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NO PROTECTION FOR LAWYER’S RANTS HARTFORD, Conn. — An attorney’s poison-pen letter to former West Hartford Probate Judge John A. Berman is not protected free speech, a Connecticut Superior Court judge ruled late last month, upholding a reprimand lodged against Joseph Notopoulos. The West Hartford, Conn., lawyer had argued that he wrote and sent the letter in his capacity as a private citizen, not a member of the bar, and therefore shouldn’t be disciplined under ethics rules prohibiting attorneys from engaging in conduct prejudicial to the administration of justice or making statements intended to disrupt a tribunal. But ruling in Notopoulos v. Statewide Grievance Committee, New Britain Superior Court Judge William P. Murray found otherwise. “The Rules of Professional Conduct bind attorneys to uphold the law and to act in accordance with high standards in both their personal and professional lives,” wrote Murray citing appellate rulings in Statewide Grievance Committee v. Egbarin and Statewide Grievance Committee v. Scluger. Murray also disagreed with Notopoulos’ claim that his criticisms — which included his contention that Berman had “prostituted the integrity of his office” — were absolutely protected under the First Amendment. “In the context of disciplinary proceedings, an attorney’s right to free speech must be balanced with the state’s interest in preserving the integrity of the judicial system,” Murray wrote. “Here, the significant state interest in preserving public confidence in the judicial system outweighs the free speech rights of Notopoulos to make reckless accusations about the integrity of a probate judge.” Angered by Berman’s 1999 decision to appoint a former accountant as his dying mother’s conservator, Notopoulos fired off correspondence to the West Hartford Probate Court in September 2000 accusing Berman of running “a financial spoils system for the cronies he calls his ‘professional conservators.’” Notopoulos also sent copies of the letter to his brother and a local physician, according to the reviewing panel that heard the complaint subsequently lodged by Berman. — Connecticut Law Tribune JURY SLAPS HOTEL SPA OVER MANICURE JOB MIAMI — A federal jury has ordered The Breakers hotel in Palm Beach to pay a South Carolina woman $847,000 for negligence in a manicure that caused a severe infection in her thumb that required two surgeries. The Fort Lauderdale jury Thursday found that a beautician’s errors and unsanitary conditions at the hotel spa led to a staph infection in the woman’s thumb. She was left with permanent partial disability after the infection persisted over a period of several months, and at one point she required an eight-day hospitalization. Kristy Kay, the hotel’s director of legal services, said The Breakers was “shocked” by the verdict and “fully intends” to appeal. “We have an award-winning spa,” she said. “This is a perfect example of how illogical and unpredictable a jury can be.” Plaintiffs Julie Lofink, a retired nurse, and her husband, Walter, a retired ironworker, were represented in the suit by attorney Marc Brumer, a partner at Brumer & Brumer in Miami. Counsel for The Breakers was attorney Kathryn Tignor, a partner at Adams Coogler Watson Merkel Barry & Kellner in West Palm Beach. In its verdict, the jury awarded Julie Lofink $29,267 for medical expenses and $797,267 for pain and suffering. It awarded Walter Lofink $50,000 for loss of consortium. The Lofinks were guests at the historic Palm Beach luxury resort in September 2001 when Julie Lofink went for a manicure that was part of the golf package they had purchased. She complained of pain in her right thumb during the procedure and, shortly after returning home to Aiken, S.C., sought medical treatment after the pain increased. Despite an initial diagnosis of arthritis, swelling and continued pain indicated an infection. The thumb was lanced and drained but the condition was unabated over the following months despite a regime of antibiotics. In April 2002, she underwent surgery as an outpatient. — Miami Daily Business Review JURY : MEXICO COMPANY BREACHED CONTRACT A federal jury in San Antonio on Oct. 1 returned a $19.6 million verdict against Avantel, Mexico’s second largest long-distance carrier, finding that the company breached a verbal contract with now-defunct TelePlus Inc. The dispute in TelePlus v. Avantel arose out of the heated competition for long-distance customers following the deregulation of telecommunication services in Mexico. Before 1997, individuals and businesses in Mexico were required to purchase long-distance services from Telefonos de Mexico, known more commonly as “Telmex.” But starting on Jan. 1, 1997, when deregulation went into effect, consumers were allowed to choose their long-distance carrier. TelePlus marketed long-distance service for Avantel in early 1997. In 1998, TelePlus, formerly a San Antonio-based telecommunications company, filed suit against MCI Telecommunications Corp., which owns part of Avantel, in the U.S. District Court for the Western District in San Antonio, alleging, among other things, breach of contract. Senior U.S. District Judge William Wayne Justice was assigned to hear the case, which has undergone changes in defendants over the past five years, including when it added MCI subsidiaries. TelePlus added Avantel as a defendant in the suit in 2000 and dismissed its claims against MCI and its subsidiaries in July 2002, following public disclosure of that company’s impending bankruptcy. In a complaint filed with the federal court, TelePlus alleged that Avantel repeatedly solicited TelePlus in 1996 to enter into an oral agreement to provide additional marketing services in anticipation of the deregulation. Under the contract, which Avantel allegedly said would be put in writing, TelePlus promised to solicit Mexican residential and business customers to select Avantel as their long-distance carrier after Jan. 1, 1997, TelePlus alleged in the complaint. But, according to the complaint, Avantel allegedly refused to execute a written contract. “Avantel continued to tell TelePlus that their agreement would be reduced to writing and urged TelePlus to begin and, thereafter, to continue working without a written agreement in place. Indeed, Avantel represented that it was counting on TelePlus ‘in a big way,’” TelePlus alleged in its complaint. — Texas Lawyer ‘OPT-IN’ CLASS CERTIFIED OVER SKI TRAIN NEW YORK — A Southern District of New York judge has taken the unusual step in an Austrian train disaster case of certifying a class that may “opt-in” to mass accident litigation. Judge Shira Scheindlin said that while she was “unable to find a case in which an ‘opt-in’ class was certified” under Rule 23 of the Federal Rules of Civil Procedure, “there is nothing in the rule or case law that precludes such certification.” Normally under Rule 23 (b)(3), class members can be allowed to “opt-out” of litigation after a class is certified and notice is sent to potential class members. One exception to that practice is in class actions involving primarily injunctive relief. But in an opt-in class, plaintiffs must affirmatively choose to be a class member at an earlier stage of the litigation, and in this case must agree not to sue in other countries if their lawsuit fails here. But despite the paucity of case law on the subject, Judge Scheindlin said the possibility of repeat litigation in other countries over the Ski Train fire that killed 155 people in Austria in 2000 made it proper to establish an “opt-in” class in In re Ski Train Fire in Kaprun, Austria on Nov. 11, 2000, multidistrict litigation that has been sent to New York under 01 MDL 1428. The fire occurred in a cable car that was going through a mountain tunnel. Eight Americans were among those killed in the incident. The plaintiffs alleged that both the train and the tunnel were improperly designed, built and maintained and that the train was negligently operated. The numerous defendants in the litigation, which included Siemens Corp., opposed class certification. Judge Scheindlin noted that courts traditionally have been “reluctant to apply the class action device to mass accident litigation,” in part because “plaintiffs in mass tort cases do not share common interests because of differences in the strength of their claims.” — New York Law Journal

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