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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.

John Lennon was right. “Life is what happens when you’re busy making other plans.” Not long after I ate a couple of yellow nectarines yesterday afternoon, I got a robocall. It was from the big box store where I’d purchased the fruit. 

The automated voice told me to return the nectarines I’d just eaten. There was a voluntary recall over potential Listeria monocytogenes contamination. Regurgitation no longer an option, timing is everything. But what the . . . . ?

So knock on wood. And thankfully, no symptoms. Yet it’s come to this. Time to nix the nectarines and the burritos around here.

Happy news.

But forget the bad news for now. Let’s make happy talk instead. Out of New York City and London, I read about a new confidence builder. It’s the ‘shiney-hiney,’ also known as the “butt facial.” And according to the news report in The Week, it’s offered this summer by enterprising dermatologists in both cities.

The fanny facial is “a combination of exfoliating peels, lasers, and moisturizers to smooth the skin on the buttocks and minimize dark spots, zits, and cellulite.One client quoted for the news story said, “before I tried the booty facial, I wasn’t as confident as I am now.”

So no kidding, a confidence builder! Could it be the next self-assurance tool before heading to court? Also see “A new take on glowing ‘cheeks'”

Unhappily, I don’t know of any dermatologists offering keister cleansing spa treatments in Arizona’s nether regions. Then again, except for those supposed confidence-building properties, around here all 4 cheeks get plenty pink without dermatological exfoliation thanks to Arizona’s hot and sweaty six-month summer.

Confident construction.

Besides, who needs confidence building here? Not, for instance, ASU’s law school leadership. Why those folks are just dripping with confidence. Despite reports of “shrinking law schools facing financial devastation,” Monday’s Arizona Republic newspaper puff-pieced ‘happy news’ about the start of construction of ASU’s ballyhooed new $129 million downtown law school. The story read like an ASU press release.

Don’t blame the nectarines but after reading, I didn’t know whether to gag or spit. Despite continuing historic lows in the number of law school admissions test-takers “a record low going back to June 2000″ as reported this week by The Law School Tuition Bubble, “it’s damn the torpedoes, full speed ahead.” While other law schools are “paring back,”  ASU’s law school cognoscenti must be eating not reading their tea leaves. And the local paper appears to be riding shotgun in the same clown car with the law school’s dean. Good thing there’s plenty of room.

In a 2012 interview about the state of legal education, law school dean Doug Sylvester happy-talked, “I don’t think we’re in crisis.”  So why not keep betting on the come? See “Law schools imperiled but insiders keep ignoring the changing tide.Also see “Law school applications down 37 percent since 2010; first-year class could be smallest in 40 years.”

But it’s nice he’s putting the OPM — other people’s money — where his mouth is and blithely proceeding apace. Per the paper, “The law school’s dean, Douglas Sylvester, is so enthused, several times a day he pulls up a webcam on his computer that shows an aerial view of construction.”

Lawyer glut? Too much law school capacity? No worries. Sylvester thinks all that extra space at his expanded new digs — at least for now won’t mean adding more students onto a glutted legal marketplace. He’s keeping enrollments the same.

But it’ll be just dandy for adding two think-tanks; housing a law school sponsored law firm for otherwise out-of-work alumni; for offering more continuing legal education; and of course, for expanding “the degree referred to by critics as a “cash cow”, the LLM, the Master of Laws degree.

The LLM is the graduate degree popularly derided as “Lawyers Losing Money.” Writes Bryce Wilson Stucki at The American Prospect, “To critics, the degree is little more than a scam making extra cash from attorneys desperate to burnish their credentials in a brutal legal job market.” Also see “Inside the Law School Scam: LLM programsand for a much more acerbic take, see “LLM Programs are “Popular” Due to Desperation Among Recent Unemployed J.D.s”

Money in HandOf that Master of Laws Degree, George Leef at ForbesLaw Schools Peer Into The Abyss But The American Bar Association Blocks Serious Change,” also echoes the critics who think it’s the “Next scam: Law schools start “nonprofit” law firms that hire their own graduates, thus boosting their U.S. News rankings by ensuring their grads have jobs while letting their students get out from under debt in half the time. Plus, faculty can have high-paying side jobs managing things at the “nonprofit.””

So while another law school cuts faculty and staff jobs and halts first year classes to belatedly confront plunging law school enrollments, another expands and leverages its profit centers.

Growth for growth’s sake.

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Celia Cruz – “Reina De La Música Latina”

Early Saturday morning I was catching up on my reading while listening to “Queen of Latin Music” Celia Cruz, lawyer-turned-salsero Rubén Blades and soulful Sam Smith’s – “In The Lonely Hour.” I like mixing my music. Ditto my casual reading.

So my reading stack was pretty disconnected with magazines, news clippings, newspapers and digital items featuring book and movie reviews, history, sociopolitical commentaries, sports notes and an outrageous report about juvenile truants in court being jailed without assistance of counsel. (I’ll be blogging about that one later).

One item, though, also drew my interest. It concerned a just-released survey suggesting lawyers ought to be marketing with online review sites. More specifically, the report referred to “the online urban guide” Yelp as supposedly “the most commonly used site to search for attorney reviews online, with 58 percent of [the] respondents saying it is the first place they turn.” The study also claimed that for 83 percent of respondents, online reviews were the first step taken by would-be clients. Who knew?

Burritos not barristers.

What I do know is that I like Yelp for hunting burritos not barristers. Help me get a bagel, a beignet or some bouillabaisse. Or how about finding me a bowlful of cocido, pho or curry when I’m traveling. But lawyers?

I haven’t seen this study’s metrics, methodology or ‘motivation.’ So I’m skeptical.

And since anecdotally and experientially, I haven’t seen it happening, I’m having trouble — especially accepting the inference that all these consumer are allegedly posting reviews about lawyers, which in turn is helping other consumers find legal counsel.

While it’s true that consumers use the Internet to find legal services, consumers aren’t generating a whole lot of online reviews about lawyers. Maybe it’s because it’s not like going out for burgers and brews. Not many folks can afford to hire legal representation. In spite of the historic glut of lawyers, the high cost of legal services has nonetheless resulted in more and more litigants doing without.

So I don’t know who’s supposedly posting all those few and far-between reviews the study says the public’s relying on. Granted, as one marketing researcher at the University of Utah’s School of Business contends, perhaps you don’t need a lot of online buzz. It’s the quality of the online sentiment that’s more important than the quantity of the conversations when it comes to driving customers to your door. Dr. Shyam Gopinath and his research co-authors suggest “that, in our data, ‘what people say’ is more important than ‘how much people say.'”

Woman in orange sunglasses uid 1All the same, given the paucity of online word of mouth about lawyers, I doubt you’ll see a time where like those ‘Elite’ Yelp restaurant reviewers, people dissing or raving about their lawyers will be feted at parties and treated “like royalty.”

Online legal reviews.

According to “How Prospective Clients Use Online Legal Reviews,” the randomly sampled 385 adults in the U.S. generated “385 unique responses to each of nine questions” for a “total of 3,465 respondents.” Say what?

Map of USA with state names 2.svg

To the everyday Joe, 385 adults is an infinitesimal number when there are an estimated 243,419,206 adults in the U.S. The findings then, are a real leap when the sample represents .00015816336201507453% of 243,419,206. But since statisticians assert this is a sufficiently sizable sampling to make the survey valid, I’ll just have to choke down my incredulity.

Here were the key findings from Software Advice, a consulting firm which according to their website, “helps buyers choose the right software. As a trusted resource, our website offers detailed reviews, comparisons and research to assist organizations in finding products that best fit their current and future needs.”

“1. Yelp is the most popular and trusted website for legal reviews.

“2. The most important information to prospective clients is quality of service and years of legal experience.

“3. Seventy percent of prospective clients would travel further to see an attorney with better online reviews.”

I don’t have a handle on how many lawyers currently rely on web-based business referral and review sites like Avvo, Yelp or the stodgy old school, Martindale-Hubbell. Lord knows they’re out there trolling for lawyer business.

And to some extent, lawyers should pay attention to what’s said about them online. But it’s a touchy proposition, especially when a lawyer feels compelled to respond to a negative review posted by a former client. Unlike other business owners who sue reviewers, lawyers may find that option a no-win proposition.

woman giving thumbs up 3 L uidWhat reviews?

But as to my further thoughts about the survey, I’m hypothesizing not many lawyers are marketing through Yelp — not unless they’re also serving chowder with their counsel. Save for emerging social media savvy Millenials, lawyers as a class are rarely early adopters. If there’s gonna be a digital technology party, most will be late.

From my own admittedly unscientific Yelp search of “lawyers,” for example, in the Phoenix, AZ market, very few had any client reviews. Indeed, the Phoenix lawyer with the most reviews had 8. And even in the bigger metropolis of Los Angeles, CA, the “most reviewed” lawyer in Downtown Los Angeles garnered a mere 93 reviews. The “most reviewed” lawyer in San Francisco’s Civic Center had 53 reviews and in Cleveland, OH, of the Yelp lawyers listed, all were tied with a whopping one review each. One San Diego, CA firm had over 200 reviews — but the next two highest were at 47 and 34 reviews.

And unfortunately, among all those scant reviews, some were negative. When it comes to lawyers, I disagree with Brendan Behan that “All publicity is good, except an obituary notice.”

The Rules.

People 1857To be fair, not all lawyers are Luddites. Some are just risk-adverse. They may be reluctant to run afoul of ethical rules governing how they advertise. After all, client recommendations are analogous to testimonials and so lawyers can’t have clients violate or attempt to violate Ethical Rule 8.4 (a) by knowingly assisting their clients to say things they aren’t allowed to say — like making false or misleading communications about the lawyer or the lawyer’s services.

And then there’s that other burden that requires lawyers to monitor their social networks and blogs for reviews and recommendations that may need to be revised or deleted. In Virginia, for instance, “the lawyer cannot permit to remain on his LinkedIn page a client recommendation that says the lawyer is the “best personal injury lawyer in town” because it is a comparative statement that cannot be factually substantiated. Rule 7.1(a)(3).”

From my own sorry experiences, I’ve also developed my own ‘rules’ for finding restaurants not lawyers on Yelp. Unless I’m in the middle of Smallville, USA where you won’t find 100 residents let alone 100 reviewers, I don’t pick a restaurant with less than 100 reviews. This takes out the possibility the restaurateur may have tried gaming the system by having biased friends and family stack the deck with glowing reviews.

boy in coat and hat sticking tongue outReviews should also be recent. And hopefully, substantive — not just whining because the waiter didn’t make eye contact, smile enough or sympathize about your troubling hangnail. Last, I also don’t pick restaurants with less than 4 stars.

And yet despite my ‘rules,’ I’ve still been burned — more than once, especially in the bad dining town where I live.

Yet come to think about it, if my Yelp restaurant rules were ever applied to picking lawyers, consumers would find it near impossible to find one.

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Photo Credits: Celia Cruz, Reina De La Música Latina, by Tribes of the World at Flickr via Creative Commons-required attribution; I Heart Yelp by Ewen Roberts at Flickr via Creative Commons- required attribution; Map of USA with state names, Wikimedia Commons, Creative Commons Attribution-Share Alike 3.0 Unported license; 031207_16231.jpg 4 Jane, by

Luz at Flickr via Creative Commons-required attribution.

File:Laughing Fool.jpgLike Cher, Article III federal judges answer only to themselves and to God — assuming, that is, they aren’t atheists — otherwise they’re not answering to the Almighty either.

Which leads me to question why given how untouchable they are, some folks, granted mostly lawyers are nonetheless so exercised over Federal Judge Richard Kopf having told the U.S. Supreme Court it should ‘STFU.” One nose-out-of-joint conservative law school professor was so peeved at Judge Kopf he even went for the cheap ad hominem and called him “dummKopf.” I hope Steve Bainbridge doesn’t really think he’s the clever first one to think up that pun when he ranted it was the judge who should STFU.

The 68-year old Judge Kopf is retired but on senior status since December 1, 2011. This means he’s working at-large as a judge but assigned to any inferior federal court while receiving his retirement salary.

Hercules and the umpire.

But besides working as a senior justice, he also has a personal blog called “Hercules and the umpire” where he waxes either eloquent or inappropriate depending on your sociopolitical point of view.

Following the U.S. Supreme Court’s latest controversial decision involving a closely-held corporation’s personhood and its attendant religious beliefs concerning Obamacare-mandated contraceptives in Burwell v. Hobby Lobby Stores, Inc., the very opinionated Judge Kopf invoked the acronym, STFU, to argue the nation’s high court is “causing more harm (division) to our democracy than good by deciding hot button cases that the Court has the power to avoid.” But it was that acronym that got people’s underwear in an uncomfortable bunch.

For the uninitiated, STFU is simply short-hand for shut the F-bomb up. Oh, my, that a judge would deign to use such language? At least it wasn’t in any judicial opinion.

Cebull didn’t blog.

http://lawmrh.files.wordpress.com/2012/03/judge-cebull.jpg?w=181&h=203Maybe if the now retired 70-year old Federal Judge Richard Cebull had blogged instead of emailing on his office computer, he might’ve kept his racist robes and his own senior status another day? Just kidding.

You’ll recall an investigation by the 9th Circuit Court of Appeals Judicial Council revealed Judge Cebull had sent hundreds of “racist, sexist and politically inflammatory” e-mail messages over four years while serving as a federal judge in Montana. Parenthetically, Native American advocacy groups are still petitioning to see all the ex-judge’s racist emails but the 9th Circuit keeps saying ‘No.’ They’re supposedly confidential. Oh well, at least they’re just ‘secret’ and not ‘lost’ like Lois Lerner’s missing IRS emails.

“Dirty old man.”

http://static.someecards.com/someecards/usercards/MjAxMi01Y2Q5Y2I1MGRhMzg5M2Yw.pngIt’s not like Judge Kopf hasn’t been here before. A self-described “dirty old man ever since I was a very young man,” he got people worked up just a few months ago when he posted “On being a dirty old man and how young women lawyers dress.”

In that post, he wrote “I have three rules that young women lawyers should follow when considering how to dress for court: 1. You can’t win. Men are both pigs and prudes. Get over it. 2. It is not about you. That goes double when you are appearing in front of a jury. 3. Think about the female law clerks. If they are likely to label you, like Jane Curtin, an ignorant slut behind your back, tone it down.”

http://upload.wikimedia.org/wikipedia/commons/thumb/a/a9/Hans_Conried_Uncle_Tonoose_Danny_Thomas_Show_1959.JPG/363px-Hans_Conried_Uncle_Tonoose_Danny_Thomas_Show_1959.JPGFilters? What filters?

Let me first inoculate myself against accusations of ageist stereotyping. I’m well past my middle-earlies. That said, perhaps age should at least, be discussed here.

Besides our own anecdotal evidence about crazy uncles ruining holidays “with outlandish behavior and boorish opinions,” studies support what some of us have long suspected, aging brains not only drive forgetfulness but blunt behavior.

In one study, “Aging, Executive Functioning, and Social Control,” researcher William von Hippel found that physiological changes such as aging-related atrophy of the brain’s frontal lobes, which he calls “the seat of executive functions” are associated with “age-related inhibitory losses.” This can lead to unvarnished prejudice, “off-target verbosity” and “socially inappropriate remarks.” For an unscholarly, inelegant take on the same topic, also see “Old People Saying Shit They Should Not.

Any wonder that 75-year old Federal Judge Richard Posner recommends judges after 70 be required to takea test of mental acuity every five years.”

Judge Robert Malcolm Kerr of whom it was said, “He administers a kind of rough and ready justice that irritates many and pleases few.”

But when it comes to the berobed, the combination of age-related inhibitory deficits with hubristic-minded ‘black robe disease’ also called “Judge-Itis” — why that’s downright pyrotechnic. In some quarters, judge-itis has morphed into Judge Judy-fication. For examples, remember King County, Washington’s real-life Judge Judy Eiler or the very recent Brevard County Florida Brawling Judge John Murphy. As historian Barbara Tuchman said, “A greater inducement to folly is an excess of power.”

So if media-celebrated ‘no nonsense’ ‘tough-talkers’ on the bench can gloss over Model Code of Judicial Conduct Canon 2’s sub paragraphs on courtroom decorum and demeanor, why can’t judges with personal blogs?

“Everyone was thinking it, I just said it.”

Not to say that 60-somethings and older have cornered inhibitory deficits. Take San Diego California’s Judge DeAnn Salcido, a member of Generation X who was reprimanded for using her courtroom to create audition tapes for a Judge Judy-style television show.

http://lawmrh.files.wordpress.com/2014/07/e15ef-filter.jpg?w=327&h=227Unabashed, she said, “I have a big mouth. I don’t know when to be quiet. I’m telling you everything I know. That’s just the way it’s going to be. I don’t know how to change that. It’s a defect in my personality.” Methinks she needs a blog, too.

And then over the weekend, I finally had enough. I’d been following an anonymous Millenial and once-upon-a-time wanna-be lawyer turned author/blogger. I once thought his blog was refreshingly funny even with all the profligate F-bombs. But then his profane posts kept crossing the line from witty real-world impertinence to nasty hyperbolic meanness. And after reading his last post describing what he’d be willing to do if someone paid off all his student debt, I finally said “No mas” and unfollowed.

No filters.

So when it comes to blurting out whatever pops in your head regardless of the consequences, I’m now inclined to think age is irrelevant. As a society, thanks to social media, online anonymity and no-longer-taught etiquette, we have no filters.

http://upload.wikimedia.org/wikipedia/commons/thumb/7/72/The_Wounded_Angel_-_Hugo_Simberg.jpg/298px-The_Wounded_Angel_-_Hugo_Simberg.jpgWhich gets me back to Judge Kopf. In his latest post, “Please stop,” the blogging judge says he’s reconsidering his blog after all the fallout from his STFU post. In his post, he reprints a communication received from a Nebraska lawyer who he says has his “highest respect.” In his missive, the lawyer appeals idealistically to Judge Kopf’s ‘better angels of our nature’ and asks him to stop blogging — lest it bring discredit on the public’s understanding of the judicial system.

But from my quick unscientific review of the comments to this post, it seems most readers favor his continued blogging. So as Judge Kopf contemplates what he’s going to do, not to worry. It’s not like public confidence in the Supreme Court isn’t already at a historic low or that judicial irreverence means the public will think as Dickens’ Mr. Bumble did that “the law is an ass.” I think he should keep blogging.

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Photo Credits: Laughing Fool, source http://www.wellesley.edu/DavisMuseum/collections/provenance_research.htm at Wikipedia Commons, public domain;American magazine ad for the film Hercules (1959), HerculesMagazine.jpg, Wikimedia Commons, public domain;Hans Conried as Uncle Tonoose, Wikimedia Commons, public domain;Robert Malcolm Kerr, Vanity Fair, 1900-11-22m Wikimedia Commons,Public Domain; The Wounded Angel,Hugo Simberg, Wikimedia Commons, public domain.


I love juxtapositions. It’s an odd personality trait. Or maybe, it’s the heat. Or it’s niggling sleep deprivation now that I’m up earlier than usual — before 4:30 AM to walk our dogs before the summer sun scorches paws and dehydrates lolling tongues. It clears 90°F before 8 AM.

Take, for instance, my frequent lumping together of ‘Old Skool’ rhythm and blues with otherwise unrelated substantive topics. Regular readers know, for example, I especially like Old Skool’ Riffing on Godfather of Soul James Brown.

So when news hit that Brevard County Florida Judge John C. Murphy was back but handling civil cases after less than 30 days of paid vacation leave for reportedly scuffling outside his courtroom with Assistant Public Defender Andrew Weinstock, you’ll understand why “Get Up Offa That Thing” started playing in my head. However, I’ll admit that this particular jurist doesn’t strike me as someone who’d channel Soul Brother No. 1‘s happy “I’m back! I’m back!” refrain.

Brawl in Brevard.

You remember the “Stop pissing me off . . . if you want to fight, let’s go out back”  ‘Brawl in Brevard.’ That’s when after ripping the public defender a new one in his court, Judge Murphy irascibly took matters out to the hallway for a more serious heart-to-heart with the surprisingly unintimidated Andrew Weinstock.

I prognosticated then, “I don’t expect much to happen to Judge Murphy.” So he’s back already. Also see “Judge who hit public defender returns to bench, less than a month later.”

People 7442Sure the Judicial Qualifications Commission reportedly opened an investigation. But seeing how the wagons have already circled around Judge Murphy, I still predict, if anything, the gentlest of admonitions. Besides, according to news reports, no criminal charges were filed in the incident.

 

Boy with his hands on his face uidOpen Letter Contrition — but not for all.

In an open letter released “To the Residents of Brevard County,” Judge Murphy has moved to put the embarrassing episode behind him. “I am happy and relieved to be back at work serving the people of Brevard County and I thank [Chief Justice] Judge Harris for his support and the confidence he has shown to me,” he wrote.

Not to worry, I guess, if the Judicial Qualifications Commission happens to make a probable cause determination and the whole thing’s sent for adjudication to supportive Chief Justice Harris and the Florida Supreme Court.

In his letter, Judge Murphy expressed “regret” for his actions. And he “committed to continuing personal improvement” and to “win back” public trust and confidence. He offered “my personal apology” to each of his 18th Judicial Circuit colleagues and to “judges everywhere.” Curiously, he made no mention of Weinstock, the object of his ire, nor did he apologize to him. But at least he left out the standard non-apology apology.

Yet as the New York Times reported a few days ago, voters can expect more judicial contrition in Florida. See “Here Comes the Judge, in Cuffs – In Broward County, Fla., Spate of Judges in D.U.I. Arrests.” Yeah, I know — let he who is without sin hide behind the nearest rock pile.

Dominick/Flickr

And to reassure the county electorate that he hopes will again reelect him, Judge Murphy also added, “I seek to ensure that this sort of unacceptable behavior will never happen again.” The words “seek to ensure” reminded me of that scene from “The Outlaw Josey Wales.” It was where Dan George as Lone Watie described his visit with the other Chiefs of the Five Civilized Tribes to the Secretary of the Interior and the Secretary nonsensically tells them “Endeavor to persevere.” I imagine the judge will likewise “endeavor to persevere” not to spar, biff, or poke public defenders on premises.

1158073_paper_emotions_-_hateNot the last angry man.

To assist those aspirations, while on his taxpayer-paid leave, Judge Murphy took part in a favorite bureaucratic fix — anger management. The courts may not have them but I have my doubts about anger management programs and whether they even work.

Of anger management classes, the Health Journal at the Wall Street Journal said, “It’s not clear if the programs work, as few studies have analyzed their effectiveness. There are no licensing requirements for anger-management trainers — anyone can open a business. And since participants don’t usually sign up voluntarily, trainers say it’s possible to complete a program without changing one’s behavior.” Also see NPR’s “The Anger Management Industry – Calming Courses on the Rise, But Do They Work?”

Now really, is there such a thing as curing a propensity to be an angry jerk? Or can counseling graft a nice personality on an overbearing putz? Or can it fix what one blogger hilariously calls HUAD – Head Up Ass Disorder?

Take, for example, that serial biting soccer footballer Luis Suarez who after two previous biting incidents during a game was recommended anger management treatment. Suarez’s now up to three bites with the latest administered on an Italian Player at the current World Cup. He’s been fined and banned for 4 months. Still the psychologists keep recommending anger management instead of bicuspid restraints.

http://media-cache-ec0.pinimg.com/736x/5f/e6/84/5fe684ecb7261693a426fe41022db7c1.jpg

Fortunately, even if anger management doesn’t work, there’s always Dr. Seuss. How about carrying around “Did I Ever Tell You How Lucky You Are?” in your pocket?

Truthfully, when it comes down to it, some people just don’t have the requisite people skills, civility and infinite patience to handle life stresses.

I’m all for reinvention — but as Clint said, “A Man’s Got to Know his Limitations.” If you can’t handle on-the-job anger, find another line of work.

Which to conclude, of course, reminds me of another ‘Old Skool’ golden oldie ditty.

It’s from my East Los Angeles Barrio days: “Are you angry?” So when all else fails — there’s always a song.

 


Photo Credits: James Brown Live Hamburg 1973 by Heinrich Klaffs Heinrich Klaffs – at Wikipedia Commons, originally posted to Flickr as James Brown Live 1702730029; Pin by Debbi Kassin on Anger Management & Conflict Resolution Dr. Seuss, Did I Ever Tell You How Lucky You Are?

“Are you a member or happy?”

Paraphrasing that other “Mo” — the one with an “e,” the State of Bar of Arizona is still asking. How happy are members with the Bar’s programs and services?

Although I already took the meaningless member survey, Monday morning I got another email reminding me to complete it. This is the third reminder — but who’s counting? The survey period ends this Friday.

 

achievements,business,flags,waving,metaphors,mountaintops,peaks,people,success,concepts

Doubtless the Bar’s trying to gin up something close to a representative response rate so its leaders can afterward claim victory just like they did three years ago.

Never mind the biased questions with their implicit assumptions or the forced choices from preselected answers. The results are preordained. But then I already I discussed all this last week at “Another ‘poppycock’ survey from the State Bar of Arizona.” At least the Bar’s not planning to survey us so they can later sell us the results.

Defensively speaking.

After last week’s post, I got an email from State Bar of Arizona Chief Communications Officer Rick DeBruhl. Understandably defensive, he wanted to explain a few things. With his consent, I’m posting his clarifications verbatim below.

_____________________________________________________________

“A couple thoughts on your blog:

“Our survey was designed with input by Bruce Merrill. Formerly with ASU, he is one of the premiere survey experts in the country. Surveys are inherently imperfect. Experts like Merrill design them in such a way as to work around our human idiosyncrasies. I’ve never taken a survey that I considered perfect, and I wouldn’t put ours in that category. Using consultants such as Merrill simply allow us to step beyond the amateur ranks to get reasonably valid information.

“You mentioned the fact that 80% of the bar’s membership did not respond in 2011. Survey experts will tell you that a 20% response rate is phenomenal. In addition, we made sure to check that the final numbers were demographically similar to our membership. That gives our survey validity.

 “Questions such as the “printed directory or a more robust online member search tool” were designed to give us guidance. We know from previous surveys that members overwhelmingly use and value the directory. We’ve heard that the current online search tool doesn’t go far enough. Would people be satisfied if we dumped the print directory for our existing search tool? Possibly not. What we’re ultimately trying to determine is whether they like the printed version because they want a book, or because they don’t have a better option.

“As for the answers on the “most serious problems” question, we actually got them from another state’s survey. We’re trying to build not just Arizona data but national trends as well. We looked them over carefully before deciding to include them. Any time you create a list, it has the potential to create bias to those answers. And yet survey experts say that respondents need lists to be reminded of the options.

“As for why we use SurveyMonkey, the answer is simple. It is the highest quality for the lowest cost. Of course there are other ways to survey members with greater anonymity. However, they cost significantly more money. Merrill feels we can achieve the same results with lower cost using this method. One other option would be a random sampling. Experts say we could get statistically valid results with just hundreds of responses. Perhaps, but we felt that if we were going to talk about the results of the member survey that all members should have the ability to give answers.

“Incidentally, we had a technical problem on the first day of the survey that prevented some people from submitting. As a result, our consultant decided that our best option was to remove the block that prevents a second survey from the same computer. The consultant feels that the number of people submitting two will be significantly small so that it won’t likely affect overall trends. We do have the ability to run a check on the number of repeat IP addresses which will let us know whether that number was significant. I’m sure if we had unlimited resources, we could no doubt determine the identity of each IP address, but that’s simply not in our realm. Incidentally, we don’t use the SurveyMonkey invitation system.

“We’d love it to be shorter, but we’ve done our best to chop it down. Because of the skip logic built into the survey, no one actually answers every question.

“The bottom line is that we understand that surveys are imperfect. We look for trends and directions and feel that gives us guidance as an organization.

“As always, let me know if you have questions or thoughts.”

__________________________________________________________________________________

Dollars to donuts.

Cartoon Characters 57 I said last week I wasn’t a survey expert. But dollars to donuts, it’s like asking 10 lawyers about anything. If you get 10 survey experts in one room — you’ll get 10 different opinions.

Survey design is as much art as science. So what’s a good response rate? Depends who’s asking. And it depends on how they ask the question. Also see AAPOR | Response Rate – An Overview.

But I’m glad at least that Rick DeBruhl conceded more than once that the Bar survey was “imperfect” — because it is. That was the crux of my post.

There’s a reason some 80% of lawyers don’t bother answering these surveys. They’ve figured out what a medical historian once said about something else, “The experience of the ignorant has routed the wisdom of the learned.”

Too bad my point about the Bar’s expensive printed directory got lost. The survey’s either/or question about the directory was a leading question. It was biased toward a choice preference for a more robust online member search tool.”

Not long ago, the Arizona Bar spent well over six figures supposedly improving and updating its website and its online member search tool. And now it appears some Bar executive is itching to spend even more money on what’s become a bloated website and online member search tool. Meantime regardless of the Bar’s claims at being eco-friendly — it’s just not yet because the Bar continues to print member directories and kill trees.

As for the survey having been designed “with input by Bruce Merrill” — well, that was a point I already footnoted last week. Still with an expert “like Merrill” on board, you have to ask why the Bar needed to crib stuff from other state bar surveys?

Satisfied?

Finally, as a learned colleague pointed out to me when I showed her Rick DeBruhl’s response, his email didn’t address the matter of his boss’s oversimplification of the Bar’s percentage of so-called ‘satisfied customers.’ This was last February 2013 when AZ Bar CEO John Phelps who’s also a lawyer addressed the state legislature’s house judiciary committee.

At about 27:33 on the tape and transcript, he omits the qualifier “somewhat” and asserts instead that “75% of the lawyers polled. . . were satisfied and 25% were not satisfied.”

Does such shorthand, she opined, potentially rise to an ethical rules violation under ER 7.1, i.e., that “a lawyer shall not make or knowingly permit to be made on the lawyer’s behalf a false or misleading communication”? Or as she also speculated, was it a possible violation of ER 8.4 (c) concerning “misleading” statements? The Bar’s communications chief doesn’t explain.

 

Last October, I reblogged a post by Indiana lawyer Paul Ogden who was then facing a one-year suspension for a private email criticizing a judge.

File:1849 - Karikatur Die unartigen Kinder.jpg

Wikimedia Commons/Public Domain

Ogden’s troubles, however, were bigger than just the possibility that as a politically active lawyer with an unblemished 27-year legal career, he might suffer potentially career-destroying sanctions. No, Ogden’s case was really about another attempt by attorney disciplinary authorities to further muzzle attorney free speech.

It was about how much more an ethical rule can be broadened to spank lawyers for their opinions about judges under Ethical Rule 8.2, which says, in part, “A lawyer shall not make a statement that the lawyer knows to be false or with reckless disregard as to its truth or falsity concerning the qualifications or integrity of a judge.”

http://upload.wikimedia.org/wikipedia/commons/thumb/8/88/Two_monks_working_in_the_blacksmith_shop_at_Mission_Santa_Barbara%2C_ca.1900_%28CHS-4070%29.jpg/319px-Two_monks_working_in_the_blacksmith_shop_at_Mission_Santa_Barbara%2C_ca.1900_%28CHS-4070%29.jpg

Wikimedia Commons/Public Domain

And it was also about a lawyer disciplinary commission with the unbridled temerity to hammer and tong a lawyer with the nerve to persistently criticize it.

The Court decides.

LAW AND JUSTICE uidThis past Monday the Indiana Supreme Court handed down its decision In the Matter of Paul K. Ogden. And while the vocal Hoosier gadfly ended up getting disciplined, it was still a good outcome for Ogden.

The case against him was originally brought in March 2013 because of comments he made in private correspondence about Judge David H. Coleman, a special judge appointed in an unsupervised estate case where Ogden was representing one of the interested parties.

As to the First Count of the Charge, in the words of the Court, Ogden’s “repeated and virulent accusations that Judge Coleman committed malfeasance in the initial stages of the administration of the Estate were not just false; they were impossible because Judge Coleman was not even presiding over the Estate at this time—a fact Respondent could easily have determined. Because Respondent lacked any objectively reasonable basis for (these) statements, we conclude that Respondent made these statements in reckless disregard of their truth or falsity, thus violating Rule 8.2(a)in Count 1, the aggravating facts convince us that a mere reprimand is insufficient discipline in this case.”

As to the remaining Second Count concerning alleged ex-parte communications to Marion County judges to follow recently outlined forfeiture law, the Court ruled the disciplinary commission had not met its burden that Ogden’s letters to the judges were “prejudicial to the administration of justice.”

Caucasian businessman pointing finger beside window uidThe Court instead found professional misconduct only with respect to Ogden’s statements about Judge Coleman. And so it ordered a 30-day suspension starting August 5, 2014 and assuming he keeps his nose clean, at its conclusion, the Court approved automatic reinstatement.

Speaking objectively — despite the sanction, I think it’s a win for Ogden. The Court unanimously found misconduct only concerning the First Count. It imposed only a 30-day suspension with automatic reinstatement — instead of the one-year suspension without automatic readmission that the Commission wanted.

File:Freespeech.jpg

Wikimedia Commons/Luis Ricardo/GNU Free Documentation License.

Vulnerable attorneys.

A few days after, at Disbarring the Critics, Ogden also understandably cast the outcome in a positive light. The perils he’d faced had been daunting.

But all the same, Ogden was disappointed “the Court failed to distinguish between public and private communications, thereby leaving attorneys vulnerable to having their private emails and conversations scoured for Rule 8.2 violations for judicial criticism.”

On a more hopeful note in his post, The Indiana Supreme Court Hands Down Decision,” he added: “Attorneys from across the country are wanting an attorney free speech case to go before the United States Supreme Court to curtail states use of disciplinary rules to target attorney speech critical of judges. I think it’s inevitable that’s going to happen as the U.S. Supreme Court seems to have a keen interest in free speech cases and there seems to be no support among conservatives or liberals on the Court for the types of professional sanctions states are imposing on attorneys for judicial criticism.”

Obstreperous meets obdurate.

Ogden also remains convinced the Indiana Disciplinary Commission overcharged and overprosecuted him for no other reason than his unrelenting criticism of its doings. Optimistically, then, he hopes his case will be “a catalyst” for investigating the Commission’s conduct “and for much-needed reform to the attorney disciplinary process.”

While I wish him well, I don’t know whether such optimism is realistic. The forces arrayed against him are formidable. The Commission is an agency and arm of the Indiana Supreme Court.

Case in point, despite his well-founded longstanding complaints about the Commission’s conduct, the Court adopted its agency’s view that Ogden had been “obstreperous.” Obstreperous is a $10 word meaning stubbornly resistant to control as in “unmanageable.”

Laughing Jackass 10952161246Using my own $9.99 word, if Ogden’s unruly then I think the Commission has been obdurate meaning stubbornly resistant to change. But operating apparently without meaningful oversight or transparency, why should it conduct itself any differently?

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