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Wisconsin lawyer Michael Cicchini dropped another provocative “truth bomb” this week at The Legal Watchdog entitled, “The lawyer job market.”

http://img.wikinut.com/img/buwi66ndxqe7rzbw/jpeg/0/Talking-with-Hands-Wikimedia-Commons.jpeg

Cicchini posted about how ridiculously difficult it still is for jobless lawyers who are forced to choose self-employment when they’re unable to find full-time paying law firm work. An advertisement he recently received for work at the pleasure of the Racine Circuit Court made his point.

Despite an improving economy, new lawyers face daunting challenges. Blame the continuing glut of lawyers as well as irreversible changes to 21st century client expectations impacting the legal profession’s cost, profit and pricing structures.

While the good news is that the number of persons taking the Law School Admission Test has reached record lows, the transformative economic strictures continue to hold sway.

Preposterously penurious pay.

As for the advertisement Cicchini received, the County Circuit Court in Racine, Wisconsin is looking for an “advocate counsel” and the pay is an unbelievable $25,000 per year. Don’t expect expense reimbursement or job security. It’s terminable at-will.

The ad then goes on to state that “attorneys may be assigned any type of felony [including homicide], misdemeanor, juvenile, criminal traffic, and probate cases and any other action as the court orders . . . It is estimated that there will be about 70 – 80 assignments in 2015 per attorney.” Read the rest of Cicchini’s post here.

The quality of unfairness.

As an experienced criminal defense lawyer, Cicchini properly points out that this kind of caseload is “nearly impossible” for any lawyer — let alone a newbie hoping to do thorough, ethically unimpeachable legal work for clients.

Admittedly, there was more than enough in the court’s advertisement to annoy any lawyer — not the least being the overt professional discourtesy of lawyers trying to screw over other lawyers, i.e., those desperate enough to apply for such a demanding job at such penurious pay.

And who were the one’s being so discourteous? Cicchini speculates “this proposal was presumably authored with input from the Racine County judges themselves.”

But beyond exploiting economically hard-pressed young lawyers, there’s another even more disturbing consideration. What does this job say about exacerbating the continuing disparities of justice meted out to indigent defendants by overburdened, under-resourced public defenders? Studies have amply demonstrated that “public defenders do not have enough time to conduct thorough investigations, or meet with and provide quality representation for their clients – many of whom are low-income earners and people of color.” See, for instance, System Overload: The Costs of Under-Resourcing Public Defense.”

Ethical hazards.

But beyond the above-mentioned concerns, it was the potential ethical minefields created by the job that also got my dander up. As one commentator observed, “the deck is stacked” against solos as it is. Writing at “Ethical Hazards of Solo and Small Firm Practice,” Benjamin Cowgill axiomatically notes that nationwide, solos and small firms bear the brunt of most bar complaints. One reason, among many, arises from their chosen areas of practice, criminal defense being one of the riskier.

So what does this lousy job in Racine with its heavy caseload at rock-bottom pay say about how far ethical concerns are discounted in Cheesehead Land?

Politics Law & Finance 43Just a few years ago the Milwaukee Journal-Sentinel ran an excellent comprehensive investigative report about the sorry state of Wisconsin’s attorney discipline system. The newspaper reviewed almost 24,000 Wisconsin lawyers against state and federal court records and “found that lawyers who are convicted of crimes are then subjected to a slow-moving disciplinary system that operates largely behind closed doors.” It went on to underscore the patently obvious that “Wisconsin appears to be comparatively lenient in dealing with lawbreaking lawyers.

“Unlike many other states, where the licenses of lawyers convicted of serious crimes such as fraud are immediately suspended to give regulators time to determine the proper sanction, Wisconsin sometimes allows criminals to keep their law licenses even while they are behind bars.”

Hilariously hubristic hypocrisy.

So front and center comes this challenging low-paying job in Racine that just reeks of potential ethical hazard for the unwary and overburdened.

And yet, maybe I’m overstating the hazard? After all, it appears not much has changed since 2011, at least when it comes to lawyer discipline in Wisconsin. Indeed, earlier this summer there was a lawyer discipline case reported by “The Legal Profession Blog” ironically highlighting “Calls to Reform Wisconsin Attorney Discipline” made by none other than Chief Justice Shirley Abrahamsom and Justice David Prosser. Given the facts of that case, both expressed agreement on the need to study and reform the Wisconsin attorney discipline system.

But here was the irony and the not insignificant brass. Along with Justice Ann Walsh Bradley, the Wisconsin high court has hardly been an exemplar of professional comportment.
Some 6 months after the Milwaukee Journal Sentinel ran its investigative series on the state’s embarrassing absence of meaningful attorney discipline, Justice Bradley made headline-grabbing allegations involving her purported physical altercation with Justice Prosser. See “Bradley says Prosser choked her.”

But after all the he-said/she-said, no criminal charges were ever filed although Justice Prosser did get charged with ethics violations. However, lo and behold and consistent with how things apparently roll in Wisconsin, multiple recusals led to no quorum, which meant no determination of discipline could be made against Justice Prosser. So, the charges were dropped. Later the same year, he eked out a 7,006 reelection win over Joanne Kloppenburg.

And so he sits on the high bench in 2014 opining along with his chief justice who he previously disrespected about how Wisconsin’s attorney discipline system needs reform.

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Photo Credits: Talking with Hands, Wikimedia Commons; Half the pay, twice the work by Truthout.org at Flickr via Attribution-NonCommercial-NoDerivs 2.0 Generic License; Defense Counsel by Matt Freedman at Flickr, Attribution; bad jpg file in encrypted folder by Mike at Flickr via Attribution-NonCommercial-NoDerivs 2.0 Generic License.

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http://lawmrh.files.wordpress.com/2010/09/politicians-34.jpg?w=197&h=243On Sunday, the local paper ran an editorial long on conceit but short on illumination. “Kick these judges off the bench” proclaimed the Arizona Republic’s Editorial Board. The Op-ed was a day ahead of its own news story declaring, “Arizona commission deems 2 judges unfit for bench.”

I reckon the paper’s commentators couldn’t wait to join the “Amen” choir hallelujahing two non-retention recommendations by Arizona’s Commission on Judicial Performance Review (JPR).

child silly faceAccording to its website, “The JPR Commission is responsible for developing performance standards and thresholds, and conducting performance reviews of justices and judges who are merit selected and subject to retention elections.”

So with early voting in full swing, the Commission’s judicial evaluations are supposed to help voters wade through a morass of some 50+ judicial unknowns on their ballots.

But what made news was that the Commission actually found two judges worthy of non-retention recommendations. They were Maricopa County Superior Court Judge Benjamin Norris and Pima County Superior Court Judge Catherine Woods — both deemed well below the Judicial Performance Review Standards used to evaluate judges.

Sure the newspaper editorial quoted the Commission’s Chairperson who called the two non-retention votes “historic.” But too bad the paper didn’t adequately explain how truly historic — as in rarer than a Phoenix snowball.

“Everyone’s special . . . .”

http://upload.wikimedia.org/wikipedia/commons/thumb/8/88/A_Rubber_stamp_stand.JPG/640px-A_Rubber_stamp_stand.JPGFor all its self-congratulated value during its 22 year existence, the JPR Commission has generally functioned as an election cycle rubber-stamp consistently grading judges with mean evaluation scores well above 98%. Everybody’s not just special — but really special.

And since like most of Arizona’s legal establishment, the Commission’s hardly a paragon of transparency1, it’s tough to nail down precisely how rarefied these two non-retention recommendations were. Depending on the source, it’s either been once or twice before that Commission members have found pluck enough to recommend a judicial non-retention. According to one source, it’s happened only once before — in 1998. Yet another source claims it also happened in 2008.

No matter, though, as in each case the public didn’t pay any mind. Regardless of the recommendations, voters retained the judges anyway!

Since Arizona merely requires “a majority of those voting” to retain a judge, newspaper Op-ed and Commission votes notwithstanding — I won’t be surprised if it happens again this year. So much for achieving its intended purpose with all the efficacy of a hamster on a broken wheel.

Nothing succeeds like self-congratulation.

Entertainment 606In September, in a laudatory Op-ed to commemorate this year’s 40th anniversary of Arizona’s judicial merit selection system, Arizona’s State Supreme Court Chief Justice self-interestedly explained “Why Arizona has some of America’s best judges.”

While passing praise all around, at least Chief Justice Bales parenthetically conceded that “Some have observed that Arizona’s voters do not often reject judges who are up for retention.” Talk about understatement.

In 40 years, the scorecard is 99% get retained. Since 1974, only two judges have lost a retention election in Maricopa County. Also see research cited at “Job security means working for the feds or sitting for judicial retention elections”

Additionally, a law review article recently noted that “A few have argued that the JPR program does not work to “weed out” bad judges, because the Commission rarely votes that a judge “Does Not Meet” standards, and when the Commission does issue such a vote, the voters nonetheless retain the judge.

“Although that is one way to evaluate the data,” the authors explained, “an alternative assessment is that the data demonstrate the merit-selection system’s success in appointing high-quality judicial applicants. That is, the data may instead show that the merit-selection system is attracting and retaining highly competent judges who are performing well and do not deserve “does not meet standards” votes or to be voted out of office.”2

Frankly, this “alternative assessment” is probably a stretch. The problem with drawing such conclusions is best summed up by the aphorism, “the absence of evidence is not evidence of absence.”  Or in other words, we’re expected to accept the fallacious logic that X is true because there’s no proof X is false.

http://upload.wikimedia.org/wikipedia/commons/4/43/Stick_figure_-_choosing.jpgThat the Commission almost always fails to muster “Does Not Meet” standards votes — or that it rarely votes to non-retain — or that an overwhelmed electorate has to play Eeny, meeny, miny, moe” on scores of judicial unknowns — hardly amounts to proof positive that merit selection cornered the market on the high performing and highly competent.

What it does mean, however, is that after 40 years, merit selection is tantamount to lifetime appointment.

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(1) Try searching for meeting minutes or judicial performance report data older than 4 years on the Commission’s website at http://www.azcourts.gov/jpr/NewsandMeetings.aspx?nt=4

(2) See Judicial Performance Review in Arizona: A Critical Assessment.
Berch, Rebecca White; Bass, Erin Norris // Arizona Law Review; 2014, Vol. 56 Issue 2, p353

Photo Credits: Rubber Stamp Stand, by Thamizhpparithi Maari at Wikimedia Commons;Robo Dwarf Hamster, by Sarah , Flickr Creative Commons Attribution; Stick figure – choosing, by Obsidian Soul by at Wikimedia Commons.

 

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Last week, the State Bar of Arizona launched an odd campaign. It’s a social media contest using the photo sharing, video streaming site Instagram.

Called Finish the Ballot!, the contest is supposed to promote voter information about judicial retention elections. Yeah, there’s a challenge — ginning up excitement for a dull but important topic.

Dangling all of a $250 Visa gift card as the sole prize, contestants vie by creating a 15-second Instagram video that must include the phrase, “Finish the ballot. Vote for the judges!”

Bar employees will pick the winner based on “creativity and originality as they reflect the contest’s theme.” Instead of “Just Say No!” think “Just Say Vote!” 

Undervoting worries.

The goal is to increase voter participation — at least on that really long part of the ballot with all the judicial names expecting retention.

Problem is that voters in Arizona and in other judicial retention states continue choosing not to complete their ballots. The phenomenon has a name. It’s called “undervoting” or “roll off.”

The worry is that for merit selection and judicial retention election proponents, all those non-votes undermine the argument that retention elections are supposedly great at ensuring judicial accountability.

And with ever longer ballots and so many judges listed, it’s not getting any better. In one recent Maricopa County election, for example,

Indeed, according to a June 2014 Arizona Law Review article, “Judicial Performance Review in Arizona: A Critical Assessment,” authors former Arizona Supreme Court Chief Justice Rebecca White Berch and her former law clerk now attorney Erin Norris Bass, reference Professor Larry Aspin’s studies revealing that between 1964 and 2010, Arizona judges up for retention averaged an undervote of 42.9%.

In his report, Judicial retention election trends,” Aspin highlighted the undervoting increase in the state’s largest county, Maricopa, where it ran “an average 48.8% in the 1996-2006 period, peaking at 54.5% in 2004.”  And citing 2012 Maricopa County Election Results, Justice Berch and Ms. Bass noted more recently that “In the 2012 retention election, Maricopa County Superior Court judges on the ballot had an average 50.7% undervote.”

But besides undervoting, there’s another concern troubling the legal establishment. Justice Berch and Ms. Bass’ law review article, also cited findings that “approximately 30% of the electorate routinely votes ‘no’ in judicial retention elections no matter who the judge happens to be.” 

In Maricopa County, among those taking the time to vote for all the judges, the median affirmative vote in the 2012 county election was 69%. Anecdotally at least, one can speculate this may be a form of protest by restive voters dissatisfied with the present system.

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Photo Credits: 214/365, at Flickr by Morgan via Creative Commons attribution; Making Faces, at Flickr by a2gemma via Creative Commons-attribution license;My Kitty Boys Doing the Big Eye Stare, by joanna8555 at Flickr Creative Commons attribution license;Instagram-logo, uploaded by José Moutinho at Flickr Creative Commons attribution;DeMoulin’s Patented Hoodwink, at Flickr Creative Commons-attribution license uploaded by Arallyn!

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

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

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

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

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

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

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

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

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

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

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

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

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

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Keeping Legal Minds Intact: Mitigating Compassion Fatigue Among Legal Professionals

American Bar Association

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

1.50 General CLE Credit Hours, FREE

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

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

Case Western University Law School

OCT 2, 2014
4:30 P.M. – 5:30 P.M.

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

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Volunteer Atty & Child Advocacy seminar

Defenders of Children and Arizona Summit Law School

LIVE IN-PERSON CLE PROGRAM

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Another under-publicized Bar vote.

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

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

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

The emperor has no clothes.

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

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

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

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

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

Bureaucrats.PNG

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

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

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

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

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

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

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

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

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

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

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

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

Lawyer incivility . . . again.

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

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

Let there be rules.

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

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

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

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

Grappling golfers.

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

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

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

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

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

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

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

Yeah, that’ll do it.

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

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

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

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

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

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

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

i. Qualifications for membership on the Board of Governors;

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

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

iv. Election process;

v. Board of Governors size and composition; and

vi. State Bar leadership structure and composition.”

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

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

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

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

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

Everything’s dandy.

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

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

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

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

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

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

The bad news.

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

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

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

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

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

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

 

 

 

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