Murray M. Chotiner, Beverly Hills, Cal., Dermot R. Long, Hollywood, Cal., for petitioners.
Charles K. Rice, Asst. Atty. Gen., Grant W. Wiprud, Lee A. Jackson, A. F. Prescott, Joseph Kovner, Attys., Department of Justice, Washington, D. C., for respondent.
Before BARNES, HAMLEY and JERTBERG, Circuit Judges.
Before us are separate appeals by Richard Douglas Furnish and Emilie Furnish Funk, his onetime wife. Richard Douglas Furnish appeals from determinations of deficiencies of income tax for the years 1939 to 1949; his former wife for the period 1939 to 1942. Mrs. Funk's responsibility rests on her alleged joint and several liability for the filing of joint returns found to have been fraudulent. Mrs. Funk had actually signed such income tax forms, while blank, at her husband's request.
Richard Douglas Furnish, a doctor of medicine practicing in California, filed income tax returns for the years 1939 to 1948 reporting net income of $101,407.88 for these years. In the court below, he admits that he received a net income of $529,854.84 during these years, computed by his accountant through use of the net worth method. The figures established originally by an audit of taxpayer's books, prepared by an auditor of taxpayer's choice — the so-called Hill Audit — and as revised and checked by the Commissioner, enabled him to find, and he did find, that the doctor's net income during this period was $649,512.73. The Tax Court found the Commissioner's method of determining the taxpayer's net income (i. e., from the doctor's professional books and receipts, dividends, interest, and gain from sale of properties) was more accurate than the net worth method.
Errors urged are (1) that the so-called Hill Audit (Petitioner's Ex. 1) was received in evidence in error; (2) that its figures were not as accurate as those derived by the net worth method, advocated and relied on by the petitioner; (3) that respondent had not sustained his burden of proof of establishing fraud; and (4) that because of the absence of fraud, the statute of limitations bars deficiencies prior to 1944.
The deficiencies in question cover eleven successive calendar years — from 1939 through 1949. No point is raised on this appeal with respect to the deficiency determination for 1949. A total gross understatement of the difference between $100,000 and $530,000 (in round figures) is admitted by the taxpayer. Some substantial portion of that difference is admitted as to each year. Thus the incorrectness of the returns is without dispute. Mere omission of reportable income is not of itself sufficient to warrant a finding of fraud in an income tax case. Bryan v. Commissioner, 5 Cir., 1954, 209 F.2d 822; Goldberg v. Commissioner, 5 Cir., 1956, 239 F.2d 316, 320. However, repeated understatements in successive years when coupled with other circumstances showing an intent to conceal or misstate taxable income present a basis on which the Tax Court may properly infer fraud. Anderson v. Commissioner, 5 Cir., 1957, 250 F.2d 242, 249-250. Some of the taxpayer's income was reported by individuals other than petitioner.1 Title to real and personal property owned by the taxpayer was held in names other than the taxpayer.2 Petitioner failed to include certain substantial amounts of income on his books. "There was evidence of a consistent pattern of under reporting large amounts of income, and of the failure on petitioner's part to include all of (his) income in (his) books and records. * * *" These acts alone are sufficient to support an inference of wilfulness, says the Supreme Court in Holland v. United States, 1954, 348 U.S. 121, 139, 75 S. Ct. 127, 99 L. Ed. 150; Spies v. United States, 1943, 317 U.S. 492, 499-500, 63 S. Ct. 364, 87 L. Ed. 418.
The taxpayer not only did not keep accurate records, but he refused to follow the advice of others suggesting that he keep them.
The taxpayer concealed his ownership of certain property. He explained this as being a matter of convenience due to law suits and difficulties with his wife. Yet such concealment by itself is indicative of a wilful intent to evade income taxes. Remmer v. United States, 9 Cir., 1953, 205 F.2d 277, 288. Further, neither by testimony, brief, nor in oral argument has petitioner explained why he sent checks received from patients which represented payment of his (the taxpayer's) bills for medical services rendered in Los Angeles County, California, to his sister in Kansas City. There they were cashed and stored in a safe deposit box. "Approximately $25,000" was returned to him from his sister in cash by express in 1946, and "approximately $25,000" additionally was sent to Dr. Furnish in cash in 1947. No record was kept by anyone as to these transactions.
Again, the suggestion of "convenience" is raised by taxpayer explaining why he had a friend cash a $65,000 check made out to someone else, in San Pedro, so that he (Dr. Furnish) might receive the money in $20 bills. Such a transaction, when viewed in the light of all other evidence in the case, leads more readily to a conclusion of intent to defraud the government than that it was a matter of mere convenience.
No explanation is offered as to why Dr. Furnish denied to government auditors that he had previously owned any real estate, or had had any transactions therein, when the opposite was true.
Dr. Furnish did not choose to take the stand in his own behalf in this case. He introduced evidence on his own behalf, however, that he had previously entered a plea of nolo contendere to two of three counts in a criminal indictment charging the fraudulent evasion of income tax. After such conviction, the third count against Dr. Furnish was dismissed. At the time of his sentence, leniency was urged on his behalf by his counsel because "the doctor still must face the matter of fraud penalties — a fifty per cent penalty payment of tax, and the payment of interest."
In view of the uncontradicted testimony of the petitioner's actions during this ten year period from 1939 to 1948, there can be no question but that the government sustained its burden of proof of establishing fraud by clear and convincing proof. The claim that no fraud was established is utterly unconvincing, and approaches the frivolous.
Petitioner Richard Douglas Furnish raises two other points that can be considered together — error in admitting the Hill Audit, and that the Hill Audit was not as good or as accurate a method of establishing income as was the net worth method, which in the manner presented by petitioner was more favorable to him.
It should be noted that the correct amount of taxpayer's income for each of the years in question from sources other than gross professional income is not in question. This covers interest, dividends and capital gains on real estate transactions. Further, the amount of petitioner's professional expenses is undisputed, since the Commission allowed all claimed by the taxpayer. Thus in reality the sole remaining issue is whether the determination made by the Tax Court of what constituted petitioner's gross professional receipts is supported by the evidence.
"Agent Ness carefully checked it, sampling 3,900 of the 20,000 cards. The special agent also consulted with the taxpayer's two office employees who were familiar with the records; and whenever they could not answer any question on a particular card, the special agent took it up with the taxpayer himself.
"Only once source of income is in dispute, namely his gross professional receipts, but these have been established from his own records, by his own accountant, aided by the taxpayer himself and his own employees. In short, this case is one in which the Commissioner has determined the taxpayer's income to be what he said it was."
We know of no rule of law or evidence that requires the Tax Court to accept as the best evidence a reconstructed net worth system in which the starting figures of opening cash were supplied and based solely on the taxpayer's statement,3 in preference to an audit made entirely from the records as they were maintained by the taxpayer.
The opening cash position is the one most critical figure. Holland v. United States, supra; Friedberg v. United States, 1954, 348 U.S. 142, 75 S. Ct. 138, 99 L. Ed. 188. Here, as the government has pointed out, it was stated as a fact by appellant but was not made under oath, not subject to cross-examination, and uncorroborated by any cash records of bank accounts, or books of account. It is a self-serving statement at best, and it certainly cannot rebut the evidence of income shown by an audit of taxpayer's records, aided by those familiar with the records, including taxpayer himself. Smith v. United States, 1954, 348 U.S. 147, 75 S. Ct. 194, 99 L. Ed. 192.
The Commissioner did not accept the net worth statement as an accurate statement of the taxpayer's assets, as taxpayer asserts. On the contrary, as Agent Ness testified, had the Government intended to rely upon the net worth statement, it would have made a "close inquiry on the cash figures." Plainly, the Commissioner cannot be compelled to accept a net worth analysis. As a matter of law and reason he is authorized to determine taxpayer's income from his records, rather than from his unsworn assertions. Miller v. Commissioner, 5 Cir., 1956, 237 F.2d 830.
We conclude there is no merit in any of the grounds urged for reversal on behalf of Dr. Furnish.
Here we have an entirely different situation than that presented by Dr. Furnish's appeal. Her appeal has reference to the years 1939 to 1942, inclusive, wherein joint returns were filed by the doctor and his then wife (now Mrs. Funk). As was stated above, Mrs. Funk signed these returns in blank, and the doctor filled them in.
Under Section 51(b) of the 1939 Code, 26 U.S.C.A. § 51(b), if a joint return is filed by a husband and wife living together, they are jointly and severally liable for the full tax liability. Such liability covers not only the basic tax but also any addition to the tax on account of fraud, notwithstanding that the wife may have signed the return in blank and that she was innocent of the fraud; indeed such liability extends to the wife with respect to a joint return even where she failed to sign it, provided that it was intended to be a joint return. Kann v. Commissioner, 1952, 18 T.C. 1032, 1044, affirmed, 3 Cir., 1953, 210 F.2d 247, certiorari denied, 1954, 347 U.S. 967, 74 S. Ct. 778, 98 L. Ed. 1109; Howell v. Commissioner, 1948, 10 T.C. 859, 866, 869, affirmed, 6 Cir., 1949, 175 F.2d 240. Cf., Heim v. Commissioner, 1956, 27 T.C. 270.
"We reach this conclusion with great reluctance, because it is plain upon this record not only that the wife was not guilty of fraud but that she, along with the Government, was a victim of the very fraud that has tolled the running of the statute of limitations against her and furnished the basis for the imposition of the so-called fraud penalty. The result is highly inequitable, but it appears to be required by the plain language of Section 51(b) and the cases applying it. To reach a contrary result with respect to her we would have to find that the returns were not in fact joint returns — a finding that cannot fairly be made on this record. The Congress has not committed to this Court the powers of a court of equity."
We agree with the Commissioner that after the decision in Cole v. Commissioner, 9 Cir., 1935, 81 F.2d 485, Congress in § 51(b) of the Revenue Act of 1938, ch. 289, 52 Stat. 447, 476, changed the language of the section to expressly provide that the liability of the joint signers shall be joint and several; and that such language was re-enacted into § 51(b) of the 1939 Code, controlling here. Under that law, as the House Committee Report states,5 "deficiencies, penalties and interest may be collected from either or both of them" (the joint signers).
We further agree with the Commissioner that the cases decided since the revision of § 51(b) hold that said section makes no distinction as to the liability of the signers based upon whether the transactions are fraudulent or non-fraudulent. The fact that the wife does not participate or even known of the husband's fraud does not exempt her from the civil penalties, including the penalty for fraud.
"We cannot find on this record that the `incidents' which caused her to be `afraid' of her husband were of such character as to produce a state of mind that would prevent the exercise of her free will. Fear that would justify a decision that a signature on a return was made in circumstances which destroyed the free will of the signer must have a sound basis in fact, and that basis must be shown. It has not been shown here. Cf. Estate of Merlin H. Aylesworth, 24 T.C. 134."
The government, in its brief, does not comment on the validity of the defense of duress to the liability created by § 51 (b) but argues only the existence of that liability.
It should be noted that the Aylesworth case, while apposite in certain particulars, did not involve civil fraud penalties, but merely deficiencies created by certain disallowed deductions and the classification of a claimed long term loss on the sale of securities as personal income. There, the wife had benefited from the returns she signed in blank.
"Duress" may exist not only when a gun is held to one's head while a signature is being subscribed to a document. A long continued course of mental intimidation can be equally as effective, and perhaps more so, in constituting duress.6 The actions of the husband in this particular case over a long period of time with all the other facts before the Court, lead us to the conclusion that here there could well have existed duress on the wife sufficient to destroy her free will. Under California law, the test of duress at its harshest is what would have influenced the conduct of a reasonable man. Young v. Hoagland, 1931, 212 Cal. 426, 431, 298 P. 996, 75 A.L.R. 654. Many courts have relaxed the rule to make the test the state of mind induced in the particular person. Steffen v. Refrigeration Discount Corp., 1949, 91 Cal. App. 2d 494, 205 P.2d 727. Cf., Lewis v. Fahn, 1952, 113 Cal. App. 2d 95, 247 P.2d 831, 833-834; 17A Am.Jur., Duress §§ 2, 4, 9, 11, 15 (1957).
"Under the modern doctrine there is no standard of courage or firmness with which the victim of duress must comply at the risk of being without remedy; the question is merely whether the pressure applied did in fact so far affect the individual concerned as to deprive him of contractual volition; if it did there is duress, if it did not there is none."
17 C.J.S. Contracts § 175.
Here Mrs. Funk was defrauded by her then husband, who was at the same time defrauding the government. She may have signed as an automaton; there could well have been no exercise of her free will. Under the peculiar circumstances of this case, we believe it harshly inequitable for the wife to be forced to pay a penalty for fraud arising out of nothing she had done, save signing a blank return required of her by a dominating husband who was attempting to defraud both his wife and his government.
We agree with appellant Emilie Furnish Funk that the Tax Court here holds liable "an innocent party for the fraudulent activities of a former spouse, when in fact said innocent party had no knowledge of, had not concurred in, nor received benefit, direct or indirect, from said fraud." But this the court could properly do, if there was no duress. We cannot substitute our judgment for that of the trier of facts. But we feel the court has been influenced by an erroneous view of the law determining what constitutes duress, and in determining what could or could not prevent the exercise of Mrs. Funk's free will. Stacher v. United States, 9 Cir., 1958, 258 F.2d 112, 116. Cf. also: United States v. United States Gypsum Co., 1947, 333 U.S. 364, 394, 68 S. Ct. 525, 92 L. Ed. 746; Smallfield v. Home Ins. Co., 9 Cir., 1957, 244 F.2d 337, 341; American President Lines v. Marine Terminal Corp., 9 Cir., 1956, 234 F.2d 753, 760.
The judgment is affirmed as to the appellant Richard Douglas Furnish and remanded as to Emilie Furnish Funk for redetermination of the question of the existence of duress, or the lack of it, on Mrs. Funk under the modern law.
"Q. Mrs. Funk, you testified that you did sign these returns in blank? A. I did.
"Q. Did he say it in a nice way or in a harsh manner? A. Well, most of the time he was very harsh.
"Q. Then you would sign the return and go up to bed, is that correct? A. Yes, sir.
"Q. Mrs. Funk, did you sign these returns in blank because you were afraid of Dr. Furnish? A. Yes, sir, I was.
"Q. Had there been some prior difficulties in your marriage which made that fear reasonable? A. There certainly were.
"Q. Many incidents? A. Many.
"Argument to show that a deed or other written obligation or contract, procured by means of duress, is inoperative and void, is hardly required, as the proposition, is not denied by the respondent. Actual violence is not necessary to constitute duress, even at common law, as understood in the parent country, because consent is the very essence of a contract, and, if there be compulsion, there is no actual consent, and moral compulsion, such as that produced by threats to take life or to inflict great bodily harm, as well as that produced by imprisonment, is everywhere regarded as sufficient, in law, to destroy free agency, without which there can be no contract, because, in that state of the case, there is not consent.
"Duress, in its more extended sense, means that degree of constraint or danger, either actually inflicted or threatened and impending, which is sufficient, in severity or in apprehension, to overcome the mind and will of a person of ordinary firmness."
Cf. also, Davis v. Davis, 1942, 49 Cal. App. 2d 239, 121 P.2d 523, 524, where the court found duress at the time of signing even though husband used no force and was outside of the state at the time.


The boundaries between legal ethics and ordinary honesty are not always as clear as the requirement to keeps one’s hands off the clients’ money. Honest lawyers can and do face responsibility for their partners’ wrongdoing. At times, zealous advocacy may reward or even require conduct on the part of a lawyer that would seem sharp or dishonest in everyday life. Yet, by going too far in representing their clients, attorneys can expose themselves to serious liabilities.
Honesty is necessary, but it is not sufficient. Only lawyers who are strongly committed to ethical practice and clearly understand their ethical obligations can hope to avoid some of the less obvious ethical pitfalls. An analysis of the Disciplinary Rules and recent court decisions illustrates the personal and practice pitfalls to avoid, as well as the penalties that have been assessed against those who have fallen short.
While respondent strongly disputes that his multiple acts of forgery constitute an aggravating "pattern of misconduct," we disagree. Significantly, respondent's misconduct included the misappropriation of the notary stamps of his work colleagues and the forgery of their signatures. This not only put his own career in jeopardy, but also adversely impacted his colleagues and his firm. We further note that while respondent stresses his cooperation and remorse, he had many opportunities to reconsider and admit his wrongful conduct, but did not do so, remaining silent until it was brought to light by others."
All attorneys should know that conviction of a felony leads to automatic disbarment. Then the First Department comes down with this case just this year.
NOTE- the only reason attorneys representing mass tort victims are not barred from doing so by conflict rules is that in all such cases the Court determines the distribution of an aggregate settlement. Rule 1.8(g) also permits informed consent to such a settlement in a writing signed by the client, but the Courts are liable to give such writings little weight. As we see in this instance, the courts, and especially the Federal courts, tend to scrutinize mass tort settlements very carefully.
Sometimes we see a case that blows such a huge crater in the Disciplinary Rules and in every ordinary notion of decency and honesty, that we must simple pause to gasp in wonder. Such a case is The Florida Bar v. St. Louis, 967 So.2d 108 (Fla. 2007). St. Louis represented twenty farmers and nurserymen suing DuPont Corp. for claims of damage to their crops caused by Benlate, a fungicide. He eventually obtained a settlement offer of $59 million from DuPont. DuPont demanded as a condition of the settlement that St. Louis accept no more Benlate claims, and offered St. Louis’s firm an "engagement agreement," whereby DuPont would pay them $6,445,000 million as a "retainer," outside of the $59 million settlement.
St. Louis accepted DuPont’s offer, and then persuaded, or pressured, his clients to settle the claims. He never informed either the Court or his clients of the side agreement with DuPont. Some of the clients were not satisfied that St. Louis had adequately explained their settlements, and filed grievances. In the course of the Bar’s investigation of the grievances, St. Louis failed to disclose the engagement agreement. He also failed to disclose the existence of the engagement agreement to a Federal Judge in a related matter. Eventually the engagement agreement came to the attention of the Federal judge- the decision does not explain how. The judge then informed the Bar Counsel of St. Louis’s misrepresentation and the existence of the agreement. .
The Florida Supreme Court found that the referee’s recommendation of a sixty-day suspension, probation for three years, and forfeiture of $2,277,663 share of the fee from DuPont to the Clients' Security Fund was too lenient, and increased the penalty to disbarment. The court specifically pointed out that the Supreme Court typically imposes the severe sanction of disbarment on lawyers who intentionally lie to a court. The Supreme Court also added interest to the $2,277,663 fee disgorgement. All of the lawyers in the firm disgorged their share of the DuPont retainer, but they apparently kept the fees on the $59 million settlement.
The laundry list of ethical violations cited by the Supreme Court (citations to New York rules) included: Rule 1.4(a) (informing client of status of representation); Rule 1.4(b) (duty to explain matters to client); Rule 1.5 (prohibited fees); Rule 1.7 (duty to avoid limitation on independent professional judgment; Rule 3.3 (candor towards a tribunal); Rule 4.1 (knowingly making a false statement of material fact); Rule 8.4 (violating rules of professional conduct; engaging in conduct involving misrepresentation). Lesson- While it is not explicitly stated, it seems that St. Louis’ decision to try to defend himself by any means necessary, rather than expressing remorse and acknowledging wrongdoing was what insured his disbarment.
, 552 F. 2d. 218 (2d Circuit, 2009)- District Court did not abuse its discretion in denying counsel’s request for attorney’s fees in its entirely, where Court determined that counsel violated New York disciplinary rules by purposely requesting a fee in excess of the statutory maximum by $20,000 in a $2.4 million settlement. The Court begins by drily observing that "this case is instructive with respect to the nature of the conduct that may merit the denial of an attorney’s application for fees." Counsel failed to provide any documentation detailing what he did, what his disbursements were, what the infant’s medical condition was, what the projected future medical expenses would be, or an expert report on which the district court could rely in assessing the reasonableness of the settlement. This criticism was based on the report of an experienced medical malpractice attorney who was appointed as special master to evaluate the settlement after counsel repeatedly ignored the Court’s requests for further documentation to support the application. The District Court excoriated the attorney, and denied his fee application in its entirety. The Court of Appeals held that the fact finder’s view of the evidence was not clearly erroneous and there was a sound basis for the determination that the attorney had committed misconduct. Back story – The attorney representing Chen had resigned from the bar under threat of disbarment for escrow violations while his fee application was under scrutiny, so perhaps he saw no point in trying to justify his application. He now is making a living in the litigation finance business.
PRACTICE TIP – If you want to get a referral fee, learn the provisions of Rule 1.5, Fees and Division of Fees, and follow it.
In Weisburst v. Dreifus (2011 Slip Op 08207) (1st Dept, Nov. 15, 2011) the Court upheld an order directing defendant to pay plaintiff $35,500 in counsel fees. The court did not abuse its discretion in finding that defendant's underlying motion for an emergency stay contained "false charges [against plaintiff] that were expressed by means of a tortured and very partial rendering of the facts that can only have been deliberately crafted to mislead" and was therefore frivolous within the meaning of 22 NYCRR 130-1.1. Lesson- this offender may have gotten off easy. I am waiting for a Court to impose treble sanctions pursuant to Judiciary Law §487.
Thanks to Justice Lewis Lubell for helping to develop this CLE and taking time from his busy schedule to present it with me. Thanks to Prof. John Humbach of Pace Law School, who was kind enough to share with me his article Shifting Paradigms of Lawyer Honesty, Tennessee Law Review 77:933 (2009). Reading that article assisted me in preparing for this CLE, and Prof. Humbach was kind enough to discuss some of the cases cited in his article in an exchange of e-mails. I hope he will be able to join us on future CLE panels.
, 74 A.D.3d 1168 (2d Dept., 2010), motion for leave to appeal denied, 16 N.Y.3d 826. Corporate client sufficiently alleged that its attorney's malpractice caused it damage, by pleading loss of its equipment, assets, and ability to continue in business, due in part to attorney's legal advice. Corporate client sufficiently alleged attorney's deceit, a misdemeanor for which treble damages were available, by asserting that attorney knowingly advised and counseled shareholder in violating injunction and in failing to advise other 50% shareholder of sale of all assets, and in failing to move to be relieved as corporation's counsel after shareholder advised him that he was resigning. While the order denying defendants’ dismissal motion was wending its way through the appeals process, defendants were apparently stonewalling their way through the discovery process. Defendant’s answer was stricken for "willful and contumacious" discovery abuse, 83 A.D.3d 685 (N.Y.A.D. 2 Dept. Apr 05, 2011). Back Story- The case was recently settled for an undisclosed amount. There was an insurance company involved so most likely the plaintiff waived any exemplary damages, which are not covered by most insurance policies. No doubt the treble damages claim gave plaintiffs considerable leverage., 12 N.Y. 3d 8 (2009) - On a certified question from the Second Circuit Court, the Court of Appeals held that a party to a litigation could be held liable for statutory treble damages and the prevailing party’s attorney fees, based upon material misrepresentation of fact to a tribunal in a complaint, regardless of whether the Court believed in the misrepresentation or relied on it. The Court in a short but remarkably broad decision, traces the statute’s origins back to the first decades after Magna Carta, and lauds "the statute’s evident intent to enforce an attorney’s special obligation to protect the integrity of the courts and foster their truth-seeking function." -There was a long line of cases limiting the availability of treble damages to instances of "chronic extreme pattern of legal delinquency." They will not be cited here because that interpretation of the statute is no longer controlling in light of the cases below. 56 A.D. 3d 1 (1st Dept. 2008) – Insurance company stated a valid claim, inter alia, breach of fiduciary duty and legal malpractice, where the firm represented the plaintiff company, its managing general agent, and a competing company. The competing company was actively soliciting the business of three insured of the plaintiff company, allegedly with the assistance of the law firm. At the same time, the law firm allegedly advised the plaintiff company to extend coverage to claims made after the policy period, which the plaintiff company did. Then the competing company signed up the accounts. [Remarkably, there is no reported disciplinary action arising from this dual representation. If true, this fact pattern represents a clear violation of Rule 1.7], docket No 08-4966-cv (2d Circuit, 2010) – The originating attorney had performed no documented services, and had referred the case to the attorney of record on a 65%-35% fee split. No writing was given to the client (See, Rule 1.5, formerly DR 2-107). The attorney of record agreed to a 2/3 – 1/3 split of that 65% with trial counsel. The case was settled for $975,000 and came before Magistrate Judge Mann for an infant’s compromise. At the compromise hearing, the judge sua sponte questioned whether the referring attorney could share in the attorney’s fee. When the plaintiffs were questioned about the referring attorney they could not even recall his name. He could not show that he had performed any services in the litigation. The magistrate judge approved the fee application of the attorney of record and the trial counsel, but denied any portion of the attorney’s fees to the referring attorney and awarded their 35% to the plaintiff. District Judge Gleeson confirmed magistrate Judge Mann’s decision, and the Circuit Court of Appeals affirmed. - NYLJ 3/14/11 – (continued) The other reason that the Court assigned ethics counsel was that of approximately 10,000 plaintiffs represented by the attorneys, they decided not to count 56 of them who had opted out of the settlement, presumably because they had accepted VCF funds, unlike the other 9944. It was undoubtedly a coincidence that had the 56 been included in the group, required to approve the settlement, the 95% threshold would not have been reached and the entire settlement would have fallen apart. The court cited Rules 1.7(a) (2), 1.8(g) in its decision. This case should be considered in light of the long string of citations in Tavarez about fee forfeiture., 23 Misc. 3d 377 (Sup. Bronx, 2009) – Justice Victor, sua sponte, stayed a motion for summary judgment on the basis that representing the driver and three passengers in the same vehicle is not necessarily a good idea. In fact, it is presumed to be a conflict of interest notwithstanding waiver and consent by the clients. Even the "possibility" or "appearance" of conflict is prohibited. J. Victor also reminds us that even in the most routine auto accident case, the consequences of a conflict can include fee forfeiture. The parties were directed to appear for a hearing on the conflict issue. Thereafter, the summary judgment motion was decided and the case settled. The court record does not show that the plaintiff’s attorney was substituted out, so presumably they dodged the bullet. – Rules 1.7 ff. - the explanation, such as it is, appears to lie in the definition of "serious crime" in the statute. "Wounding" is a felony in Virginia, not in NY. Therefore automatic disbarment does not follow such a conviction. Never mind that the attorney was a serial wife beater. He wasn’t convicted in New York of a New York defined crime. This case appears to be a throwback to the days when it was legal to beat one’s wife with a stick smaller than one’s thumb. 86 A.D. 3d 330 (1st Dept. 2011) - 36–month suspension based on conviction for "serious crime" of domestic violence in Virginia ("wounding" his spouse!), and prior New Jersey misdemeanor conviction of similar misconduct. Those acts reflected adversely on his fitness to practice law, even if his acts of physical aggression did not occur in his professional life.- the lawyer who has an excuse for misconduct and expresses remorse, has a good chance to avoid the most extreme sanctions. Those who compound their misconduct with arrogance and denial are most likely to get their tickets punched. , 21 A.D. 2d. 229 (4th Dept., 2005) – attorney violated prohibition of granting financial assistance to a client beyond the expenses of litigation. The lawyers had arranged to establish their own funding company through Cellino’s cousin, and failed to disclose their financial interest in the company to borrowers. For these and numerous other ethical violations, including filing a false retainer statement, Cellino was suspended for six months and his partner Barnes was publicly censured.- the only distinction I can see from Vitelli is that Andrion’s victims were not his clients and he at least expressed remorse. Although the Committee apparently was unconvinced, they showed some mercy. 88 N.Y.3d 62, 2011 N.Y. Slip Op. 06076 (1st Dept. 2011) - Three-year suspension for attorney who had engaged in fraudulent conduct while obtaining mortgages in connection with his residence. Attorneys obtained three mortgages from two lenders by fraud over a period of three years by forging his wife's signature on two power-of-attorney (PA) forms without her knowledge or permission. He misappropriated the notary stamps of two colleagues, using stamps to notarize PA forms and forging notary signatures on PA forms, filed the forged PA forms with county clerk's office, obtained mortgages on jointly owned marital home without wife's knowledge or permission, forged wife's signature on mortgage documents and recorded the fraudulently obtained mortgages, and obtained mortgage funds from lenders based upon his intentional deception that he had authority to sign wife's name and to mortgage their jointly owned home. Unlike Vitelli, there were some mitigating factors at play such as his family’s illness. , 247 A.D. 2d 9 (2d Dep’t 1998) lv to appeal denied 92 N.Y.2d 815: The attorney was found to have notarized the forged signature of the client on litigation documents. There was insufficient evidence to prove that the attorney had forged it. The client also taped conversations with the attorney in which he asked the client for money to "pay off" a clerk to enter a default judgment based on the forged legal papers, and later falsely told the client that the sheriff had collected $25,000 on the bogus judgment. The attorney was disbarred. The attorney offered no evidence in mitigation. Note- The attorney later paid a significant malpractice settlement to his former client after a torturous litigation.., ____AD 3d _____, 2011 Slip Opinion [Sl. Op.] 07942 (2d Dep’t., Nov. 10, 2011) The attorney was found to have failed to filed 59 OCA retainer and/or closing statements. Filing them nunc pro tunc (probably after the investigation was underway) did not satisfy the Committee. More seriously, the Committee upheld a client’s complaint that the attorney had improperly used his influence over a former client to persuade the client to loan him $50,000, without interest, collateral, or even a writing. The decision does not report whether the loan was ever repaid. This charge had been rejected by the Referee, but was upheld by the Hearing Panel and the Committee as a violation of former DR 5-104(A) (Business dealings with a client- now Rule 1.8(A). The Committee’s opinion contains a good analysis of DR 5-104(A). Given the fact that the attorney had previously been censured for escrow irregularities, the Committee imposed a three-month suspension. Lesson- The Committee does not seem to care much whether OCA statements are filed. The leniency of the Referee in giving the attorney a pass on the loan, and of the Committee in imposing only a three-month suspension, is noteworthy. , 80 A.D. 3d 99 (1st Dep’t 2010) –attorney persuaded his brain-damaged medical malpractice client to sign a litigation funding agreement for the disbursements of his case at 15% per year. Not incidentally, attorney was heavily indebted to several litigation funding companies for hundreds of thousands of dollars. When the medical malpractice case finally settled in excess of $4 million, the attorney advised his client that the fee was one third of the net recovery, subject to court approval (scheduled medical malpractice fees are much less). The client was then asked to, and did, give the attorney a check for the amount the attorney requested as a fee, with the memo "gift." (A violation of Rule 1.8(b) on its face). Meanwhile, the attorney had assigned a $666,666 interest in the fees on another portion of the settlement to two funding companies, apparently in violation of a priority collateral agreement with a third. Litigation was commenced by the funding companies, of course. Justice Heitler ultimately denied the application for the increased fee, and directed the attorney to return the overcharge. He did not do so, and filed for bankruptcy. The attorney was disbarred. One reason given was his failure to show remorse, which seems superfluous to mention on this record. – Rule 8.4 (b)- This case is just the tip of the iceberg. There are three other pending related cases involving at least three law firms and various funding companies, all suing each other. -NYLJ 3/15/11 – former client files suit against funding company whose $30,000 advance has grown to as much as $800,000 over 7 years. He also named his former attorney, alleging that even though he had the client sign a letter stating that he had been advised that it "was not in his best interest" to take the advance, and he was doing so "against my lawyer’s advice," his lawyers had failed to explain to him that taking the loan was against his interest.- NYLJ 3/14/11-Court appoints ethics counsel to supervise WTC settlement citing concerns about financial pressures on plaintiff’s counsel who had borrowed very large sums of money to finance a 10,000 plaintiff litigation, raising issues whether the attorney’s financial interests could affect their judgment in recommending the settlement. (more on this matter below) –this practice is increasingly prevalent. Using litigation funding is neither illegal nor unethical in itself, but it seems to be at least a factor in a number of reported ethical and legal problems attorneys have gotten into. The lesson is not, don’t do it, but rather, don’t do it for the wrong reason. Rule 1.7 warns against representing a client if there is a significant risk that the lawyer’s own interests will be adversely affected. When you use litigation financing or your clients do, understand the risks to you, and explain the risks to them. , 82 A.D. 3d 126, 2011 WL 781209 (2d Dept., March 2011) –variation on an old theme: a medical report is not just a medical report when paying for the medical report gets you a referral from the clinic. The clinic guy testified that he was actually auctioning off cases to the highest bidder. Fortunately for the lawyer, the hearing panel did not credit this testimony, so the lawyer got off with just a three month suspension, despite having pleaded guilty to a violation of Judiciary Law §479. 225 AD 2d 250 (2d Dept. 1929) -the second oldest violation? Paying laymen to procure accident cases leads to two year suspension. The fact that it was a prevalent practice at the time does not change the general rule that "the lawyer who engages in ‘ambulance chasing’ disqualifies himself from the practice of law." – Rule 7.2, Judiciary Law §479, §482., 259 A.D. 2d 206; Matter of Spencer, 259 A.D. 2d 218; Matter of Ponzini, 242 A.D. 2d 142 (2d. Dept. 2000), modified 268 A.D. 2d 478 – In 1982, Maroney, a partner in the firm of Maroney, Spencer and Ponzini, handled two real estate closings for a legal secretary with whom he had a "close personal relationship." Maroney paid the secretary $14,000 more than had been deposited on her behalf, from the firm’s escrow account. The defalcation went undiscovered by Maroney’s partners for eight (8) years, until the account balance fell below zero in 1990. An investigation ensued, and the Appellate Division adopted the Committee’s recommendation that Maroney should be disbarred for converting escrow funds, and the other two partners should be disbarred for failing to oversee the recordkeeping of the escrow account. Disbarment was imposed on Spencer and Ponzini despite their previously unblemished records, and the fact that they had been the "innocent" partners in this debacle. On reargument, the Court modified Spencer and Ponzini’s discipline to one year’s suspension because there had been no financial loss to any clients, and Ponzini had in fact reported the theft when it was belatedly discovered. – Rule 5.1 says we are all responsible to oversee the escrow account – and the other lawyers in the firm.86 A.D. 3d 196 (2d Dept. 2011). Two year suspension, despite absence of harm to her clients and lack of venality, where attorney showed lack of basic understanding of her ethical obligations. She comingled personal and business funds with funds entrusted to her as fiduciary, failed to maintain required bookkeeping records for her attorney escrow account, issued checks from her escrow account prior to depositing client funds, failed to adequately supervise non–attorney employee, and improperly used a trade name ("Advanced Legal Services") to describe her firm. Lesson - this case was reported in Decisions this year. I include it because of the irony of the trade name "Advanced Legal Services." 78 A.D.3d 106 (1st Dept. 2010) –Disciplinary investigation was triggered when a $30,000 IOLA check was dishonored. Audit revealed that the attorney kept personal funds in the account as a "cushion" against overdrafts, and failed to keep an escrow account ledger. The shortfalls in the account were caused by making payments on account of his clients and returning fees to assist his clients financially. No clients lost money as a result of his conduct. As a result of his lack of sophistication, good intentions, and sincere remorse, he was censured. Lesson- the Committee must have really, really liked this guy. Apparently he was using his escrow account funds to help people out. - litigation funding company tried to collect on a fee advance to Kressner and was rebuffed by Westchester Surrogate’s Court. Other Surrogate’s courts have recognized such assignments and have provided for payment of funding companies in compromise decrees. , 72 A.D. 3d 112 (1st Dept., 2010) - Attorney had previous 3-year suspension in 1985 for misdemeanor conviction of illegally soliciting legal work by purchasing medical files of potential clients (108 A.D. 2d 334). In this instance, he admitted commingling his personal funds with client funds in his escrow account to conceal assets and income from the tax authorities. He only used his IOLA account for business and personal purposes. He utilized lending companies for advances on his legal fees and relied on their accounting records instead of keeping an escrow ledger. He was found guilty of professional misconduct immediately threatening the public interest, and placed on interim suspension pending conclusion of disciplinary proceedings, although there was no proof any clients had lost money up to that time. He subsequently resigned from the bar. Lesson- I wonder if he could have saved his license without the prior suspension?88 A.D.3d 380 (1st Dept., 2011) Court distinguishes Salo, and disbars attorney for intentional conversion of escrow funds. The Panel concluded that respondent did not show "extremely unusual mitigating circumstances" to avoid disbarment. In addition to finding that respondent failed to show a causal connection between his mental condition and his escrow violations, the Panel properly considered in aggravation that respondent's actions in obtaining loans to restore funds to his escrow account, his concealment of his invasion of the escrow account from the divorce court and his check kiting scheme designed to create the illusion of a greater amount of currency, all demonstrated that he knew at the time of his misconduct that his handling of the escrow account was wrong. Furthermore, although respondent cooperated with the Committee by admitting many of the Committee's charges, he first revealed his check kiting scheme during cross-examination at the hearing, showing that he had previously been less than candid with the Committee, as well as with the medical witnesses, and that his earlier testimony that he did not know the purpose of various money transfers was deceptive. Finally, respondent put at risk the funds of 21 clients by allowing his escrow account to have a negative balance on several occasions. Lesson- trying to BS the Committee makes it worse. - , 77 A.D. 3d 30 (1st Dept. 2010)-Attorney misappropriated third-party escrow funds, earmarked for a lien, from his IOLA account, later replacing the funds and paying the lien. He also issued a check to a client from the IOLA account made out to "cash." Psychiatric testimony established that the attorney had been suffering from severe PTSD, depression and alcohol abuse triggered by the 9/11 attacks; he had very limited access to his office due to its location for a long time; and he thought he was using a "cushion" of personal funds from the IOLA account, to pay himself. There was no evidence of any venal intent in the conversion of funds. Attorney was suspended for one year. Lesson- the way to avoid disbarment for conversion of escrow funds is to demonstrate remorse, give a credible excuse and persuade the Panel that you didn’t intend to steal money. – perspectives from the Hon. Lewis Lubell, a Supreme Court judge who was an active trial practitioner, and Joseph Brophy, a lawyer of 37 years’ experience, now administrative partner in a 25-lawyer general practice firm. When lawyers place their own interests above their clients’, they can fall into conflicts of interest, or worse. Most of the common violations of legal ethics involve simple dishonesty to some degree. An escrow account exists to safeguard the clients’ money, after all. Judiciary Law § 487 cause of action, where documents submitted by defendants in support of their motion established that some of the attorneys at defendant law firm engaged in intentional deceit. According to plaintiff, he was informed that he could not prevail in his underlying action but was never informed that the action already had been dismissed as a result of defendants' failure to file a timely note of issue. Subsequently, a member of defendants' firm telephoned plaintiff and told him the actual basis of the dismissal. It is unclear from the decision if there was any other evidence of deceit. Lesson - deceit on the part of some individual attorneys resulted on exposure of the entire firm to treble damages.


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The subject matter of the article is the factors that increase the efficiency of internal communications by selecting high-quality hardware. The goal of the article is to build a model for assessing the quality of hardware to be used in the communication processes of a development project. The objectives of the study are to consider the communication process to identify factors that improve its efficiency; to analyze the existing approaches to assessing the hardware quality to select equipment to be used in the communications of a development project; to identify the most important quality characteristics of communications hardware that support the communication process of a project; to build partial and generalized functions for assessing the quality of hardware as the elements of supporting the processes of internal communications of development projects. The following general scientific methods are used – the systems analysis, decision theory, the theory of utility. The following results are obtained: the approach is proposed that enhances the communications efficiency of a development project by selecting high-quality hardware when planning communications; the analytical dependence is suggested for assessing the functional completeness, which enables predicting the expected functions depending on the cost of communications hardware; the generalized model is proposed for assessing the hardware quality that enables estimating the level of quality depending on the cost and time of operation. Conclusions. The analysis of the communication process of a development project was carried out. This enabled identifying the factors that increase the efficiency of the project internal communications, computer systems being considered as such factors. The approach that enhances the efficiency of communications by selecting hardware is proposed. The generalized model of quality assessment was developed; this model combines the cost and time characteristics of hardware and enables obtaining estimates to substantiate a decision when planning communications of a development project and selecting hardware. The obtained results can be used when creating a plan for managing the communications of a development project.
Söderlund, J. (2010), "Knowledge entrainment and project management: The case of large-scale transformation projects", International Journal of Project Management, Vol. 28, Issue 2, P. 130–141. DOI: https://doi.org/10.1016/j.ijproman.2009.11.010.
Danshyna, S. Yu. (2017), "Development management: a project approach", Mathematical modeling of processes in economics and project and program management [Matematy`chcheskoe modely`rovany`e processov v эkonomy`ke y` upravleny`y` proektamy` y` programmamy`], Kharkiv : NURE, P. 45–48.
National standard (2004), "Guide of project management body of knowledge" ["Rukovodstvo k svodu znanij po upravleniju proektami (Rukovodstvo PMBOK)"], Project Management Institute, Inc.
Rajkumar, S. "Art of communication in project management", available at : https://www.pmi.org/leaning/library/effective-communication-better-project-management-6480 (last accessed : 23.04.2018).
Meskon, M., Al'bert, M., Khedouri, F. (2017), Fundamentals of Management. Trans. from Eng. O.Medved' [Osnovy menedzhmenta. Per s angl. O.Medved'], Vil'yams, Moscow, 672 p.
Kliem, R. L. (2007), Effective communications for project management, Boca Ration, Auerbach Publications, 217 p.
Binder, J. (2007), Global project management: Communication, collaboration and management across border, Aldershot, Gower, 284 p.
Von Danwitz, S. (2018), "Managing inter-firm project: A systematic review and directions for future research", International Journal of Project Management, Vol. 36, Issue 3, P. 525–541. DOI: https://doi.org/10.1016/j.ijproman.2017.11.004.
Sager, L. Yu. (2011), "Analysis of the theoretical foundations of internal communications as the necessary mindset of effective management" ["Analiz teorety`chny`x osnov vnutrishnix komunikacij yak neobxidnoyi umovy` efekty`vnogo upravlinnya pidpry`yemstvom"], Markety`ng i menedzhment innovacij, No. 1, P. 128–136.
Vasilik, M. A. (2003), Fundamentals of communication theory [Osnovy teorii kommunikatsii : uchebnik], Gardariki, Moscow, 615 p.
Reed, A. H., Knight, L. V. (2010), "Effect of a virtual project team environment on communication-related project risk", International Journal of Project Management, Vol. 28, Issue 5, P. 422–427. DOI: https://doi.org/10.1016/j.ijproman.2009.08.002.
Verburg, M. R., Sijtsema, P. B., Vartiainen, M. (2013), "Getting it done: Critical success factors for project managers in virtual work settings", International Journal of Project Management, Vol. 31, Issue 1, P. 68–79. DOI: https://doi.org/10.1016/j.ijproman.2012.04.005.
Braglia, M., Frosolini, M. (2014), "An integrated approach to implement Project Management Information Systems within the Extended Enterprise", International Journal of Project Management, Vol. 32. Issue 1, P. 18-29. DOI: https://doi.org/10.1016/j.ijproman.2013.12.003.
Hameri, A. P. (1997), "Project management in a long-term and global one-of-a-kind project", International Journal of Project Management, Vol. 15, Issue 3, P. 151–157. DOI: https://doi.org/10.1016/j.ijproman.S0263-7863(96)00051-8.
Funtov, V. N. (2009), Project Management Development Company: Theory and Practice [Upravlenie proektami razvitiya firmy: teoriya i praktika : monografiya], Piter, St. Petersburg, 496 p.
Blankevoort, P. J. (1984), "Effects of communication and organization", International Journal of Project Management, Vol. 2, Issue 3, P. 138–147. DOI: https://doi.org/10.1016/j.ijproman.0263-7863(84)90013-9.
Maruseva, I. V. (2014), Communication management in questions and answers [Kommunikatsionnyy menedzhment v voprosakh i otvetakh : ucheb. posobie dlya vuzov], Direkt-media, Moscow-Berlin, 214 p.
ISO 25010-2015, Systems and software engineering. Systems and software Quality Requirements and Evaluation. System and software quality models [Sistemnaya i programmnaya inzheneriya. Trebovaniya k otsenke kachestva sistem i programmnogo obespecheniya. Modeli kachestva sistem i programmnykh produktov], Standartinform, Moscow, 30 p.
Piner, Sh., Skolt, D. (2007), "New era in assessing the performance of computer systems", ["Novaya era v otsenke proizvoditel'nosti komp'yuternykh sistem"], Otkrytye sistemy, SUBD, No. 9, available at : https://www.osp.ru/os/2007/09/4569364 (last accessed : 28.07.2017).
Danshyna, S. Yu. (2018), "Choice of software and hardware in communications management of development project", Mathematical modeling of processes in economics and project and program management [Matematy`chcheskoe modely`rovany`e processov v эkonomy`ke y` upravleny`y` proektamy` y` programmamy`], Kharkiv : NURE, P. 43–46.
Available at : https://f.ua/articles/kak-vybrat-smartfon.html (last accessed : 03.09.2018).
Sokolov, Yu. N., Kharchenko, V. S. (2013), Using of computer technologies for assessing the reliability and security of software and hardware systems [Primenenie komp'yuternykh tekhnologiy dlya otsenivaniya nadezhnosti i bezopasnosti programmno-tekhnicheskikh kompleksov], Kharkiv, 458 p.
Shumeyko, S. MTBF (mean time before failure) and warranty in the world of computers. What is important? [MTBF (narabotka na otkaz) i garantiya v mire komp'yuterov. Chto vazhno?], available at : https://www.hwp.ru/articles/ (last accessed : 28.09.2019).
Kini, R. L., Rayfa, Kh. (1981), Decisions with multiple objectives: preferences and value tradeoffs [Prinyatie resheniy pri mnogikh kriteriyakh: predpochteniya i zameshcheniya] / Trans. from Eng. Podinovskogo V. V., Gafta M. G., Bibintseva V. S., Radio i svyaz', Moscow, 560 p.
1. Söderlund J. Knowledge entrainment and project management: The case of large-scale transformation projects. International Journal of Project Management. 2010. Vol. 28. Issue 2. P. 130–141. DOI: https://doi.org/10.1016/j.ijproman.2009.11.010.
2. Danshyna S. Yu. Development management: a project approach. Математичне моделювання процесів в економіці та управлінні проектами і програмами "ММП-2017" : матеріали Міжнар. наук. – практ. конф. Харків : ХНУРЕ, 2017. С. 45–48.
3. Национальный стандарт "Руководство к своду знаний по управлению проектами (Руководство PMBoK)". Project Management Institute, Inc. 2004. 388 c.
4. Rajkumar S. Art of communication in project management. URL : https://www.pmi.org/leaning/library/effective-communication-better-project-management-6480 (last accessed : 23.04.2018).
5. Мескон М., Альберт М., Хедоури Ф. Основы менеджмента / пер. с англ. О.Медведь. М. : Вильямс, 2017. 672 с.
6. Kliem R.L. Effective communications for project management. Boca Ration, FL: Auerbach Publications, 2007. 217 p.
7. Binder J. Global project management: Communication, collaboration and management across border. Aldershot, UK : Gower, 2007. 284 p.
8. Von Danwitz S. Managing inter-firm project: A systematic review and directions for future research. International Journal of Project Management. 2018. Vol. 36. Issue 3. P. 525–541. DOI: https://doi.org/10.1016/j.ijproman.2017.11.004.
9. Сагер Л. Ю. Аналіз теоретичних основ внутрішніх комунікацій як необхідної умови ефективного управління підприємством. Маркетинг і менеджмент інновацій. 2011. № 1. С. 128–136.
10. Основы теории коммуникации: учебник / под ред. М.А. Василика. М. : Гардарики, 2003. 615 с.
11. Reed A. H., Knight L. V. Effect of a virtual project team environment on communication-related project risk. International Journal of Project Management.2010. Vol. 28. Issue 5. P. 422–427. DOI: https://doi.org/10.1016/j.ijproman.2009.08.002.
12. Verburg M. R., Sijtsema P. B., Vartiainen M. Getting it done: Critical success factors for project managers in virtual work settings. International Journal of Project Management. 2013. Vol. 31. Issue 1. P. 68–79. DOI: https://doi.org/10.1016/j.ijproman.2012.04.005.
13. Braglia M., Frosolini M. An integrated approach to implement Project Management Information Systems within the Extended Enterprise. International Journal of Project Management. 2014. Vol. 32. Issue 1. P. 18–29. DOI: https://doi.org/10.1016/j.ijproman.2013.12.003.
14. Hameri A.P. Project management in a long-term and global one-of-a-kind project. International Journal of Project Management. 1997. Vol. 15. Issue 3. P. 151–157. DOI: https://doi.org/10.1016/j.ijproman.S0263-7863(96)00051-8.
15. Фунтов В.Н. Управление проектами развития фирмы: теория и практика : монография. СПб. : Питер, 2009. 496 с.
16. Blankevoort P.J. Effects of communication and organization International Journal of Project Management. 1984. Vol. 2. Issue 3. P. 138–147. DOI: https://doi.org/10.1016/j.ijproman. 0263-7863(84)90013-9.
17. Марусева И.В. Коммуникационный менеджмент в вопросах и ответах : учеб. пособие для вузов. М. : Берлин : Директ-медиа, 2014. 214 с.
18. ГОСТ Р ИСО/МЭК 25010-2015. Системная и программная инженерия. Требования к оценке качества систем и программного обеспечения. Модели качества систем и программных продуктов [Введен 2016-06-01]. Москва, 2015. 30 с. (Стандартинформ).
19. Пинер Ш., Сколт Д. Новая эра в оценке производительности компьютерных систем. Открытые системы СУБД. 2007. № 9. URL : https://www.osp.ru/os/2007/09/4569364 (дата обращения : 28.07.2017).
20. Danshyna S. Yu. Choice of software and hardware in communications management of development project. Математичне моделювання процесів в економіці та управлінні проектами і програмами "ММП-2018" : матеріали Міжнар. наук. – практ. конф. Харків : ХНУРЕ, 2018, С. 43–46.
21. URL : https://f.ua/articles/kak-vybrat-smartfon.html (дата обращения : 03.09.2018).
22. Соколов Ю. Н. и др.Применение компьютерных технологий для оценивания надежности и безопасности программно-технических комплексов / под ред. Ю. Н. Соколова, В. С. Харченко. Харьков, 2013. 458 с.
23. Шумейко С. MTBF (наработка на отказ) и гарантия в мире компьютеров. Что важно? URL : https://www.hwp.ru/articles/ (дата обращения: 28.09.2019).
24. Кини Р.Л., Райфа Х. Принятие решений при многих критериях: предпочтения и замещения / пер. с англ. В. В. Подиновского, М. Г. Гафта, В. С. Бибинцева. М. : Радио и связь, 1981. 560 с.

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text:
CILS successfully defeated three University of California professors’ legal challenge to block repatriation of ancient Kumeyaay human remains. Tim White et. al v. University of California et. al and Kumeyaay Cultural Repatriation Committee (KCRC), (2016).
CILS organized and submit amicus brief on behalf of over 50 California tribes in support of reconsideration of the 9th Circuit Court of Appeals ruling that plaintiff did not have to exhaust tribal court remedies. Case involved the Tribe’s enforcement of tribal environmental laws on owner of non-Indian fee lands within the boundaries of the Rincon Reservation. 9th Circuit reserved itself and remanded to trial court to order exhaustion of tribal court remedies. Mushroom Farm Inc. v. Rincon Band of Mission Indians. (2012).
CILS challenged BIA’s denial of a 638 contract for tribal law enforcement on the grounds the tribe is located in a Public Law 280 state. Los Coyotes v. DOI and BIA (2012).
CILS argued for the application of the Indian Child Welfare Act in juvenile delinquency cases. In re W.B. (2012).
CILS protected tribes from BIA intervention into internal political matters. Coyote Valley Band of Pomo Indians v. U.S. 54 IBIA 320 (2012).
CILS opposed the Franchise Tax Board’s attempts to create a “tribal source” rule and to tax the income of a tribal member living and working on her own reservation. FTB Case No. 568967388 (2010).
CILS ensured courts decide in favor of tribal sovereignty by reinforcing respect for tribal courts under the Indian Child Welfare Act. In re M.M. v. Michael T. (2007).
CILS led the charge to ensure the Indian Child Welfare Act is complied with in California courts. Senate Bill 678 (2006).
CILS won a victory for juvenile Indians by forcing state agencies to use better discretion when reviewing Indian Child Welfare Act matters. In re Julian B. (2000).
CILS preserved the rights of California Indians whose tribes lack federal acknowledgment. Malone v. Bureau of Indian Affairs (1994).
CILS guarded Indian families and children against arbitrary removal of children from their family. In re Kahlen W. (1991).
CILS guided the courts to better understand the purpose and intentions behind the Indian Child Welfare Act. In re Crystal K. (1990).
CILS fostered awareness of the desecration of Indian sacred sites and the importance of religious freedom. Lyng v. Northwest Indian Cemetery Protective Assoc. (1988).
CILS worked with tribes to protect the natural environment within their reservations and strengthened tribal sovereignty. Pinoleville Indian Community v. Mendocino County (1988).
CILS extended civil rights protections to Indians against state trespass onto their lands. Harold Hammond v. Madera County (1988).
CILS promoted freedom of worship in accordance with traditional Native religious practices. Sample v. Borg (1987).
CILS defended the rights of California Tribes to regulate hunting and ﬁshing within their reservations. People v. McCovey (1984).
CILS restored “terminated” California Tribes to their full recognized status as tribal governments. Tillie Hardwick v. U.S. (1983).
CILS accomplished the goal of securing California Indians equal health services. Rincon Band of Mission Indians v. Harris (1980).
CILS asserted the right of the Quechan Tribe to preserve their land base against state opposition. Quechan Tribe v. Southern Paciﬁc Transportation Co. (1979).
CILS championed the right of California Tribes to govern themselves despite local government opposition. Santa Rosa Band v. Kings County (1975).
CILS prevailed against discrimination by local government contractors in providing services. Scott v. Eversole (1975).
CILS challenged the ability of county ordinances to restrict certain types of gambling of preservation land. Rincon Band of Mission Indians v. County of San Diego (l974).
CILS held the Unites States liable for its failure to responsibly invest Indian money entrusted to them. Manchester Band of Pomo Indians, Inc. v. U.S. (1973).
CILS fought against arbitrary diminishment of reservation boundaries by states. Mattz v. Arnett (1973).

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This is the opening of stanza 1 of the eddic poem Völuspá, probably composed around 1000 AD, and extant in the Icelandic manuscript Codex Regius (GKS 2365 4to) from ca. 1270.

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Mr. Knowles, a state prisoner appearing pro se, seeks to appeal from the district court's denial of a habeas petition, 28 U.S.C. § 2254. We deny a certificate of appealability and dismiss the appeal.
The parties are familiar with the facts and procedural history, so we need not repeat it, except as necessary for our analysis. Mr. Knowles pled guilty to two criminal offenses and was sentenced to "20 [years] to . . . be served as 120 nights" in the county jail. R. doc. 3, ex. C, at 2 (Plea of Guilty Summary of Facts).(1) After having failed to serve 120 nights of confinement within the prescribed time period, Mr. Knowles was sentenced to 20 years' imprisonment within the Department of Corrections. R. doc. 10, ex. B, at 2.
Mr. Knowles sought federal habeas relief on four grounds: (1) his sentence violated Oklahoma law; (2) he could only be sentenced to 120 nights of confinement in the county jail; (3) he had ineffective assistance of counsel; and (4) his second post-conviction petition should not have been procedurally barred. R. doc. 3, at 3-7. The district court concluded that Mr. Knowles' sentence was not a permissible option under Oklahoma law, and granted the writ unless Mr. Knowles was given the opportunity to withdraw his pleas. R. doc. 13. Mr. Knowles declined to do so, however, and his sentence, absent the provision for night-time confinement in the county jail, was reinstated by the state court. R. doc. 15, ex. B, at 3-4. Thereafter, the district court amended its judgment denying the writ as the condition it imposed had been fulfilled.
In a supplemental brief and reply brief to the district court, Mr. Knowles reasserted that he could only be sentenced to 120 nights of confinement in the county jail. R. doc. 22, at 2-8, doc. 24. The magistrate judge recommended that Mr. Knowles' petition be denied. Pursuant to Stewart v. State, 989 P.2d 940 (Okla. Crim. App. 1999), the Oklahoma courts "had the authority to re-sentence [Mr. Knowles] to a term of imprisonment within the statutorily prescribed range" as a matter of state law. R. doc. 25, at 6. To the extent that a different procedure was envisioned by Stewart, this failure to "follow state procedure . . . does not state a claim of constitutional magnitude" because his punishment did not exceed that permitted by statute. Id. Finally, the additional grounds asserted by Mr. Knowles for habeas relief--that he was deprived of effective assistance of counsel at sentencing and that his second post-conviction petition should not have been procedurally barred--were moot because Mr. Knowles was afforded the opportunity to withdraw his plea. Id. at 7. The district court adopted the magistrate judge's recommendation and denied Mr. Knowles' petition. R. doc. 28.
We have reviewed the record, including the district court orders, the magistrate judge's recommendations, and Mr. Knowles' application for a COA and accompanying brief. Having done so, we hold that Mr. Knowles has failed to "demonstrate that reasonable jurists would find the district court's assessment of the constitutional claims debatable or wrong." Slack v. McDaniel, 120 S.Ct. 1595, 1603-04 (2000). Mr. Knowles' challenge to his sentence, which was imposed pursuant to Stewart and is consistent with Oklahoma law and the OCCA's unpublished decision in Palmer v. Oklahoma, No. C-97-665 (Okla. Crim. Ct. App. July 2, 1998)(2), is not constitutionally cognizable. Dennis v. Poppel, 222 F.3d 1245, 1258 (10th Cir. 2000) (state law sentencing errors are not cognizable for federal habeas relief). Nor does Mr. Knowles' sentence implicate double jeopardy concerns. Ward v. Williams, 240 F.3d 1238, 1243 (10th Cir. 2001) ("Illegal sentences do not confer legitimate expectations of finality because they are subject to change. Furthermore, a defendant cannot gain a legitimate expectation of finality in a sentence that he challenged.").
Accordingly, we DENY the application for a COA and DISMISS the appeal.
1. Mr. Knowles had been convicted of three prior felonies. R. doc. 3, ex. C, at 3.
2. Pursuant to Rule 3.5(C)(3), an unpublished opinion of the Oklahoma Court of Criminal Appeals is not binding on that court, but may be cited under certain conditions.


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The second paragraph is the same as the first, in substantial averments, except that in this paragraph the appellees set out as a part thereof a copy of the deed under which they claim title to said real estate as such tenants by entireties.
The granting clause of the deed is as follows: "This indenture witnesseth, that Lemuel Wiggins and Mary Wiggins, his wife of Randolph County, in the State of Indiana, convey and warrant to Daniel S. Wiggins and Laura Belle Wiggins, his wife, in joint tenancy," etc.
Appellants separately and severally demurred to each paragraph of the complaint, and their demurrers were overruled by the court, to which the appellants excepted, and, refusing to answer the complaint, judgment was rendered in favor of appellees on said demurrers.
Appellants appeal, assigning as errors the overruling of said demurrers, and urge that the appellees under the deed took as joint tenants, and hence that the husband's interest is subject to levy and sale upon execution. A joint tenancy is an estate held by two or more persons jointly, so that during the lives of all they are equally entitled to the enjoyment of the land or its equivalent in rents and profits, but, upon the death of one his share vests in the survivor or survivors until there be but one survivor, when the estate becomes one in severalty in him and descends to his heirs upon his death.
It must always arise by purchase, and cannot be created by descent. Such estates may be created in fee, for life, for years, or even in remainder. But the estate held by each tenant must be alike. Joint tenancy may be destroyed by anything which destroys the unity of title. Our law aims to prevent their creation and they cannot arise, except by the instrument providing for such tenancy. Griffin v. Lynch, 16 Ind. 396.
The 9th Am. and Eng. Encyc. of Law, 850, says: "Husband and wife are, at common law, one person, so that when realty or personalty vests in them both equally . . . they take as one person, they take but one estate as a corporation would take. In the case of realty, they are seized not per my et per tout, as joint tenants are, but simply per tout; both are seized of the whole, and each being seized of the entirety, they are called tenants by the entirety, and the estate is an estate by entireties. . . . Estates by entireties may be created by will, by instrument of gift or purchase, and even by inheritance. Each tenant is seized of the whole, the estate is inseverable - cannot be partitioned; neither husband nor wife can alone affect the inheritance, the survivor's right to the whole."
Where a contrary intention is clearly expressed in the deed, a different rule obtains.
'A husband and wife may take real estate as joint tenants or tenants in common, if the instrument creating the title use apt words for the purpose." 1 Preston on Estates, 132; 2 Blackstone's Com., Sharswood's note; 4 Kent's Com., side page 363; 1 Bishop on Married Women; Freeman on Cotenancy, § 72; Fladung v. Rose, 58 Md. 13 (24).
And in case of devises and conveyances to husband and wife together, though it has been said that they can take only as tenants by entireties, the prevailing rule is that, if the instrument expressly so provides, they may take as joint tenants or tenants in common." Stewart on Husband and Wife, §§ 307-310; Tiedeman on Real Property, § 244.
'And as by common law it was competent to make husband and wife tenants in common by proper words in the deed or devise,"
etc. Hoffman v. Stigers, 28 la. 310; Brown v. Brown, 32 N. E. Rep. 1128.
If, as contended by appellees, the rule prevails that the same words which, if the grantees were unmarried, would have constituted them joint tenants, will, they being husband and wife, make them tenants by entireties, then it would result as a logical conclusion that husband and wife cannot be joint tenants. Because, by this rule, words, however apt or appropriate to create a joint tenancy, would, in a conveyance to husband and wife, result in an estate by entireties - joint tenancy would be superseded or put in abeyance by the estate created by law - tenancy by entirety.
The result of such reasoning would be to destroy the contractual power of the parties where this relationship between the grantees is shown to exist. Any other process of reasoning would carry the rule too far and we must hold it modified to the extent here indicated. Husband and wife, notwithstanding tenancies by entirety exist as they did under the common law, may take and hold lands for life, in joint tenancy, or in common, if appropriate language be expressed in the deed or will creating it, and we know of no more apt terms to create a joint tenancy in the grantees in this estate than the expression "convey and warrant to Daniel S. Wiggins and Laura Belle Wiggins in joint tenancy."
These words appear in the granting clause of the deed conveying the land in question, and the estate accepted and held by the grantees is thereby limited, and they hold not by entireties but in joint tenancy. A joint tenant's interest in property is subject to execution. Freeman on Ex., 125.
Judgment reversed, with instructions to the Circuit Court to sustain the demurrer to each paragraph of the complaint.


text:
[320 U.S. 698, 699] Mr. Glenn Simmon, of Washington, D.C., for petitioner.
Mr. Elmer E. Hazard, of Jacksonville, Fla., for respondent.
Charles F. Pace came to the District of Columbia in 1913 from Florida, where he had theretofore been domiciled. His only purpose in coming was to enter the federal service. He became Financial Clerk of the Senate and served continuously until his death in the District in 1940. During these twenty-seven years he lived in boarding houses and in rented apartments and owned no real property in the District. At all times he maintained his registration and qualification to vote in the State of Florida and exercised that right either in person or by absentee ballot. His will, made in 1937, recited that he was 'of the City of Washington, D.C.' It was probated in Florida, and ancillary letters were granted in the District to the respondent executrix. District authorities, upon the premise that Pace was domiciled in the District, assessed an inheritance tax upon the transfer of certain jointly owned bank deposits within the District. Respondents paid the tax under protest and then appealed the assessment to the Board of Tax Appeals of the District on the ground that decedent was domiciled in Florida at the time of his death. The Board of Tax Appeals after hearing argument determined that decedent was domiciled in Florida, and ordered refund of the tax paid. The District appealed to the Court of Appeals, but before hearing this Court decided District of Columbia v. Murphy, 314 U.S. 441 , 62 S.Ct. 303. The District thereupon moved to remand the [320 U.S. 698, 700] case to the Board of Tax Appeals for reconsideration in the light of the intervening decision. The motion was granted. Upon reconsideration the Board re-adopted the findings theretofore made but concluded that the decedent had not overcome the presumption, arising from maintaining a home in the District, that he was domiciled therein and reversed its former ruling.
The Court of Appeals for the District of Columbia reversed. It accepted and applied our decision in District of Columbia v. Murphy and, weighing the facts in the light of its principles, concluded that the decedent was domiciled in Florida at the time of his death. The evidence before the Board of Tax Appeals took a wide range, and we do not think it is necessary to recite it in detail. As is usual in cases of contested domicile, it gave rise to conflicting inferences, and a decision either way would be supported by substantial evidence. Whether the Board's determination or that of the Court of Appeals should be deemed correct would depend upon the weight to be given to many different items of evidence, the credibility to be given to testimony, and the inferences to be drawn from many admitted events. We did not take this case to determine where Mr. Pace was domiciled. But the scope of review of decisions by the Board of Tax Appeals of the District of Columbia is important to the administration of the District's tax laws, and since that question was not reached or decided in District of Columbia v. Murphy, we granted certiorari in this case.
Congress has seen fit in certain of the District's tax statutes to make liability dependent upon domicile. In the District, where a large proportion of the population owe their presence to Government service and have the strongest motives for retaining their political connections with and domicile in the enfranchised community from which they came, this test of taxability is bound to give rise to innumerable and difficult conflicts. These the [320 U.S. 698, 701] Board of Tax Appeals is authorized in the first instance to resolve.
The provisions for review of Board of Tax Appeals decisions present complexities almost as baffling as the test of taxability itself. Section 4(a) of the Act creating the Board of Tax Appeals for the District of Columbia provides that its decisions may be reviewed by the Court of Appeals and that upon such review the court 'shall have the power to affirm, or if the decision of the board is not in accordance with law, to modify or reverse the decision of the board, with or without remanding the case for hearing, as justice may require.' 52 Stat. 371, D.C.Code 1940, 47-2404(a). Had this been all, a strong case would be made for applying the rule of finality applicable to the Federal Board of Tax Appeals, now the Tax Court of the United States. Dobson v. Commissioner, 64 S.Ct. 239, decided December 20, 1943. However, the same organic act contains another and qualifying provision that is not to be found in the acts creating the Tax Court: 'The findings of fact by the board shall have the same effect as a finding of fact by an equity court or a verdict of a jury.' 52 Stat. 371, D.C.Code 1940, 47-2404(a). Since findings of fact by an equity court and the verdict of a jury have from time immemorial been subject to different rules of finality it is puzzling to know what the draftsmen of this section meant by including both in the one rule for reviewing Board of Tax Appeals findings.
This statute was enacted in May, 1938. The law at that time as to the review of findings of fact in equity was, as stated by Mr. Justice Brandeis for the Court, 'in equity, matters of fact as well as of law are reviewable ....' Virginian R. Co. v. United States, 272 U.S. 658, 675 , 47 S.Ct. 222, 229. Findings of fact by the trial judge of course were presumptively correct and were accepted by reviewing courts unless clearly wrong. Butte & Superior Copper Co. v. Clark-Montana Realty Co., 249 U.S. 12, 30 , 39 S.Ct. 231, 236. This rule, however, [320 U.S. 698, 702] did not deny power to the Circuit Court of Appeals to review facts, but rather went to the weight to be accorded to the findings of a lower court and had special pertinence where credibility of witnesses was involved. This Court had a well settled rule that 'when two courts have reached the same conclusion on a question of fact, their finding will not be disturbed unless it is clear that their conclusion was erroneous.' Baker v. Schofield, 243 U.S. 114, 118 , 37 S.Ct. 333, 334. Such a rule would have no support in reason if the second court could not make its findings as a result of its own judgment.
The statute therefore authorizes review of findings of fact of the Board of Tax Appeals of the District of Columbia, subject to the admonition that they are to be undisturbed unless clearly wrong, if the findings are given the effect of findings of fact by an equity court. If the effect of the jury verdict, provided for in the same sentence, is to prevail, the review is much more restricted. The question as to which of the inconsistent provisions shall govern arises in a local statute confined in its operation to the District of Columbia. 'We will not ordinarily review decisions of the United States Court of Appeals, which are based upon statutes so limited or which declare the common law of the District.' Del Vecchio v. Bowers, 296 U.S. 280, 285 , 56 S.Ct. 190, 192. Cf. American Security & Trust Co. v. District of Columbia, 224 U.S. 491 , 32 S.Ct. 553; United Surety Co. v. American Fruit Product Co., 238 U.S. 140 , 35 S.Ct. 828. Where a local statute contains a conflict on its face as patent and as irreconcilable as this, where either choice seems equally supportable, we cannot say that the Court of Appeals commits error in assuming its review of the Board of Tax Appeals decision to be entitled to the scope of a review of an equity court.
After the Board of Tax Appeals statute, Federal Rule of Civil Procedure No. 52 was adopted, 28 U.S.C.A. following section 723c, effective September 1, 1938. It provided as to all actions tried upon the [320 U.S. 698, 703] facts without a jury: 'Findings of fact shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge of the credibility of the witnesses.' This general rule, even if it were thought to modify the previous rule as to review of findings of fact in equity cases, would hardly supersede a special statutory measure of review applicable to a special and local tribunal.
Mr. Justice BLACK and Mr. Justice RUTLEDGE took no part in the consideration or decision of this case.

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