564 P.2d 958 (1977)
MOUNTAIN STONE COMPANY, a Colorado Corporation, Plaintiff-Appellee,
v.
H. W. HAMMOND COMPANY, a Colorado Corporation, Specialty Restaurants Corporation, a California Corporation, duly authorized to do business within the State of Colorado, Defendants-Appellants,
Joe Malban d/b/a Jay's Construction Co., Defendant,
Jones Heartz Lime Co., Inc., a Colorado Corporation, Defendant-Appellee.
No. 76-405.
Colorado Court of Appeals, Div. II.
February 17, 1977.
Rehearing Denied March 10, 1977.
Certiorari Denied May 31, 1977.
*959 Brenman, Sobol & Baum, Richard M. Kranzler, Denver, for plaintiff-appellee.
Calkins, Kramer, Grimshaw & Harring, John H. Lonnquist, Jr., Denver, for defendants-appellants H. W. Hammond Co. and Specialty Restaurants Corp.
Gorsuch, Kirgis, Campbell, Walker & Grover, David M. Powell, Denver, for defendant-appellee Jones Heartz Lime Co., Inc.
RULAND, Judge.
H. W. Hammond Company and Specialty Restaurants Corporation (the landowners) appeal from a judgment foreclosing the mechanics' liens of Mountain Stone Company and Jones Heartz Lime Co., Inc. We modify the judgment and, as modified, affirm.
The case was submitted to the trial court for decision based upon stipulated facts. H. W. Hammond Company was the record owner of the subject property and Specialty Restaurants Corporation was the lessee of a restaurant known as the "Chili Pepper" which it erected on that property. The principal contractor for construction of the restaurant was defendant Joe Malban, d/b/a Jay's Construction Co., and he engaged the lien claimants as subcontractors. Mountain Stone Company performed labor on the restaurant valued at $6,000; Jones Heartz Lime Co. supplied materials valued at $469.38 which were incorporated in the structure.
In connection with the restaurant project, Specialty Restaurants followed a procedure whereby the principal contractor was paid upon receipt of labor and material releases executed by all subcontractors and laborers who had performed work upon or supplied materials for the structure up through the date of payment. Pursuant to that procedure, the lien claimants executed the following document which is the focal point of the dispute between the parties:
"Labor and/or Material Release:
"By this instrument I hereby acknowledge receipt of payment in full for any and all materials, supplies, labor, or *960 equipment furnished by me on the project listed below, and release any and all claims thereon through January 16, 1975, less ten percent retention per contract.
"Job: Chili Pepper."
Following execution of the foregoing release, the contractor was paid by Specialty Restaurants, and lien claimants were paid by checks drawn on the account of the contractor. However, payment on the checks issued to the lien claimants was stopped by the contractor and the present litigation followed.
The trial court ruled that the mechanics' lien releases exchanged for the contractor's checks were unsupported by consideration and were therefore invalid. Its ruling was predicated on the proposition that the mechanics' lien statutes were enacted to protect claimants who have contributed materials and labor to the construction of improvements upon land, and that therefore, as between two innocent parties, the landowners should suffer any loss since there was no evidence of negligence on the part of the lien claimants. The landowners contend that the lien claimants should be estopped from contending that the releases are invalid and that the trial court erred in not applying that doctrine under the circumstances of this case. We agree.
The doctrine of estoppel is invoked to protect one who relies to his detriment on the promise or representations of another where the promisor may reasonably expect to induce action or forbearance of a material character. See Jacobs v. Perry, 135 Colo. 550, 313 P.2d 1008 (1957); Mooney v. Craddock, 35 Colo.App. 20, 530 P.2d 1302 (1974). The doctrine has been applied in other jurisdictions as a bar to the assertion of mechanics' lien rights in cases where the lien claimant orally advises a landowner that he has been paid in full. Annot., 155 A.L.R. 350.
Based upon the analysis in McLellan v. Hamernick, 264 Minn. 345, 118 N.W.2d 791 (1962), we are persuaded that the doctrine should apply, at least to a written release. In McLellan, the court stated:
"The owner of the property was entitled to protect himself from liens against his property by requiring lien waivers before he paid the balance due the contractor. If those furnishing material and labor were willing to execute such lien waivers, relying upon the contractor's promise to pay them, they should not be heard to complain after the homeowner has altered his position in reliance on such waivers. Any other rule would render lien waivers valueless."
Lien claimants argue that the doctrine of estoppel may not be applied in this jurisdiction because § 38-22-119, C.R.S. 1973, which provides that "[n]o agreement to waive . . . any lien . . . shall be binding except as between the parties to such contract," and because of § 38-22-123, C.R.S.1973, which mandates that "[n]o payment made by any owner to any contractor for the purpose of avoiding any anticipated lien . . . shall be valid." Even assuming that the landowners in this case were not deemed to be parties to the release executed by lien claimants, the doctrine of estoppel serves to "cut off rights or privileges conferred by statute." Johnson v. Neel, 123 Colo. 377, 229 P.2d 939 (1951). see also Priestley v. Inwood Industries, Inc., Colo., 560 P.2d 822 (announced September 20, 1976). Moreover, we view § 38-22-123, C.R.S.1973, as totally inapplicable to the facts of this case because the landowners paid the contractor after the lien releases were secured, and thus the payment may not be deemed as made to avoid "any anticipated lien." Thus, we hold that, having executed a release which they knew or should have known the landowners would rely upon in making payment to the contractor, the lien claimants are now estopped to assert their lien rights.
While conceding that a subcontractor may execute a valid waiver of his right to claim a mechanics' lien, see Bishop v. Moore, 137 Colo. 263, 323 P.2d 897 (1958), the lien claimants, in support of the trial court's judgment, contend that the release executed by them may not be construed as a waiver of their right to claim a lien *961 because that waiver is ambiguous. They rely on the fact that there was no specific reference in the document to any lien rights, and on the fact that the amount actually owed each claimant cannot be determined from the release itself because of the phrase "less ten percent retention per contract." We find no merit in this contention.
Like other contracts, the obvious meaning of the provisions of a release must be given effect. Hyzak v. Greybar, 36 Colo. App. 164, 537 P.2d 1089 (1975). The terms "`[a]ny' and `all' have been described as the most comprehensive words in the English language." See North v. Hawkinson, 324 S.W.2d 733 (Mo.1959) (Storckman, J., concurring). Thus, the provision of the release whereby lien claimants "release any and all claims" on the project "Chili Pepper" encompassed their mechanics' lien rights. If the intent of lien claimants were otherwise, it was incumbent upon them to insert appropriate language limiting the scope of the release. See Goff v. Boma Investment Co., 116 Colo. 359, 181 P.2d 459 (1947).
Contrary to lien claimants' contention, we find no authority for the proposition that the lien release must specify the amount a lien claimant has been paid. By the terms of the release quoted above, lien claimants expressly acknowledge receipt of "payment in full" for all labor performed and materials supplied through January 16, 1975, except for a 10 percent retainage pursuant to the provisions of their contract. The retainage is calculated by subtracting 10 percent from the invoices for work done through January 16, 1975, and the landowners concede that the releases are not effective as to this amount.
We have considered the other arguments of lien claimants relative to the legal sufficiency of the release and find them also to be without merit.
Lien claimants finally contend that their releases are ineffective because of § 4-3-802, C.R.S.1973, of the Uniform Commercial Code and the Official Comments relative thereto, which indicate that taking a "seemingly solvent party's check" is commercially normal and that if the check is dishonored, the payee may either sue on the check or enforce the underlying obligation. See § 4-2-511(3), C.R.S.1973 (Comment 4); § 4-3-802, C.R.S.1973 (Comment 3). Lien claimants argue that the provisions of the UCC thus render their lien releases conditional, and that, therefore, the landowners were not entitled to rely thereon. While we agree that lien claimants retain the rights enumerated by § 4-3-802, C.R.S. 1973, against the contractor, we reject the argument that this section renders an unconditional release conditional as pertains to the rights of the landowners. Rather, to insure that the releases were conditional, it was incumbent upon the lien claimants to insert appropriate language for that purpose. See Goff v. Boma Investment Co., supra.
The judgment is modified to award $600 on the claim of Mountain Stone Company and $46.94 on the claim of Jones Heartz Lime Co., Inc., together with interest and costs. As modified, the judgment is affirmed.
SILVERSTEIN, C. J., and VanCISE, J., concur.


66 F.3d 75
Kent Anthony KRUEGER, Plaintiff-Appellant,v.Bill REIMER, District Attorney;  Fred Moore, Judge, ComalCounty, Defendants-Appellees.
No. 95-50461Summary Calendar.
United States Court of Appeals,Fifth Circuit.
Sept. 26, 1995.

Kent Anthony Krueger, Abilene, TX, pro se.
Appeal from the United States District Court for the Western District of Texas.
Before KING, SMITH and BENAVIDES, Circuit Judges.
PER CURIAM:

1
Kent Anthony Krueger appeals from the district court's dismissal as frivolous of his 42 U.S.C. Sec. 1983 claim against Comal County, Bill Reimer, District Attorney of Comal County, and Fred Moore, a Texas state district judge.  We will affirm.

I. BACKGROUND

2
Krueger, a Texas prisoner, filed a civil rights action pursuant to 42 U.S.C. Sec. 1983 against Reimer and Moore, alleging that they conspired to deprive him of his right to appeal his conviction by denying his request to proceed in forma pauperis on appeal and by denying his right to self-representation.  He also asserted that Comal County was liable because Reimer and Moore acted as final policy makers for Comal County.  The magistrate judge recommended that Krueger's claims should be dismissed as frivolous because they lacked an arguable basis in law or fact and that the district court should warn Krueger of the possible imposition of sanctions for filing future frivolous actions.  The district court adopted the magistrate's recommendations, and dismissed Krueger's suit with prejudice.  Krueger filed a timely appeal.

II.

3
Dismissal of an in forma pauperis petition under 28 U.S.C. Sec. 1915(d) is permissible if the district court is "satisfied that the action is frivolous or malicious."  Graves v. Hampton, 1 F.3d 315, 317 (5th Cir.1993).  An action is frivolous if it lacks an arguable basis either in law or in fact.  Neitzke v. Williams, 490 U.S. 319, 325, 109 S.Ct. 1827, 1831-32, 104 L.Ed.2d 338 (1989).  We review a district court's section 1915(d) dismissal under an abuse of discretion standard.  Denton v. Hernandez, 504 U.S. 25, 34, 112 S.Ct. 1728, 1734, 118 L.Ed.2d 340 (1992).  We have reviewed the record, and we affirm the district court's dismissal for the following reasons:

4
(1) The Supreme Court has held that, in order to recover damages for harm caused by actions whose unlawfulness would render a conviction or sentence invalid, a section 1983 plaintiff must prove that the conviction has been reversed on direct appeal, expunged by executive order, declared invalid by a state tribunal authorized to make such a determination, or called into question by a federal court's issuance of a writ of habeas corpus.  Heck v. Humphrey, --- U.S. ----, ----, 114 S.Ct. 2364, 2372, 129 L.Ed.2d 383 (1994).  To the extent that Krueger's claims, if successful, would necessarily imply that his state criminal conviction is invalid, they are not cognizable under section 1983 because Krueger has not proved that his conviction and sentence for burglary have been invalidated.

5
(2) Reimer and Judge Moore are absolutely immune from liability in Krueger's section 1983 suit.  Despite the applicability of Heck, a district court may appropriately consider the possible applicability of the doctrine of absolute immunity as a threshold matter in making a section 1915(d) determination.  See Boyd v. Biggers, 31 F.3d 279, 284 (5th Cir.1994).  Reimer, as a district attorney, is absolutely immune in a civil rights suit for any actions taken pursuant to his role as State advocate in preparing for the initiation of judicial proceedings or for trial.  Id. at 285.   Similarly, judicial officers enjoy absolute immunity from liability for damages for acts performed in the exercise of their judicial functions.  Id. at 284.   Krueger's claims against Reimer and Judge Moore concern their actions during Krueger's criminal trial and, therefore, are covered by the doctrines of prosecutorial and judicial immunity.

6
(3) Krueger's allegation that Comal County is liable because Reimer and Moore acted as final policy makers for the County is without foundation in law or in fact.  In order to recover a judgment against a local governmental entity under section 1983, Krueger must establish that he sustained a deprivation of his constitutional rights as a result of some official policy, practice, or custom of the governmental entity.  Monell v. Department of Social Servs. of the City of New York, 436 U.S. 658, 694, 98 S.Ct. 2018, 2037-38, 56 L.Ed.2d 611 (1978).  A local judge acting in his or her judicial capacity is not considered a local government official whose actions are attributable to the county.  See Johnson v. Moore, 958 F.2d 92, 94 (5th Cir.1992);  Carbalan v. Vaughn, 760 F.2d 662, 665 (5th Cir.) cert. denied, 474 U.S. 1007, 106 S.Ct. 529, 88 L.Ed.2d 461 (1985).

7
If a district attorney exceeds the scope of his prosecutorial duties, a county may be held liable under certain limited circumstances.  See Turner v. Upton County, 915 F.2d 133, 137-38 (5th Cir.1990), cert. denied, 498 U.S. 1069, 111 S.Ct. 788, 112 L.Ed.2d 850 (1991) (county may be held liable for the acts of district attorney who entered into conspiracy with county sheriff, the ultimate repository of law enforcement power in the county).  Krueger has made no specific factual allegations that either Reimer or Judge Moore acted outside the scope of his prosecutorial or judicial functions.  Because both Reimer and Judge Moore were acting in their official capacities in Krueger's criminal trial, their actions do not constitute the official policy of Comal County.

8
(4) Krueger also contends that the district court erred in dismissing his claims because it did not review the fifty-two exhibits that Krueger filed with his objections to the magistrate judge's report.  Our review of the record indicates that the district court conducted a de novo review of the magistrate's report and the record, including Krueger's exhibits, before dismissing the section 1983 action.  Krueger's contention that the trial court failed to review the exhibits lacks merit.

9
The district court did not abuse its discretion in concluding that Krueger claims have no arguable basis in law or in fact.  Accordingly, we affirm the district court's dismissal of his section 1983 claim as frivolous.


882 F.Supp. 901 (1995)
Thomas D. CARVER, Plaintiff,
v.
Jeremiah W. NIXON, et al., Defendants.
No. 94-3505-CV-S-4.
United States District Court, W.D. Missouri, Southern Division.
April 18, 1995.
*902 T. Patrick Deaton, Jr., Springfield, MO, for plaintiff.
James R. Layton, Missouri Atty. General's Office, Jefferson City, MO, for defendants.

ORDER
RUSSELL G. CLARK, Senior District Judge.
The matter before the Court is a request to issue a decision granting a permanent injunction enjoining the enforcement of Proposition A, § 130.100 RSMo 1994 and declaring the law unconstitutional.
Plaintiff Thomas Carver filed a civil rights suit for declaratory and injunctive relief pursuant to 42 U.S.C. § 1983 and 28 U.S.C. §§ 2201 and 2202 to enjoin defendants from enforcing Missouri Statute Section 130.100 otherwise known as "Proposition A." On December 28, 1994, this Court granted plaintiff's motion for a temporary restraining order and ordered the parties to file suggestions concerning whether the injunction should become permanent. On January 26, 1995, the temporary order became a preliminary injunction and the Court ordered the parties to inform the Court whether they would request an evidentiary hearing in the case. On February 3, 1995, plaintiff requested an evidentiary hearing which was held on March 31, 1995. The parties filed written suggestions in support of and in opposition to a permanent injunction. For the following reasons, the Court will not issue a permanent injunction in this case.

Statement of Facts
Missouri voters passed in initiative called Proposition A on November 8, 1994. Proposition A included Section 130.100 which provides:
130.100. Contribution Limits: There shall be the following limitations on campaign contributions:
(1) No person or committee shall make a contribution to any one candidate or candidate committee with an aggregate value in excess of:
(a) $100 per election cycle per candidate in districts with fewer than 100,000 residents;
(2) [sic] $200 per election cycle per candidate, other than statewide candidates, in districts of 100,000 or more residents. For purposes of this section, "statewide candidates" refers to those candidates seeking election to the office of Governor, Lieutenant Governor, Attorney General, Auditor, Treasurer, and Secretary of State.

*903 (3) [sic] $300 per election cycle per statewide candidate.
(2) No person, entity or committee shall make a contribution to any other person, entities or committees for the purpose of contributing to a specific candidate which when added together or when added together with contributions made directly to the candidate or to the candidate's committee, will have an aggregate value in excess of the limits stated in section 1.
Missouri Revised Statute Section 130.011(16) defines an election cycle as "the period of time from general election for an office until the next general election for the same office."

Issue
The sole issue in this case is whether the limits on campaign contributions set in Proposition A are too low as to be deemed an unconstitutional restriction on plaintiff's right to political expression and association under the First Amendment.

Plaintiff's Argument
Plaintiff challenges the constitutionality of the provision of Proposition A limiting campaign contributions. Plaintiff asserts that the restrictions on his ability to make contributions to candidates in excess of aggregate limits per election cycle infringe upon his rights to free speech and association. Plaintiff claims the contribution limits under Proposition A are low enough as to be an unconstitutional interference with his ability to support candidates and to communicate with potential supporters for fundraising purposes. Plaintiff further argues candidates today must buy expensive time and space in print and electronic media in order to successfully campaign because these are the two major effective forms of campaigning. He argues the contribution limits will inhibit the candidates' ability to communicate their political stances and goals to the voters.
Plaintiff contends incumbents have an advantage in fundraising due to their name recognition and their already existing supporters. Plaintiff is concerned it will be particularly difficult for challengers to raise the funds needed to successfully mount a campaign against incumbents given the contribution limits and the cost involved in purchasing effective advertising. Wealthy candidates would also have an advantage over the less wealthy who would need to spend a significant amount of time seeking contributions.
Plaintiff argues the law is not narrowly tailored to meet the state's interest of avoiding corruption or the appearance of corruption. Specifically, plaintiff argues the law will not prevent wealthy special interests from fighting against the candidates who oppose them. Proposition A does not address or limit independent expenditures or indirect contributions to a campaign. Indirect contributions include actions such as corporations giving employees a leave of absence in order that they may work as campaign volunteers or contributors spending personal funds to promote the candidate without donating directly into the candidate's political fund. Plaintiff argues because Proposition A does not comprehensively attack all of the ways people and special interest groups may purchase influence with elected officials, the Court should enjoin enforcement of the law and declare it unconstitutional.

Discussion
The case setting forth the general principles to be applied in determining the constitutionality of efforts at campaign finance reform is Buckley v. Valeo, 424 U.S. 1, 96 S.Ct. 612, 46 L.Ed.2d 659 (1976). In Buckley the Supreme Court considered the constitutionality of several provisions of the Federal Election Campaign Act of 1971 (FECA). FECA limits campaign contributions in federal elections to $1,000 per individual contributor or group and to $5,000 per political committee for any single candidate per election. 424 U.S. at 7.
In Buckley the Supreme Court found two constitutional protections to be implicated by campaign finance reform: political expression and association. The Court recognized that a major purpose of the First Amendment is to protect political speech. "Discussion of public issues and debate on the qualifications of candidates are integral *904 to the operation of the system of government established by our Constitution." Buckley, 424 U.S. at 14, 96 S.Ct. at 632. However, the importance of political debate does not preclude all limitations on either freedom of association or freedom of speech in the political context. "Neither the right to associate nor the right to participate in political activities is absolute." Id. at 25, 96 S.Ct. at 638 (quoting CSC v. Letter Carriers, 413 U.S. 548, 567, 93 S.Ct. 2880, 2891, 37 L.Ed.2d 796 (1973)). Limitations on these rights are permissible where a compelling state interest is served, if the limitations imposed are narrowly tailored to serve that interest. Buckley, 424 U.S. at 25, 96 S.Ct. at 637-38; see Austin v. Michigan Chamber of Commerce, 494 U.S. 652, 110 S.Ct. 1391, 108 L.Ed.2d 652 (1990). Thus, even a significant interference with protected rights of political association may be sustained so long as the state demonstrates a sufficiently important interest and employs means closely drawn to avoid unnecessary abridgement of First Amendment rights to association. Buckley, 424 U.S. at 25, 96 S.Ct. at 637-38.
The Supreme Court in Buckley recognized that governments have a compelling interest in preventing corruption and the appearance of corruption in the electoral system that may result from the flow of large amounts of money from individual contributors to candidates. Id. at 25-27, 96 S.Ct. at 637-39. In its analysis, the Supreme Court did not find it necessary to look beyond the Act's primary purpose of limiting the actuality and appearance of corruption in order to find a constitutionally sufficient justification for the contribution limitations. Id. at 26, 96 S.Ct. at 638. Under Buckley, Missouri clearly has a compelling state interest in limiting campaign contributions.
The other applicable case is Day v. Holahan, 34 F.3d 1356 (8th Cir.1994). In Day, the Eighth Circuit reviewed the constitutionality of Minnesota's campaign finance reform laws. The provision plaintiff argues is applicable to this case concerns limits put on contributions to and from political committees. The Eighth Circuit held that the $100 limit was so low as to infringe upon citizens' First Amendment right to political association and free political expression. Id. at 1365-66. The language of the Minnesota statute concerning contribution limits that was at issue is as follows:
Subd. 12 Contributions to other political committees or funds.
The treasurer of a political committee or political fund, other than a candidate's principal campaign committee or a political party unit as defined in section 10A.275, shall not permit the political committee or political fund to accept aggregate contributions from an individual, political committee, or political fund in an amount more than $100 a year.
The Minnesota statute differs from Proposition A in that it regulates contributions to independent committees and not direct contributions to individual candidates and their campaign committees. The court of appeals held that because the limit applies to contributions both by and to political committees and funds, the limit affects free association as well as free speech. Id. at 1365. The court held an annual $100 limit on contributions to or by political funds and committees is too low to allow meaningful participation in protected political speech and association and, thus, is not narrowly tailored to serve the state's legitimate interest in protecting the integrity of the political system.
The Day case is only applicable to this case under very narrow circumstances. Under Proposition A, there are no limits being made on contributions to or by political committees unless the purpose is to contribute to a specific candidate and when the contributions by themselves or when added together with contributions made directly to the candidate or to the candidate's committee will have an aggregate value in excess of the stated limits. Proposition A, 130.100(2). The limits in Proposition A restrict the amounts persons or committees may contribute to a candidate or a candidate committee. Under Buckley, some limits on the amount of contributions made by persons or committees to candidates and their campaign committees are constitutional. The remaining question in the analysis is whether the limits imposed by Proposition A are so low as to be an *905 unconstitutional restriction of First Amendment rights of speech and association.
The Court must determine whether Proposition A's campaign contribution limits are sufficiently tailored to meet the state's goal of maintaining the appearance of political integrity in the system without violating constitutional guarantees. This question addresses plaintiff's first argument that the dollar limits are too low. Experts at the hearing indicated they agreed with the Court that what determines the constitutionality of the limits is the dollar amount of the limits. The Supreme Court held in Buckley that a $1,000 limit on contributions to a candidate for a federal office such as the U.S. Senate is a constitutional limit. Here the limits are lower, however they are incremental according to the size of the district and voting population and the type of office being sought. Logically, in districts with a lower population, candidates have a smaller area in which they must campaign and fewer voters with whom they must communicate. Proposition As limits are higher for contributions made to statewide candidates but the risk of garnering influence is lessened by the fact that there will be a larger number of contributors in those races. Further, the higher limits will help the candidates campaign in the larger geographical area of the entire state. The stairstepping of the contribution limits demonstrates a more narrow tailoring of Proposition A to fit the state's goal.
In this case, an overwhelming 74 percent of the voters of Missouri determined that contribution limits are necessary to combat corruption and the appearance thereof. The voters, through the referendum process, set the contribution limits. This is an indication of the sentiment of the voters of Missouri as to what the limits should be in order for them to feel that the state is helping stop corruption or the appearance thereof. In Buckley, the Supreme Court declined to analyze what contribution limits would better serve government's interest, however the Court suggested that if a plaintiff could come forward with substantial evidence that the limits were so low as to prevent candidates from "amassing the resources necessary for effective advocacy", then the candidate would have raised a cognizable claim. Buckley, 424 U.S. at 21, 96 S.Ct. at 636. At the hearing, there was no indication that the contribution limitations imposed by Proposition A would have any dramatic adverse effect on the funding of campaigns and the ability of candidates to communicate to the voters.
At trial, there was evidence of the fact that in recent years, a significant number of states have imposed campaign contribution limits. Currently, at least 27 states in addition to the federal government have imposed such limits. A number of candidates have voluntarily limited the size of contributions they would accept for the purpose of assuring voters that they will not be unduly influenced by wealthier donors if voted into office. These mandatory and voluntary limits reflect the belief that steps must be taken to curb the effect of money on politics and to promote the compelling interest of impartiality in politics. Clearly, the voters of Missouri agree that the limits are an important step in promoting a compelling governmental interest in increasing the voters' trust of democratic institutions.
Plaintiff's second argument centers around plaintiff's concern that incumbents have an advantage in fundraising due to their name recognition and their already existing supporters. Plaintiff argues with the contribution limits, it will be difficult for challengers to raise the funds needed to defeat an incumbent. Further, wealthy candidates would have an advantage over the less wealthy.
It is true that incumbent candidates may often have more name recognition than challengers. However, no evidence was presented to the Court that given the limits on campaign contributions for all candidates, challengers will not be able to raise the funds needed to launch a successful campaign. In the hearing before the Court, expert testimony indicated that Proposition A does not favor incumbents and that many challengers welcome limits on contributions as a way to stop incumbents from accepting large contributions. There was testimony recounting recent political races when challengers defeated incumbents under both mandatory and voluntary campaign contribution limits. Expert testimony also revealed that with contribution *906 limits a greater percentage of the population will contribute to campaigns because people will feel that the candidates appreciate and are more responsive to the smaller contributors.
Plaintiffs last argument is that Proposition A is not narrowly tailored to meet the state's interest because it does not limit independent expenditures or indirect contributions made to a campaign nor does it limit the amount candidates themselves may contribute to their own campaigns. Plaintiff argues because Proposition A does not comprehensively attack all of the methods of garnering political influence, the Court should enjoin enforcement of the law and declare it unconstitutional.
The Court disagrees with plaintiff. Merely because Proposition A does not close all of the loopholes does not make its methods unconstitutional. Proposition A may not be worded as precisely as it could be in order to eliminate corruption, however, the law is tailored narrowly enough to help the state meet its goals of eliminating some means of corruption and of avoiding the appearance of corruption.
It is true that Proposition A does not limit the amount of personal funds a candidate may contribute to his or her own campaign and it does not limit contributors in their own personal direct expenditures made in promotion of a candidate. These types of limits are not at issue in this case. However, the Court notes that such limits on the candidate and on contributors would directly restrict the candidate's and contributors' own political speech and would run afoul of the protections of the First Amendment, while the limits on contributions at issue here only limit indirect speech of the contributor. Certainly, contributors are free to discuss candidates and issues without restriction. Plaintiff's concern that wealthy candidates may be able to direct more effective campaigns than candidates with less personal funds is a concern both before and after the enactment of Proposition A, however, no evidence was presented to the Court that this problem will be exacerbated if Proposition A is enacted. Again, just because Proposition A does not address all problems in the arena of campaigning does not make its provisions unconstitutional. The Court finds that given the state's goals and interest, Proposition A is a positive step towards the elimination of political corruption, even if it is not comprehensive in its approach.

Conclusion
The Court finds the contribution limits imposed by Proposition A are narrowly tailored to serve a compelling state interest and they do not unconstitutionally restrict plaintiff's First Amendment rights of free political speech and association.
Accordingly, it is hereby
ORDERED plaintiffs request for a decision granting a permanent injunction enjoining the enforcement of Proposition A, § 130.100 RSMo 1994 and declaring the law unconstitutional is denied.


102 F.3d 344
36 Fed.R.Serv.3d 1079
Kay Lillian CAROLAN, as trustee for the next of kin ofRobert Joseph Carolan, decedent, Plaintiff-Appellant,v.J.I. CASE COMPANY, Defendant-Appellee.
No. 96-1266.
United States Court of Appeals,Eighth Circuit.
Submitted Nov. 18, 1996.Decided Dec. 9, 1996.

Thomas J. Conlin, Minneapolis, MN, argued (Mullen J. Dowdal, on the brief), for Plaintiff-Appellant.
Daniel A. Haws, St. Paul, MN, argued (Mark D. Covin, on the brief), for Defendant-Appellee.
Before FAGG, LAY, and HANSEN, Circuit Judges.
LAY, Circuit Judge.

1
On October 4, 1991, Robert Carolan was killed while operating a J.I. Case tractor.  He was crushed between his tractor and a disk implement that he was in the process of disconnecting.  There were no eyewitnesses to the accident.  Apparently, while disconnecting the disk, he removed a hydraulic cylinder from the disk and placed it on the left side of the tractor near the operator's seat.  At some point the decedent pressed the cylinder, which in turn engaged the hand clutch lever located on the left side of the operator's seat causing the tractor to move backward and crush him.

2
Kay Carolan, as trustee for her husband's estate, sued J.I. Case (Case) alleging that Case had defectively designed the tractor by failing to properly guard the hand clutch lever.  She alleged that her husband's death occurred when he placed the hydraulic cylinder on the back of the tractor and inadvertently contacted the hand clutch, which allowed the tractor to roll backward and crush him.  Case asserted that there was no design defect and that the cause of the accident was the decedent's own negligence.

3
The case was submitted to the jury by special verdict.  In the first special verdict question, the jury was asked whether Case was negligent in its design of the Model 930 tractor.  The jury answered "no" and this ended its deliberations.  Thereafter, the district court1 entered judgment for Case.  The plaintiff filed a motion for a new trial, arguing that several alleged evidentiary errors deprived her of a fair trial.  The district court denied the motion, holding that the evidence fully supported the jury's verdict, and rejected Carolan's evidentiary challenges.  Kay Carolan, as trustee of the estate, appeals from this denial.

4
On appeal, Carolan challenges the admission of testimony from several of Case's witnesses.  First, she argues that certain testimony from Case's expert regarding the decedent's actions and the cause of the accident should have been excluded because this testimony exceeded the scope of the expert's report disclosed under Fed.R.Civ.P. 26.  She also claims that the testimony was without foundation or scientific reliability.  Second, she asserts that the admission of testimony regarding an absence of other similar accidents was reversible error because it was without foundation and it prejudiced her by implying that the decedent must have intentionally engaged the clutch lever.  Finally, Carolan contends that the admission of testimony from two of Case's witnesses regarding the cause of the accident was reversible error because it constituted improper lay witness opinion testimony and was without foundation.

5
Generally, we review admissions or exclusions of testimony by the district court for an abuse of discretion.  Clarkson v. Townsend, 790 F.2d 676, 677 (8th Cir.1986) (per curiam).  A district court's denial of a new trial motion will not be reversed unless that decision constitutes an abuse of discretion or a new trial is needed to prevent a miscarriage of justice.  Farmland Indus., Inc. v. Morrison-Quirk Grain, 54 F.3d 478, 483 (8th Cir.1995).  Additionally, we will not reverse a judgment if we find that any alleged error was harmless.  See Fed.R.Civ.P. 61.  All of the testimony that plaintiff alleges should have been excluded speaks to the question of how the accident was caused.  The jury, however, found that there was no design defect and did not reach the special verdict question regarding causation.  Therefore, we hold that any error in the admission of the challenged testimony was harmless.2  See Clarkson, 790 F.2d at 678 (holding that any error in the admission of evidence regarding damages was harmless because the jury found for the appellee on the question of liability).  Plaintiff claims that the evidence relating to the possible intentional conduct of the decedent prejudiced the jury in its finding of no design defect.  We disagree.  The issue of design defect was totally independent of whether the decedent inadvertently or intentionally engaged the clutch lever.  The experts' conclusions regarding the design defect question, although conflicting, were expressly independent of their conclusions as to how the accident happened.  The jury's finding of no design defect, which is not challenged on appeal, obviates further discussion of Carolan's claims.

1
 The Honorable James M. Rosenbaum, United States District Judge for the District of Minnesota

2
 We express no opinion as to whether the district court's rulings regarding the admission of the challenged testimony were correct


628 F.2d 546
Andrew OWENS, Appellant,v.Harold J. CARDWELL, Warden, Attorney General, State ofArizona, Appellees.
No. 79-2566.
United States Court of Appeals,Ninth Circuit.
Argued and Submitted July 9, 1980.Decided Sept. 22, 1980.

Atmore Baggot, Phoenix, Ariz., for appellant.
Jessica L. Gifford, Asst. Atty. Gen., Phoenix, Ariz.  (argued), William J. Schafer, III, Asst. Atty. Gen., Phoenix, Ariz., on brief, for appellees.
Appeal from the United States District Court for the District of Arizona.
Before WRIGHT, GOODWIN and WALLACE, Circuit Judges.
PER CURIAM.

1
The issue in this appeal by a state prisoner is whether the district court erred in denying his petition for 28 U.S.C. § 2254 relief.  Owens sought an evidentiary hearing to determine the constitutional validity of a 1948 conviction which he alleged had been used to enhance his prison sentence in violation of United States v. Tucker, 404 U.S. 443, 92 S.Ct. 589, 30 L.Ed.2d 592 (1972).  Our examination of the record satisfies us that there was no need for an evidentiary hearing in the district court.

2
Owens is serving a 21 to 25 year sentence for kidnapping with intent to rape.  After exhausting his Arizona state court appeals from his kidnapping conviction, Owens applied for post-conviction relief in Arizona state court.  Because the sentencing judge had retired when Owens brought his post-conviction claim, another Arizona judge was assigned.  Owens asserted, among other things, that the Arizona judge who sentenced him had improperly considered a 1948 murder conviction obtained when Owens was not represented by counsel.  The new judge, the Honorable C. Kimball Rose, conducted an evidentiary hearing, reviewed the record of the trial and sentencing, and received memoranda from the parties.  Judge Rose determined that the sentencing judge had been aware of the Louisiana conviction, and that no inquiry had been made concerning its constitutional validity.  But he denied Owens' petition upon finding that the trial judge would have imposed the same sentence even if he had known that the 1948 conviction was unconstitutional.1

3
When Owens sought habeas corpus in federal district court, the court reviewed the record of Owens' trial and sentencing, the findings and conclusions of Judge Rose, and briefs submitted by the parties.  The district judge dismissed Owens' petition.2

4
Farrow v. United States, 580 F.2d 1339 (9th Cir. 1978), notes that three factors are required to establish Tucker error: "(1) a prior conviction rendered invalid by Gideon ; (2) the sentencing judge's mistaken belief that the prior conviction was valid; and (3) enhancement of the defendant's sentence because of it."  580 F.2d at 1345.

5
Judge Rose found that the sentencing judge did not use Owens' 1948 conviction to enhance his sentence.  The district court was bound to accept that finding if (1) Judge Rose had provided a full and fair hearing on the factual issue and (2) the record of the hearing fairly supported that finding.  Stone v. Cardwell, 620 F.2d 212 (9th Cir. 1980), see 28 U.S.C. § 2254(d).

6
Owens does not contend that he did not receive a full and fair hearing on the issue of enhancement.  To the extent that he challenges the state court hearing on that issue itself, he argues only that Judge Rose should have inquired into the constitutional validity of the Louisiana conviction or resentenced him without regard to it.  Owens relies on Farrow for this assertion, but that reliance is misplaced.

7
Owens received no less a hearing from Judge Rose upon his state post-conviction petition than Farrow requires of federal courts presented with § 2255 Tucker motions.3  Under Farrow, if the district court finds that the prisoner's sentence would not have been different even if the sentencing judge had treated a challenged prior conviction as invalid, the district court need not hold a hearing to determine the constitutional validity of the prior conviction nor order a resentencing.  580 F.2d at 1345-46.  Owens has failed to raise any meritorious challenge to the adequacy of the hearing he received from Judge Rose.  The record reveals no fault with the hearing.

8
The principal issue remaining is whether the record supports Judge Rose's conclusion that the original sentence would not have been different even if the sentencing judge had treated the prior conviction as invalid under Gideon.  It does.

9
The record which was before Judge Rose showed that the sentencing judge was concerned with the reliability and relevance of the 1948 Louisiana conviction.  He barred use of the conviction at trial.  The sentencing judge was aware that the trial judge who sentenced Owens in 1948 later became governor and commuted Owens' sentence before he had served five years of a life term.  At the sentencing hearing following Owens' 1973 conviction, Owens' attorney put him on the stand and explored the details of the 1948 case and the commutation.  Owens testified that the governor came to the penitentiary and told him there had been mistakes and that others may have been responsible for the murder.  The record before Judge Rose also showed that Owens was convicted of robbery in 1967.4  At the sentencing hearing, attorneys for both parties examined Owens regarding the 1967 conviction.

10
The record before Judge Rose shows that the sentencing judge was aware of infirmities in the 1948 conviction.  Nothing in the record indicates that he gave it any weight whatsoever in imposing sentence.  Other sentencing factors were properly before him.  He could take them into account.  The record fairly supports the finding that the 1948 conviction was not used to enhance Owens' sentence.

11
We, therefore, find that the district court was not required to conduct an evidentiary hearing to review Owens' sentence.  It properly held that no Tucker error occurred.

12
Other alleged errors do not require discussion.

13
Affirmed.

1
 Judge Rose made a finding that there is no reasonable probability that the Louisiana conviction was used as the basis for the sentence imposed or that it was used as enhancement resulting in the sentence imposed

2
 The district court mistakenly stated that Owens had received the minimum sentence allowed by statute.  The statute allowed a minimum of 20 years, and Owens received 21 to 25.  The error is immaterial because the real question is whether the sentencing judge would have sentenced Owens differently if he had known the 1948 conviction was one that would be found defective under Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963)

3
 We do not reach the question whether a lesser standard for review under these circumstances is appropriate under § 2254 because clearly the case meets the standards set by Farrow pursuant to § 2255

4
 Though Owens claims that use of the 1967 conviction also violated Tucker, he never raised the claim in the state proceeding or before the district court.  Moreover, the record specifically contradicts his assertion that he was not represented by counsel at the time of the 1967 conviction


544 U.S. 1022
SUMBRYv.SHARP ET AL.
No. 04-8952.
Supreme Court of United States.
May 2, 2005.

1
C. A. D. C. Cir. Certiorari denied.


876 F.2d 895
Unpublished DispositionNOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit.Jessie Mae SUTTLES, Administratrix of the Estate of WadieSuttles, Sr., Deceased, Plaintiff-Appellant,v.Gene ROBERTS, Mayor, Loyce Thomas Kennedy, Chattanooga CityCommission, Frank King, Dr., Eugene McCutcheon, EugeneCollins, Bill Vincent, Lt., Mike Williams, Melvin Carson,Individually and in their official capacities, City ofChattanooga, Tennessee, Jack Adams, Dr., (former) CountyCoroner, Hamilton County, Tennessee, Defendants-Appellees.
No. 89-5413.
United States Court of Appeals, Sixth Circuit.
June 15, 1989.

Before KENNEDY, NATHANIEL R. JONES and WELLFORD, Circuit Judges.

ORDER

1
This matter is before the court upon consideration of appellees' motion to dismiss the appeal for lack of jurisdiction.  In particular, they maintain that appellant has attempted to take an appeal from a non-final order.  Appellant has not responded to the motion to dismiss.

2
Review of the record discloses that appellant filed a complaint in the District Court for the Eastern District of Tennessee on February 27, 1989.  Appellant also moved for the appointment of counsel.  A magistrate charged with the disposition of any pre-trial issues denied that request in an order entered on March 30, 1989.  Appellant appealed.

3
This court lacks jurisdiction over the appeal.  An order denying a motion for the appointment of counsel is not final and appealable.    Miller v. Simmons, 814 F.2d 962, 965 (4th Cir.), cert. denied, --- U.S. ----, 108 S.Ct. 246 (1987);  Henry v. City of Detroit Manpower Dept., 763 F.2d 757, 763 (6th Cir.)  (en banc), cert. denied, 474 U.S. 1036 (1985).

4
Accordingly, it is ORDERED that the motion to dismiss be granted and the appeal be dismissed for lack of jurisdiction.  Rule 8, Rules of the Sixth Circuit.


340 F.Supp.2d 510 (2004)
MIROGLIO, S.P.A., Petitioner,
v.
MORGAN FABRICS CORPORATION, R & M Industries, Inc., and Costco Wholesale Corporation, Respondents.
No. 04 Civ. 5656PKC.
United States District Court, S.D. New York.
October 14, 2004.
*511 Richard S. Taffet, Bingham McCutchen, L.L.P., New York City, for Plaintiff.
Eathan Horwitz, Goodwin Procter LLP, New York City, for Respondents.

MEMORANDUM AND ORDER
CASTEL, District Judge.
Defendant Morgan Fabrics Corporation ("Morgan") moves to disqualify Richard Taffet and Bingham McCutchen LLP from representing Miroglio, s.p.a. ("Miroglio") in this action based upon Taffet's prior representation of Morgan. For the reasons set forth below, I grant the motion.

Background
Morgan manufacturers and distributes fabrics used in connection with home furnishing products. Miroglio manufacturers and produces (but apparently does not distribute) home furnishing and apparel fabrics. Both Morgan and Miroglio claim ownership in a particular fabric design entitled "Paisley". Morgan acknowledges that Miroglio provided it with a paisley design to which Morgan added color combinations providing, in its view, sufficient originality for it to be capable of being protected by copyright.
It is not contested that, in calendar years 2002 and 2003, Taffet represent Morgan on three different copyright infringement matters relating to fabric designs. Morgan has submitted the declaration of Michael Gittleson, its Chief Executive Officer, in which he declares under penalty of perjury that he sought and obtained legal advice from Taffet regarding the paisley design at issue in this litigation. (Gittleson Decl. ¶¶ 11-14) Taffet responds asserting that "I do not believe this to be true ...." citing the fact that he has no recollection of having done so and his belief that he would not have given the advice that Mr. Gittleson cites him as having given. (Taffet Affidavit ¶ 14)
On May 27, 2004, a director of a division of Miroglio wrote to David Young of Morgan regarding the paisley design, and sought certain information from Morgan. (Young Affidavit ¶ 9) Thereafter, according to Young, Taffet called and informed Young that certain products on sale by a retailer were infringing the copyright. (Young Affidavit ¶ 10) Taffet asked for a copy of the copyright registration and Young complied "[b]ased on my belief that Mr. Taffet was calling as our [i.e. Morgan's] attorney...." (Young Affidavit ¶ 10) Taffet acknowledges the call but asserts that he identified himself as calling on behalf of Miroglio. (Taffet Affidavit ¶ 17) Subsequently, on June 21, 2004, plaintiffs divisional director wrote to Young noting that he had had a "common friend" [a reference to Taffet] call to obtain the copyright registration, and closed the letter by claiming that Miroglio owns the design and that Taffet would be filing suit against third-party infringers, a distributor and retailer, for "your sake and ours." (Young Affidavit Ex. B) Less than a month later, on July 20, 2004, Miroglio, represented by Taffet, filed suit against the distributor (R & M Industries, Inc.) and retailer (Costco Wholesale Corporation) but the suit named Morgan, as well. Morgan raised the disqualification issue in *512 its answer and counterclaim filed August 24, 2004. Following a pre-motion conference, Morgan formally moved to disqualify Taffet and his firm.
At the time of the 2002 and 2003 representations, Taffet was a partner in the firm of Thelen Reid & Priest LLP. Since February 23, 2004 he has been a partner in the firm of Bingham McCutchen LLP.

Legal Standards
The legal principles governing the motion are not in dispute. See Evans v. Artek Systems Corp., 715 F.2d 788, 791 (2d Cir.1983); Government of India v. Cook Industries, Inc., 569 F.2d 737, 739 (2d Cir.1978); Ernie Industries, Inc. v. Patentex, Inc., 478 F.2d 562 (2d Cir.1973). See also R-T Leasing Corp. v. Ethyl Corp., 484 F.Supp. 950 (S.D.N.Y.1979), aff'd mem., 633 F.2d 206 (2d Cir.1980) (table); T.C. Theatre Corp. v. Warner Bros. Pictures, 113 F.Supp. 265 (S.D.N.Y. 1953) (Weinfeld, J.). Generally, a client may be represented by counsel of his own choosing. Government of India, 569 F.2d at 739. A district court should be mindful that a disqualification motion might be used as tactical device to delay a case, and impose upon an adversary the costs of defending an issue collateral to the merits of a case. Armstrong v. McAlpin, 625 F.2d 433, 437 (2d Cir.1980) (en banc), vacated on other grounds, 449 U.S. 1106, 101 S.Ct. 911, 66 L.Ed.2d 835 (1981). The rule governing disqualification of an attorney based upon a former representation of an adverse client arises out of the ongoing duty to preserve client confidences, even after the attorney-client relationship has ended. See, e.g., Bd. of Ed. Of City of New York v. Nyquist, 590 F.2d 1241, 1246 (2d Cir.1979). The important interests that underlie the attorney-client privilege are eroded if counsel is permitted to proceed with a case knowing the protected confidences of the opposing client. Id. This, in turn, may undermine the fairness of the proceeding.
Judge Weinfeld's test for determining whether an attorney's former representation of a client requires disqualification has been adopted by the Second Circuit. See Ernie Industries, Inc. v. Patentex, Inc., 478 F.2d at 570 (quoting T.C. Theatre Corp., 113 F.Supp. at 268-269). The standard does not require identity of issues but rather a substantial relationship between the matters at issue in the prior and present adverse representation. In Judge Weinfeld's words:
I hold that the former client need show no more than that the matters embraced within the pending suit wherein his former attorney appears on behalf of his adversary are substantially related to the matters or cause of action wherein the attorney previously represented him, the former client. The Court will assume that during the course of the former representation confidences were disclosed to the attorney bearing on the subject matter of the representation. It will not inquire into their nature and extent. Only in this manner can the lawyer's duty of absolute fidelity be enforced and the spirit of the rule relating to privileged communications be maintained.
The law in this Circuit has evolved and the presumption that the attorney was likely to have had access to client confidences may be rebutted; the issue remains that of access rather than the content of confidential communications.[1] The *513 standard, as it has evolved, was summarized in Evans, 715 F.2d at 791, and has three elements:
(1) the moving party is a former client of the adverse party's counsel;
(2) there is a substantial relationship between the subject matter of the counsel's prior representation of the moving party and the issues in the present lawsuit; and
(3) the attorney whose disqualification is sought had access to, or was likely to have had access to, relevant privileged information in the course of his prior representation of the client.
Satisfaction of the first element is conceded by plaintiff's counsel. The second two elements are in dispute. If believed, the declarations of Messrs. Young and Gittleson would satisfy the second and third prongs because they assert that they sought and obtained legal advise from Taffet on the actual fabric design at issue, including the ability to obtain a valid copyright. Because Taffet disputes these facts, ordinarily I would hold an evidentiary hearing to resolve the disputed issues. But I need not do so here because the essential facts are not disputed as to the other fabric copyright representations of Morgan by Taffet, and I conclude that there is a substantial relationship between those representations and the matters at issue in this suit and the presumption of access to confidential information has not been rebutted.
The three copyright issues on which Taffet recently represented Morgan related specifically to fabric designs. Taffet represented Morgan in 2002 on a claim in which Morgan was accused of infringing a fabric design copyright belonging to the Weave Corporation. In early 2003, he represented Morgan on a fabric design copyright against Melrose Home Collections, Inc. (the "Melrose Matter"). Later, in 2003 he represented Morgan on a potential claim against New Era Decorative Fabrics, Inc. for infringing one of Morgan' fabric designs. These representations are substantially related to the issues in the present litigation. In order to competently represent Morgan on these issues, a reasonable attorney would be expected to acquire a minimum base of knowledge about how Morgan goes about creating designs. The degree of originality required before a fabric design becomes copyrightable and the extent of copying of a fabric design that constitutes infringement were questions within the scope of the prior representation and are issues that are likely to arise in this litigation.[2]
The matters were, indeed, brief and small, but they were more than de minimis. That the prior work for Morgan resulted in only a few thousand dollars in billings to Taffet's then firm is beside the point.
In Ullrich, the lawyer had represented the corporation both as staff attorney and outside counsel on numerous labor and employment issues. 809 F.Supp. at 230-31. When his relationship with the corporation ended, he began to represent three former employees on claims against the corporation. Id. at 232. There was no *514 claim that, while an attorney for the corporation, he performed work relating to these particular employees. Id. at 233. Nevertheless, Judge Leval concluded that the attorney was disqualified because he likely acquired general, confidential information regarding the employment practices of the corporation. Id. at 234-35.
True, Taffet's work for Morgan was of a much shorter duration than the attorney in Ullrich. But just as the attorney in Ullrich likely acquired information bearing on the employer's intent and state of mind towards employees in general, the same may be said of Taffet's recent work for Morgan that brought him into direct contact with its CEO. Taffet's complaint against Morgan alleges that it acted "knowingly and willfully" in infringing Miroglio's rights. (Complaint ¶ 11) His prior work for Morgan is likely to have given him privileged insights into Morgan's state of mind. For example, on the Melrose Matter, Taffet billed 1.2 hours for telephone conversations with Morgan's CEO, thus, demonstrating access to privileged information. At a minimum, Taffet's prior representation of Morgan on fabric design copyright issues is substantially related to his claim for an increase in statutory damages on account of Morgan's alleged knowing and willful infringements on Miroglio's alleged fabric design. 17 U.S.C. § 504(c)(2).
Plaintiff argues that, even if Taffet is personally disqualified, the law firm of which he is presently a partner ought not be. This is not a case where an ethical screen was "established from the first moment the conflicted attorney transferred to the firm or, at a minimum, when the firm first received actual notice of the conflict." See Mitchell v. Metropolitan Life Insurance Co., 2002 WL 441194, at *9 (S.D.N.Y. Mar. 21, 2002). Here, the same law firm partner has had direct personal involvement in the present and former representation. It was Taffet who made the certification pursuant to Rule 11, Fed.R.Civ.P., on Miroglio's suit against Morgan. There is no suggestion that a screen was implemented when Morgan first raised the issue. The facts presented provide an insufficient basis to depart from the principles of imputation of a partner's disqualifying conflict to his law firm. See Fund of Funds, Ltd. v. Arthur Andersen & Co., 567 F.2d 225, 228 n. 10 (2d Cir.1977); see also Restatement of the Law Governing Lawyers § 123. Cf. N.Y. Disciplinary Rule 5-105(D), 22 NYCRR § 1200.24(d).
The motion to disqualify Richard Taffet and the firm of Bingham McCutchen LLP is granted.
SO ORDERED.
NOTES
[1]  See Ullrich v. Hearst Corp., 809 F.Supp. 229 (S.D.N.Y. 1992), citing to (then draft) now adopted Restatement of the Law Governing Lawyers § 132, comment d(ii) at p. 380. Then-District Judge Leval expressed concern that permitting an attorney to rebut the presumption of access to confidential information risked compromising the information and noted that "the client ordinarily does not keep meticulous notes of every confidence revealed." 809 F.Supp. at 234 n. 3.
[2]  The issue of the required degree of originality was recently discussed in Mattel, Inc. v. Goldberger Doll Mfg. Co., 365 F.3d 133, 135 (2d Cir.2004) (citing Alfred Bell & Co. v. Catalda Fine Arts, 191 F.2d 99, 102-03 (2d Cir. 1951) ("All that is needed ... is that the author contributed something more than a merely trivial variation, something recognizably his own. Originality in this context means little more than a prohibition of actual copying. No matter how poor artistically the author's addition, it is enough if it be his own.")). I express no view on any issue related to the merits of this action.


153 Ga. App. 847 (1980)
267 S.E.2d 263
DAVIS
v.
THE STATE.
59503.
Court of Appeals of Georgia.
Submitted February 5, 1980.
Decided February 20, 1980.
Rehearing Denied March 12, 1980.
Danny L. Dupree, for appellant.
William J. Smith, District Attorney, Richard C. Hagler, Assistant District Attorney, for appellee.
BANKE, Judge.
The defendant appeals the denial of his motion for new trial following his conviction of theft by receiving stolen property. Held:
1. The trial court committed no error in admitting the incriminating statements which the defendant made to the arresting officer. Although the defendant contended that he made these statements because the officer threatened to charge him with burglary if he did not cooperate, the officer testified that he made no such threats or promises. The trial court was entitled to believe him rather than the defendant and to admit the statements as evidence. See High v. State, 233 Ga. 153 (210 SE2d 673) (1974); Ingram v. State, 137 Ga. App. 412 (224 SE2d 527) (1976).
2. The defendant's testimony that he did not know the items were stolen when he purchased them did not entitle him to a jury charge on mistake of fact (Code Ann. § 26-705) or on misfortune or accident (Code Ann. § 26-602). "An essential element of the crime of theft by receiving stolen property is knowledge that the goods are stolen when the defendant receives the property. Code § 26-1806." Shorts v. State, 137 Ga. App. 314, 315 (223 SE2d 504) (1976). Since the trial court properly instructed the jury to this effect, it was not necessary to charge that the defendant's testimony, if believed, constituted an affirmative defense.
Judgment affirmed. McMurray, P. J., and Smith, J., *848 concur.