Feeds:
Posts
Comments

Archive for the ‘Your friendly state bar.’ Category

Top Ten States by Bar Fees                                  (Click to enlarge)

Not satisfied with already being near the top among highest U.S. cost-to-practice1 mandatory bar associations, on February 27, 2014 the Arizona Bar’s Board of Governors (BOG) voted 12-11 to hike annual member dues by 13% to $520 by 2019.

If at first you don’t succeed . . . .

Politicians 19The BOG first tried raising dues in December by 22%. But it was stymied when word got out about the stealth vote 12 days before Christmas. On being outed, the BOG regrouped and moved to postpone the vote till February. It then spun the delay as a self-congratulatory bid at notice, transparency and due process.

Unfortunately with more time to deliberate, the BOG also came up with a gambit. It dropped its initial $100 increase motion in favor of one that raised dues by ‘only’ $60. But there was a ‘catch.’ The lower increase was tied to an automatic escalator based on the consumer price index — as though what a state bar does has anything to do with the nation’s basket of consumer goods and services.

man face 6But fortunately, brakes were applied to the escalator. But as for the rest, “Il dado è tratto” as they still say in Italy long after Julius Caesar uttered Alea iacta est.In other words, “The die was cast.” When you’re talking fees, state bars always think it’s time to render to Caesar.

The rationale.

So given the Bar’s two-nostrils worth of rationale, it was never a question of “if” – but of “when” and by “how much.”

Wildlife & Animals 2247First, they’d argued the last dues increase was in 2005 as though there’s a gestation period for raising fees. And second, like that proverbial bushy-tailed chicken-counter in the hen-house, an increase was necessary. Or so said a supposed cost-analyzing “Program Review Committee” made up mostly of Bar staff and management. The committee took all of 9 hours over 3 months to do its multi-million dollar operational number-crunching and qualitative analysis.

http://upload.wikimedia.org/wikipedia/commons/thumb/1/1f/Langtry_cartoon.png/161px-Langtry_cartoon.pngSo to the surprise of no one, the committee pronounced there wasn’t much to cut from a bloated $14.6 million budget — not if bureaucratic stakeholders wanted to keep gilding the Bar’s ‘full-service’ lily. And as usual, the largely complaisant BOG went along.

Muddled confusion.

One thing the Bar’s spinmeisters also proclaimed was that Arizona’s fees are only tied for tenth highest among bar associations. But try running that declaration to ground.

When it comes to decoding what and how much lawyers pay to practice in a given jurisdiction, it’s frankly difficult. To start, you need something better than a secret decoder ring from a cereal box.

It’s a muddle. You have to parse, poke and ponder2 through data most of which is hidden behind expedient pay-walls. Or else you glean what you can from the Web whether the ABA or a state bar group.

Cartoon Characters 57Adding to the confusion, surveys lump mandatory bars (where you have to pay-to-play) together with voluntary jurisdictions.

Of course by mixing the apples with the oranges, it conveniently distorts the cost comparisons. And as long as we’re talking produce — it also helps keep the mushrooms fed and in the dark.

Don’t ask why voluntary bars are bunched in with the mandatory associations. It’s one thing to discretionarily and voluntarily pay high fees and quite another to be compelled if you want to keep more than snausages on the lawyer table.

Cost to Practice Rankings.

People 7054Ranking comparisons are as clear as mud. The last time I looked, the prior rankings were based on 2010 ABA surveys and the had Connecticut and Tennessee at No. 1 and No. 2, respectively. Both are voluntary bar associations. Both have non-bar-related fees that hurt.

But how was Georgia in third place at $536 when according to newer data compiled in 2013 by New Jersey’s Office of Attorney Ethics, Georgia’s “Maximum Mandatory Annual Fee” is $242?

International Survey of Attorney Licensing Fees

And take Connecticut where voluntary annual membership in the bar association costs $280. Although you’re not required to join to practice, Connecticut’s Department of Revenue Services still collects an annual attorney occupational tax of $565, which goes to the state general fund not for lawyer regulation. The state’s high court then tacks on a yearly $110 payment to the Client Security Fund.

Work World 14In Tennessee, also a non-mandatory bar state, $400 of the $570 fee lawyers pay is a “Professional Privilege Tax.” And like Connecticut, that money goes to state general revenue, not specifically to any bar-related function or to the Court.

And in Texas where membership is mandatory to practice, there’s a similar occupational tax that skews the cost-to-practice fees number higher. In the Lone Star State, $200 out of the $510 Texas lawyers pay to practice goes to state revenues not to fund the legal establishment.

International Survey of Attorney Licensing Fees - Chart 2

Distinctions without a difference? Who cares if Caesar is the state, the court, or the bar association? It’s all money flowing out of lawyer pockets. But it matters when mandatory bars conveniently use non-decoded figures as convenient pretexts to justify high mandatory licensing fees.

Children 1099So to make some semblance of the mud in the muddle, on a like-for-like dues comparison basis, Arizona is currently among the top three of the country’s 33 mandatory bars behind Alaska’s $660 and Hawaii’s $522. And going inactive in Arizona hardly saves you, either. Inactive Arizona Bar members pay $265 annually, highest among all jurisdictions and equal to or higher than what 20 other jurisdictions charge active bar members.3

Animals 2035And according to the most recent ABA Survey, among mandatory bars with more than 20,000 members, Arizona’s budget is 125 percent higher than the $11,720,787 average for comparably sized bars.

And high budgets notwithstanding, by the time the latest dues increase fully implements in 2019, the Bar itself projects about a $4M surplus. An almost $15 million budget, after all, wasn’t nearly enough money.

What’s more by separate motion, the BOG also got approval to impose higher fees for in-house counsel; admissions on motion; pro hac vice; and late fees for mandatory annual filings like continuing legal education.

Animals 702But at least there’s potential good news for Arizona lawyers. The Bar holds elections to its board of governors in May.

So when they get their online ballots and remember the incumbents who voted for even higher costs to practice, maybe members will also recall the moral in Aesop’s Fox and Stork fable.  As the stork told the fox, “One bad turn deserves another.”

 

_______________________________________________________

[1] See International Survey of Attorney Licensing Fees data compiled July 1, 2013 by Office of Attorney Ethics of New Jersey.

[2] Oregon fees include a $30 “diversity and inclusion assessment” and $45 for the client security fund (CSF), leaving a balance of $447. Comparable cost is actually less but close to Arizona’s $460 fee, $10 of which is for the client protection fund (CPF)). But Oregon also requires members to buy high-priced co-op professional liability insurance, which runs $3,200 per year even with modest coverage limits. There’s no deductible or penalty premium for purportedly high risk practice areas. In Hawaii, $34 is allocated to the Attorney Assistance Program and $30 to CSF. The remaining $440 is actually less than but very close to Arizona’s current fee of$460. Minus $65 for Legal Aid, the comparable cost in Texas is actually $235, considerably less than Arizona’s fees. Fees in Wisconsin include $50 for Legal Aid; $11 for a Mandatory CLE Fee; and $20 for CSF. That leaves $379, a comparable cost also less than Arizona’s fees. Based on all this, Arizona is actually ranked third in cost to practice. And while Alaska is Number One, it only requires 3 hours of CLE compared to Arizona’s 15. “Active Bar members are required to earn 3 ethics credits, encouraged to earn 9 additional credits, and required to file an MCLE Report each year.” See Alaska Bar Association MCLE at https://www.alaskabar.org/servlet/content/mcle.html. This effectively makes the cost lower to practice in Alaska than in Arizona. But then I’m adding bananas here to the apples and oranges. (Hat tip to D. M. Quinterri, Esq. for her additional data research!)

[3] “International Survey of Attorney Licensing Fees” data further notes Arizona has the highest fee for inactive attorneys. Op. cit.

_________________________________________________________

Photo Credits: Caricature from Punch magazine of Lily Langtry. From the Punch Christmas Issue, December 1890, “Punch Among the Planets” at Wikipedia Commons, Public Domain, available from Project Gutenberghttp://www.gutenberg.org/etext/13244

Read Full Post »

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.

Read Full Post »

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.

Read Full Post »

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

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

Forced mentorship.

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

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

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

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

No easy task.

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

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

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

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

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

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

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

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

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

 

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

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

_____________________________________________________________

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.

Read Full Post »

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Put that in your pipe and smoke it.

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

____________________________________________________

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.

Read Full Post »

“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.

Read Full Post »

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

Read Full Post »

File:Rembrandt Harmensz van Rijn - Return of the Prodigal Son - Google Art Project.jpgThe public and some lawyers may not realize this — but when it comes to lawyer disbarment — in most states, it’s not permanent. In Arizona and in 34 other states plus the District of Columbia, disbarred lawyers are permitted to apply for reinstatement. Which is not to say it’s easy to get back in.

Indeed, as the ABA Journal wrote last August, “Disbarred lawyers who seek reinstatement have a rough road to redemption.” According to that ABA Journal story, “While it’s not impossible for a disbarred lawyer to gain reinstatement, the odds are not in the lawyer’s favor, and few even try.”

Per a 2011 ABA Survey on Lawyer Disciplinary Systems reported by the ABA Journal, of the jurisdictions responding, only 67 reinstatement applications were approved out of 674 filed petitions, motions or requests for reinstatement or readmission.

Lawyer sinfulness.

Face of Man SP_5316Every jurisdiction takes pains to affirm how attorney discipline is meant to protect the public and the courts; instill public confidence in the integrity of lawyer regulation; and deter attorney misconduct. It’s not a criminal proceeding. Nor is it supposed to supplant a civil remedy.

And since it’s repeated so often that those who say it believe it, lawyer discipline is also not supposed to be punitive — even if for those on the receiving end it’s a distinction without a difference as they mouth “spare me through your mercy, don’t punish me through your justice.”

Besides, as the late Admiral Rickover once admonished, “If you are going to sin, sin against God, not the bureaucracy. God will forgive you but the bureaucracy won’t.”

So 3 years and 9 days after Arizona adopted new attorney disciplinary rules modeled on Colorado’s purported “Best in Class” system, Arizona’s presiding disciplinary judge has petitioned the state’s high court to amend the existing rules so that “a lawyer who has been disbarred many not apply for reinstatement.”

Hand claspA solution in search of a problem? Who can say? And why now? But no matter, in light of the Arizona Bar’s reputation among ethics defense counsel for its prosecutorial zealotry, it’s the logically predictable terminus.

Yes, disbarment is not currently permanent in Arizona. It’s a suspension with possibility of reinstatement after 5 years. But reinstatement is uncertain, difficult, time-consuming, onerous and expensive. And depending on the nature of the suspension, some lawyers even face a rebuttable presumption of disqualification for reinstatement. “Sinners in the Hands of an Angry God” may have it easier.

Ohio, Oregon, New Jersey, Kentucky, and Indiana require that all disbarments be permanent. Eight other states, California, Louisiana, Alabama, Arkansas, Minnesota, Florida, Illinois, and West Virginia, impose permanent disbarment but only for what they deem the most egregious cases. And two other states, Iowa and Kansas, have constructively adopted a permanent disbarment policy since reinstatement there is rarer than a hen with a toothbrush.

Judges GavelProfessional death penalty.

In his petition, Judge William J. O’Neil wrote it’s not his intent “to advocate for either of the proposed changes but rather to assure both public discussion and clarity within the rules regarding disbarment.”

The petition asserts the proposed amendments are offered “to initiate a fuller discussion regarding the sanction of disbarment arising out of Rule 58, discipline matters. The amendment offers discussion points for alternative changes to the reinstatement process for disbarred lawyers.” It also asserts there’s a need for greater clarity.

Although as for the ‘clarity’ of those ‘alternative’ proposals, it’s not clear how they’re fundamentally different. One amends Rule 64 (d) to now state, “A lawyer who has not been disbarred may not apply for reinstatement.” And the other alternative, Permanent Disbarment as an Alternative Sanction, adds permanent disbarment as an additional discipline.

And quite superfluously, given the Constitutional unseemliness of imposing ex post facto sanctions on the already disbarred, Judge O’Neil further explains that he isn’t suggesting “that in the event of approval . . . that the changes be applied retroactively to those members present disbarred.” No doubt this means disbarred former county attorney Andrew Thomas can breathe easier as he plans his comeback.

Meantime, I wouldn’t bet against this sua sponte move that institutionalizes a professional ‘death penalty’ on Arizona lawyers who run seriously afoul of their professional ethical rules — in“the most egregious circumstances.” Moreover, by adopting permanent disbarment, does Arizona now aspire to place itself ahead of the “Best in Class” Centennial State when it comes to sanctioning lawyers?

I doubt, however, the folks in Colorado will much care. Disbarred Colorado lawyers already have a waiting period as long as 8 years before trying reinstatement so it might as well be permanent. No wonder, then, that former head of Colorado’s Office of Attorney Regulation Counsel John Gleason cavalierly told the ABA Journal, “My experience is that lawyers who are disbarred are generally unhappy with their work as a lawyer. They’ve probably found a position they’re happy in and have no interest in coming back. It’s a fairly low percentage of lawyers who seek reinstatement.”

_____________________________________________________________

Photo Credits: Rembrandt van Rijn, The Return of the Prodigal Son, c. 1661–1669, at Wikipedia Commons, public domain.

Read Full Post »

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

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

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

A widespread problem?

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

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

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

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

Not much data.

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

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

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

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

Mandatory mental health.

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

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

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

_____________________________________________________________

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

By Michael Cicchini, MBA, CPA, JD

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

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

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

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

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

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

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

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

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

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

_____________________________________________________________

Read Full Post »

People 7109

Caginess or coincidence? No matter. It’s all good.

Four years after the ABA made changes to its Professional Conduct Model Rule concerning the “Special Responsibilities of a Prosecutor” and eighteen days after the “Arizona Republic” ran its multi-part series on prosecutorial misconductand following much protracted consideration, the Arizona Supreme Court finally amended Rule 42, ER 3.8 that identifies prosecutors’ post-conviction obligations when they know of new evidence establishing a reasonable likelihood a convicted defendant was innocent of the offense and addressing those circumstances when a prosecutor has a disclosure obligation and a duty to investigate and to take remedial steps to rectify the conviction.

The state’s highest court also enacted a new rule, ER 3.10, “Credible and Material Exculpatory Information about a Convicted Person.” The new rule follows the same principles underpinning the rule for prosecutors and imposes responsibility on all Arizona lawyers who credibly know of exculpatory evidence to promptly disclose that “credible and material evidence that a convicted defendant did not commit an offense of which the defendant was convicted.” 

LAW AND JUSTICE 133The Comment to ER 3.10 explains: “Rectifying the conviction and preventing the incarceration of an innocent person are core values of the judicial system and matters of vital concern to the legal profession. Because of the importance of these principles, this Rule applies to all members of the Bar except prosecutors, whose special duties with respect to disclosure of new, credible and material exculpatory evidence after conviction set forth in ER 3.8 (g), (h), and (i).”

woman giving thumbs up 3 L uidNo diddling, however, on the part of the Arizona State Bar. One day after the Court’s pronouncement, the Bar emailed all its members with news of a new CLE webcast, “Post-conviction Disclosure: Changes to ER 3.8 and new ER 3.10.” It’s one hour of mandatory continuing legal education in ethics for $39.00.

Small favors. At least the Arizona Bar’s not nicking its lawyers like ALI CLE for CLE likes to do. That organization is quite ‘proud’ of its one-hour webcasts, which typically come in at just two sawbucks shy of $200.

FREE CLE

But happily for lawyers who just want CLE that’s FREE, there are complimentary programs still available elsewhere. Along with the usual disclaimers of continued access, content and availability of jurisdictional credit, here are the latest FREE CLE updates.

_____________________________________________________

Florida State Bar

Overview of Trust Accounting 2013

(1) Hour Complimentary On-demand Online CLE – Ethics

______________________________________________________

Wolter Kluwer Corporate Legal Services /CT Corporation

Delaware’s Business Entity LawsWebinar- December 4, 2013 1:00 P.M. (Eastern)

Learn about Delaware’s business entity formation and post-formation provisions.

(1) Hour Complimentary CLE

______________________________________________________

Practising Law Institute (PLI)

PLI: Seminars - Ethical Issues in Pro Bono Representation 2013 (Free)

December 16, 9:00 a.m. - 11:10 a.m.  (E.S.T.)

(2) Hours Free CLE Credit, Ethics (New York & other jurisdictions)

Troubleshooting Mortgage Servicing Problems: Regulatory Responses and Advocacy Approaches

San Francisco and Live Webcast, December 16, 2013
9:00 a.m. – 12:30 p.m. PT

(3.5) Hours FREE CLE Credit (Professional Practice in NY) Check other jurisdictions.

______________________________________________________

thetrustadvisor.com

The Future of Trusts, Wills & Estate Planning: Predictions that May Impact Your Clients’ Income, Wealth & Lifestyle

Date: Thursday, November 21, 2013

Time: 2 PM (EST) 11 AM (PST) 12 PM (MST) and 1 PM (CST)

60-minute teleconference:

  • “How electronic wills will shape the future of estate planning.
  • Where asset protection planning is going and why.
  • How directed trust arrangements will shape the future of investing in the next 10 years.
  • How outsourcing will help both advisor and planner alike.
  • Why services like LegalZoom will be the new norm for services providers going forward.
  • Why brick and mortar offices will become an advisors ball and chain.”

Click Here to Register Online or call 1-866-754-6477

______________________________________________________

Read Full Post »

Older Posts »

Follow

Get every new post delivered to your Inbox.

Join 111 other followers