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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.

 

 

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Ah mentorship — the latest state bar flavor of the month. Seems all the bars are doing it in various forms. But mandatory bars empowered as they are as a condition of licensure to compel lawyers to join and to pay dues to practice law are especially the self-anointed flavorists. And no longer satisfied with burdening new lawyers with required courses in “professionalism,” they’re moving to force the newly-admitted whether they like the taste or not to get their palates around year-long mandatory mentorship programs. So much for six-figure ‘practice-ready’ law school training.

Hardly a surprise. When they’re not cooking up solutions to nonexistent problems, state bars like to look like they’re helping — even when they’re not. It’s their version of George Costanza’s how to look like you’re busy when you’re really not.

Forced mentorship.

Mentorship used to mean a trusting, voluntary relationship between an experienced senior guide and a willing, inexperienced junior colleague wanting personal and professional growth. In self-determined mentoring, the mentor voluntarily agreed to coach and to advise and the mentee voluntarily accepted the mentor’s tutelage.

Given what mentorship used to mean, “forced mentorship” turns the concept on its oxymoronic head even though it’s not quite the obvious incongruity as the compelled compassion of mandatory pro bono inflicted on New York’s wanna-be bar candidates. Professor Paul Campos called that one “utterly wrongheaded.” But it’s close.

You have brains in your head. You have feet in your shoes. You can steer yourself in any direction you choose. You’re on your own, and you know what you know. And you are the guy who’ll decide where to go.
Read more at http://www.brainyquote.com/quotes/quotes/d/drseuss414097.html#wT3sRZa1ZVJ0F7WP.99
You have brains in your head. You have feet in your shoes. You can steer yourself in any direction you choose. You’re on your own, and you know what you know. And you are the guy who’ll decide where to go.
Read more at http://www.brainyquote.com/quotes/quotes/d/drseuss414097.html#wT3sRZa1ZVJ0F7WP.99 They’ve also produced a historic glut of new graduates resulting in an oversupply of new lawyers unable to find full-time, long-term employment as lawyers. And thanks to unconscionably high tuition, their graduates have been saddled with unprecedented loan debts. the consumer-protective more and more of them are opting to go solo. professional relationship in which an experienced person

Paraphrasing Ronald Reagan, “The nine most terrifying words in the English language are, ‘I’m from the bar and I’m here to help.’”

No easy task.

Mentoring doesn’t come easy, especially for lawyers who some argue “have never been big fans of people skills.” For one, lawyer-psychologist maintains “Culturally, the legal profession has historically relegated people skills to an unwelcome corner of the room. Even today, many lawyers belittle, dismiss, devalue and mock any mention of such skills.”

Moreover, who has the time? And second, trust and rapport don’t just happen. And then there’s what one publication referred to as “The Misery of Mentoring Millennials.” Research is finding the old “hard-core pursuit of guidance” mentorship models don’t work so well with the “bold and hungry” Generation Z more accustomed to Twitter-length conversations than long-term communications with their seniors.

http://upload.wikimedia.org/wikipedia/commons/thumb/e/e8/Clockmakers_black_forest.jpg/320px-Clockmakers_black_forest.jpg

And speaking of long-term conversations, there’s that other obvious challenge. Ask some lawyers what time it is and they build you a watch.

File:Blah blah.gifI asked one lawyer on a real estate matter how deep the well was on the rural property and never got an answer. Instead I heard an eye-glazing discourse on water tables, aquifers, bore holes and drilling machines.

Another lawyer gave me a rambling treatise on civil procedure in response to a query on the finer points of pleading sufficiency under Rule 12(b) (6). Don’t worry. I won’t bore you with pleading standards.

These are considerations to think about now that mandatory associations have delved into what they think is the next big thing. Not that they’ll pay attention. Group-think is tasty fodder for herd-following bar bureaucrats.

Six jurisdictions have already started mentoring programs requiring new law school grads to sign up and seasoned lawyers to volunteer. Of course they’re not free. New Mexico, for example, requires new lawyers to pay $300 for a “Bridge The Gap” program but at least that covers a year’s worth of continuing legal education. Utah’s program is similar with mentees earning 12 continuing legal education credits for their $300 required participation fee.

Under Oregon’s compulsory mentoring program, new lawyers pay $100 and get 6 continuing legal education credit hours toward the 45 hours of approved continuing legal education mandated in a 3 year reporting period.

 

Oregon’s program appears the one the bean-counters at the Arizona bar are hot and bothered over. But since Arizona’s bar leaders have yet to meet a fee they didn’t want to raise, don’t be surprised if mandatory mentorship doesn’t cost more here than in Oregon.

So while Millenial lawyers may get annoyed over one more hurdle to practice, it’s all good for the mandatory bars. After all, even if these programs are more facade than fix, the bars’ feel-good watch-me-do-something initiatives will not only look good but will create one more income stream.

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Photo Credits: “oh.my.goshk,” by Abulic Monkey at Flickr via Creative Commons-license requiring attribution; Blah_blah.gif at Wikimedia Commons, by Obsidian Soul via Creative Commons Attribution-Share Alike 3.0 Unported license; Benjamin Franklin shown here on a U.S. $100 bill, Wikimedia Commons, public domain.

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Lawyers in Colorado are smart to be circumspect about what their attorney lords of discipline might do to them if they start counseling marijuana-related businesses or partaking a bit of the herb for themselves. Notwithstanding that January 1, 2014 it became legal for Colorado residents 21-years of age and older to legally buy up to an ounce of recreational marijuana, the state’s lawyers aren’t so sure how that applies to them.

Consider that some jurisdictions impose disciplinary sanctions on lawyers for illegal drug use, which can range from reprimands to suspensions to disbarment.

File:Image The Devil s Weed.jpgAlready risk-adverse by dint of occupation, Colorado’s lawyers are afraid to tread where only tokers rush in. They have a lot to lose: their bar licenses and their monopolistic meal-tickets.

So they want assurances first. Indeed, according to a report from Time, “a stream of lawyers and judges appeared at the Colorado Supreme Court on Thursday to argue for rule changes that would explicitly allow lawyers to give advice related to marijuana without fearing disciplinary action — as well as use marijuana themselves.” See “Colorado Lawyers Want to Get High Like Everybody Else.” Also see “Ethics Panel Asks Colorado Supreme Court To Amend Rules, Authorize Marijuana Advice.”

The problem arises because while recreational marijuana use in Colorado is legal — not so with the feds. More specifically, what’s worrying Colorado’s lawyers is Ethics Rule 8.4 Misconduct, which says “It is professional misconduct for a lawyer to (b) commit a criminal act that reflects adversely on the lawyer’s honesty, trustworthiness or fitness as a lawyer in other respects.”

320px-Irene_Ryan_1968Understandably, Rocky Mountain High lawyers want to first make sure they’ll be protected from discipline under that rule before they indulge in personal use or “strictly for medicinal purposes” as Granny used to say about her ‘roomatiz medicine,’ 

File:Drug bottle containing cannabis.jpgWhat’s more, at least for now the Standing Committee studying the matter has already nixed recommending protections to enterprising Colorado lawyers who might’ve entertained broadening their legal practices to include operating marijuana-related commercial businesses.

Unlike those coffee-cum-counseling legal services operations in California, there won’t be any cannabis-cum-counseling legal services providers in Colorado. What a concept that would’ve been — clients eager to visit their lawyers.

Still, the whole thing is taking a long time. Colorado’s legal establishment has been wrestling over it for over a year. But at long last, a final decision is imminent. And probably not soon enough for lawyers craving a bit of ganja with their Marley.

Meanwhile here in Arizona, pot use is limited to prescribed medical purposes. Consequently, what confronted the local lawyer ethics police was different from what faces Colorado’s lawyer disciplinary gurus.

Just before the Arizona Medical Marijuana Act took effect on April 14, 2011, which legalized medical marijuana for use by people with certain “chronic or debilitating” diseases, the Arizona Bar formed their own task force to study the Act’s implications. The result was a carefully delineated, narrowly tailored ethics opinion. But like all such opinions, prudent lawyers know it’s always caveat emptor or in this case, ‘cannabis consuasor emptor’ when relying on a state bar’s disclaimer-laden ethics opinions.

So regardless of outcome, Colorado lawyers wanting to toke up will be well advised to follow not just the bar’s counsel but the Bard’s, “Discretion is the better part of valor.”

Experienced lawyers already know. If you call ethics counsel for precise, distinct ethics advice, chances are their counsel will be magically worthy of J.R.R. Tolkien’s admonition about elves, Go not to the Elves for counsel, for they will say both no and yes.”

In Arizona, for example, the “formal opinions of the Committee on the Rules of Professional Conduct are advisory in nature only and are not binding in any disciplinary or other legal proceedings.” [Emphasis added]

Put that in your pipe and smoke it.

http://upload.wikimedia.org/wikipedia/commons/thumb/8/83/Marijuana_and_pipe.jpg/320px-Marijuana_and_pipe.jpg

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Photo Credits: “She Shoulda Said No!” at Wikimedia Commons, public domain, Image_The_Devil_s_Weed.jpg;“marijuana joint,” by Torben Hansen at Flickr via Creative Commons-license requiring attribution; Irene Ryan as Granny Clampett, Beverly Hillbillies, at Wikimedia Commons, public domain;Drug_bottle_containing_cannabis.jpg ‎ at Wikimedia Commons, public domain.; “Marijuana and a pipe,” by Erik Fenderson, 2006-03-19, at Wikimedia Commons, public domain.

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“I’d like to see lawyers for god’s sakes say something about the RULE OF LAW and doing what we came to do – ENHANCE FAIRNESS AND JUSTICE FOR ALL,” a lawyer friend wrote me the other day.

Her words resonated with me on several levels. First there was that odious discriminatory bill passed by the Arizona Legislature. Dim-witted Governor Jan Brewer dallied, deliberated and finally vetoed it because as one pundit properly put it — because she was “more afraid of the Chamber of Commerce than the Tea Party.” Rogue Columnist Jon Talton had one of the better assessments about why crazy stuff like this keeps happening here in “Satan’s crotch” at “SB 1062: The aftermath.”

Spirits 19Second, I’ve been musing about justice, fairness and unfairness because I’m halfway through Houston death-penalty lawyer/professor David Dow’s The Autobiography of an Execution.

Read this excellent book and you can’t help but dwell on systemic unfairness and as a lawyer — about Dow’s statement, “Sometimes I think I became a lawyer because I believe rules matter, but I suppose I could have the cause and effect reversed.”

Author of six books, Dow is a strongly opinionated death-penalty opponent. He’s also litigation director at the Texas Defender Service and founder of Texas’s oldest innocence project, the Texas Innocence Network.

Scales in blue light uid 1“I used to support the death penalty,” Dow writes. “I changed my mind when I learned how lawless the system is. If you have reservations about supporting a racist, classist unprincipled regime, a regime where white skin is valued far more highly than dark, where prosecutors hide evidence and policeman routinely lie, where judges decide what justice requires by consulting the most recent Gallup poll, where rich people sometimes get away with murder and never end up on death row, then the death-penalty system we have here in America will embarrass you no end.”

“The world isn’t fair, Calvin.”

“I know Dad, but why isn’t it ever unfair in my favor?”Bill Watterson, The Essential Calvin and Hobbes: A Calvin and Hobbes Treasury

Third, ever since getting tossed out of 8th grade with a number of my classmates for what we thought was a principled stance but which the nuns strongly disagreed, I’ve tried to reconcile and admittedly without much success Calvin’s view of the world’s unfairness. Throughout the rest of my academic life and even into my corporate working life, I’ve weighed the merit and demerit cards life and circumstances have passed out.

So I’ve had this thing about fairness and unfairness for as long as I can remember. It matters most where the moral equities lie, especially now as a lawyer.

ButPeople 38447 I’ll not credit a lifelong creed with animating a desire to be a lawyer. That’s a romantic notion but it wouldn’t be true. No, a long extent and inherent disposition toward skepticism — even cynicism would forestall such idealized foolishness. Indeed, of cynicism I often joked that when I came out of the womb — I slapped the doctor first.

navelAnd finally, the past few months I’ve done more than contemplate my navel about this topic. Besides work and a personal life, I’ve been busy combating an unfairness just foisted on Arizona lawyers by our ‘friendly state bar.’

The mandatory bar and specifically, its board of governors finally succeeded in doing what they first tried in December. Last week they voted to raise our annual attorney licensing fees. No matter that they were already among the highest in the country. The easiest money to spend is always somebody else’s.

And unhappy with having to deal with the complaints of a restive lawyer hoi polloi, at one point the board even tried without success to tack on an automatic cost-of-living escalator tied to the consumer price index — as though what state bars do has anything to do with the price of milk and bread in Peoria — Arizona.

Objects 1324Now I’ll concede that compared to losing life, liberty or significant property interests, a dues increase is obviously a trifle, a thimble’s worth of irritation. “It’s not like we’re trying to cure cancer,” a colleague quipped.

But all the same, it was the same kind of bullshit unfairness that’s rankled and inflamed passions my whole life. I’ll have a lot more to say about it later.

But for now, I think another admonition from Christopher Hitchens is appropriate, “Never be a spectator of unfairness or stupidity. The grave will supply plenty of time for silence.”

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Photo Credits: “Fairnesszone,” by PatrickSeabird at Flickr via Creative Commons-license requiring attribution; “Calvin 12,” by Frankie Kangas at Flickr via Creative Commons-license requiring attribution.

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http://upload.wikimedia.org/wikipedia/commons/thumb/e/ee/Menudo_%28sopa_de_M%C3%A9xico%29.JPG/640px-Menudo_%28sopa_de_M%C3%A9xico%29.JPGI was having a bowl of menudo yesterday and thinking about Elizabeth Warren. Not so odd a juxtaposition — chowing down the communal Mexican ‘breakfast of champions’ while chewing on the Massachusetts Senator who champions populist economics and battles predatory financial institutions.

Menudo — the spicy traditional Mexican soup of honeycomb beef tripe in a red chili pepper broth base, garnished with lime, crushed oregano, chopped onions and cilantro doesn’t suit everyone’s taste. And neither does Elizabeth Warren.

http://upload.wikimedia.org/wikipedia/commons/thumb/8/8f/Elizabeth_Warren_Nov_2_2012.jpg/319px-Elizabeth_Warren_Nov_2_2012.jpgBut I like both. A year ago I cheered when the former lawyer and Harvard law professor took down our nation’s weak-kneed financial regulators for their shameful timidity. When Elizabeth makes news, I pay attention.

“Corporate judges.”

A speech she gave last week criticizing the “striking lack of diversity” on the federal bench prompted my menudo musings about Elizabeth. She called for more “professional diversity” and decried the continued trend of “corporate judges” who keep getting nominated to the federal bench.

Her speech echoed the points made by an Alliance for Justice report that the federal judiciary lacks judges “with experience (a) working for public interest organizations; (b) as public defenders or indigent criminal defense attorneys; and (c) representing individual clients—like employees or consumers or personal injury plaintiffs—in private practice.” According to the Alliance, 85 percent of Obama’s nominees have either been corporate lawyer types or prosecutors and sometimes, both.

Preaching to the converted, she told her Alliance for Justice audience that President Obama’s federal bench nominees ought to “have represented people other than corporate clients.”  Few have been public interest lawyers, labor lawyers, criminal defense lawyers, solo practitioners, or plaintiff’s trial lawyers.

j0289753The obvious implication is that once on the federal bench, by dint of their narrow work backgrounds exclusively representing “corporate interests” and their homogenous sociocultural experiences, the judges nominated will supposedly be more favorably predisposed to a conservative political world view. Warren and the Alliance suggest that the federal bench is stacked against the less powerful and weighted instead toward wealthy and politically conservative, pro-corporate special interests.

The reality, however, is that federal judicial nominees are chosen not so much because of their work experience but out of the mixed bag of political ideology; personal loyalty; party affiliation; their Senate confirmation potential; race, gender and judicial experience. And more often than not, candidates for appellate nominations also come from a state’s respective U.S. Senators. And those politicos have their own crony-bag of personal, ideological and politically connected favorites.

Apolitical judiciary?

And speaking of political ideology and party affiliation, as I riffed a while back, the irony is that life tenure for federal judges supposedly keeps them independent from those concerns. Canon 5 of the Code of Conduct for United States Judges even says as much, “A judge should refrain from political activity.”

So are judges apolitical? The answer is ‘no.’ “Judges are as opinionated as anyone else – – – maybe, more so. Merely donning a black robe, doesn’t magically make ideological inclinations or political predilections disappear.”

http://upload.wikimedia.org/wikipedia/commons/thumb/b/ba/Jules_Joseph_Lefebvre_-_Lady_Godiva.jpg/373px-Jules_Joseph_Lefebvre_-_Lady_Godiva.jpgAlong with the myth about George Washington and the cherry tree and Lady Godiva’s naked ride through Coventry, it’s simple mythology like the one perpetuated of Judges as Umpires.” The most famous proponent of that unfortunate baseball metaphor remains U.S. Supreme Court Chief Justice John Roberts.

In his book, “The Persistence of the Color Line,” lawyer and professor Randall Kennedy opines, “Roberts’ performance as a justice belies his claim. He is, as Professor Professor Christopher Eisgruber notes, “an odd sort of umpire” – – one who consistently calls the key pitches the conservatives’ way.”

But rather than baseball metaphors, it’s really more a cat-and-mouse game. Judicial nominees neuter their political and ideological persuasions while the rest of us try to ferret them out.

Any wonder then, that to futilely shield themselves from bare-knuckled partisan confirmation battles and win the lifetime-tenure prize, nominees parse, dance, glide and dodge their political backgrounds? Suddenly, they are all political agnostics. And about as crystal clear as a bowl of menudo. See “One Fourth Of Federal Judicial Nominees Did Not Answer Party Membership Question.”

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Photo Credits: Menudo, a typical Mexican soup made with tripe, hominy, and chile, by Ron habla hispana at Wikimedia Commons, under the Creative Commons Attribution-Share Alike 3.0 Unported license; Elizabeth Warren at a campaign rally in Auburn, Mass, Nov 2, 2012, by Twp at Wikipedia Commons under the Creative Commons Attribution-Share Alike 3.0 Unported license; George Washington as a boy and the cherry tree, at Wikimedia Commons, lithograph engraved in 1867 by John C. McRae after a painting by G. G. White, public domain; Lady Godiva, by Jules Joseph Lefebvre at Wikimedia Commons, public domain.

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Kevin Lomax: “Why the law? Cut the shit, Dad! Why the lawyers? Why the law?”

John Milton: “Because the law, my boy, puts us into everything. It’s the ultimate backstage pass. It’s the new priesthood, baby. Did you know there are more students in law school than lawyers walking the Earth?”  – The Devil’s Advocate (Al Pacino as John Milton, Keanu Reeves as Kevin Lomax)
 
File:Fashion Plate Manteau 1823.jpgRare indeed is the lawyer without a healthy, nay — a super-sized ego. No matter if handsome, homely, gorgeous, ill-favored or just ordinary, rarer still is the advertisement, commercial or webpage without the pseudo powerful, omniscient and authoritative, even smiling counselor’s countenance.
Sure there are ethical rules concerning the use of hopefully better looking actors who portray attorneys in advertisements, but absent “a clear disclosure that the actor is not a member or employee of the firm or that the depiction is a dramatization,” than it is considered “misleading and deceptive.” So in fairness to lawyers who advertise, ‘they just gotta put their mugs in their ads!’
Last April, I mentioned lawyer advertising parenthetically at In that post, I also mentioned along with others, Georgia lawyer Jamie Casino as among “the commercially capering counselors who ought to at least have their own ‘Hall of Fame’ if for nothing else, the entertainment value they bring to the public.”
Well kudos to Casino who made news on Sunday by bringing a lot of entertainment and even high production value with his local television commercial during the Super Bowl. It was a far cry from most lawyer TV commercials. And it must have cost Casino a considerable chunk of counselor’s change.
Too bad those of us in the southwest didn’t get to see it during the game, especially as most of the much ballyhooed Super Bowl television ads were frankly, crap. But thanks to social, viral and even the more staid traditional media, the word got out. The super-sized lawyer ego is alive and well. And Casino’s is even healthier the most. No actor portrayals here, it was lawyer Jamie Casino in living color and while hardly, an Oscar-winning turn, it was a film clip at least worthy of ‘the best’ of ghost-riding Nicholas Cage on fire.
But as I noted last time, there will be head-shaking dismay “for lawyers who see themselves as part of a noble profession — nay, who may be besotted with a self-image redolent of a rarefied priesthood, well those sacerdotal practitioners will always get their cassocks in a bunch over the audacious advertising antics of their earthier colleagues.” So here’s the same news again — to the pompous and full of themselves, the law isn’t an altar, last time I looked, the courtroom wasn’t a cathedral, and you aren’t priests.

So give it a rest. And get a load of this intellectual property lawyer with a sense of humor.
And here’s a link to the professorially serious side of the same lawyer.
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Photo Credits: Fashion_Plate_Manteau_1823.jpg fashion plate from Costume Parisien, 1823, at Wikipedia Commons, public domain;”The Devil’s Advocate,” artistic interpretation by Bill Strain at Flickr via Creative Commons-license requiring attribution.

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AZ Yard Art

Arizona yard art

“Are you Mexican?” she asked after the how-do-you-stuff was over.

Must have been the look on my face over the abruptly blunt question coming right after my introduction. Because that’s when the nice middle-America Boomer lady lamely explained how first names fascinated her. I was meeting to talk about possibly joining a community chorus. Oh . . . I didn’t realize ethnic identity was relevant to sing wonder bread.

After all, I wasn’t there for a background check or to discuss my mestizo roots. It was just the obligatory first step for an audition. It was not American Idol but chorale for fun not for my supper.

File:Nopal en Ojitos.jpgMaybe it was the absence of an “e” after the “o” in ‘Mo’? Or maybe my given name caused her to see nopales growing out the back of my swarthy head?

Not to say there haven’t been people confused before. Just this past Christmas, I met a retired judge who swore I was Hawaiian. Mahalo!”

And I still remember several Navajo guides on a horseback ride through Monument Valley who were unconvinced I wasn’t a member of the Diné. “Ya’at eeh!”

File:215780193 8f3582d18c o.jpg

And it wasn’t like I’d signed on to sing corridos and rancheras, anyway.

http://upload.wikimedia.org/wikipedia/commons/thumb/2/28/Twodogs_sniffing.jpg/320px-Twodogs_sniffing.jpgIt was just an opportunity to sniff each other — to see if our interests were simpatico — or not. Besides, who said I could sing? I don’t karaoke or sing in the shower. Had someone heard me serenading my dogs?

“Yonder peasant, who is he? Where and what his dwelling?”  — Neale’s “Good King Wenceslas” (1853)

http://upload.wikimedia.org/wikipedia/commons/thumb/0/00/Good_King_Wenceslas_10a.gif/348px-Good_King_Wenceslas_10a.gifAnd why now? Not like this has been on my bucket list or I might have tried it sooner — like after my duet of Good King Wenceslaus on the church hall stage in 8th grade.

But why not singing? I know lawyers who relax or relieve stress by acting in community theater or hunting or river-rafting and of course, yoga. Some really get into yoga, too.

I was defending counsel at a deposition and remember how at the end, the lawyer taking the deposition broke immediately for the door. When I glanced up, sotto voce he said how pleased he was to finish early and make his 5 p.m. yoga session. And I’d thought he badly needed a bathroom break. Lotus headstands and forearm-stand scorpions? Class four rapids? Chasing chukar across steep rocky peaks and desert slopes? By comparison, I thought, chorale singing was no big deal.

Castrato from a contralto.

Famous last words since after hearing about time commitments, long practices and my non-music-reading learning curve, I begged off. That’s a lot for somebody who barely knows a castrato from a contralto or a mostaccioli from a mezzo-soprano.

It’s back to singing in the car or on the golf course. So it really wasn’t because I’d happened upon an etiquette-challenged ethnically-oblivious person in a place where one in three residents are Latino.

Same o’ same o.’

But this is Arizona — land of SB1070 and racial-profiling Sheriff Joe and a place that will never be mistaken as a forerunner of a post-racial America.

via InstagramSpeaking of which, I was right in ascribing more enlightened post-racial sensitivities among the post-Boomer set. Not when you still have college fraternities like Tau Kappa Epsilon (TKE) taking political incorrectness and racial insensitivity to new lows. The Arizona State University TKE chapter was permanently expelled the other day by the university after it hosted a racist party as some kind of twisted Martin Luther King Jr. Day commemoration.

via InstagramPhotos posted on social media showed party-goers with watermelon-cups and striking what they imagined were inner-city street gang poses. It sparked outrage around the country and even around here.

Yet from my read of the local press, there were also enough Arizonans who thought it was overreaction and overwrought political-correctness. The frat boys and their girlfriends may have been dumb but not racist, they said. Kids will be kids.

So even college-age ones can be expected to act in childish ways and not just in Arizona. In November, for instance, there was the ‘Catch an Illegal Immigrant‘ Game” at the University of Texas at Austin. And before that, there was that UC Irvine fraternity blackface video or that “Outrage at Duke Over a Fraternity’s Asian-Themed ‘Racist Rager’” or those fun-loving Penn State serape-wearing sorority sisters and a Mexican-themed party complete with “Will Mow Lawn for Weed + Beer” signs.

More Corona than Constitution.

In any case, their apologists argued, the ASU frat partygoers were merely exercising their Constitutionally protected First Amendment Free Speech rights. And anyhow, whaddya expect at a university long famed for its perennial rank among the best party schools in the country?

File:Corona Extra.JPGSo Constitutional principles were invoked to defend party boys and girls more acquainted with Corona than the Constitution and Fat Tire not Free Speech.

If the public university opts to expel the students for violating the ASU Code of Conduct, then those Free Speech arguments will reverberate. For one, ACLU legal director Dan Pochoda gravely opined ASU can’t expel those at the party.

Then call it clueless doltishness if you prefer instead of what it really is — old-fashioned racism. But since these days, the race card is conveniently out-of-favor among those least likely to be racially discriminated, let’s blame it instead on the more socially-palatable ‘stupid is as stupid does.’

When all is said and done, twits are inter-generational.

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Photo credits: Nopal_en_Ojitos.jpg, Zacatecas, Mexico, by Mannyp at Wikimedia Commons under the Creative Commons Attribution-Share Alike 3.0 Unported license; Mariachi, The passion of the mariach by Señor Codo at Wikipedia Commons, under the Creative Commons Attribution-Share Alike 2.0 Generic license;Two Dogs Sniffing, at Wikimedia Commons, under the Creative Commons Attribution/Share-Alike License, public domain; Good King Wenceslaus, engraving by Brothers Dalziel at Wikipedia Commons, public domain; Corona Extra, by Odbake at Wikimedia Commons under the Creative Commons Attribution-Share Alike 3.0 Unported license; you gotta love, by Robert S. Donovan, at Flickr via Creative Commons-license requiring attribution.

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http://upload.wikimedia.org/wikipedia/commons/1/14/It%27s_enough_to_make_a_horse_laugh%2C_1896.jpgKnock on wood but on occasion, I have sore back problems. I usually chalk it up to my sorry golf game or to my reckless past.

http://upload.wikimedia.org/wikipedia/commons/thumb/2/27/Very_slippy-weather.jpg/373px-Very_slippy-weather.jpgThere are a lot of blameworthy pratfalls in my annals of yesteryear. Here’s a short list:  coming off cantering horses; cracking a tailbone rollerblading; one-too-many pick-up basketball games and an assortment of snow-related mishaps from yard-sale ski crashes to some ill-fated snowmobiling capers.

Speaking of snowmobiling, I think I blame that the most. The last one was several years ago in Wyoming.

After a while of herding us in a disordered group on a road or head-to-tail down a path, our guide turned us loose in a snowy meadow — just to get an unrestricted feel of our snowmobiles.

http://upload.wikimedia.org/wikipedia/commons/thumb/e/ed/SnowmobilesYellowstone.jpg/320px-SnowmobilesYellowstone.jpgHe told us, “Have fun running your machines but avoid the swales around the trees.”

No sooner said but a friend and I threw proverbial caution to the four winds and forgot his advice. The two of us tore off from the group at high-speed and within three minutes were racing toward a hill and a tree.

Swale? What’s a swale? My friend fortunately remembered the guide’s admonition and at the last second he turned away. Hooting and hollering — I did not. But I ‘won’ the race.

As soon as I hit the swale, my snowmobile went one way and I went the other. I landed right where the good Lord splits you.

After grunting, groaning and griping, I eased myself out of the deep snow, found my snowmobile, and with a little help from my friends was back astride the Artic Cat. The worse, however, lay ahead. The trip back to the lodge was over miles of icy washboard road. I still wince remembering every single teeth-chattering reprimanding rut and bump all the way back.

The filing cabinet.

So here I was over the weekend recalling all this whereupon I decided I may actually have one more thing to blame for my occasional low back pain. I was cleaning out my billfold — a somewhat rare feat. And I remembered what a longtime lawyer friend once ribbed me about a few years back.

We were having breakfast in a coffee shop. And when the check came, I took out my billfold to pay. But when I put my wallet on the table, he started giving me no end of grief over the heft of my billfold, the “filing cabinet under half of my ass.” He laughed and said my cluttered wallet reminded him of George Costanza’s exploding wallet in Seinfeld.

Well, so much for that recollection. I don’t really know if the wallet is to blame. I’m still going with the snowmobile. But at least for now I’ve taken out all the collected paper, business cards, post-its, receipts and notes out of my wallet — that is, until they accumulate again.

Meanwhile, here’s more Free CLE along with the usual disclaimers about content quality, continued availability, and creditworthiness in your particular jurisdiction.

FREE CLE

Clifford Law Offices

2014 Webinar: “The Ethics of Client Communications”

“Clifford Law Offices is sponsoring a free two-hour continuing legal education program on the ethics of client communications in the seventh annual Clifford Law Offices Continuing Legal Education Series. The 2014 program will cover the dos, don’ts and best practices of lawyer communication with both commercial and consumer clients; issues in ex parte communications between lawyers and adjudicators; and how to avoid breaches of client confidentiality. The program will also address the unique challenges and ethics of client communications in the Internet Age: What can we say about our cases on our websites and in our marketing materials? Can we discuss our cases in private online forums with other lawyers? How do we handle a bad “Yelp” review? Should we accept Facebook “friend” requests from clients? A number of actual cases and hypotheticals will be presented to help attendees understand the ethics of dealing with client communications in light of the Model Rules of Professional Conduct. The goal of the two hours is to train lawyers on ethical communication with their clients and about their cases.”

Date: Thursday, Feb. 20, 2014
Time: 2:30-4:30 p.m.

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Practising Law Institute (PLI)

PLI: Seminars – Exposing and Responding to Human Trafficking in 2014

Total Credits:  3.50 (New York)
Professional Practice:  3.50

Webcast

Date: Feb. 7, 2014

Time: 1:45 to 5:00 PM (Eastern)

  • How to define human trafficking
  • Who traffickers are and how they operate
  • How to interview a victim
  • Criminal justice system response to human trafficking
  • How to address immigration and other legal issues
  • How New York State courts are responding to human trafficking

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S.J. Quinney College of Law – University of Utah

CLE Collection features videos and links to videotaped conferences approved by the Utah State Bar for CLE credit.

Media Podcasts Approved for CLE Credit

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Webinars – Attorney Protective

Approved Multiple Activity Provider in CA and NJ and various other jurisdictions. Check website.

Social Media Ethics for Lawyers

Date: January 30, 2014

Time: 12:00 PM-1:05 Central Time, 1:00 PM-2:05 Eastern Time and 10:00AM Pacific Time

An Ethical Retirement – Ethical issues to consider when you or a partner in your firm retires.

Date: March 26, 2014
Time: 12:00 PM-1:05 Central Time, 1:00 PM-2:05 Eastern Time and 10:00AM Pacific Time

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eMCLE Educational Series - Barkley Court Reporters

(Various archived and forthcoming programs for jurisdictions, including California, Nevada and New York)

Adobe Acrobat for the Legal Profession (1 hour)

“In an ever-increasing technical world, it is essential that members of the legal profession be prepared to navigate electronic files with ease and proficiency. This seminar will give an overview of the key features in Adobe Acrobat for use within the legal profession. (1 Credit – IL, NY nontransitional, CA, NV)”

March 19, 2014 – 11:00 AM Pacific (1:00 PM Central, 2:00 PM Eastern) – Click here

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One Legal University

California State Bar approved MCLE Multiple Activity Provider. NO CHARGE programs:

Saving Trees and Time: eFiling and eService in California

“This one hour course focuses on the basic rules and statutes of eFiling & eService and the benefits eFiling & eService can provide. 1 hour MCLE credit provided.”

“Tools of the Trade”

“Using our Court Filing, Process Serving, Court Research and Courtesy Copy Products.

“This training is offered multiple times.”

Oranges the Year ‘Round, eFiling & eService in Orange County Superior Court

“This one hour training session walks you through all the steps necessary in order to eFile and eServe your documents in Orange County Superior Court.

“This training is offered multiple times.”

eService: The End to Stuffing Envelopes

“This one-half hour course focuses on eService rules and statutes and will teach you how to add eService to an eFiling or a physical filing order. 1/2 hour MCLE credit provided.

“This training is offered multiple times.

Who is at the Door? Successfully Serving Summonses and Subpoenas

“This one hour course focuses on California service of process statutes and process serving methodology. 1 hour MCLE credit provided.

“This training is offered multiple times.

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Photo Credits: “It’s enough to make a horse laugh,” at Wikimedia Commons, image is available from the United States Library of Congress‘s Prints and Photographs division under the digital ID ppmsca.08324, public domain;”Very slippy-weather / etch’d by James Gillray,” at Wikipedia Commons, public domain; ;”A snowmobile tour at Yellowstone National Park,” at Wikimedia Commons, National Park Service photo, public domain.

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roughing it 54“Why are lawyers killing themselves?” That was the sensational headline to a CNN story that ran a few days ago.

Talk about implicit assumptions. Talk about a leading question. Long on anecdote, short on data but no matter for CNN — if it bleeds, it leads.

And lest I be accused of callous disregard, let me quickly add that even one death by suicide is one too many. As John Donne famously said, “any man’s death diminishes me, because I am involved in mankind.” And yes, regardless of occupation, depression is a very real problem. I only wish CNN really knew what it was talking about.

A widespread problem?

So is there an epidemic of suicide in the legal profession?

According to the last available U.S. data from the Centers for Disease Control and Prevention, (CDC) — across all age groups, genders and racial groups, there were 38,364 deaths from suicide in 2010. And those numbers break out differently by age, gender, race and location, which means there’s a great deal of variability given the comparatively small populations involved.

Businessmen uid 1But out of that number, how much self-inflicted death occurs among the approximately 1.3MM lawyers in the U.S.? No one really knows for sure. Certainly, the risk factors that impact all people also encompass lawyers.

Men, for instance, are about four times more likely than women to die from suicide and the CDC also highlights risk factors like previous suicide attempt(s); a history of depression or other mental illness; alcohol or drug abuse; family history of suicide or violence; physical illness; and feelings of isolation. But as for an increase in lawyers killing themselves, the ‘proof’ seems mostly anecdotal extrapolation and pure conjecture.

Not much data.

Sure lawyers get stressed out and anxious — but more stressed out than firefighters, police officers, pilots, and military personnel? According to CareerCast’s recently published list of the 10 most stressful jobs, lawyers don’t even make the list. And with the caveat, “data on occupational suicide is hard to find,” lawyers aren’t on the list of 13 careers where you’re most likely to commit suicide. Dentists come in first on that list — but even that is challenged as “Urban Legend” — the myth of the suicide-prone dentist. And coming in at No. 5 are authors who are supposedly 2.60 times more likely to commit suicide than average. Are male lawyers who blog at greater risk?

Ronald Maris, Ph.D., Director for the Study of Suicide and Life Threatening Behavior at the University of South Carolina, points out, “Occupation is not a major predictor of suicide, and it does not explain much about why the person commits suicide.” Indeed, even the American Psychological Association says of “Suicide by profession: Lots of confusion, inconclusive data.”

So corroborating evidence tying suicide by occupation is sparse. Some researchers even maintain that “occupation may not be much of a factor in suicide. Psychologists have long documented that among the top predictors for suicide are diagnosable mental disorder, co-morbid substance use, loss of social support and availability and access to a firearm.”

File:ChurchBell.jpgNevertheless, CNN still tolled the bell and highlighted Kentucky where it says at least 15 attorneys have committed suicide since 2010. USAToday in their own report last June, reported a different number and said 12 lawyer suicides have taken place in Kentucky during that time. Either way, these are tragic incidents, especially for the families left behind. But either number represents less than one percent of Kentucky’s 17,500 lawyers. Indeed, across the country, the CDC lists suicide as tenth among the leading causes of death. Heart disease and cancer are 1 and 2.

Mandatory mental health.

Woman covering her eyes uid 1But leave it to your friendly state bars to respond to the supposed crisis with the usual knee-jerk overreactions and pious prescriptions. Mistaking action for achievement, they hold meetings, create task forces, and in several jurisdictions, impose mandatory continuing legal education programs on mental health. Recalling my undergraduate Jesuit logic and philosophy class — it’s argumentum ad populum — ‘if many believe so, it is so.’

Which brings me to a recent commentary on the purported prevalence of new lawyer anxiety and the usual state bar claptrap to supposedly fix what ails these new lawyers.

Written by Wisconsin lawyer at “The Legal Watchdog,” the title says it all, “State bar recommends new lawyers do free legal work to reduce their anxiety from not having money or legal training.” It’s worth reading and is reblogged below with express permission of the author.

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State bar recommends new lawyers do free legal work to reduce their anxiety from not having money or legal training.

By Michael Cicchini, MBA, CPA, JD

Young business man standing pulling his pockets inside out uidIn November, 2013, a special task force report by the State Bar of Wisconsin concluded that a large number of new law grads can’t find jobs to pay off their staggering student debt loads.  In addition, many of those who were fortunate enough to be employed (or underemployed) were afraid to practice law because they didn’t know how.  Here’s a nice excerpt of a summary of the report from the bar association’s e-newsletter:

“My debt is higher than a mortgage for a nice house. It’s all I think about. And I know I will be strapped in a job I don’t want paying debt for the rest of my life,” said [one new lawyer].

“I’m buried under debt. I’m terrified that this is what the rest of my life is going to look like. I’m also scared to start my own practice, because I don’t have the practical litigation experience. I can’t afford a pet, let alone kids. I live paycheck to paycheck. It’s very, very scary and disheartening,” was another response from a new lawyer.

Another lawyer said the job search left the lawyer feeling “suicidal” and “terrified.” The lawyer also feels alone and scared of making a mistake in practice but is hesitant to tell anyone about these mental struggles for fear of being disbarred.

. . . [A] task force member and past president of the State Bar’s Young Lawyer’s Division[] said the lawyers who made these sorts of comments “are fast becoming your average member of the State Bar.”

So, in short: lots of stress due to high debt loads, no jobs, and the fear of practicing law because of the lack of training and the related risk of disbarment.  So what is the state bar’s solution?

j0439359In December, the state bar sent out an email to all members titled “Reduce your stress with exclusive benefits for State Bar of Wisconsin members.”  One of those “benefits” was the “opportunity” to do pro bono legal work, because “volunteering can help improve people’s mental heath.”  Fortunately, “Whether you are an experienced lawyer or just getting started, there are pro bono opportunities available to you throughout the year.  Visit the State Bar’s online volunteer directory[.]”

Now, in fairness, even though this email came out after the state bar’s “special task force report,” the person who slapped this email together probably didn’t even know the task force report existed or, if he did, probably never had any reason to read it.  But although these two documents are not related, the irony is rich.  First, the state bar acknowledges that new grads are stressed out (to the point of having suicidal thoughts) because they don’t have any money and don’t know how to practice the profession they just paid handsomely to learn.  And second, to alleviate this stress the state bar recommends that these new lawyers offer free legal services to real people with real legal problems.  This is almost too much for me to process, but two thoughts come to mind.

People 3050First, while I appreciate the softball my mandatory state bar just lobbed me, this whole “giving back” culture is starting to grate on me—in fact, this is the classic stuff of law schools and state bar organizations.  Granted, this particular state bar’s email thinly disguises the “giving back” theme with a self-interested twist: give back for your own good—it will reduce your stress!  (No thanks.  Practicing law creates stress, and I’ve done enough involuntary unpaid legal work this year.  I’ll just sit on my couch and watch a bowl game instead.)  But more to the point: new law grads are saddled with staggering debt, haven’t been taught how to file a motion let alone try a case, and, if they are lucky enough to find legal work, are unwillingly thrust upon an unsuspecting public—and now they’re supposed to worry about giving back?  I think they’ve been drained of most of their life force already.

And second, while I can’t do anything about the legal job market and its approximately one legal job for every two law grads, I can do something about teaching grads and students how to practice law—at least in my field of criminal law.  So, if a state bar wants to hire me to design a training program for newly licensed attorneys, or if a law school wants to hire me as a prof to design and teach a series of courses on criminal law, procedure, and practice, let’s talk.  And don’t think of my salary as an additional “expense”—think of it as “giving back” to your membership or students.

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It was premature to say so. But the election of Barack Obama did not augur the start of a new ‘Post-Racial’ America. If there was any doubt about that, a 2013 Pew Research Center poll cleared it up.

50 years after Martin Luther King’s “I have a Dream” speech, the Pew Survey indicated only 26 percent of African-Americans believed the situation for blacks had improved the past five years — while 21 percent said it was actually worse.

Race is still with us. And even on “M.L.K. Day,” there’s this fatuous example from the racial-justice cognoscenti Sarah Palin who after noting today’s remembrance twitters Obama should stop ‘playing the race card.’

There are miles to go before there’s a color-blind society — assuming it ever happens. Yet surprisingly, others have suggested that the evils the civil-rights movement fought against have been “vanquished.” Racism is dead. What remains are simply “lousy schools, a thriving drug trade and a misguided governmental response, the collapse of marriage.”

RestaurantMarinated malignment?

Who knew?

So no surprise there was such a furor from the racism-is-dead crowd when last November Oprah Winfrey told a BBC interviewer, “There are still generations of people, older people, who were born and bred and marinated in it, in that prejudice and racism, and they just have to die.”

People 27701Admittedly, the 60-year old Oprah painted the greatest and not-so-greatest older generations with too broad a brush of aggrievement. And astonishing, too, coming from the one-time architect of touch-feely television therapy whose stock-in-trade is engagement, approachability, and likeability.

KKK public-domain-Library-of-Congress-Creative-Commons-ImageBut perhaps Oprah was merely affirming — although in a ham-handed way what Denis Leary said a few years ago about the generational legacies we leave our children. “Racism isn’t born,” Leary said. “It’s taught.”

Race matters.

Bigoted attitudes may be fading with the passing of preceding generations. The young do appear generally more enlightened and open-minded on such matters. But that’s not to say they don’t linger. Not long ago, yet another survey revealed that for those 18 to 30-year olds of the Millennial Generation, race continues to matter.

And unfortunately, it also still matters and in a much less benign way to members of the Boomer generation. Of whom one refers to as “the last reminders of our racist, homophobic, sexist past. When you look at those “white only” diners and drinking fountains in those photos from the 1960s you just can’t believe it. Or how women were treated. And gays. But many of our beloved boomers were teenagers back then, living with parents who watched Ozzie and Harriet and raised to believe that people who weren’t white weren’t to be trusted, women were meant to stay at home and gays were sinners.”

Habitually repentant?

http://lawmrh.files.wordpress.com/2012/03/judge-cebull.jpg?w=181&h=203And with that, we turn back to another signpost that race continues to matter and to that aptly named former Chief Judge of the U.S. District Court for Montana and now retired — 70-year old Dick Cebull. No matter his other achievements, he’s the jurist now best-remembered for passing around racist anti-Obama emails.

Well, there’s an update. As it happens, what was once believed to be aberrational and leading to a belated racist email repentance — has now turned out to be something of a bad habit. It now appears he just happened to get caught forwarding that one particularly nasty email that suggested President Obama’s mother had sex with a dog.

“I didn’t send it as racist, although that’s what it is,” he afterward. “I sent it out because it’s anti-Obama.”

Last Friday, a Memorandum of Decision in the Proceeding in Review of the Order and Memorandum of the Judicial Council of the Ninth Circuit divulged that Judge Cebull had actually sent hundreds of other bigoted emails.

The majority of the emails the former Montana federal judge sent via his office email account were political in nature. But as the memorandum additionally disclosed, “A significant number of emails were race related. Whether cast as jokes or serious commentary, the emails showed disdain and disrespect for African Americans, Native Americans and Hispanics, especially those who are not in the United States legally. A similarly significant number of emails related to religion and showed disdain for certain faiths. Approximately the same number of emails concerned women and/or sexual topics and were disparaging of women. A few emails contained inappropriate jokes relating to sexual orientation.”

But for the objection of U.S. 3rd Circuit Judge Theodore McKee, the public might never have known the extent of Judge Cebull’s misconduct.

Judge McKee had accused the 9th Circuit investigative panel of hiding Cebull’s misconduct because of their failure to release their findings. Once Cebull conveniently resigned, they’d proclaiming the whole thing “moot” and filed away Cebull’s embarrassing revelations.

Fortunately, the Committee on Judicial Conduct and Disability of the Judicial Conference of the United States found the lower panel in error when it withheld its investigative findings. The Committee stated, “The imperative transparency of the complaint process compels publication of orders finding judicial misconduct.”

Which leads me to finally conclude with what the late Christopher Hitchens said in reply to the question — “What is it you most dislike?” Hitchens answered, “Stupidity, especially in its nastiest forms of racism and superstition.”

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Photo Credits: Barack Obama, by DonkeyHotey at Flickr via Creative Commons-license requiring attribution.

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