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Two months ago, the State Bar of Arizona ran a lame contest via Instagram to encourage voters to 

Voters here aren’t particularly fond of playing to figure out who to vote for among scores of judges up for judicial retention elections. The numbers can run upwards of 50 to 60 — even 70. Unfortunately, most of the populace has never heard of the candidates. And for Red State Arizonans, it’s even tougher since judicial elections aren’t partisan.

So in lieu of throwing darts at a list or visiting the judicial performance review website, which 99% of the time rubber-stamps its approval anyway — many voters take a pass. They either vote “No” on everyone or they don’t vote altogether for the judges.

Faced with this, the Bar, at the behest of the Court, — came up with its contest to encourage the electorate to fill out the ballots completely. In fairness, it’s is a tall order trying to pour energy into voter ennui.

Just the same this wasn’t the contest to do it, not by any stretch. Assuming anyone paid attention, the contest was purely a sop for those crying out for something — anything to stem the tide of persistent problematic ballot roll-off.

The sole prize for the winning video entry was supposed to have been a $250 Visa gift card. But since the November election, it’s been a minor mystery on whether or not the Bar received any contest video entries or whether anybody actually won. I’ve seen no pronouncements from our friendly state bar, which is highly unusual since this stands in stark contrast to all the email announcements ballyhooing the start of the contest. Odd, too, as the local Bar is quite fond of filling up lawyer inboxes with unsolicited email newsletters, redundant CLE advertisements and just today, an especially unwelcome “time to pay your State Bar of Arizona’s annual dues” email.

At least for now, it appears mum’s the word on “Finish the Ballot,” which naturally prompts the question whether or not the Bar ever plans to “Finish the Contest.”

To be clear, I don’t actually care a rat’s hindquarters about the contest. This is merely my snarky segue into posting more FREE CLE offerings for lawyers still trying to “Finish the CLE” by year-end. The usual disclaimers on content; continued availability; and jurisdictional approval apply.

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FREE CLE

First American Exchange Company

http://firstexchange.com/webinars

1031 Exchanges and
Commercial Real Estate

Thursday, December 4th, 2014

11 AM Pacific / 2 PM Eastern
50 minutes
Topics will include:

  • Current Trends
  • Allowable Closing Costs
  • Recapture of Depreciation
  • How Reverse Exchanges Can Save a Transaction
  • Exchange Deposit Accounts
  • State Regs for QIs

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Wolters Kluwer
Alternative Entities — Navigating New Choices for Business Formations Webinar
December 9, 2014 – 1:00PM(ET)

http://www.cvent.com/events/alternative-entities-navigating-new-choices-for-business-formations-webinar-december-9-2014-1-00p-et/event-summary-ec6cf48dac2244db92fd51c114fd0e2d.aspx?elq_mid=3977&elq_cid=41694

1.0 CLE credit hours in California, Illinois, Missouri, NALA, New York, Pennsylvania and Texas and other jurisdictions under reciprocity.

Topics:

  • Series LLC
  • Benefit Corporations
  • Low-Profit LLC
  • Unincorporated nonprofit associations
  • Limited cooperative associations
  • Master Limited Partnership

Attendees will learn:

  • What new entities are now available
  • How they are different from and similar to traditional entities such as the corporation or LLC
  • Where they can be formed
  • How they are formed, maintained and terminated
REGISTER NOW

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LexisNexis® Presents a Complimentary CLE-eligible Webinar: Ethical Concerns Conducting Research via the open Web
Wednesday, December 10, 2014
2 – 3:35 P.M. ET (11 A.M. PT)
Duration: 95 minutes
Earn 1.5 CLE credits
Topics:
• Risks of legal research on the open Web
• Developing a firm policy on utilizing the open Web
• Preserving information found on the Internet
• Protecting your own Internet content

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Photo Credits: 214/365, at Flickr by Morgan via Creative Commons attribution.

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http://upload.wikimedia.org/wikipedia/en/3/31/Toe_tag.jpgStarting in law school, continuing till the final hour’s billed, and doubtless, just before the toe tag’s attached, there’ll be a marketer trying to wrest a lawyer’s last discretionary death’s door dollar. This was true back when conventional wisdom held lawyers were dependably fertile targets thanks to all that money they supposedly made.

But even now after the economy’s shown lawyers aren’t recession-proof or that the glut of tuition-indebted law school graduates has consigned many to work for peanuts, the trolling’s only become worse.

There’s pay-per-click; online lawyer directories; SEO and social media; lead referrers and lawyer rating advertisers. And not to mention uber-expensive practice and case management software, electronic legal research tools, and court rule books by annual subscription. You’d think prudence if not parsimony would dictate careful cost-benefit analyses.

Paid praise.

So when a couple of weeks ago someone left a message asking me to call right back because I’d been “selected” for a “Who’s Who” Directory — let’s just say my hungry skepticism didn’t make me drop the guacamole on my chip to call. As a friend is fond of saying, “I may’ve been born at night — just not last night.”

In an era of selfies and self-promoting portly posteriors, who even knew such anachronisms still existed? Like phone directories and cockroaches, apparently who’s who will survive who cares at the Apocalypse.

And then last week, I was emailed with news I’d been selected for a top 100 list! Who can stand the ‘adulation’? But like ‘winning’ sweepstakes notices and attorney email collection appeals, they’re not unique.

Just last year, Matt Brown at Tempe Criminal Defense Blog took down similar “parasitical” marketing efforts meant to burnish ‘fragile’ lawyer egos — of course, for a price.

But as for those “Who’s Who” directories, they’re simply a form of vanity publication since one way or another, ‘honorees’ pay for the ‘honor.’ Most follow the same model, too, which is that inclusion is ‘free’ while the publishers overeagerly hustle expensive copies along with other overpriced distinctions of a dubious honorific.

When you’ve gotta pay for such faint praise in what one pundit calls, “The Hall of Lame,” then “Don’t feel too special if you’re invited to be in a “Who’s Who” directory” as blogger Sheryl Harris posted at “‘Who’s Who’ invite aims at your ego — and your wallet.”

Fortunately for me, however, about the same time I was being pestered for paid ‘triumphant achievement’ honors, I unexpectedly received something more valuable — a “VIP gift” from a Vietnamese Pho restaurant I frequent.

Pho VIP

The owner and her wait-staff appreciatively presented me with a flashlight pen imprinted with the restaurant’s admittedly homophonically-challenged business name, “Pho King Eggroll.” They said it was given “only to VIP customers.”

Just think, I’m a “Pho King” VIP and all it cost me were some bowls of noodle soup.

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Photo Credits: ”Toe Tag,” by Dep. Garcia at Wikipedia Commons under the Creative Commons Attribution-ShareAlike 3.0 License; Vanity by A. T., 1890 (source: Wikipaintings), public domain; Children with paper crowns, by phlubdr at Flickr via Creative Commons attribution license;Untitled, by The Integer Club at Flickr via Creative Commons attribution license.

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File:Simpleton takes The Golden Goose to the inn - Project Gutenberg eText 15661.jpgThis Wednesday, it’ll be two months since the State Bar of Arizona considered a proposal to protect its two-million dollar revenue laying Golden Goose known as Bar-sponsored continuing legal education (CLE).

On September 19th, the Bar weighed a recommendation to seek state supreme court approval for a requiring third-party CLE providers to pay a precertification fee for Bar-accreditation to sell credit-eligible courses in Arizona.

Angry businessman yelling into bullhorn 1Following a universal outcry from members who criticized the proposal as an unnecessary added cost, the vote was apparently tabled. But who knows for sure? Since the board of governors meeting minutes have yet to see the light of day, the lawyer hoi polloi in Arizona are left to wonder whether or not the Bar’s goose will lay another golden egg.

But fortunately, there’s no need to wonder about the continued availability of FREE CLE — from third-party providers, naturally. Along with the usual disclaimers about content, continued availability and jurisdictional approval, here are the latest updates.

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Rimon Law

Nov 21, 2014 11:00 AM to 12:00 PM EST

One hour CLE; approved in California and credit-eligible in NY.

CPE/CLE Webinar – State and Local Taxation: Headline News and Trends.

http://rimonlaw.com/events/cpe-cle-webinar-state-and-local-taxation-headline-news-and-trends

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Lewis Brisbois 

http://www.lewisbrisbois.com/webinars

November 20, 2014

Managing and Mitigating Damages in the Wrongful Death Case

Time: 9:00 am – 10:00 am PST

Fee: Complimentary

REGISTER

December 18, 2014

Encore Performance: Affordable Care Act – Part I: The Impact of The Affordable Care Act on Personal Injury Litigation. A Plan to Defend Against Claims for Future Medical Costs, Loss of Health Insurance, and Life Care Plans.

Time: 9:00 am – 10:00 am PST

Fee: Complimentary

REGISTER

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West Legal Ed

Content Partner: Robert Half Legal

Client Dynamics Driving Change in the Legal Profession

http://westlegaledcenter.com/program_guide/course_detail.jsf?courseId=100031914

One hour, Video On Demand, Complimentary

Approved in multiple jurisdictions.

Enroll in Course

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American Society of Law, Medicine and Ethics, ASLME

Alcohol Law and Policy: Lessons Learned from the Field

Thursday, November 20th
1:00pm – 2:30pm (ET)

Free

http://www.aslme.org/webinar-alcohol-law-and-policy-lessons-learned-from-the-field

Presented in Partnership by: American Society of Law Medicine and Ethics (ASLME); Network for Public Health Law; and Public Health Law Research

(Hat tip: 4FreeCLE: Free Continuing Legal Education)

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Photo Credits: Simpleton_takes_The_Golden_Goose_to_the_inn_-_Project_Gutenberg_eText_15661.jpg, Wikimedia Commons, public domain.

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A guy is driving around the back woods of Montana and he sees a sign in front of a broken down shanty-style house: “Talking Dog For Sale.” He rings the bell and the owner appears and tells him the dog is in the backyard.

The guy goes into the backyard and sees a nice looking Labrador Retriever sitting there.

“You talk?” he asks.

“Yep,” the Lab replies.

After the guy recovers from the shock of hearing a dog talk, he says “So, what’s your story?”

The Lab looks up and says, “Well, I discovered that I could talk when I was pretty young. I wanted to help the government, so . . . I told the CIA.

“In no time at all they had me jetting from country to country, sitting in rooms with spies and world leaders, because no one figured a dog would be eavesdropping.

“I was one of their most valuable spies for eight years running.

“But the jetting around really tired me out, and I knew I wasn’t getting any younger so I decided to settle down. I signed up for a job at the airport to do some undercover security, wandering near suspicious characters and listening in. I uncovered some incredible dealings and was awarded a batch of medals.

“I got married, had a mess of puppies, and now I’m just retired.”

The guy is amazed. He goes back in and asks the owner what he wants for the dog.

‘Ten dollars,” the guy says.

“Ten dollars? This dog is amazing! Why on earth are you selling him so cheap?

“Because he’s a Bullshitter.

He’s never been out of the yard.”

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Some thoughts about listening and lie-detection.

My brother emailed me the preceding talking dog joke last week. And while it may be well-traveled anonymous Internet humor, it prompted my post on something I’ve kicked around for a while — ‘Is it possible for a lawyer to develop a nose for Pinocchio prevarication a.k.a. a bullshit detector?’

Forgetting those bad jokes about lips-moving lawyers or the adage, it takes one to know one, the short answer is ‘yes’ — but only with good listening skills.

Years ago, a Hank Ketcham Dennis the Menace cartoon graced the wallboard next to my office coffee station. Dennis was in the foreground in the usual trouble as he explained his latest mischief. His peeved mother, arms crossed, stood to his left with his perplexed dad home from work on his right. The caption read, “Do you wanna hear my version, mom’s version or the truth?”

business,businessmen,crossed fingers,dishonesty,fingers crossed,gestures,lack of integrity,liars,males,men,metaphors,people,persons,telling lies

I kept that cartoon to remind me that as the poet observed, people sometimes “tell all the truth but tell it slant.” Listening effectively means understanding that gradations of truth occur in fact-gathering. So when evaluating a client representation, lawyers must cultivate a practiced ear and listen carefully to grasp the factual versus the fictitious — the nuanced truth versus the cunning adulteration.

It’s more art than science. As an essayist once noted, “each of us tells little lies to make it through the day, and an indistinct line divides fair from foul.”

So when a long-time lawyer and friend exaggeratedly quips, “All clients lie,” I know that, in spite of his hyperbole, he’s channeling Dennis the Menace. He means there’s more than one side to every story. This is especially true when a legal representation concerns intra-family conflicts, workplace controversies or business disputes.

To get to those ‘versions’ requires good listening. This is why legal writing professor Jennifer Romig is absolutely right when she says,“good listening makes good lawyering.” Fortunately, effective listening skills can be learned.

As for lie detection — not so much. Sure there are books, studies and articles claiming to help determine when someone is lying. I’m not sure I believe them. In my experience, finely-tuned bullshit detection comes mostly through hard-knock ‘fool me once’ life experience.

That said, last month lawyer Mark Wilson posted his “5 Ways to Tell When a Client Is Lying to You.” Momentarily putting aside what a lawyer must ethically do when a client plans to lie-to-acquittal or otherwise thinks perjury is play-doh pliable, Wilson focused instead on clients who 1) speak vaguely; 2) have dilated pupils; 3) use body language to physically distance; 4) make inconsistent statement; and 5) are verbose.

Save for spotting narrative inconsistencies, those may or may not be helpful cues to uncover a lie. Still it’s a popular exercise. Other psycho-pop theories, for example, suggest that too much or too little eye contact; nose touching; hand-waving; fidgeting and just general uneasiness are also sure-fire lie-catchers.

However, none of these so-called clues are infallible or fool-proof. They won’t, for instance, expose a tall tale wagging canine.

Like the yarn-spinning yard-bound Labrador, in my experience, the more creative people are the better liars.

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Photo Credits: IMG_33151 by Elisa at Flickr via Creative Commons Attribution-NoDerivs 2.0 Generic License; Stylin’ by Marvin Kuo at Flickr via Creative Commons Attribution; smiling labrador and yellow flowers, by nox-AM-ruit at Flickr Creative Commons via Attribution-NonCommercial-NoDerivs 2.0 Generic license;more faces, by Stephanie Sicore at Flickr via Creative Commons Attribution; Alex 1 by Ted at Flickr via Attribution-NonCommercial-ShareAlike 2.0 Generic license.

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Lawyers get a bad rap even when sometimes it’s deserved. But in the case of Alabama lawyers Wendy Brooks Crew, Alyson Hood Rains and Cameron Hogan, I’m not so sure. The three lawyers have been catching flak ever since it was reported they’d be getting 99.8% of the settlement authorized by the City of Birmingham, Alabama for their client, Anthony Warren. The money settles Warren’s federal suit over police excessive force. But what’s had tongues wagging is that his lawyers will get $100,000 for expenses and $359,000 in fees — while Warren will net $1,000.

Warren’s suit arose after a January 23, 2008 high-speed police chase — where he ran over a police officer, hit a school bus, a police car and ultimately lost control of his van when it rolled into a ditch. He was ejected from the driver’s side window and landed unconscious in the ditch. He plead guilty to charges from the incident, which included attempted murder, and is currently serving a 20-year sentence.

j0289753According to court documents, Warren had no recollection after his ejection. Per the court memorandum’s statement of facts, “the police officers “descended on [him] and started to brutally beat him with excessive force. At no time did Plaintiff move or offer any threat of harm to [them]. One of the police officers repeatedly struck Plaintiff’s body with a billy club. Another police officer “pummeled” Plaintiff’s head and upper body with his fist. Three other police officers kicked Plaintiff “numerous times about his body.””

A dashboard police vehicle video camera caught it on tape. In the statement of facts, Warren also maintained“the portion of tape where the [police officers] brutally beat . . . Plaintiff was suppressed by the City of Birmingham and deleted from evidence provided to Plaintiff’s defense counsel.” It was almost one year before Warren and his lawyers obtained the complete unaltered videotape.

Alleging he was the victim of police excessive force when he was beaten as he lay face down and unconscious in the ditch, he sued under federal civil rights statute 42 U.S.C. 1983, which permits “any citizen of the United States or other person within the jurisdiction thereof” to bring a private action against another person or entity “who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia” deprives them of any rights, privileges, or immunities secured by the Constitution or federal law.

But why did Warren only get $1,000? According to a lawyer for the defendants, he only got “nominal damages” because the City proved his injuries resulted from the vehicle crash not the officers’ actions. Warren’s lawyers dispute this. But without an adjudication, we’ll never know.

Second-guessing the settlement.

113054714849Fast forward five and a half years to 2014 and as Warren’s lawyers maintain — “thousands of hours” and it’s easy to second-guess their out-of-court settlement absent more facts.

But lawyers steeped in such civil rights claims acknowledge police brutality suits are long, hard-fought and difficult to win. Warren’s lawyers say as much in a public statement they felt compelled to make after all the negative post-settlement fallout. It mentions very difficult burdens of proof,” police officer qualified immunity, and juror biases “against awarding money to a person convicted of a crime.”

People 2180Moreover, police departments aren’t quick to settle these cases. One scholar goes as far as declaring so-called ‘1983’ suits are not only “ineffective in deterring police brutality” but“are difficult and expensive to pursue” since most victims are minorities with few financial resources to hire lawyers for protracted litigation.

Judges Gavel42 USC § 1988 enables a court to award reasonable attorney’s fees to the prevailing party in civil rights cases. But Warren’s case settled without a verdict.

Moreover, I haven’t a clue about the fee agreement between Warren and his lawyers, for example, whether it was a contingent-fee contract where his lawyers received a gross recovery percentage, which would be offset by any court-awarded attorney’s fee — or whether or not his lawyers left money on the negotiation table — or how they handled the inherent conflicts of interest between them and their client. But no matter, all the disputants approved the settlement.

Sure I know lawyers personally and by reputation who advertise they “never earn more money than the client” or that they “NEVER charge more in Attorney fees than our client puts in pocket.” But those firms handle personal injury contingency-fee claims not civil rights actions like the one here.

So without more facts and better media explanations about the obstacles faced by civil rights plaintiffs, it’s hardly surprising Warren’s lawyers have been criticized.

Caucasian businesswoman with finger pointing upwards uidIndeed, more than just criticism, the lawyers characterized some of it as harassment, noting in their statement, “Over the past 48 hours, my co-counsel and I have been harassed, called names and threatened by countless people via telephone calls, emails, and internet messages because of the settlement agreement that was disclosed this week. We have been called criminals, thugs, crooks, thieves, liars, cheats, and many other names.”

People 1857They conclude, We represented Anthony Warren, absolutely. Just as important, though, we were extremely proud to represent the Constitutional rights of every person in this great country. We did this knowing that there was a very good chance that none of us would ever be compensated a dime for any of the hard work we put into the case because freedom and liberty are not just words to us, but they are instead actual rights that we are willing to fight for. Because we did so successfully, we are being demonized instead of thanked. That is fine. Attorneys have long been the butt of jokes, and I would expect nothing less from those with little knowledge of the actual terms and circumstances. Regardless, Mr. Warren and his family know the terms of the agreement, and they were very pleased with the outcome. We are all extremely proud to have represented Anthony Warren and the U.S. Constitution in this case.”

But unfortunately for Warren’s protesting lawyers, given the usual tide of Internet meanness and anything anonymously goes, the tiny violins will unsympathetically play on.


 

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Photo Credits: No Name #4, by David Mican at Flickr Attribution; world’s smallest violin, blingee.com.

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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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