferred to an attorney or other representative, a Northern District of New York federal judge has ruled. Judge David Hurd’s ruling on an issue of vicarious exercise of a constitutional right came in the case of a teacher who was denied tenure and then retained an attorney to address the school board on her behalf at a public meeting. When the attorney was not allowed to speak, the client — through the attorney — sued. But Judge Hurd said the teacher’s free speech rights were not implicated because it was not she who was denied an opportunity to speak. Prestopnik v. Whelan, 5:02-CV-1130, involves a teacher in New York’s Greater Johnstown School District who was not recommended for tenure. Jan Prestopnik hired attorney Elmer Robert Keach III of Albany, N.Y., to speak on her behalf at a meeting of the Board of Education. However, the district refused to allow Keach to speak during the public session of the meeting and invited him to write a letter to the board if he wanted to address the denial of tenure. Prestopnik sued, alleging a violation of her First Amendment rights. The question before Hurd was whether the free speech rights of Prestopnik were implicated when her attorney was refused a chance to address the school board on her behalf. — New York Law Journal COURT REPORTER JAILED OVER BAD TRANSCRIPTS NEW YORK — In a rare action, a three-judge federal panel in the Southern District of Texas has found a court reporter in contempt of court and sentenced her to 10 days in jail. It released her after seven. A contempt and commitment order against the woman, Jackie Smith, cites a series of cases in which she failed to deliver trial transcripts in a timely manner or didn’t deliver them at all. Other transcripts contained gaping holes. In one instance, her faulty transcripts triggered a motion for a new trial in a bribery case. Judge John Rainey dissented from the order jailing Smith, which was signed by Judges David Hittner and Janis Graham Jack. In re the Matter of Jackie Smith, 02-448 (March 20, 2003). Smith seemed to have performed competently since she was hired by the federal court in 1994, until sometime last year. Smith blamed her problems on new software and administrative complications. In an order on Wednesday, the court released her after obtaining her software password, copying her computer hard drive and getting her backup tapes. It also referred the matter to the U.S. attorney’s office because she had accepted a deposit of $21,800 for transcripts she never delivered. And, it forwarded its orders to the certification board. — The National Law Journal N.Y. COMMISSION SAYS FEDERAL JUDGE ERRED ALBANY, N.Y. — In his first substantive legal response to the Spargo decision, the head of the Commission on Judicial Conduct said a federal judge erred legally, factually and procedurally in declaring facially unconstitutional provisions governing off-the-bench behavior and political speech of judges. Gerald Stern, the commission’s executive director, said in an affidavit that Northern District U.S. Judge David Hurd’s Feb. 20 ruling in Spargo v. State Commission, 1:02-CV-1320, has hamstrung the work of an agency charged with maintaining high levels of judicial conduct and decorum. Stern’s forceful criticism of Judge Hurd’s opinion, and his dire predictions of its impact, was presented to the district court along with a motion by Assistant Attorney General Patrick MacRae asking the judge to immediately suspend the application of his ruling. In a case involving Albany Supreme Court Justice Thomas Spargo — formerly a nationally prominent Republican elections lawyer — Judge Hurd declared unconstitutional � � 100.1, 100.2(A), 100.5(A)(1)(c)-(g) and 100.5(A)(4)(a) of the Code of Judicial Conduct, and permanently enjoined the commission from enforcing provisions that generally address off-the-bench conduct. The stricken provisions require judges to adhere to high standards of conduct, to act in a manner that promotes public confidence and to refrain from other-than-proscribed political activity. Judge Hurd found the admonitions unconstitutionally vague, potentially freeing judges to engage in the sort of political behavior that has been prohibited for decades. Since the offending provisions are included in virtually every complaint filed by the commission, Judge Hurd’s order immediately affected the commission’s ability to function. — The New York Law Journal

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