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An occasional break from legal profession snark can be welcome, especially when it’s been a good week. And how about this for one more reason?

Earlier this afternoon, I watched an enjoyably memorable 4-minute video Frans Hofmeester created over 14 years of his daughter, Lotte. It shows Lotte growing up in time-lapse. Starting in 1999 and every week thereafter, he filmed his daughter from first capturing her animated baby face and then to magically memorializing her developing charm, personality and exultant spirit. And Frans’ project continues.

 

http://upload.wikimedia.org/wikipedia/commons/thumb/a/ad/WMATA_third_rail_at_West_Falls_Church.jpg/320px-WMATA_third_rail_at_West_Falls_Church.jpgIn politics, there’s the ‘third rail,’ a metaphor for topics so charged that like a train’s exposed electrical conductor, they’re too dangerous to touch. For at least some lawyers, the profession’s ‘third rail’ is the lawyer discipline system.

The closest most want to brush against lawyer discipline is a glance at the list of sanctioned lawyers in the monthly bar magazine. And that’s just in case there’s someone there they know.

In Arizona, the consumer protection agency also known as the state bar does a good job reminding its lawyers about the consequences of violating ethics rules. The bar’s website prominently features up-to-date news of Arizona lawyers who’ve been disciplined.

By comparison, bar websites in neighboring California, Nevada, and New Mexico don’t have such front-page listings. But true to its express mission of protecting the public from its lawyers, the Arizona bar additionally sends press releases publicly identifying the drubbed and the defrocked.

Afraid of the system.

But ask an Arizona lawyer to explain how discipline works or to state how many bar prosecutors there are or how much money is spent each year protecting the public and chances are good you’ll get a headlight-caught Bambi expression. More than “don’t ask” — afraid of bad karma it’s “don’t tell me — I don’t want to know.”

 

Take the financial piece, for example. Lawyer discipline takes the biggest chunk of member dues. In Arizona, the number runs about $5M annually.

But if there’s a detailed financial accounting explaining how, what, why and where those monies are expended, I wouldn’t know about it.

To be fair, that doesn’t mean such a report doesn’t exist. I may just be the last person in Arizona to know it. All the same, whether you’re talking legal elites or state or local government, transparency hasn’t been big here.

Consequently, it may simply be that run-of-the-mill members even if they’re paying for the whole kaboodle aren’t supposed to be privy to it — sort of like questions above their pay grade.

On the bar’s website, however, at least there’s an 11-page April 30, 2013 Annual Report of the Attorney Regulation Advisory Committee to the Arizona Supreme Court. Admittedly, it’s not a financial statement. It’s a statistical report of admission and discipline cases for the year. It’s also about one-fifth the size, for example, of the Washington Bar’s 2012 Lawyer Discipline System Annual Report. The Washington state report, by contrast, is replete with cost and discipline expense data.

“Ethics allegations about judge . . . .”

woman face 5But the real reason to bring up lawyer discipline today is not because I have a pent-up hankering for self-administered third-rail electrocution. It’s  because of Wednesday morning’s front-page news story concerning a persistent non-lawyer named Mark Dixon and the bone he’s been picking with the state’s lawyer discipline chieftain, presiding disciplinary judge Hon. William “Bill” O’Neil.

According to news sources, Dixon’s been complaining about Judge O’Neil since at least 2009. Indeed, almost 2 years ago Dixon even filed an affidavit in support of Lisa Aubuchon’s disbarment appeal. For those who forgot, Aubuchon was the former deputy county attorney ultimately disbarred for her role in former Maricopa County Attorney Andrew Thomas’ prosecutorial misconduct against county officials.

None of this was news to me. I caught a whiff a couple of years ago when Phoenix New Times ran an unflattering account, “Mark Dixon Disses Disciplinary Judge William O’Neil, Who He Says was a “Close” Friend, in Affidavit Filed by Lisa Aubuchon. New Times reporter Ray Stern put Dixon in a less than credible light.

But now comes this week’s news account in the Arizona Republic, “Divorce case stirs ethics allegations about judge.” Talk about an attention-grabber — especially if you’re a lawyer. So naturally, the interest of legal community types was piqued, especially when the allegations weren’t just directed at any judge but the one charged with disciplining lawyers. Even so, these were only allegations and ones that had been previously dismissed out-of-hand. So inasmuch as Dixon’s beeves had been grilling for a while and that he’d become a minor cause célèbre among local Tea Party types, why was the mainstream newspaper now taking this on? Slow news day?

http://upload.wikimedia.org/wikipedia/commons/thumb/3/34/Apatosaurus_skull.jpg/320px-Apatosaurus_skull.jpgI doubt it’s because the Arizona Tea Party and its supporters have that much pull, if any, with the state’s largest newspaper. Moreover, their support of Dixon is colored. They’re still picking their own Brontosaurus-sized bone with the state bar and the court’s disciplinary arm for defrocking their hero, former county attorney Andrew Thomas.

So it’s a mystery to me. But as for the Republic story, writer Dennis Wagner did a terrific job time-lining events and giving equal time to both sides.

Most importantly, in detailing the series of events, coincidences, and timing of the real estate short sale of Judge O’Neil’s mother-in-law’s house to his friend and subsequent business partner and the judge’s purchase thereafter of a half-interest in the home for $25,000, Wagner was smart to raise the relevant “appearance of impropriety” ethics standard.

It’s CANON 2 of the Arizona Supreme Court Code of Conduct,“A judge shall avoid impropriety and appearance of impropriety in all of the judge’s actions.” Section A of Canon 2 of the Code; rule 81, Arizona Rules of the Supreme Court, further provides: “A judge should … conduct himself at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary,” whereas section B of Canon 2 provides in part: “A judge shall not lend the prestige of judicial office to advance the private interests of the judge or others.”

To Judge O’Neil’s inestimable credit, though, when asked about the appearance of impropriety involving the short sale transaction and subsequent purchase, Judge O’Neil told the news reporter, “In hindsight, would I have done this? The answer is ‘No’.”

No props, though, for straight-faced zealous advocacy from the judge’s lawyer, who when told by the reporter of the judge’s woulda-coulda-shoulda said, “I hate to contradict the good judge, but . . . there isn’t any appearance of impropriety.”

But no need to go into the rest of the story here. Read Wagner’s account instead.

And while this may not necessarily be open discussion at law firm water coolers, I think even lawyers apprehensive about a ‘third rail’ fan kick might by now found the wherewithal to sneak a peek at the news report — at least from under the covers.

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Photo Credits: “WMATA third rail at West Falls Church.jpg” by Ancheta Wis under the Creative Commons Attribution 2.0 Generic license, Wikipedia Commons;”Deer caught in the headlights,” by Harold Neal at Flickr via Creative Commons Attribution-NonCommercial-NoDerivs License; Skull of Apatosaurus, a sauropod by Ghedoghedo at Wikipedia Commons, under the Creative Commons Attribution-Share Alike 3.0 Unported license;

“smirk? sneer?” by makelessnoise at Flickr via Creative Commons-license requiring;”smirk or smile,” by egreg17 at Flickr under Creative Commons-license requiring attribution.

 

 

Top Ten States by Bar Fees                                  (Click to enlarge)

Not satisfied with already being near the top among highest U.S. cost-to-practice1 mandatory bar associations, on February 27, 2014 the Arizona Bar’s Board of Governors (BOG) voted 12-11 to hike annual member dues by 13% to $520 by 2019.

If at first you don’t succeed . . . .

Politicians 19The BOG first tried raising dues in December by 22%. But it was stymied when word got out about the stealth vote 12 days before Christmas. On being outed, the BOG regrouped and moved to postpone the vote till February. It then spun the delay as a self-congratulatory bid at notice, transparency and due process.

Unfortunately with more time to deliberate, the BOG also came up with a gambit. It dropped its initial $100 increase motion in favor of one that raised dues by ‘only’ $60. But there was a ‘catch.’ The lower increase was tied to an automatic escalator based on the consumer price index — as though what a state bar does has anything to do with the nation’s basket of consumer goods and services.

man face 6But fortunately, brakes were applied to the escalator. But as for the rest, “Il dado è tratto” as they still say in Italy long after Julius Caesar uttered Alea iacta est.In other words, “The die was cast.” When you’re talking fees, state bars always think it’s time to render to Caesar.

The rationale.

So given the Bar’s two-nostrils worth of rationale, it was never a question of “if” – but of “when” and by “how much.”

Wildlife & Animals 2247First, they’d argued the last dues increase was in 2005 as though there’s a gestation period for raising fees. And second, like that proverbial bushy-tailed chicken-counter in the hen-house, an increase was necessary. Or so said a supposed cost-analyzing “Program Review Committee” made up mostly of Bar staff and management. The committee took all of 9 hours over 3 months to do its multi-million dollar operational number-crunching and qualitative analysis.

http://upload.wikimedia.org/wikipedia/commons/thumb/1/1f/Langtry_cartoon.png/161px-Langtry_cartoon.pngSo to the surprise of no one, the committee pronounced there wasn’t much to cut from a bloated $14.6 million budget — not if bureaucratic stakeholders wanted to keep gilding the Bar’s ‘full-service’ lily. And as usual, the largely complaisant BOG went along.

Muddled confusion.

One thing the Bar’s spinmeisters also proclaimed was that Arizona’s fees are only tied for tenth highest among bar associations. But try running that declaration to ground.

When it comes to decoding what and how much lawyers pay to practice in a given jurisdiction, it’s frankly difficult. To start, you need something better than a secret decoder ring from a cereal box.

It’s a muddle. You have to parse, poke and ponder2 through data most of which is hidden behind expedient pay-walls. Or else you glean what you can from the Web whether the ABA or a state bar group.

Cartoon Characters 57Adding to the confusion, surveys lump mandatory bars (where you have to pay-to-play) together with voluntary jurisdictions.

Of course by mixing the apples with the oranges, it conveniently distorts the cost comparisons. And as long as we’re talking produce — it also helps keep the mushrooms fed and in the dark.

Don’t ask why voluntary bars are bunched in with the mandatory associations. It’s one thing to discretionarily and voluntarily pay high fees and quite another to be compelled if you want to keep more than snausages on the lawyer table.

Cost to Practice Rankings.

People 7054Ranking comparisons are as clear as mud. The last time I looked, the prior rankings were based on 2010 ABA surveys and the had Connecticut and Tennessee at No. 1 and No. 2, respectively. Both are voluntary bar associations. Both have non-bar-related fees that hurt.

But how was Georgia in third place at $536 when according to newer data compiled in 2013 by New Jersey’s Office of Attorney Ethics, Georgia’s “Maximum Mandatory Annual Fee” is $242?

International Survey of Attorney Licensing Fees

And take Connecticut where voluntary annual membership in the bar association costs $280. Although you’re not required to join to practice, Connecticut’s Department of Revenue Services still collects an annual attorney occupational tax of $565, which goes to the state general fund not for lawyer regulation. The state’s high court then tacks on a yearly $110 payment to the Client Security Fund.

Work World 14In Tennessee, also a non-mandatory bar state, $400 of the $570 fee lawyers pay is a “Professional Privilege Tax.” And like Connecticut, that money goes to state general revenue, not specifically to any bar-related function or to the Court.

And in Texas where membership is mandatory to practice, there’s a similar occupational tax that skews the cost-to-practice fees number higher. In the Lone Star State, $200 out of the $510 Texas lawyers pay to practice goes to state revenues not to fund the legal establishment.

International Survey of Attorney Licensing Fees - Chart 2

Distinctions without a difference? Who cares if Caesar is the state, the court, or the bar association? It’s all money flowing out of lawyer pockets. But it matters when mandatory bars conveniently use non-decoded figures as convenient pretexts to justify high mandatory licensing fees.

Children 1099So to make some semblance of the mud in the muddle, on a like-for-like dues comparison basis, Arizona is currently among the top three of the country’s 33 mandatory bars behind Alaska’s $660 and Hawaii’s $522. And going inactive in Arizona hardly saves you, either. Inactive Arizona Bar members pay $265 annually, highest among all jurisdictions and equal to or higher than what 20 other jurisdictions charge active bar members.3

Animals 2035And according to the most recent ABA Survey, among mandatory bars with more than 20,000 members, Arizona’s budget is 125 percent higher than the $11,720,787 average for comparably sized bars.

And high budgets notwithstanding, by the time the latest dues increase fully implements in 2019, the Bar itself projects about a $4M surplus. An almost $15 million budget, after all, wasn’t nearly enough money.

What’s more by separate motion, the BOG also got approval to impose higher fees for in-house counsel; admissions on motion; pro hac vice; and late fees for mandatory annual filings like continuing legal education.

Animals 702But at least there’s potential good news for Arizona lawyers. The Bar holds elections to its board of governors in May.

So when they get their online ballots and remember the incumbents who voted for even higher costs to practice, maybe members will also recall the moral in Aesop’s Fox and Stork fable.  As the stork told the fox, “One bad turn deserves another.”

 

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[1] See International Survey of Attorney Licensing Fees data compiled July 1, 2013 by Office of Attorney Ethics of New Jersey.

[2] Oregon fees include a $30 “diversity and inclusion assessment” and $45 for the client security fund (CSF), leaving a balance of $447. Comparable cost is actually less but close to Arizona’s $460 fee, $10 of which is for the client protection fund (CPF)). But Oregon also requires members to buy high-priced co-op professional liability insurance, which runs $3,200 per year even with modest coverage limits. There’s no deductible or penalty premium for purportedly high risk practice areas. In Hawaii, $34 is allocated to the Attorney Assistance Program and $30 to CSF. The remaining $440 is actually less than but very close to Arizona’s current fee of$460. Minus $65 for Legal Aid, the comparable cost in Texas is actually $235, considerably less than Arizona’s fees. Fees in Wisconsin include $50 for Legal Aid; $11 for a Mandatory CLE Fee; and $20 for CSF. That leaves $379, a comparable cost also less than Arizona’s fees. Based on all this, Arizona is actually ranked third in cost to practice. And while Alaska is Number One, it only requires 3 hours of CLE compared to Arizona’s 15. “Active Bar members are required to earn 3 ethics credits, encouraged to earn 9 additional credits, and required to file an MCLE Report each year.” See Alaska Bar Association MCLE at https://www.alaskabar.org/servlet/content/mcle.html. This effectively makes the cost lower to practice in Alaska than in Arizona. But then I’m adding bananas here to the apples and oranges. (Hat tip to D. M. Quinterri, Esq. for her additional data research!)

[3] “International Survey of Attorney Licensing Fees” data further notes Arizona has the highest fee for inactive attorneys. Op. cit.

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Photo Credits: Caricature from Punch magazine of Lily Langtry. From the Punch Christmas Issue, December 1890, “Punch Among the Planets” at Wikipedia Commons, Public Domain, available from Project Gutenberghttp://www.gutenberg.org/etext/13244

lipstick pigProbably thinking I needed it, someone recommended a book with pithy business and life advice. When I looked it up, I discovered it was larded with the kind of time-worn advice that if you live long enough, you’ll see over and over again. Only the color of the lipstick changes, but it’s still the same pig.

Besides, how many times can you write about building a better mousetrap? It would appear, interminably. Cicero had his moral lessons and Marcus Aurelius his meditations on life and Ben Franklin his “Poor Richard’s Almanack.” And almost 30 years ago, Robert Fulghum had “All I Really Need to Know I Learned in Kindergarten” with his version of epigrammatic life lessons, including for example,

“1. Share everything.
2. Play fair.
3. Don’t hit people.
4. Put things back where you found them.
5. CLEAN UP YOUR OWN MESS.
6. Don’t take things that aren’t yours.
7. Say you’re SORRY when you HURT somebody.
8. Wash your hands before you eat.
9. Flush.
10. Warm cookies and cold milk are good for you.
11. Live a balanced life – learn some and drink some and draw some and paint some and sing and dance and play and work everyday some.
12. Take a nap every afternoon.
13. When you go out into the world, watch out for traffic, hold hands, and stick together.
14. Be aware of wonder. Remember the little seed in the Styrofoam cup: The roots go down and the plant goes up and nobody really knows how or why, but we are all like that.
15. Goldfish and hamster and white mice and even the little seed in the Styrofoam cup – they all die. So do we.
16. And then remember the Dick-and-Jane books and the first words you learned – the biggest word of all – LOOK.”

http://upload.wikimedia.org/wikipedia/commons/thumb/8/8b/Pannage_in_the_New_Forest.JPG/320px-Pannage_in_the_New_Forest.JPGObviously, there’s a lot of wisdom in such writings. So there’s a reason the old chestnuts are repeatedly repackaged for consumption for each generation.

Over time a few of the aphorisms and “lessons” have even made their way here.

So a few days ago, courtesy of Dumb Little Man – Tips for Life, I came across Dan Bacon’s “10 Ways to Be a Better Man (No you aren’t already doing them all.”

Which of course made me immediately think of a favorite romantic comedy, “As Good as It Gets and what Melvin Udall (Jack Nicholson) memorably told Carol Connelly (Helen Hunt) on their dinner date — “You Make Me Want to Be a Better Man.”

And has it really been 17 years since that movie came out and she called it “the best compliment of my life”?

But no matter. Time to take stock of Bacon’s iteration and of course, to challenge his gender conceit of a “better man.” Clearly, the 10 ways can also apply to women. Consider it was feminist Gloria Steinem who said, “Far too many people are looking for the right person, instead of trying to be the right person.”

“1. Don’t Crumble Under Pressure.

2. Give, But Also Expect Respect in Return.

3. Love Others Without Judgement.

4. Have Life Purpose and Follow Through On It.

5. Be a Man of Your Word.

6. Always be Yourself.

7. Maintain Control of Your Emotions.

8. Be Someone That People Look Up To.

9. Take the Lead in Situations.

10. Take Full Responsibility For Your Own Success or Failure.”

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Photo Credits: “Pig and piglets in woodland alongside Ober Water, New Forest” by Jim Champion at Wikipedia Commons, the Creative Commons Attribution-Share Alike 3.0 Unported license.

 

 

http://upload.wikimedia.org/wikipedia/commons/thumb/9/96/Golf_ball_5.jpg/320px-Golf_ball_5.jpgA couple of Saturdays ago, we were paired up on the golf course with a happy wise-cracking guy who turned out to be a presiding judge in another jurisdiction. I won’t mention where he was from but let’s just say, he was one happy hombre hitting white dimpled balls in the sunshine while his cold snap compadres back home were freezing theirs.

He was also a much better duffer than me which, of course is no big deal since I set the bar pretty low on the golf course. But I especially liked his bracing candor and absence of pomposity particularly when referring to his day job. His ‘hail fellow well met’ attitude was refreshing. Ah, but then again, we were basking on a sunny Arizona golf course. Who knows what he’s like back home? But at least he wasn’t like Judge Spaulding Smails!

Nonetheless giving him the benefit of the doubt, mid-round I commended the long-time jurist for having successfully inoculated himself from black robe disease — and for not asking me to kiss his ring. Hearing my good-natured razzing, he laughed and smote his Pro-V-1 down the middle of the fairway.

And with that I segue to less berobbed congeniality in the following updates:

From the slapping the spanker file.

Remember Texas Judge William Adams who lost it in more ways than one? For those who forgot, he was the jurist suspended for a year after his daughter, Hillary, posted an embarrassing angry belt-whipping video online. Judge Adams was the belter and Hillary was the beltee. Well, add one more loss for the now ex-jurist. Following enough mea culpas, Judge Adams had been reinstated by the Texas Supremes in November 2012. But thing was, that video followed him around like the proverbial tin can tied to a cat’s tail. So thanks to getting caught beating his daughter on the video, he lost re-election last month. Chalk one up for prudent voters slapping down an ill-advised reelection bid. And give credit to much-maligned judicial elections, which now and then do somehow manage to impose some semblance of accountability courtesy of the voters.
Meanwhile back in Texas, remember Judge William Adams who lost it in more ways than one? For those who forgot, he was the jurist suspended for a year after his daughter, Hillary, posted a video online of the belt-whipping he administered. Well, add one more loss for the ex-jurist. The judge who was reinstated by the Texas Supremes in November 2012 after he was caught beating his daughter on video lost re-election in March. Chalk one up for voters slapping down an ill-advised reelection bid. And chalk up one for much-maligned judicial election voter accountability.
body parts,Buddhism,feet,footprints,religion,religious symbols,toes,visitations

From the foot massages no more file.

Sadly at only age 56, former Clark County, Nevada District Court Judge Elizabeth Halverson passed away March 1, 2014. She’ll be remembered for a lot of things, including the stuff that led to the imposition of judicial discipline. In particular, I’ll recall her former bailiff Johnnie Jordan’s affidavit where he said the judge had ordered him “to massage her feet, neck and shoulders, or some combination of those body parts.”  Also see “Foot massages no more. Nevada Supreme Court reaffirms district court judge’s permanent removal.”

From the shame in his game file.

photoAnd finally it turns out there was more than a little shame in the game of Wayne County, Michigan Circuit Judge Wade H. McCree Jr.

At least more than enough to convince the Michigan Supreme Court to hand down an order dated March 26, 2014 to remove from the bench the self-professed “No shame in my game” judge with a hankering for old-school R & B; inappropriate liaisons in chambers; and bare-chested texts.

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From the more FREE CLE file.

With the usual disclaimers about content, continued availability and jurisdictional approval find the following:

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For example,

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US Legal Journal

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Navigating the Ethical Minefield of Social Media for California Attorneys

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From the knickers in a bunch file.

Last week, the local paper’s editorial board was in high dudgeon grabbing all four cheeks over the wrist-slap inflicted on Fast, Furious and famous former U.S. Attorney for Arizona Dennis K. Burke.

The feather-duster on the wrist that upset the Arizona Republic’s editorial board came courtesy of the public reprimand administered to Burke by Arizona’s lords of lawyer discipline.

But who’s Dennis Burke? What’s Fast and Furious? For those not paying attention or thinking popcorn and high-grossing street racing films with Vin Diesel and the late Paul Walker, the LA Times at “ATF guns sting: Fast and Furious operation” has one of the better, more succinct explanations of what’s what. “A federal operation dubbed Fast and Furious allowed weapons from the U.S. to pass into the hands of suspected gun smugglers so the arms could be traced to the higher echelons of Mexican drug cartels. The Bureau of Alcohol, Tobacco, Firearms and Explosives, which ran the operation, has lost track of hundreds of firearms, many of which have been linked to crimes, including the fatal shooting of Border Patrol Agent Brian Terry in December 2010.”

Dennis Burke US Attorney.jpgSince Operation Fast and Furious took place on Burke’s watch, the furor, the scandal, and the partisan political witch-hunting that erupted following Brian Terry’s death quickly engulfed Burke, the most senior of the DOJ officials implicated.

According to a New York Times story, shortly before he resigned as U.S. Attorney, Burke admitted “he had been the source for a document obtained by Fox News about the A.T.F. agent, John Dodson, who helped disclose risky tactics used in the case.” 

Lawyer discipline notwithstanding, I’m not sure why the Arizona Republic was so upset over what was one of the gentlest, almost apologetic censures I’ve ever read. And besides, Burke self-reported, too.

Most likely, Burke’s got BFFs at the paper. And so the editorialists were displeased. “What Burke did wasn’t something to be sanctioned,” they sniffed. “It was something to be celebrated.” See the March 27 disciplinary agreement here. Also see DOJ Sought Scapegoat for Fast and Furious, Former Arizona U.S. Attorney Says.”

File:Elephant Walking animated.gifBut Burke’s case aside, the elephant in the room.1 is really that hundreds of Department of Justice (DOJ) Attorneys have violated professional rules, laws or ethical standards — and that the public hasn’t a clue who they are. That’s because of DOJ’s longstanding practice of not disclosing the lawyers identified by its own Office of Professional Responsibility (OPR). We’re talking federal lawyers who’ve committed infractions ranging from the sloppily inadvertent to the downright egregious.

According to the Project on Government Oversight (POGO), “The result: the Department, its lawyers, and the internal watchdog office itself are insulated from meaningful public scrutiny and accountability.” Per its website, POGO “is a nonpartisan independent watchdog that champions good government reforms. POGO’s investigations into corruption, misconduct, and conflicts of interest achieve a more effective, accountable, open, and ethical federal government.”

File:Hiding.1.jpgThrough the Freedom of Information Act, POGO was able to obtain OPR data for a 12-year period from 2002 to 2013. Approximately 2,100 allegations of misconduct were unearthed ranging from intentional violations to mistakes and poor judgment involving federal attorneys. 650 instances were substantiated. Of these, more than 400 cases involved recklessness or intentional misconduct.

Meantime, the DOJ refuses to disclose the names of the lawyers OPR identified as having committed the offenses. In their number are federal attorneys who as OPR’s data reveals, misled courts at least 48 times, including 20 intentional violations; breached constitutional or civil rights 13 times; and did not provide exculpatory information to defendants 29 times. Read the POGO report here.

For the time being, wrist-slaps or not — they’re the Untouchables” so don’t be looking for bar discipline either.

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1Hat tip to Mark Brennan for sending me the link to POGO’s report concerning the U.S. DOJ refusal to disclose its attorney violators, including more than 400 categorized by its own internal investigatory agency as the more severe on its scale.

Photo Credits: “Dork,” by Dan4th Nicholas at Flickr via Creative Commons-licensing requiring attribution; “Dennis K. Burke,” Dennis_Burke_US_Attorney.jpg at Wikipedia Commons, work of U.S. Government, public domain; Animated version of File:Elephant walking.jpg, by Eadweard Muybridge at Wikipedia Commons, public domain; Hiding.1.jpg by Loveteamin at Wikimedia Commons under the Creative Commons Attribution-Share Alike 3.0 Unported license.

Even in Maricopa County, Arizona where most everyone has transplanted from someplace else, no one likes hearing about how things were done elsewhere. It’s as welcome as grey-whiskered prattle about “how things were when I was a kid.” Put a sock in it.

All the same, ignore the sock hanging out my mouth while I favorably compare what my former home state of Nevada just did concerning the unauthorized practice of law (UPL).

UPL as most of you know is a tiresome pet peeve of mine. But for all my frustration, as far as Arizona’s concerned when it comes to dealing seriously with UPL, it’s rubbing fingers and playing the world’s tiniest violin.

But back in the Silver State there’s AB74, a new Nevada law effective March 1, 2014 that imposes new controls on legal document preparation services — or what lawyers think of as the unauthorized practice of law. Fortunately, instead of creating another self-perpetuating legal establishment bureaucracy like in Arizona, AB74 requires document preparation services to register with the Secretary of State; establishes qualifications for registration; requires the filing of a bond; regulates the business practices of document preparation services; authorizes disciplinary action and other remedies in specified circumstances; and provides civil and (unlike Arizona) criminal penalties.

File:Otis fence.jpgNevada’s approach is admirably distinguishable from what the ‘self-enlightened’ legal elites did in Arizona. Here the legal eagles didn’t soar to curtail the unauthorized practice of law. Instead the privileged classes ‘fixed’ it by saying it wasn’t UPL. Arizona exempted out a slew of non-lawyers from UPL by judicial fiat.

As a consequence, Also see “Immcrimination: Document preparation in Arizona in the wake of USA v. Arizona.”

No “conscious uncoupling” from the mandatory bar.

Which gets me to say something nice for a change about a state bar president, Nevada’s Alan J. Lefebvre. He’s finishing out his term and in his last several presidential epistles in the bar’s mouthpiece magazine, Nevada Lawyer, Lefebvre’s demonstrated refreshing candor — at least by complaisant state bar standards. He’s decried the current state of the legal profession, which has “done nothing to protect and rescue” newly graduated debt-indentured lawyer graduates. See “President’s Message: “Maybe Reparations are Owed?”

photoAnd unlike the self-congratulatory B.S. typically spewed by bar management milquetoast sock puppets, Lefebvre has also inveighed against the bureaucratic status quo.

Otherwise, as mandatory bar presidents go, the ones with any real cojones have been those never-say-quit anti-mandatory bar presidents in Wisconsin — three of the last four elected. Despite long odds, they’ve been fighting for a voluntary bar for many years. And trying to divorce themselves from compulsory bar membership, they’ve waged their own version of “conscious uncoupling” well before Gwyneth Paltrow was therapeutically psycho-babbling about it.

Sometime ago, one former Wisconsin bar president who’s advocated for a voluntary bar for decades even made headway based on compelled Free Speech grounds. But it was short-lived. His victory was reversed on appeal by the 7th Circuit.

To be clear, however, that guy in Nevada ain’t advocating removal of the mandatory bar yoke — that’s a furrow too far for most bar insiders. But at least he’s shooting straight on UPL and about what Nevada’s new legislation means. In his latest “Message from the President,” Lefebvre rails against “the commoditization of the practice” and how “the unchecked growth of the Unauthorized Practice of Law (UPL) has been eating away at the financial resiliency of the legal profession for years and years, as we attorneys rub our palms together anxiously, doing nothing.” See “President’s Message: Unauthorized Practice of Law: Redux …

Lefebvre’s so effusive he even signals out Lucy Flores, the bill’s author who he says, “should get a ‘lawyer of the year’ award for her foresight.”

Foresight — what a concept. But so’s candor and especially, courage.

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Photo Credits: “Whitby Sock One,” by LollyKnit at Flickr via Creative Commons-requiring attribution; 200px-Blnguyen_violin.jpg at Wikimedia Commons; Otis_fence.jpg at Wikimedia Commons under the Creative Commons Attribution-Share Alike 3.0 Unported license;”in other words, you have a big mouth,” by Vera at Flickr via Creative Commons-requiring attribution;”Nadya with sock puppet and fish, 2007″ by Nadya Peek at Flickr via Creative Commons-license requiring attribution.
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