Archive for the ‘Law’ Category

http://upload.wikimedia.org/wikipedia/commons/thumb/9/96/Golf_ball_5.jpg/320px-Golf_ball_5.jpgA couple of Saturdays ago, we were paired up on the golf course with a happy wise-cracking guy who turned out to be a presiding judge in another jurisdiction. I won’t mention where he was from but let’s just say, he was one happy hombre hitting white dimpled balls in the sunshine while his cold snap compadres back home were freezing theirs.

He was also a much better duffer than me which, of course is no big deal since I set the bar pretty low on the golf course. But I especially liked his bracing candor and absence of pomposity particularly when referring to his day job. His ‘hail fellow well met’ attitude was refreshing. Ah, but then again, we were basking on a sunny Arizona golf course. Who knows what he’s like back home? But at least he wasn’t like Judge Spaulding Smails!

Nonetheless giving him the benefit of the doubt, mid-round I commended the long-time jurist for having successfully inoculated himself from black robe disease — and for not asking me to kiss his ring. Hearing my good-natured razzing, he laughed and smote his Pro-V-1 down the middle of the fairway.

And with that I segue to less berobbed congeniality in the following updates:

From the slapping the spanker file.

Remember Texas Judge William Adams who lost it in more ways than one? For those who forgot, he was the jurist suspended for a year after his daughter, Hillary, posted an embarrassing angry belt-whipping video online. Judge Adams was the belter and Hillary was the beltee. Well, add one more loss for the now ex-jurist. Following enough mea culpas, Judge Adams had been reinstated by the Texas Supremes in November 2012. But thing was, that video followed him around like the proverbial tin can tied to a cat’s tail. So thanks to getting caught beating his daughter on the video, he lost re-election last month. Chalk one up for prudent voters slapping down an ill-advised reelection bid. And give credit to much-maligned judicial elections, which now and then do somehow manage to impose some semblance of accountability courtesy of the voters.
Meanwhile back in Texas, remember Judge William Adams who lost it in more ways than one? For those who forgot, he was the jurist suspended for a year after his daughter, Hillary, posted a video online of the belt-whipping he administered. Well, add one more loss for the ex-jurist. The judge who was reinstated by the Texas Supremes in November 2012 after he was caught beating his daughter on video lost re-election in March. Chalk one up for voters slapping down an ill-advised reelection bid. And chalk up one for much-maligned judicial election voter accountability.
body parts,Buddhism,feet,footprints,religion,religious symbols,toes,visitations

From the foot massages no more file.

Sadly at only age 56, former Clark County, Nevada District Court Judge Elizabeth Halverson passed away March 1, 2014. She’ll be remembered for a lot of things, including the stuff that led to the imposition of judicial discipline. In particular, I’ll recall her former bailiff Johnnie Jordan’s affidavit where he said the judge had ordered him “to massage her feet, neck and shoulders, or some combination of those body parts.”  Also see “Foot massages no more. Nevada Supreme Court reaffirms district court judge’s permanent removal.”

From the shame in his game file.

photoAnd finally it turns out there was more than a little shame in the game of Wayne County, Michigan Circuit Judge Wade H. McCree Jr.

At least more than enough to convince the Michigan Supreme Court to hand down an order dated March 26, 2014 to remove from the bench the self-professed “No shame in my game” judge with a hankering for old-school R & B; inappropriate liaisons in chambers; and bare-chested texts.


From the more FREE CLE file.

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Navigating the Ethical Minefield of Social Media for California Attorneys


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From the knickers in a bunch file.

Last week, the local paper’s editorial board was in high dudgeon grabbing all four cheeks over the wrist-slap inflicted on Fast, Furious and famous former U.S. Attorney for Arizona Dennis K. Burke.

The feather-duster on the wrist that upset the Arizona Republic’s editorial board came courtesy of the public reprimand administered to Burke by Arizona’s lords of lawyer discipline.

But who’s Dennis Burke? What’s Fast and Furious? For those not paying attention or thinking popcorn and high-grossing street racing films with Vin Diesel and the late Paul Walker, the LA Times at “ATF guns sting: Fast and Furious operation” has one of the better, more succinct explanations of what’s what. “A federal operation dubbed Fast and Furious allowed weapons from the U.S. to pass into the hands of suspected gun smugglers so the arms could be traced to the higher echelons of Mexican drug cartels. The Bureau of Alcohol, Tobacco, Firearms and Explosives, which ran the operation, has lost track of hundreds of firearms, many of which have been linked to crimes, including the fatal shooting of Border Patrol Agent Brian Terry in December 2010.”

Dennis Burke US Attorney.jpgSince Operation Fast and Furious took place on Burke’s watch, the furor, the scandal, and the partisan political witch-hunting that erupted following Brian Terry’s death quickly engulfed Burke, the most senior of the DOJ officials implicated.

According to a New York Times story, shortly before he resigned as U.S. Attorney, Burke admitted “he had been the source for a document obtained by Fox News about the A.T.F. agent, John Dodson, who helped disclose risky tactics used in the case.” 

Lawyer discipline notwithstanding, I’m not sure why the Arizona Republic was so upset over what was one of the gentlest, almost apologetic censures I’ve ever read. And besides, Burke self-reported, too.

Most likely, Burke’s got BFFs at the paper. And so the editorialists were displeased. “What Burke did wasn’t something to be sanctioned,” they sniffed. “It was something to be celebrated.” See the March 27 disciplinary agreement here. Also see DOJ Sought Scapegoat for Fast and Furious, Former Arizona U.S. Attorney Says.”

File:Elephant Walking animated.gifBut Burke’s case aside, the elephant in the room.1 is really that hundreds of Department of Justice (DOJ) Attorneys have violated professional rules, laws or ethical standards — and that the public hasn’t a clue who they are. That’s because of DOJ’s longstanding practice of not disclosing the lawyers identified by its own Office of Professional Responsibility (OPR). We’re talking federal lawyers who’ve committed infractions ranging from the sloppily inadvertent to the downright egregious.

According to the Project on Government Oversight (POGO), “The result: the Department, its lawyers, and the internal watchdog office itself are insulated from meaningful public scrutiny and accountability.” Per its website, POGO “is a nonpartisan independent watchdog that champions good government reforms. POGO’s investigations into corruption, misconduct, and conflicts of interest achieve a more effective, accountable, open, and ethical federal government.”

File:Hiding.1.jpgThrough the Freedom of Information Act, POGO was able to obtain OPR data for a 12-year period from 2002 to 2013. Approximately 2,100 allegations of misconduct were unearthed ranging from intentional violations to mistakes and poor judgment involving federal attorneys. 650 instances were substantiated. Of these, more than 400 cases involved recklessness or intentional misconduct.

Meantime, the DOJ refuses to disclose the names of the lawyers OPR identified as having committed the offenses. In their number are federal attorneys who as OPR’s data reveals, misled courts at least 48 times, including 20 intentional violations; breached constitutional or civil rights 13 times; and did not provide exculpatory information to defendants 29 times. Read the POGO report here.

For the time being, wrist-slaps or not — they’re the Untouchables” so don’t be looking for bar discipline either.


1Hat tip to Mark Brennan for sending me the link to POGO’s report concerning the U.S. DOJ refusal to disclose its attorney violators, including more than 400 categorized by its own internal investigatory agency as the more severe on its scale.

Photo Credits: “Dork,” by Dan4th Nicholas at Flickr via Creative Commons-licensing requiring attribution; “Dennis K. Burke,” Dennis_Burke_US_Attorney.jpg at Wikipedia Commons, work of U.S. Government, public domain; Animated version of File:Elephant walking.jpg, by Eadweard Muybridge at Wikipedia Commons, public domain; Hiding.1.jpg by Loveteamin at Wikimedia Commons under the Creative Commons Attribution-Share Alike 3.0 Unported license.

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Even in Maricopa County, Arizona where most everyone has transplanted from someplace else, no one likes hearing about how things were done elsewhere. It’s as welcome as grey-whiskered prattle about “how things were when I was a kid.” Put a sock in it.

All the same, ignore the sock hanging out my mouth while I favorably compare what my former home state of Nevada just did concerning the unauthorized practice of law (UPL).

UPL as most of you know is a tiresome pet peeve of mine. But for all my frustration, as far as Arizona’s concerned when it comes to dealing seriously with UPL, it’s rubbing fingers and playing the world’s tiniest violin.

But back in the Silver State there’s AB74, a new Nevada law effective March 1, 2014 that imposes new controls on legal document preparation services — or what lawyers think of as the unauthorized practice of law. Fortunately, instead of creating another self-perpetuating legal establishment bureaucracy like in Arizona, AB74 requires document preparation services to register with the Secretary of State; establishes qualifications for registration; requires the filing of a bond; regulates the business practices of document preparation services; authorizes disciplinary action and other remedies in specified circumstances; and provides civil and (unlike Arizona) criminal penalties.

File:Otis fence.jpgNevada’s approach is admirably distinguishable from what the ‘self-enlightened’ legal elites did in Arizona. Here the legal eagles didn’t soar to curtail the unauthorized practice of law. Instead the privileged classes ‘fixed’ it by saying it wasn’t UPL. Arizona exempted out a slew of non-lawyers from UPL by judicial fiat.

As a consequence, Also see “Immcrimination: Document preparation in Arizona in the wake of USA v. Arizona.”

No “conscious uncoupling” from the mandatory bar.

Which gets me to say something nice for a change about a state bar president, Nevada’s Alan J. Lefebvre. He’s finishing out his term and in his last several presidential epistles in the bar’s mouthpiece magazine, Nevada Lawyer, Lefebvre’s demonstrated refreshing candor — at least by complaisant state bar standards. He’s decried the current state of the legal profession, which has “done nothing to protect and rescue” newly graduated debt-indentured lawyer graduates. See “President’s Message: “Maybe Reparations are Owed?”

photoAnd unlike the self-congratulatory B.S. typically spewed by bar management milquetoast sock puppets, Lefebvre has also inveighed against the bureaucratic status quo.

Otherwise, as mandatory bar presidents go, the ones with any real cojones have been those never-say-quit anti-mandatory bar presidents in Wisconsin — three of the last four elected. Despite long odds, they’ve been fighting for a voluntary bar for many years. And trying to divorce themselves from compulsory bar membership, they’ve waged their own version of “conscious uncoupling” well before Gwyneth Paltrow was therapeutically psycho-babbling about it.

Sometime ago, one former Wisconsin bar president who’s advocated for a voluntary bar for decades even made headway based on compelled Free Speech grounds. But it was short-lived. His victory was reversed on appeal by the 7th Circuit.

To be clear, however, that guy in Nevada ain’t advocating removal of the mandatory bar yoke — that’s a furrow too far for most bar insiders. But at least he’s shooting straight on UPL and about what Nevada’s new legislation means. In his latest “Message from the President,” Lefebvre rails against “the commoditization of the practice” and how “the unchecked growth of the Unauthorized Practice of Law (UPL) has been eating away at the financial resiliency of the legal profession for years and years, as we attorneys rub our palms together anxiously, doing nothing.” See “President’s Message: Unauthorized Practice of Law: Redux …

Lefebvre’s so effusive he even signals out Lucy Flores, the bill’s author who he says, “should get a ‘lawyer of the year’ award for her foresight.”

Foresight — what a concept. But so’s candor and especially, courage.


Photo Credits: “Whitby Sock One,” by LollyKnit at Flickr via Creative Commons-requiring attribution; 200px-Blnguyen_violin.jpg at Wikimedia Commons; Otis_fence.jpg at Wikimedia Commons under the Creative Commons Attribution-Share Alike 3.0 Unported license;”in other words, you have a big mouth,” by Vera at Flickr via Creative Commons-requiring attribution;”Nadya with sock puppet and fish, 2007″ by Nadya Peek at Flickr via Creative Commons-license requiring attribution.

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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.


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.


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.



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.”


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.”


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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Topless lawyer wannabes? With that as a titillating lead, I’m going to tell you about a devastating critique of what passes for prosecuting the unauthorized practice of law (UPL) in Arizona.

It’s a real-life story posted last November by would-be whistle-blowing criminal defense lawyer Karyl A. Krug who until she was injudiciously shown the door had been a Capital Staff Attorney in the Arizona Death Penalty Judicial Assistance Program.

Krug is no crank. A 20-year Texas board-certified criminal law and criminal appellate law specialist turned Arizona lawyer, her experience, credentials and distinctions enviably run three pages.

LAW AND JUSTICE 63She’s a former Chair of the Criminal Law Exam Commission for the Texas Board of Legal Specialization. She Chaired the ABA Habeas Reform Subcommittee; and Co-Chaired the ABA Criminal Justice Section, Appellate and Habeas Committee. In 1996, Krug garnered the second DNA exoneration in Texas. And besides 18 reported cases, she also had the first published Vienna Convention case in Texas on behalf of a foreign national. Oh, and she also served on the ABA’s Postconviction Task Force to advise Standards Committee and done a lot more other stuff than most lawyers ever will.

Slings and arrows.

File:Sebastia.jpgBut hers is a cautionary tale. If someone so impeccably credentialed can suffer such ‘slings and arrows,’ then what of lesser mortals? More dismayingly, it also hollows out the resolve and reliability of UPL enforcement actions in the Grand Canyon state.

But before getting to her provocatively-titled story, “Arizona Is Calling All Topless Lawyer Wannabes,” which necessarily must be filed in the prodigious ‘no good deed goes unpunished’ folder, here’s some background.

A mess of things.

Politics Law & Finance 43Over the years, Arizona along with most other jurisdictions has pretty much made a mess of defining what is and what isn’t the practice of law. Indeed, more than a half-century ago, the state supreme court in State Bar of Arizona v. Arizona Land Title & Trust Co. 366 P.2d 1, 90 Ariz. 76 said “In the light of the historical development of the lawyer’s functions, it is impossible to lay down an exhaustive definition of “the practice of law” by attempting to enumerate every conceivable act performed by lawyers in the normal course of their work.”

People 1857Still, give the high court credit for trying. There is after all, an Arizona definition and while not statutory, it’s nevertheless the governing rule, Arizona Supreme Court Rule 31, “Regulation of the Practice of Law.”  And notwithstanding the rule’s 21 exceptions, it’s meaning is clear to everybody — except the lawyers and non-lawyers who’re supposed to follow it.

In Arizona, for example, non-lawyers known as certified legal document preparers can prepare pleadings/wills/other legal documents; attend administrative proceedings; handle pre-trial activities; negotiate legal matters; appear in court; attend real estate closings; participate in state administrative proceedings; and participate in alternative dispute resolution proceedings.

child silly faceLegal document preparers can also provide general legal information — but they can’t give legal advice. And when you’re able to make that distinction without a difference — let me know.

I know it when I see it.

flashlight gh 2Not that things are clearer elsewhere. In Minnesota, for instance, in a bit of unintended understatement, that state’s supreme court said, “The line between what is and what is not the practice of law cannot be drawn with precision.”

And reminiscent of what Justice Potter Stewart memorably said about knowing something when he sees it, the court added, “Lawyers should be the first to recognize that between the two there is a region wherein much of what lawyers do every day in their practice may also be done by others without wrongful invasion of the lawyers’ field.” See Cardinal v. Merrill Lynch Realty/Burnet, 433 NW2d 864 (Minn. 1988).

The courts, though, wouldn’t necessarily be better off applying Lord Justice Jeremy Stuart-Smith’s “well known elephant test” from Cadogan Estates Ltd v Morris. Referring to an elephant, the Lord Justice said, “It is difficult to describe, but you know it when you see it.”

Meanwhile in Arkansas, that state’s highest court threw up its collective hands and said it was “impossible to frame any comprehensive definition of what constitutes the practice of law” and added, “perhaps it does not admit of exact definition.” See Arkansas Bar Association v. Block, 323 S.W.2d 912 (1959).

UPL — Unauthorized Practice of Law.

http://cdn.morguefile.com/imageData/public/files/q/quicksandala/11/l/1384652253jvwl6.jpgAmorphous definitions or not, states do try — albeit with varying degrees of commitment but plenty of lip service to crack down on what’s supposed to be unauthorized practice. But getting arms around the spiny porcupine isn’t easy. 

Almost two years ago to modest fanfare, the Arizona State Bar announced it was partnering with U.S. Citizenship and Immigration Services and other local and federal agencies to crack down on the unauthorized practice of immigration law. However, it was all part of a nationwide public relations effort initiated not by the Arizona bar but by U.S. Citizenship and Immigration Services (USCIS).

Enforcement? What enforcement?

But without a universal probe library (UPL) or an upper prediction limit (also UPL), it’s difficult to figure how serious or successful these crack downs are to more forcefully restrain that better-known UPL, the unauthorized practice of law.

Arizona does have a statute dealing with the unauthorized practice of immigration and nationality law, although it’s hard to say how many prosecutions let alone class 6 felony convictions the attorney general has made to prevent or stop violations.

But other than this single UPL immigration statute, as Krug points out, it’s not otherwise a crime in Arizona to engage in unauthorized practice of law. The only remedies hereabouts are civil injunction, civil contempt, and a civil fine. And as for what money is spent policing UPL, good luck on that. It’s not readily known since the number’s buried in the $5MM or so the disciplinary wheels spin regulating Arizona lawyers.

All the same, according to the state bar’s website and its last update three years ago this month, only 27 UPL formal complaints have been filed; 14 UPL cease and desist consent agreements signed; and 4 contempt actions filed. By comparison, that’s a far cry from the 695 full screen lawyer disciplinary investigations performed just in 2012.

But not to pick just on Arizona, the enforcement is scatter-shot most everywhere else. It’s underfunded, under-reported and underwhelmed. Not surprisingly, some jurisdictions even have as much trouble defining UPL as they do the practice of law. If you can’t define it, is there any wonder enforcement’s so erratic?

Moreover, the last report of any consequence was almost two years ago when the American Bar Association (ABA) Standing Committee on Client Protection rolled out its 2012 Survey of Unlicensed Practice of Law Committees.

Cartoon Characters 310Here are a couple of highlights: “Twenty-three jurisdictions actively enforce UPL regulations, although some jurisdictions indicate that insufficient funding or resources make enforcement challenging. Nine jurisdictions stated that enforcement is inactive or non-existent.

“Most jurisdictions either do not have a specific annual expenditure for UPL enforcement or were unaware of the exact amount.”

Topless Lawyer Wannabes.

So getting back to Suzette Hall, the Colorado woman busted for giving topless haircuts and how that ties into practicing law in Arizona without a license. Unlike lawyers who proudly display law licenses on office walls, Suzette’s male customers apparently never bothered to ask about her cosmetology credentials. They just paid the $45 to get the topless haircut. So Karyl Krug’s point in her blog post is that “Colorado is tougher on unlicensed hairdressers than Arizona is on unlicensed attorneys.

“Colorado must be a very conscientious state. In Colorado, Suzette Hall was arrested for suspicion of practicing cosmetology without a license. I am assuming it is because she was practicing her craft sans a trendy burnout tee from the Sundance Catalog; or a shirt of any kind. Whether toplessness constitutes reasonable suspicion to believe that one does not have a license to practice one’s chosen profession in Colorado, much less probable cause for an arrest, I will leave to the authorities in Colorado.

“By contrast, you cannot get arrested in Arizona for practicing law without a license, clothed or otherwise. Since we have had a multitude of topless demonstrations in Tempe and Phoenix in the recent past, I think it might be safe to say that Ms. Hall could have declared herself a topless lawyer in Arizona without fear of arrest.

“Foolishly, I thought I would have to have a license in Arizona to call myself a lawyer in Arizona state court. I paid in excess of $2000 and went through a rigorous criminal and character background investigation lasting 6 months to get my Arizona law license. But it turns out that everybody, including the trial courts in the county with the biggest glut of death penalty cases Arizona has ever seen, can and did call whoever they wanted to a lawyer, with no criminal or other penalty whatsoever.

“This is in stark contrast to Texas, known as that other crazy, red, Wild West state. I have been licensed to practice law in Texas for 20 years. It is a third degree felony to practice law without a license and get paid to do so, punishable by two to ten years in prison. In Arizona, it is a violation of Arizona State Bar Rules, but it is not a crime.”[1]

The rest of Krug’s legal reality story describes what happened to her after she outed a non-lawyer colleague working as a ‘Capital Staff Attorney’ in the Arizona Death Penalty Judicial Assistance Program. Both were dispensing legal advice to “trial judges statewide on the law in death penalty cases” and writing “proposed orders and legal memoranda.” Only thing is Krug’s colleague wasn’t a lawyer although she held herself out to be one and was actually called one!

And after fulfilling her ethical precepts by telling near everyone that needed to know from the state bar to the court to the Attorney General to the FBI and including possibly God Almighty that this was not only UPL but what she strongly believed to be grant fraud, Krug figuratively got her head handed to her for her troubles.
Meanwhile those both derelict and accountable for what took place got what’s tantamount to the sound of crickets chirping — nothing. Read the rest of her story here.


[1] Excerpted with express permission of author Karyl Krug at LiberalAmerica.org

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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.
Photo Credits: Fashion_Plate_Manteau_1823.jpg fashion plate from Costume Parisien, 1823, at Wikipedia Commons, public domain;”The Devil’s Advocate,” artistic interpretation by Bill Strain at Flickr via Creative Commons-license requiring attribution.

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AZ Yard Art

Arizona yard art

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

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

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

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

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

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

File:215780193 8f3582d18c o.jpg

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

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

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

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

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

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

Castrato from a contralto.

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

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

Same o’ same o.’

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

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

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

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

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

More Corona than Constitution.

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

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

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

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

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


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

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