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DA CHARGES ATTORNEY WITH EMBEZZLEMENT The San Francisco district attorney’s office announced Thursday it had arrested former lawyer Lawrence Cohen for allegedly settling cases without his clients’ consent and pocketing the proceeds. Prosecutors said in a statement that they and State Bar of California investigators had located 11 clients who had reported losses in excess of $100,000 — and they are still seeking alleged victims. “Trust between an attorney and a client is the heart of the profession,” District Attorney Terence Hallinan said in the statement. “To violate that trust is a despicable act.” According to State Bar records, Cohen resigned in February 2002 with charges pending. The nature of those charges is confidential, said a Bar spokeswoman. Bar records also show that the Bar’s client security fund paid out claims to Cohen’s clients shortly after his resignation. The DA’s office alleges that Cohen defrauded his clients and embezzled client funds by settling personal injury complaints without checking with his clients — then kept the proceeds. His clients were then on the hook for any medical bills that were to have been paid from the settlement, the DA’s office said. If convicted, Cohen could face up to eight years in prison. Efforts to locate Cohen for comment by press time were unsuccessful. — Renee Deger LEXISNEXIS GETS OPINION CONTRACT LexisNexis has contracted with the California Supreme Court to publish all of the state’s appellate opinions. The contract, which takes effect July 1, will include free public Internet access for all published opinions in the Official Reports, going back as far as 1850. “The new contract is quite advantageous to the state and public because it includes lower subscription prices and new online services for subscribers and the public,” Chief Justice Ronald George said in a prepared statement Thursday. “With the state’s ongoing budget crisis, the impact of subscription prices is very important because so many Official Reports subscribers are state and local government entities.” Under the contract, each subscription to the advance pamphlets will be about $100 per year less, and the cost of bound volumes will be reduced approximately 30 percent. Besides free online access to opinions, the contract calls for an online official database in the LexisNexis system, offline versions of opinions in CD-ROM and DVD formats, and an e-mail alert service for all subscribers and the general public. — Mike McKee TOBACCO GIANT FACES FRAUD SUIT IN GEORGIA ATLANTA — Still reeling from a massive $10.1-billion fraud judgment last month in Illinois, cigarette maker Philip Morris Inc. now faces a similar suit in Georgia’s Fulton State Court. Taking a cue from a Madison County, Ill., judge’s finding that the company deceived smokers into believing that light cigarettes were safer than other brands, the Atlanta firm of Chitwood & Harley sued New York-headquartered Philip Morris last week. The Fulton suit alleges that the company “intentionally and falsely conveyed a clear message to consumers that ‘Light,’ ‘Ultra-light’ and ‘low-tar’ cigarettes posed a decreased health risk” when they actually deliver higher tar and nicotine levels than their regular counterparts. The suit accuses Philip Morris of fraudulent concealment and fraud for allegedly preying on health-conscious consumers who hoped to minimize the risk of smoking-related disease. The complaint seeks to certify a class of Georgia smokers of the company’s light or low-tar cigarettes, a group that, according to the suit, consists of up to hundreds of thousands of people. The plaintiffs are not alleging they suffered any personal injury from smoking but seek damages of no more than $74,999 apiece for Philip Morris’ alleged fraud. — Fulton County Daily Report THIRD CIRCUIT REJECTS OTHER CIRCUIT OPINIONS PHILADELPHIA — If the plaintiff in a sexual harassment suit can prove she was the victim of a “constructive discharge” — meaning that working conditions were so intolerable that she was forced to quit — the defendant is not entitled to invoke the so-called Faragher/Ellerth defense, the Third U.S. Circuit Court of Appeals has ruled. The ruling is an important victory for plaintiffs because the federal courts are sharply split over the question of whether a constructive discharge qualifies as a “tangible employment action” for Faragher/Ellerth purposes. With its decision in Suders v. Easton, the Third Circuit rejected the views of the Second and Sixth Circuits — and a handful of district courts that followed them — and opted instead to adopt the reasoning of Chief Judge Mark Bennett of the Northern District of Iowa, who held that a constructive discharge, if proved, is equal to a firing or a demotion and, therefore, renders the Faragher/Ellerth defense unavailable. The Faragher/Ellerth defense — outlined by the U.S. Supreme Court in its 1998 decisions in Burlington Industries Inc. v. Ellerth and Faragher v. City of Boca Raton — has two components. To invoke it, a defendant must show that it “exercised reasonable care” to prevent and promptly correct any sexually harassing behavior and that the plaintiff “unreasonably failed to take advantage” of those preventive or corrective opportunities. The decisions were widely hailed as a victory for defendants because they offered a roadmap for summary judgment for companies that establish and enforce effective workplace policies. But the high court also said the defense was not available in cases that resulted in a “tangible employment action,” such as firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits. — The Legal Intelligencer

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