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And so I found myself pondering the quote, “I listen to what you say, but I hear what you mean.” It was attributed to Agatha Christie’s famed Belgian detective Hercule Poirot, as played by actor David Suchet.

But it wasn’t until late last night that I came across the thought-provoker. Monday had caught up with me before I was ready to let go of Sunday.

That’s why I hadn’t yet finished reading Sunday’s NY Times Magazine and particularly Hope Reeves’ interview with Suchet, Part of Me Died With Him containing the quote. Suchet, who played Poirot in the BBC show, says Poirot made him “a better listener.”

Were it only so that we listened with Poirot’s discernment. More often’s the case that people don’t listen to what you say — and hear only what they mean. Or as the late Steven Covey perceptively proclaimed, “Most people do not listen with the intent to understand; they listen with the intent to reply.”  

And so also true in the same interview was Suchet’s later declaration, “most people actually enjoy talking about themselves more than sharing with another person.”

On that note, here’s one more free continuing legal education link, which I missed last week. It comes with the usual disclaimers.

FREE CLE

ESI, Ethics and Social Media: What Attorneys Should and Should Not Be Doing

Bloomberg BNA
Thursday, October 16, 2014
1:00 PM – 2:30 PM ET
1.5 CLE Credit Hours
Product Code – LGA285

• Understand how social media may appropriately be used to advertise.

• Learn how legal advice may be given through social media.

• Understand how social media can be used to gather and review evidence.

• Discover how social media can be used to communicate with clients.

• Find out how juror research may be conducted through social media.

http://www.bna.com/esi-ethics-social-w17179891704/?id=17179891704

WTF? And More FREE CLE

File:Falafel.JPG“What the falafel?” I rhetorically asked after two colleagues separately emailed me the past day about the State Bar of Arizona’s new CLE Institute Training Program.

Ahead of the Arizona Bar’s likely imminent approval of a new CLE provider precertification system that passes on more costs on lawyers, comes the same “friendly state bar’s” new “voluntary faculty development program.” Participants sign up for $50 apiece to attend a CLE Institute to become a “State Bar Certified CLE Presenter.” Wow!

Apparently someone had a brain infarction that Arizona lawyers were clamoring for such a credential! If I’d only known. Just tell me, though, when “voluntary” becomes “mandatory.” Meantime, my right-hand wearies from one-handed clapping.

Hushpuppies 5stack.jpgAccording to the Bar’s promotional flyer, attendees take part in a day-long “training session” in full business professional dress. They view pre-recorded video lectures and create a 10-minute video presentation for analytical discussion. On completion, they’re required to chair or take part in a SBA CLE program within 12 months of graduation.

On second thought, skip the falafel and pass me a hushpuppy! In truth, I never acquired a taste for either although I have friends who’ll drive miles for a good falafel sandwich. Don’t know about the hushpuppy. As for me — hand me a gyro.

But enough about food, frivolity and the foolhardy. So just before the Arizona Bar makes it more difficult for third-party providers to market and sell CLE, here’s more FREE CLE.

PLEASE NOTE: The in-person Phoenix, AZ CLE program worth “up to 7.0 CLE hours, including 1.0 Ethics and 1.5 Domestic Violence Plus BONUS .5 credit during lunch hour” is not technically FREE — but requires a $65 payment for materials, lunch, snacks and refreshments. All the same, quite the deal!

The usual disclaimers about content quality, jurisdictional acceptability and continued availability apply.

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LexisNexis® presents a Complimentary CLE-eligible* Webinar: Finding Shelter After the Storm: Survival Following Hurricanes, Earthquakes, Floods and Fires

Wednesday, September 24, 2014
2:00 – 3:35pm ET (11am PT)
95 minutes
1.5 CLE Credits

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Is Your Legal Hold Process “Reasonable” Under the Updated FRCP?

Presented by Exterro as part of its E-Discovery Masters Series

Webcast: October 1, 2014 at 1:00 p.m. Eastern (10:00 a.m. Pacific)
Space is limited. Register Now!
CLE-Accredited Webcast but separate registration is required on www.nacle.com/exterro to receive CLE credit.

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Keeping Legal Minds Intact: Mitigating Compassion Fatigue Among Legal Professionals

American Bar Association

Wednesday, October 22nd at 12:00pm-1:30pm CST

1.50 General CLE Credit Hours, FREE

http://shop.americanbar.org/ebus/ABAEventsCalendar/EventDetails.aspx?productId=135023765

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How the Separation of Powers Informs the Executive Duty to Defend the Law  

Case Western University Law School

OCT 2, 2014
4:30 P.M. – 5:30 P.M.

1 hour of in-person CLE credit available, pending approval

________________________________________________________________________________________

Volunteer Atty & Child Advocacy seminar

Defenders of Children and Arizona Summit Law School

LIVE IN-PERSON CLE PROGRAM

‘KEEPING IT REAL’ Educational Seminar
Seating is Limited.
RESERVATIONS ARE A MUST!

FRIDAY, OCTOBER 31, 2014
8:15 a.m. to 5:00 p.m.

AZ SUMMIT LAW SCHOOL
1 N.Central Ave. (at Washington)
PHOENIX, AZ 85004

$65 Early Bird received during September ensures the full day’s amenities, materials and lunch.

Educational credits available for lawyers and mental health providers with an interest in Family and Juvenile Court.

REGISTER AT:
https://events.r20.constantcontact.com/register/eventReg?oeidk=a07e9tab5l6c4f4fe81&oseq=&c=&ch=
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Photo Credits: Falafel, at Wikimedia Commons by Jerem at fr.wikipedia under the GNU Free Documentation License; Hushpuppies 5 stack, Uploaded by CrazyLegsKC, Wikimedia Commons under Attribution-ShareAlike 3.0 Unported license.

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http://upload.wikimedia.org/wikipedia/commons/thumb/d/d1/Avarice.jpg/321px-Avarice.jpg“When somebody says it’s not about the money — it’s about the money.” - H.L. Mencken

This Friday, the State Bar of Arizona considers whether or not to ask the state supreme court to approve a precertification system for organizations offering continuing legal education (CLE) in Arizona.

Those favoring a first-ever pay-to-play arrangement wherein CLE providers have to pay a fee to be Bar-accredited to sell credit-eligible courses in Arizona are making like it’s all good. They’re saying it’s about insuring program quality and attorney competency; enhancing member services; and advancing the Bar’s mission to protect the public — from its lawyers.

But recalling Mencken and as every lawyer who’s ever heard clients sayit’s not about the money’ knows — the proposed change is about the money. And we’re talking about a lot — well into the 7 figures of gross revenue, at least here in Arizona. For mandatory and voluntary bars across the country, continuing legal education is a cash cow business.

And thanks to the Arizona Bar’s latest proposal to require provider precertification, it means to keep its cash-generating bovine healthy by:

► Generating more money via another CLE revenue stream and by;

► Protecting its $2M+ annual CLE revenue turf from increased competition from third-party CLE providers.

How high the annual or course-by-course certification fees will be is anybody’s guess. However, the Bar subcommittee recommending the changes noted that other state bars have annual fees ranging “from $100-$500.”  Unfortunately, the subcommittee neglected to similarly emphasize that the mandatory continuing legal education jurisdictions of Nevada, Wisconsin, Missouri, Arkansas, Indiana, and New York have CLE certification guidelines but without fee generating mechanisms. See http://www.barancle.com/mcle/course-application-requirements/

Those aforementioned states, which include both mandatory and voluntary bars, only require lawyers to comply with MCLE — but do not impose accreditation fees on providers. See https://www.reqwiredlegal.com/reqwired/resources/ and http://www.barancle.com/mcle/mcle-requirement/ And why not mention that the jurisdictions of Michigan, South Dakota, District of Columbia, Maryland, and Massachusetts have no MCLE requirements at all?

http://upload.wikimedia.org/wikipedia/commons/thumb/3/3d/Limbo1.JPG/1024px-Limbo1.JPGTo be fair, there’s talk here of possible exemptions for non-profits and local organizations that do not charge dues and seminar registration fees, which must mean that unlike the non-profit Arizona Bar — such organizations have to undertake CLE strictly as a labor of love.

Sarcasm aside, it presumably means law firms with free in-house employee CLE would get a pass. Yet undetermined, though, is whether state agencies or state-funded organizations would be charged fees or reduced fees and whether or not Arizona lawyers would be charged to get credit approval for non-Bar accredited third-party CLE.

Another under-publicized Bar vote.

Politicians 19But for a belated blast email asking for member comments 9 days before the vote, Arizona’s lawyers might not have heard of the significant changes planned. That said, since lawyers are often too busy to pay attention to every email in a glutted inbox, I suspect very few of Arizona’s 17,300 active members will have heard of the proposal. They’ll find out only after the proverbial die’s been cast.

Seems the Bar learned nothing from the brouhaha it stirred when it tried last December 2013 to pass a 22% lawyer licensing fee increase when they thought no one was looking. Because of lawyer objections concerning insufficient due process and lack of transparency, the Bar had to table that vote. Unfortunately, despite subsequent revelations of bureaucratic bloat and budgetary waste, the Bar eventually eked out a 12-11 vote to hike Arizona lawyer dues albeit by ‘only’ 13% instead of 22%.

So no surprise to jaded Bar members about this latest under-publicized move by the ‘friendly state bar.’ Stoically resigned Arizona lawyers already know that despite an almost $15M annual budget; a just-passed dues increase; and a projected nearly $4M surplus by 2019, Bar leadership has sufficient brass to ask members to sustain one more financial burden on their practices. The imposition of new cost-of-business fees on third-party CLE providers will be passed on to participants.

The emperor has no clothes.

The irony of all of this is that from the first imposition of mandatory continuing legal education, lawyers have questioned the faulty assumptions and false conclusions underpinning it.

Indeed, as prominent Nevada family law attorney Marshal Willick writes in his brilliant post All studies known to date show no benefit whatsoever to imposition of mandatory CLE programs in terms of lawyer competency.  What we have is a time-and-money-consuming bureaucracy that falsely portrays itself as providing a service important to the public, but actually does not make lawyers any better, or provide the public any useful information; in short, it does no actual good.

Man with American money uid 1“Why would the organized Bar – formed for the stated purpose of serving the Bar and public – demonstrate such gross incapacity to see that the emperor has no clothes? Because, even beyond the PR value of the appearance of doing something valuable, there’s money to be made.”

And for additional perspectives concerning the absence of studies that mandatory CLE verifiably improves the quality of legal services or ensures the competency of lawyers, also see, e.g., “The MCLE Question No One Wants to Ask” at http://www.law21.ca/2013/04/the-mcle-question-no-one-wants-to-ask/ and “Colossal Cave-in: Why Reform of MCLE Was DOA” at https://www.myazbar.org/AZAttorney/PDF_Articles/AZAT0201-MCLE.pdf  and “Revisiting MCLE: Is Compulsory Passive Learning Building Better Lawyers?” at http://bit.ly/1uRNLDq R

Irksomely, however, mandatory CLE will continue to exist because state bars make a lot of money from it.

Bureaucrats.PNG

“You will never understand bureaucracies until you understand that for bureaucrats procedure is everything and outcomes are nothing.”Thomas Sowell

The creation of yet another bureaucratic department at the Bar staffed with either more clerical or legal staff to vet CLE programs is a fiscal step in the wrong direction.

Among similarly-sized state bars, the Arizona Bar already has the dubious distinction of having one of the highest lawyer licensing fees; one of the largest annual budgets; and one of the biggest administrative staffs and exceptionally well-paid executive cadre in the country.

Instead of looking at fiscal discipline and cost-controls, this latest initiative virtually assures more member dues increases to satisfy the ongoing demands of the new bureaucracy created to qualify, certify, track and audit CLE providers in the future.

Whether there’s enough fiscal good sense left among the Bar’s Board of Governors to stop the proposal remains to be seen.

But when you’re talking Bar bovine bankrolling protection — don’t bet on it.

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Photo Credits: Deadly sins, Avarice, by Jesus Solana at Flickr Creative Commons-requiring attribution http://www.flickr.com/photos/pasotraspaso/6953271968/; The Emperor’s Clothes by Vilhelm Pedersen at Wikipedia Commons, public domain; Revenue by Simon Cunningham at Flickr via Creative Commons license requiring attribution; Limbo Dancer by Mariegriffiths at Wikipedia Commons under the GNU Free Documentation License; Imag0361, by Bruce Biles at Flickr via Creative Commons license requiring attribution; Money, by Philip Taylor at Flickr via Creative Commons license requiring attribution; Bureaucrats, by Raafael at Wikimedia Commons via Creative Commons Attribution-Share Alike 3.0 Unported license; Cash cow, adopted from watchingfrogsboil at Flickr, Creative Commons, Attribution-NonCommercial-ShareAlike 2.0 Generic license.

http://upload.wikimedia.org/wikipedia/commons/thumb/5/56/The_Thinker%2C_Rodin.jpg/180px-The_Thinker%2C_Rodin.jpgI was thinking of incivility again. Maybe, it was prompted by reading Kathleen Geier’s out-of-both sides of her mouth musings about Joan Rivers. On the one hand, Geier thought Rivers “was pretty great” but on the other, called her “a monster.”

Or perhaps it was reading ‘s back-handed homage Joan Rivers Should’ve Always Punched Up” where Doyle reflected, “Joan Rivers worked very hard to seem like an asshole — which is the highest compliment I can offer her.” 

Sure Rivers often crossed lines of etiquette, taste and civility. Sure she was politically incorrect. But oh the rich irony of critiquing someone for incivility — uncivilly.

And leave it to lawyers. Following Rivers’ death, one lawyer was pretzeling out supposed “Life Lessons for Lawyers” from her life.

What is it about lawyer self-absorption? I doubt dentists, dog catchers or podiatrists waste time divining occupational lessons from pop culture phenomena. Just a couple of years ago, navel-gazing lawyers were conjuring up faux analogies to find ‘lessons’ from “The Hunger Games.”

Lawyer incivility . . . again.

Or perhaps my latest reveries on incivility might have stemmed from a recently reported he-said, she-said case where the U.S. magistrate’s memorandum and order started with the following admonition: “‘You’re an asshole, Dan'” is not how an attorney should address her adversary.” 

Another day and another court order documenting what trial lawyer William B. Smith terms “The downward spiral of incivility.”

Let there be rules.

Comedians like Joan Rivers, though, don’t have to comport themselves according to professional rules of conduct. Lawyers, on the other hand, are required to comply with baseline legal ethics and professional responsibility standards. Those rules set forth their obligations and prohibitions. But that doesn’t mean lawyers always follow them.

Businessmen having disagreement uidIn point of fact, lawyers aren’t usually successful at playing nice. After all, wasn’t it Horace in early B.C. who said “Lawyers are men who hire out their words and anger”? So I’ve posted often about . And notwithstanding the fatuous notion of ivory tower professors who assert “The Obligation of Lawyers to Heal Civic Culture,” that parade’s long passed . . . along with the rest of society’s punctured civility.

Not to say that window-dressed efforts don’t occasionally arise to futilely tamp down on incivility. This past May, for instance, the California Supreme Court adopted a Civility” Oath Rule. It now requires that the oath taken by every newly-minted California lawyer conclude with: “As an officer of the court, I will strive to conduct myself at all times with dignity, courtesy, and integrity.”  Yeah, that’ll do it.

Black and White Business 11Far better is the 7-point practical approach promoted by the above-mentioned lawyer Smith in his excellent ‘how-to’ on avoiding incivility. Smith’s “prevention formula” is terrific. It includes such sensible prescriptions as calling opposing counsel as a get-acquainted first step to establish goodwill and create “the tone of respect.” He also recommends having more face time with the other side, touching on something most of us learned a long time ago — it’s easier to be a jerk in writing than in person. Don’t just count to ten — but wait 24 hours to “avoid writing nasty emails and letters.” For the rest of Smith’s formula, see “How to Avoid the Downward Spiral of Incivility.”

Grappling golfers.

Then again, my latest introspection may have stemmed from last month’s  news about another golf course fight. As most of you know, I make an effort to play something that approximates golf.

Although the nation’s passion for golf is waning, it nevertheless remains popular enough as both a source of enjoyment and aggravation. For most who play, best to remember what wiser heads advise, “We aren’t good enough to get so mad.”

Better still is A.A. Milne’s explanation, “It is the best game in the world at which to be bad.” No wonder that another no-holds barred comedian, Lewis Black, was on the mark about golfers.

This latest fight involved two Pennsylvania golfers who went at it and put themselves in an emergency room. Their argument? It was allegedly over Rule 25, which concerns casual water on the golf course.

Thankfully, despite their aggressive focus on rules interpretation, far as I could tell, neither the 63-year old nor the 42-year old Pennsylvania legalistic brawler was a lawyer. It wouldn’t have surprised me, though, if they’d both been versed not only at golf course rage but at the boring practice of water law.

But just as civility among lawyers can’t be legislated, cantankerousness can’t be stamped out on the golf links. It’s part of the DNA of the so-called ‘gentleman’s game’ as much as it’s a part of the so-called ‘noble profession.’

Consequently, the mere promulgation of rules of golf with a prefatory “the spirit of the game,” hardly means golfers abide religiously with the precept that “All players should conduct themselves in a disciplined manner, demonstrating courtesy and sportsmanship at all times, irrespective of how competitive they may be.”

Yeah, that’ll do it.

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Photo Credits: The Thinker, Rodin, at Wikimedia Commons, AndrewHorne at the wikipedia project, public domain; Joan Rivers Benefit Concert, by Bob Jagendorf at Flickr via Creative Commons license requiring attribution; Two Award Winning Flickr Photographers Duke it Out by Okinawa Soba at Flickr Creative Commons via Attribution-NonCommercial-ShareAlike 2.0 Generic license; Bad golf cart driver (after 2 days of rain) by Julia Rubinic at Flickr via Creative commons license requiring attribution.

Suspending for a heartbeat my natural skepticism when it comes to Arizona’s legal establishment, especially its ‘friendly state bar,’ the following announcement might be good news. But I’m not holding my breath.

By administrative order of Arizona’s highest court, a “Task Force on the Review and Governance of the State Bar of Arizona” Review the State Bar’s Role and Governance” was created July 29, 2014.

j0341699The purpose of the Task Force is to “examine the Rules of the Supreme Court on the mission and governance structure” and to recommend changes — albeit “if needed,” including but not limited to the following:

“a) Does the mission of the State Bar need to be clarified or modified?

b) Is the governance structure adequate to efficiently and effectively govern and carry out the duties of the Board?

c) Are Supreme Court Rules in the following areas related to Board structure and governance duties adequate to best serve the Board’s primary mission of protecting the public?

i. Qualifications for membership on the Board of Governors;

ii. Appointment, election and removal of members of the Board of Governors;

iii. Term limits for members of the Board of Governors;

iv. Election process;

v. Board of Governors size and composition; and

vi. State Bar leadership structure and composition.”

People 3050I’ll be monitoring the Task Force’s work, particularly whether the court does anything to arrest the serial reelection of governors (some, for example, have been on the Board for almost 20 years), see “Elvis never leaves the building without term limits;” or to rein in the unwieldy size and structure of the 30-member Board, e.g. see “Inside the tent: state bars and management by rugby scrum;” or to rethink the Bar’s exclusive consumer-protection mission, see “That time of year again . . . rendering to Caesar his annual bar dues.”

I have zero expectations on the latter as the court’s order makes abundantly clear the mission and governance review means “to ensure that they continue to best serve the public interest.” After all, the court adds: “The integrated State Bar is intended to regulate the legal profession to protect the public” [presumptively -- from its lawyers].

But don’t misunderstand. Serving the public interest is critically important. Problem is, there are hordes of Arizona lawyers still clinging to the long discarded but quaint notion that like a trade association, the Arizona Bar also expressly serves members’ interests.

So perhaps a salutary outcome of the Task Force’s work will be to finally disabuse them of that delusion. For more about “the tension inherent between the two incompatible roles of our integrated bar, the governmental regulation role and the trade association role,” see David Cameron Carr’s insightful discussion of the California State Bar’s recent governance changes at “The Great Public Protection Perpetual Motion Machine.”

So thanks to its public protection marching orders, deliberations won’t start with a blank slate. Findings and recommendations are due September 1, 2015.

Everything’s dandy.

http://upload.wikimedia.org/wikipedia/commons/thumb/1/12/Henri_Brispot_Gourmand.jpg/309px-Henri_Brispot_Gourmand.jpg

The court’s order may have also caught some of the true believing kool-aid drinkers on the Board of Governors by surprise, particularly if it was sprung on them during the Board’s just-concluded annual retreat boondoggle.

Rich Life 20Many governors, after all, like a bloated bureaucratic “full service, first class” bar. They savor their perquisite-filled status quo and gubernatorial privileges, including Bar-provided free continuing legal education. So despite the increasing restiveness of members, they think everything’s dandy the way it is.

But dandy or not, the court wants the review because of changes to the “legal services environment” along with growth of Bar membership and “demands placed on the State Bar.” I can only imagine what the last one means — but it sounds tailor-made to justify more fee increases.

Computer Hackers 22And coincidentally, there’s also another Arizona Supreme Court 13-member committee looking at “whether Arizona ethical and other regulatory rules should be amended because of the changing nature of legal practice in a technologically enabled and connected workplace and the growing trend toward multistate and international law practice.”

You’d almost think there’s something in the firewater hereabout, given the spate of rule reviews underway. But I think this other arose due to changes proposed by the American Bar Association’s Commission on Ethics 20/20. Indeed, other state bars have begun similar reviews. A copy of the June 17, 2014 administrative order is available here. And of course, I’ll be posting about that committee, too.

The bad news.

http://upload.wikimedia.org/wikipedia/commons/thumb/6/69/Ansdell_Richard_The_Gamekeeper.jpg/365px-Ansdell_Richard_The_Gamekeeper.jpgBut as for that task force on mission and governance, don’t expect meaningful reforms. Thirty-six percent of the task force is composed of former members of the Bar’s board of governors. Indeed, four of these five former governors are also past state bar presidents, including the immediate past president. He was instrumental in ramrodding through an unnecessary 13% dues increase to preserve business as usual. Moreover, the “consultant” to the Task Force is the Bar’s current CEO. A mission and governance review with such guiding lights is like hunting with the game warden.

Still, I guess it’s not quite as bad as the composition of the committee reviewing the Michigan State Bar’s purported use of dues for ideological activities. In Michigan, as one critic pointed out in February, “the task force is stacked with current and former state bar officials.”

At least this Task Force has more diversity. It includes a former state university president, a presiding judge, a libertarian from the Institute for Justice and even a former public utility lobbyist. And with the Bar’s prosecutorial mindset, no surprise it also includes a former state attorney general and a couple of former cops.

But while the Task Force appears to have seemingly covered the politically correct diversity dimensions, e.g., race, ethnicity, gender, sexual orientation, age, etc., it’s missed a big one: there are no dissidents. Who will voice the saeva indignatio?

Yet understandably, in light of the Bar’s disposition toward group-think, why invite oppositionists? No matter, then, what Christopher Hitchens brilliantly wrote in Letters to a Young Contrarian that “. . . in life we make progress by conflict and in mental life by argument and disputation.” Of all people, you’d think lawyers would know that.

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Photo Credits: Day 121, at Flickr Creative Commons attribution share and share alike license by Bastian; The Good Shepherd, by Waiting For The Word at Flickr Creative Commons-license requiring attribution; Henri Brispot Gourmand.jpg at Wikipedia Commons, public domain; Gamekeeper by Richard Ansdell at Wikimedia Commons, public domain.

 

 

 

professional man lost 2Some time ago, I posted about and how important that was, particularly during an economic downturn. Well now that things have supposedly picked up and are coming up rose petals, client selection remains as important as ever. It’s always the threshold consideration.

About 7 years ago, I became acquainted with the precepts of litigator and writer Dan Hull. I hadn’t thought of Hull in a long time. Nor had I given much thought to his “12 Rules of Client Service” or his first rule until the other day after I’d met with a new client for the first time.

I spent more time than initially anticipated with this client. And it was a good thing. I truly enjoyed our preliminary meeting and getting to know the client first — well before getting into details and diagnosis.

You have to like your client.

On the way back to my office, I thought of Hull’s blog “What About Clients?” It’s been around a long time. Last time I checked, the blog was still among the most popular on the Web.

Granted, he has a corporate client orientation. But all the same I strongly believed then and now that his client service rules are essential reading for lawyers young and old. They’re as timely today as when he posted them in 2005.

The first rule.

But of all Hull’s rules, the one that’s always resonated is his first one: “Represent only clients you like.” Probably it’s because long before I ever heard of Hull, it was the goal I’d written in my business plan — the one I wanted guiding my practice.

Was it a pipe dream? Is such representation even doable? The answer is yes — but it’s not easy. Sure under attorney ethics rules, there’s a helpful albeit qualified comment that says under Rule 6.2. “A lawyer ordinarily is not obliged to accept a client whose character or cause the lawyer regards as repugnant.”  See also Scott Laufenberg’s excellent essay, “Representing Repugnant Clients Every Lawyer’s Choice?”

So when I came across Hull’s blog in 2007, I got what he was saying. Years before, matters had also crystallized further after I’d attended a bankruptcy for the non-bankruptcy lawyer continuing education program. That program was supposedly for non-bankruptcy practitioners but almost all the attendees in the room were bankruptcy lawyers. It seemed everybody knew everybody else — like old home week. But what struck me that day wasn’t the course content.

http://www.rottenecards.com/ecards/Rottenecards_84464871_k4nh9wybb9.pngIt was that some of the lawyers in that room didn’t like their clients. These lawyers spent their break time loudly commiserating about their clients.

Lest anyone think I was casting aspersions on my colleagues in the bankruptcy bar, the answer is no. Regardless of practice area, we face the same challenges. I could’ve just as easily heard the same gripes at an employment lawyers conference or a criminal defense or family law program.

And it wasn’t like I’d been trying to overhear any conversations. Quite the opposite. I felt like the schoolboy in the confessional who covers his ears to not overhear a fellow sinner’s too loud admissions of sin in the confessional booth.

It didn’t matter if I was standing out of normal earshot or sitting several rows away. These lawyers spoke loud enough about their unlikable clients to have been overheard by the occupants in the next room. Then and there, I resolved all the more to do my best to avoid representing clients I didn’t like.

Ethics.

What I especially liked about Hull’s client service rules was that he placed them in an ethical and quality service-oriented framework. Lawyers owe their clients “some of the highest personal, professional and business duties imaginable,” he wrote. If you don’t like your client — fire him or her “as soon as you ethically and practically can.” And then there was the money quote, “You will not do good work very long for a client or customer you do not like.”

He sets a high bar. But always, there’s the reality check. When I meet new lawyers, many forced into solo practice — not by choice but by circumstance, I repeatedly find a disconcerting urgency to take on all comers. Facing crushing school loan debts and personal needs, there’s a sense of no boundaries. If a client’s paying, no legal work can be turned down. No matter the ethical duty of competence.

And as for wanting to like your clients, are you kidding? So long as a client has funds to pay for representation — what’s there not to like? Surely in hard-pressed economic situations, Hull’s first rule has to be out-of-step? I like to think not.

 

Admittedly, turning down a paying client even one that comes across like an acre of garlic isn’t easy when ‘baby needs new shoes.’ The cold truth is that faced with life necessities or payroll or rent, the first rule is often the first to go.

In those circumstances, doing what’s right is not only not easy but becomes a question of discretionary aspiration. It’s more longing than loftiness; more hunger than high-mindedness.

But perhaps a work-in-progress goal is still better than the alternative. The harder truth about lawyering is that our choices always catch up with us anyway. In the end, as the late Maya Angelou said, “Success is liking yourself, liking what you do, and liking how you do it.”

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Photo Credits: Dreamers by piotr at Flickr via Creative Commons-license requiring attribution;Day 26, by Luciano Belviso at Flickr via Creative Commons-license requiring attribution.

AndrewThomas.jpgAs he said he’d do, disbarred former Maricopa County Attorney Andrew Thomas is running for Governor of Arizona — along with the usual Arizona collection of migrant-demonizing far right extremists — each battling to outdo the other on talking tough about the border.

Nothing plays so well in Arizona than bashing ‘dem illegals’ and scaring seniors with tales about border-crossing brown-skinned border brothers.

But thanks to Arizona’s semi-closed primary system; customary low voter turnout and a reliably apathetic electorate unwilling to “DeKook the State Capitol,” it won’t matter who wins. One of the extremists will be elected and it’ll be more of the same for Arizona.

Payback.

‘Candy Andy,’ though, is back. Not that he really ever went away. In the words of the late not-so-great former Arizona Governor Evan Meacham, “I’ll tell you what, if a band of homosexuals and a few dissident Democrats can get me out of office, why heavens, the state deserves what else they can get.”  

And now that he wants to be governor, Thomas is probably hoping for the ‘Big Payback.’ Maybe he even thinks he’ll get the chance to pull a ‘California Governor Pete Wilson’ and give the State Bar of Arizona as much heartburn as Wilson gave the California Bar in 1997.

As for his chances — I wouldn’t rule him out. After all, this is a state with “asinus aspirations aplenty” and with an electorate that made Jan Brewer governor twice and Joe Arpaio Maricopa County Sheriff six times. So anything’s possible when you set the bar that low.

andrew-thomas-video-ad.jpgA week ago Tuesday, Thomas began running his first 30-second campaign ad. And he hit the controversy superfecta hammering on “illegal immigration;” condemning “liberal judges;” opposing “the gay lobby;” and aggravating trading-partner Mexico by crossing out the Mexican flag. Clearly he’s not lost his touch for serving red meat to his base or for making ‘amigos’ across the border.

Schadenfreude: Happiness at the Misfortune of Others.

 But speaking of dishes best served cold, I have little doubt Thomas was elated when in April of this year, news reports announced that his arch-nemesis, John Gleason, had been forced out of his job as the chief lord of prosecutorial discipline for the Oregon State Bar. After retiring from his post as head of Colorado’s Office of Attorney Regulation Counsel, Gleason had shown up in Oregon last March to take the job as Oregon State Bar disciplinary counsel and director of regulatory services. It didn’t turn out to be a long stint — only about a year. According to reports, it was “a short stormy run that antagonized lawyers around the state and divided the Oregon State Bar.”Besides asking for an ABA task force to come in to review Oregon’s disciplinary system, Gleason got some lawyers riled when he proposed some sweeping changes to the way lawyers are disciplined for ethical violations in Oregon. He proposed creating the office of Presiding Disciplinary Judge; a complete rewrite of the Bar’s Rules of Procedure; and a substantial reduction in the oversight and authority of the bar’s volunteer State Professional Responsibility Board in favor of more centralized authority with Gleason’s office of disciplinary counsel.

After his 2012 disbarment, Thomas told the press he’d been the victim of “a political witchhunt” for having “brought corruption cases in good faith involving powerful people, and the political and legal establishment blatantly covered up and retaliated by targeting my law license.” None of that got him anywhere with the judge but it might sell in Peoria — Arizona. For more background, see The ABA Journal’s “The Maricopa Courthouse War.”

But for all those who crowed Thomas’ comeuppance, the fact he’s running for governor has to grate — and with $754,000 in public financing funds, to boot.

And speaking of dishes best served cold, I have little doubt Thomas was elated when this past April, there occurred one more instance of schadenfreude cutting both ways. Or said more familiarly, another testament to ‘what goes around, comes around.’ John Gleason, the lead prosecutor, brought in at the behest of the Arizona bar and the state supreme court to bring Thomas to heel gave up his job in Oregon.

Gleason had been Colorado’s Attorney Regulation Honcho when he took the temporary gig in Arizona to prosecute Thomas for abusing his county attorney powers. In a 33-page complaint, Thomas and his cohorts were accused of misusing the office’s broad prosecutorial power to go after political enemies.

After wrapping up the Thomas et al. prosecution and then retiring from his post as head of Colorado’s Office of Attorney Regulation Counsel, Gleason turned up in Oregon in March 2013 to take the job as Oregon State Bar disciplinary counsel and director of regulatory services.

It didn’t turn out to be a long stint — only about a year. According to a news account, it was “a short stormy run that antagonized lawyers around the state and divided the Oregon State Bar.”

Besides asking for an ABA task force to review Oregon’s disciplinary system, Gleason had riled up lawyers by proposing sweeping changes to the way Oregon lawyers are disciplined for ethical violations. He proposed creating something he’s especially fond of, the office of Presiding Disciplinary Judge. He also recommended rewriting completely the Bar’s Rules of Procedure. Finally, he proposed reducing substantially the oversight and authority of the bar’s volunteer State Professional Responsibility Board in favor of centralized authority under his own office of disciplinary counsel.

Too bad he couldn’t leave well enough alone and just sit on his laurels for defrocking Thomas. For stories that lionize and crown him in those laurels see “All Kinds of Horrible Things Happened’: Investigating the Biggest Ethical Misconduct Case in the Nation” and “Prosecutor on Trial: Ex-Maricopa County Attorney.” With such plaudits and press clippings, he just couldn’t resist bringing his bumptious beneficent benefactions to the Beaver State.

For balance and other perspectives on Gleason, read “Scott McInnis plagiarism scandal no big deal to attorney discipline czar” and “Why Colorado Attorneys Dont Have Spines” and particularly, “A Travesty of Justice in Colorado: Lawyer Suspended for A Year and A Day for WINNING His Client’s Case.”

As for where Gleason turns up next, who knows? Consigned to Colorado, he may just stay retired and look for a regular golf partner. Although as far as wanna-be Governor Thomas’s concerned, at least he’s not back in Arizona. But if he does return to the desert kookracy, guess who’s hoping will have the last laugh?

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Photo Credits: Jan Brewer – the Guard, by DonkeyHotey at Flickr via Creative Commons-license requiring attribution;Mr Schadenfreude, by Duncan Hull at Flickr via Creative Commons-license requiring attribution.

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