It used to be a running joke among the Supreme Court bar that the scariest sentence a high-court advocate could write in a petitioner’s brief was “the decision of the 4th U.S. Circuit Court of Appeals should be overturned.” Such was the rarity of disagreement between the conservative high court and the like-minded appellate panel.

But this accord between the courts has been decreasing gradually during the past few terms. The justices, in their October Term 2006, disagreed with the 4th Circuit in one of the two appeals they heard; in the October Term 2007, the number was two out of three.

And during this Supreme Court session, October Term 2008, the justices rejected the 4th Circuit’s decision in all five written opinions they issued in appeals from the Richmond, Va.-based court. The high court reinstated a firearms conviction (United States v. Hayes); overturned an order for arbitration (Vaden v. Discover Bank); reversed a felony drug conviction (Abuelhawa v. United States); vacated the denial of an asylum seeker from Cameroon’s motion to stay a federal removal order (Nken v. Holder); and vacated the sentence in a drug conviction (Nelson v. United States).

In a sixth case, the justices issued an order vacating the 4th Circuit’s decision upholding the continued detention of a suspected Al-Qaida agent without trial in the United States and dismissing the case as moot. The high court took the step at the request of the Obama administration, which told the justices that the suspect, Ali Al-Marri, will face trial on federal charges of conspiracy and providing support to terrorists.

Anyone who delights in predicting how the Supreme Court will rule should take heed.

Hat tip: SCOTUSBlog.

It’s a little late, but here’s your Monday round-up:

• John Bratt at Miller & Zois* comments on Baltimore City officials’ $5 million lawsuit against an Ocean City Domino’s for refusing to serve them and then not letting them leave: “Assuming the facts in the complaint are true, they are seeking $500,000.00 (5 million divided by ten) in damages for every minute they were stuck in the store. I’d think that was excessive if they were trapped in the Guantanamo Bay Domino’s, much less Ocean City. That ten minutes must have been hell on earth.” [* Ed. Note: We previously attributed Bratt's post to M&Z partner Ron Miller.]
• The Supreme Court will hear a 4th Circuit case about whether the government can civilly confine a sex offender after his sentence is up. HT: How Appealing.
• Did a debt collector violate the Fair Debt Collection Practices Act by placing a “WWJD?” sticker on collection notices? (A commenter says, “Scourge moneylenders in the Temple, that’s what. I don’t see why a collection agency would do this in light of the Gospel statements of money and lending.”) HT: A Stitch in Haste.
• Are associates too casual with partners, or does this hiring partner just have a big ol’ superiority complex?
• Sonia Sotomayor wouldn’t make it as a newspaper reporter.

With the Senate Judiciary Committee poised to vote Thursday on Judge Andre Davis’ nomination to fill “the Murnaghan seat” on the 4th Circuit, Virginia’s senators have floated a name to fill “the Widener seat.”

Our sister paper in Richmond, Virginia Lawyers’ Weekly, says Senators Jim Webb and Mark Warner have recommended to President Obama that he nominate Justice Barbara Milano Keenan, currently on the commonwealth’s high court.

Plenty of empty spots to go around…

Evan Stolove’s memories of his 1995-1996 clerkship for Andre M. Davis extend beyond the courtroom and the U.S. district judge’s Baltimore chambers.

Stolove, then a new father and fledgling lawyer, remembers the times he drove his boss to work and the advice Davis gave him on those trips regarding fatherhood and the practice of law.

Stolove, who then lived about a half-mile from Davis in Ellicott City, also recalls that the tall jurist would take his seat in the 1990 Honda Civic hatchback without grunting or griping.

“He never complained,” Stolove siad. “He just climbed right in. His head was scraping the roof.”

Stolove, now an associate general counsel at Fannie Mae, said he was in the room with Davis last month as he appeared before the U.S. Senate Judiciary Committee at his confirmation hearing to become a judge on the 4th U.S. Circuit Court of Appeals.

The committee is scheduled to vote Thursday on whether to recommend that the full Senate vote to confirm Davis to the appellate court.

If Davis wins confirmation, as expected, he might be in the market for an experienced attorney and law clerk to help guide him in is his first year on the 4th Circuit. Would Stolove, a husband and now father of two boys, want to clerk for Davis again?

“If [my family] could find a way to do it financially, of course,” Stolove said. “I would do it in a heartbeat.”

Which raises the question of whether any other ex-law clerks would return if asked by their former boss…

– Steve Lash

I couldn’t make it to the confirmation hearings in the Senate Judiciary Committee, so I’ve been reading the reviews with great interest.

Baltimore federal judge and 4th Circuit nominee Andre M. Davis drew high praise from Sen. Barbara Mikulski, who said she’d been waiting eight years for someone worthy of filling the Murnaghan seat. He drew opposition from groups who think he’s too conservative when it comes to the Americans with Disabilities Act, at least as it relates to employment cases.

But according the Associated Press, Wednesday’s toughest questioning came from Sen. Russ Feingold. The Wisconsin Democrat grilled Davis about a blind spot the nominee had, and cured, some five years ago.

In 2004, Davis was invited to join the board of the Foundation for Research on Economics and the Environment — that’s FREE, as in free-trips-for-judges to their seminars. Davis accepted the invitation but resigned in 2005 after asking the judiciary’s Codes of Conduct committee to weigh in.

Davis assured Feingold he had seen the error of his ways. However, he refused to be drawn on the question of why other judges remain on FREE’s board — essentially telling Feingold he was not his brethren’s keeper. An age-old issue, that one, but I don’t imagine it will keep him off the appellate court.

Anybody know yet how Tom Perez fared?

It is bettter to leak one memo than to curse the dark lagoon. 

So says 4th Circuit Judge J. Harvie Wilkinson III, “a former ink-stained wretch who went on to become a judge [but] still has a soft spot for old-school newspapers,” writes Deborah Elkins, our sister blogger at Virginia Lawyers Weekly.

As we noted last week, the Richmond-based court revived a retaliation lawsuit by a police officer who had leaked an internal memo to The (Baltimore) Sun. Wilkinson concurred but wrote separately in praise of that cherished entity: The Source.

“To throw out this citizen who took his concerns to the press on a motion to dismiss would have profound adverse effects on accountability in government … at a particularly parlous time,” Wilkinson wrote.

As traditional newsgathering organizations “have been shuttered or shrunk,” the judge wrote, coverage of state and local government “has too often been reduced to low-hanging fruit” and “increasingly shortchanged.”

As a result, “it may be more important than ever that [inside] sources carry the story to the reporter, because there are, sad to say, fewer shoe leather journalists to ferret the story out… It is vital to the health of our polity that the functioning of the ever more complex and powerful machinery of government not become democracy’s dark lagoon.”

So, have you leaked any internal memos today?

What effect will the Supreme Court’s ruling on drug-label warnings, Wyeth v. Levine, have in the state’s trial courts? While it will undoubtedly move cases forward, lawyers in Maryland don’t expect a flood of new litigation. As one noted, “There hasn’t been this huge holding back” by trial lawyers here.

MICPEL, already struggling with the economy, faces a new hurdle: replacing its longtime executive director, Brent Burry, who will return to his native South Carolina next month.

In other news:

• Med-mal defense litigators at Whiteford, Taylor & Preston will be leaving for Hodes, Pessin & Katz in the coming weeks;
• The top court dismissed Bar Counsel’s action against a Tydings partner who billed the firm for the fair market value of flights he purchased with frequent-flier miles;
• Bankruptcy lawyers continue to switch firms — and some have formed a new Annapolis boutique firm;
• Investors suing golf-course developer Neal Trabich haled both him and his former attorney into court in a discovery dispute. (The judge found no fault with the “experienced, highly talented and widely respected” Andrew Radding, but withheld judgment on Trabich); and
• The new U.S. Attorney General, Eric H. Holder Jr., was in Baltimore on Friday to address the National District Attorneys Association’s board of directors.

In Verdicts and Settlements, a former tenant was awarded $10,000 in attorneys’ fees for defending against retaliatory back-rent suits by her landlord. (Also, see this story about the settlement of a suit between rival car dealerships.)

Three years out of school, Alicia N. Ritchie may be a young lawyer, but she’s already an old hand at pro bono representation.

In Opinion/Commentary, Our Editorial Advisory Board looks at the shadow banking industry, while DLA Piper’s Jack Machen outlines what’s right and what’s wrong with Baltimore’s green-building ordinance.

PLUS: On the Move, Briefs/Week in Review and our weekly Law Digest of cases from the Maryland appellate courts and the 4th U.S. Circuit Court of Appeals.

In what the Associated Press is calling “the first major changes to the ethics rules in 17 years,” the Judicial Conference of the United States on Tuesday adopted revisions that, among other things, define the “appearance of impropriety.”

Under Canon 2 of the amended code (pdf) that will take effect July 1, an appearance of impropriety occurs when reasonable minds agree that “the judge’s honesty, integrity, impartiality, temperament, or fitness to serve as a judge is impaired.”

Does this add anything to your understanding of what constitutes the appearance of impropriety?  If you’re a judge, do you feel you have a better idea of what’s OK and what isn’t?

Even with the new definition, “the ethics code still leaves much discretion to judges,” the AP notes:

Two federal judges, for example, remain on the board of a corporate-funded group that provides free seminars and trips to judges even after a third judge quit on the recommendation of a judicial ethics panel.

That cautious “third judge”? None other than Maryland’s own U.S. District Judge Andre M. Davis (pictured), who resigned from the board of Montana-based Foundation for Research on Economics and the Environment years ago. In 2007, Davis said he resigned after receiving a private opinion from the federal judiciary’s Codes of Conduct Committee.

Not that there’s anything wrong with the other two judges’ decisions. Apparently, “reasonable minds” can be of two minds, even regarding the same conduct.

“Our system encourages judges to seek ethical advice and to do it on a confidential basis,” 3rd Circuit Chief Judge Anthony Scirica, chairman of the Judicial Conference’s executive committee, told the AP. ”We don’t have a mechanism for issuing a blanket prohibition.”

(p.s. The Judicial Conference also recommended increasing (pdf) the number of appellate and trial-level judges – but not on Maryland’s federal courts or the 4th Circuit bench.)

With Bernie Madoff on every investor’s mind, our sister paper, Virginia Lawyers Weekly, offers this post on a recent decision by the 4th Circuit.

 ”The appellate court’s unpublished opinion in Browning v. Tiger’s Eye Benefits Consulting is worth a look for the panel’s discussion of the statute of limitations for breach of fiduciary duty claims under ERISA’s section 413,” Deborah Elkins writes.

The case involves a small tractor company whose 401(k) plan took a hit by investing in U.S. Capital Funding, branded by the 4th Circuit as “in reality, a Ponzi scheme.”

For those of us here in Maryland, it’s also worth noting for one other reason: the author, sitting by designation on the understaffed appellate bench, is our own U.S. District Judge Richard D. Bennett.

Virginia Lawyers Weekly, a sister publication of The Daily Record, had this blog post today on federal court endorsements by the Virginia Bar Association and the Virginia Trial Lawyers Association.

Both groups recommended Del. John S. Edwards and Virginia Supreme Court Justice Barbara Milano Keenan for a vacancy on the 4th U.S. Circuit Court of Appeals and U.S. Magistrate Judge M. Hannah Lauck for a judgeship in the Eastern District of Virginia.

Beyond that, they differ substantially on other candidates. Click here to get the full story.