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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.


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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?

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academic,dunce caps,dunces,hats,stoolsI’d meant to post about Arizona escaping the list of this year’s “Top 10 Dumbest States in America,” especially since my former home state of Nevada is an ignominious recidivist on the list.

 1) West Virginia

 2) Arkansas

 3) Mississippi

 4) Kentucky

5) Louisiana

6) Nevada

7) Alabama

8) Indiana

9) Oklahoma

10) Tennessee

And while I don’t put much stock in the ranking methodology, all the same I’m flummoxed at how Arizona dropped out. Just three years ago, Arizona sat at the pole position of America’s “Dumbest States.”

File:A-voluptuary.jpgThen again, dumb state or not some of you will think me cerebrally well-placed to live here since I was out golfing this past Saturday and Sunday when it was 100-plus outside. For some of you, this qualifies as dumb if not insane. And no matter those were days 7 and 8 on our consecutive day hit parade of triple-digit temperatures here with no relief in sight.

But this is par for June. Usually the hottest month in Satan’s nether region, it’s also just the start of our summertime ‘comfort zone’ in Arizona. You either go out into the inferno or you stay home, sort your sock drawer, and gaze at your navel.

And while I’m still planning on giving the local state bar another well-earned $3 hair cut, that post can keep. Instead, for all my friendly procrastinators waiting once again with under three weeks to spare before their annual June 30th fiscal year CLE deadline, here again is my now traditional fiscal year FREE CLE public service.

With the usual disclaimers about content quality, continued availability and jurisdictional credit-worthiness, find the following FREE CLE:

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 ASU LAW CLE – PAY WHAT YOU WANT CLE

On demand Pay What You Want CLE | ASU Law Continuing Legal Education

http://cle.asucollegeoflaw.com/voters-choice-cle-survey/#sthash.hrGrQ6KL.dpbs

I have little doubt the Continuing Legal Education Program at Arizona State University’s Sandra Day O’Connor College of Law is hoping very few, if anyone, takes them up on the “$0″ option, which is part of their current offer of CLE based on a “pay what you want option.” You choose from their list of OnDemand recorded seminars and register for the program. You then “enter the amount you would like to pay. The amount you pay is unlimited and you can enter as little as $0. Once registered, you’ll receive the video access information and can follow the instructions to receive interactive CLE credit!”

Of course, these are the same folks who lawyer-glut and back-breaking student school debts or not — have nonetheless shamelessly decided to move into a $120 million law school Taj Mahal in downtown Phoenix. According to the Arizona Republic, “in documents being presented to regents, ASU said the goal is to increase law-school enrollment and degrees by 50 percent.

Meantime, the straight-faced ASU law school dean says of the Pay What You Want CLE: “Of course, we hope that most will still contribute something for the CLE credits they will earn. All proceeds will go to scholarships that will help us recruit high quality students, attract students that might otherwise not be able to afford law school, and have our new graduates enter the workforce with less debt burden.” 

Of course, we hope that most will still contribute something for the CLE credits they will earn.  All proceeds will go to scholarships that will help us recruit high quality students, attract students that might otherwise not be able to afford law school, and have our new graduates enter the workforce with less debt burden.” – See more at: http://cle.asucollegeoflaw.com/ondemand-pay-what-you-want-cle/#sthash.HZdrdunJ.dpuf

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ROCKET MATTER

Click here to go to online seminars

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“The way to stop discrimination on the basis of race is to stop discriminating on the basis of race.” – Chief Justice John Roberts

For the moment forget my snark two years ago when I riffed on the US Supreme Court and Obamacare. In that post, I parenthetically mentioned how I often confuse two prominent legal ‘talking heads,’ Jeffrey Toobin and Jonathan Turley — a couple of guys I keep inexplicably mixing up about as much as I do Javier Bardem and Jeffrey Dean Morgan.

But unlike my categorical preference for Bardem over Morgan, on any given day I might prefer one legal beagle over the other. Today, having managed to keep them apart in my head, there’s good reason for me to like Toobin. It’s because of his timely post at the New Yorker, “Chief Justice Roberts, Meet Bundy and Sterling.”

“It is a sentiment out of touch with reality . . . .” – Associate Justice Sotomayor

It was a post I wish I’d written because it resonated so completely with my views on the state of race in America today. As recently as last January, for example, I’d related my thoughts on how race still matters. That was prompted by the outing of racist ex-judge Richard Cebull andOne more add on a marinated post-racial America.”

Toobin was first to the door, though, masterfully dovetailing ever so neatly Los Angeles Clippers owner Donald Sterling and Nevada rancher Cliven Bundy and their respective racist viewpoints with the stirring stand-up-and-cheer 58-page dissent by Associate Justice Sonia Sotomayor last week in Schuette v. Coalition to Defend Affirmative Action. That case involved a 2006 Michigan ballot initiative imposing a state constitutional ban on “all sex and race-based preferences in public education, public employment, and public contracting.” By a plurality, the nation’s high court ruled 6-2 that voters could ban such considerations of race and sex through the ballot box. See Schuette v. BAMN – Supreme Court of the United States.

Justice Sotomayor wrote, in part, “While our Constitution does not guarantee minority groups victory in the political process, it does guarantee them meaningful and equal access to that process. It guarantees that the majority may not win by stacking the political process against minority groups permanently, forcing the minority alone to surmount unique obstacles in pursuit of its goals—here, educational diversity that cannot reasonably be accomplished through race-neutral measures.”

And quoting from the dissent and referencing Chief Justice Roberts’ simplistic recipe for ending racial discrimination, Toobin opined: “Justice Sonia Sotomayor wrote about a country where the Bundys and Sterlings still hold considerable sway. Indeed, she went beyond the simple bigotry of the Bundys and Sterlings and found that more subtle wounds of racism still exist in this country. “Race matters,” she wrote, “because of the slights, the snickers, the silent judgments that reinforce that most crippling of thoughts: ‘I do not belong here.’” Indeed, Sotomayor threw Roberts’s famous line back at him. She quoted him—“The way to stop discrimination on the basis of race is to stop discriminating on the basis of race”—and then wrote, “It is a sentiment out of touch with reality, one not required by our Constitution, and one that has properly been rejected as not sufficient to resolve cases of this nature. While the enduring hope is that race should not matter, the reality is that too often it does. Racial discrimination … is not ancient history.”

I’d planned to blog about the decision and particularly Justice Sotomayor’s dissent. But no matter. As John Lennon presciently warned, Life is what happens to you while you are busy making other plans.” So as it turns out, Toobin has instead captured it all so concisely and incisively that woulda-coulda-shoulda doesn’t matter. I refer you instead to his excellent post.

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Photo Credits: Chief Justice John Roberts and Associate Justice Sonia Sotomayor by DonkeyHotey at Flickr via Creative Commons-license requiring attribution;

 

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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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