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The mandatory-membership State Bar of Nevada has been on a troll. Petal by petal, Nevada lawyers are finding the Daisy Oracle’s divining just one answer. When it comes to their bar’s affections — she loves them not.

15simplependulum.gifNot too long ago Nevada’s bar was rightly criticized for indifferent handling of bar complaints. Inattention caused a backlog of attorney complaints. In response, the bar hired a new prosecutor to head Nevada’s Office of Bar Counsel. But in the minds of some lawyers, the result was an overreaction — an excessively prosecutorial pendulum swinging way past the other side.

Alongside this perceived heightened hostility, the Nevada bar’s tone-deaf governing board started amping up a series of alarmingly adverse initiatives — each a solution in search of a problem. Fortunately, thanks to member uproar some of what the board spewed out was dispersed away — like a speech code petition that would have unconstitutionally restricted lawyer free speech, free exercise of religion, and freedom of association.

Likewise, another ill-conceived, under-studied board initiative to impose trust account random audits was also denied by a dubious state supreme court concerned about the untold costs on lawyers forced to pay for audits — whether they were warranted or not.

But other board schemes did not go by the wayside. These include a needless increase in mandatory continuing education hours via a new mental health and addiction credit requirement and a freshly implemented $100 bar tax on lawyer advertising. In addition, Nevada lawyers with the temerity to take continuing legal education courses from non-bar accredited providers are now subject to what amount to penalty fees.

But that’s not all. Already one of the top five highest cost to practice states, things will get exponentially more expensive for Nevada’s lawyers if a pending petition to require legal malpractice insurance gets approved. Like the board’s other harebrained ideas, it’s also evoked strong member dissent.

The malpractice insurance proposal — a boon to insurers — is the governing board’s lame response to recent news stories about lawyer theft and exploitation of the vulnerable.

But it’s especially galling since it won’t protect victims. Malpractice insurance won’t pay any claims to those injured by a lawyer’s criminal acts. Everyone except apparently a grandstanding board knows that legal malpractice policies exclude claims arising out of dishonest, fraudulent, criminal, malicious, or deliberately wrongful acts, errors or omissions.

These days, it’s hard to keep up with all the meddling. As with all mandatory bars, those in power prefer to operate below-the-radar with as little notice as possible. Remarkably, some lawyers in Nevada have started to pay attention at the wave of noxious Nanny-state runoff flowing from the board.

When will it end? It’s hard to say. The past several bar presidents have been cookie-cutter activists self-anointed with their own overweening meddlesome mandates each seemingly trying to outdo their immediate predecessor.

It’s been said legacy is just another name for ego. And do these folks have egos. In April, the Nevada Bar unveiled a Past Presidents Wall of Fame and feted these erstwhile ‘luminaries’ at a reception held at bar headquarters.

The easiest money to spend is always somebody else’s — such as the mandatory monies of Nevada lawyers forced to join and fund the State Bar of Nevada in order to practice law.

At long last some lawyers are waking up. They’re getting restless, rebellious and restive. Three of the four incumbent board members in Clark County, for instance, were just voted out of office following board elections this past June. They were replaced by three reform-minded governors. Unfortunately, the three reformers will be outnumbered on the 15-member board. But it’s a start. Kudos to Nevada’s Clark County lawyers for administering an overdue reality-check. By contrast there’s nary a reformer in sight on the Arizona bar’s board.

Regulator or Trade Association?

Mandatory bar associations can’t figure out whether they’re regulators fretfully charged with disciplining lawyers to protect the public or fun-loving trade associations looking out for lawyers.

It gets confusing even for bar governing boards let alone bar members. All mandatory bars suffer from the same regulator/trade association confusion. A lawyer recently running for bar president in Texas, for example, brought a refreshing take on his presidential vision. On his campaign website, he declared, “the State Bar should be in the customer service business with Texas lawyers being the customers.”

More often, particularly in Nevada, the vision is anything but customer-friendly. Just the same on its website, the Nevada Bar says its “Mission is to govern the legal profession, to serve our members, and to protect the public interest.”

First do no harm.

In Arizona, governing board members are required to take the pledge. Unfortunately, it’s the wrong pledge. Having imposed a “Code of Conduct” on board members, the Arizona Bar requires their loyalty and “respect” for “the validity of the Board’s decisions and their value to the organization, even if not in the voting majority.” The Code further obligates board members to “uphold and enhance the reputation and public image of the Bar.”

More preferable in my opinion is an oath modeled on the physicians’ Hippocratic Oath. Before taking office, mandatory bar board members everywhere should be forced to swear to “primum non nocere,” – first, do no harm. Help if you can but at least do no harm.

This new pledge, though, is merely a stopgap. The true remedy is to uncouple the regulatory and the trade association functions performed by mandatory bars. Eliminate the confusion and the inherent conflict of interest of trying to serve two masters — the public and lawyers. It can’t be done. Recent board history in Nevada amply bears this out.

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Credit: 15simplependulum by Lookang at Wikimedia Commons Creative Commons Attribution-Share Alike 3.0 Unported

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Note: These days accountability is in short supply, it always being easier to blame the other guy when something bad happens. This is especially the case when talking about those wielding unalloyed political, financial, legislative, prosecutorial, religious or as the following lays out law enforcement power.

Standing in the way of holding the powerful accountable is the doctrine of “qualified immunity, which, “balances two important interests—the need to hold public officials accountable when they exercise power irresponsibly and the need to shield officials from harassment, distraction, and liability when they perform their duties reasonably.” Pearson v. Callahan.

Lawyers, too, can find themselves without remedy when confronted by a version of the doctrine in the disciplinary process. Lawyers accused of ethical violations but subsequently exonerated of wrongdoing hit their own roadblocks to relief via versions of this qualified immunity doctrine or more commonly its big sister, absolute immunity. Many if not all jurisdictions deem all participants in the lawyer disciplinary process “absolutely immune from civil liability.” Rare indeed is the jurisdiction carving out an exception to a bar prosecutor’s claimed immunity.

As borne out by those supporting a challenge to the doctrine that may hopefully be heard next term by the U.S. Supreme Court, qualified immunity has over time simply become a free pass. The principle that ‘no one is above the law’ is treated like a long-past fancy. It’s nigh time, then, for the nation’s highest court to revisit and restore that principle. The following is reblogged verbatim from Cato at Liberty, The Cato Institute under Creative Commons Attribution-NonCommercial-ShareAlike 4.0 International Public License.

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Leading Scholars and Most Diverse Amici Ever Assembled File Briefs Challenging Qualified Immunity

I’ve previously blogged about Allah v. Milling, a case in which a pretrial detainee was kept in extreme solitary confinement for nearly seven months, for no legitimate reason, and subsequently brought a civil-rights lawsuit against the prison officials responsible. Although every single judge in Mr. Allah’s case agreed that these defendants violated his constitutional rights, a split panel of the Second Circuit said they could not be held liable, all because there wasn’t any prior case addressing the “particular practice” used by this prison. Cato filed an amicus brief in support of Mr. Allah’s cert petition, which explicitly asks the Supreme Court to reconsider qualified immunity—a judge-made doctrine, at odds with the text and history of Section 1983, which regularly allows public officials to escape accountability for this kind of unlawful misconduct.

I also blogged about how, on June 11th, the Supreme Court called for a response to the cert petition, indicating that the Court has at least some interest in the case. The call for a response also triggered 30 days for additional amicus briefs, and over the last month, Cato has been coordinating the drafting and filing of two such briefs—one on behalf of a group of leading qualified immunity scholars (detailing the many recent academic criticisms of the doctrine), and the other on behalf of an incredibly broad range of fifteen public interest and advocacy groups concerned with civil rights and police accountability.

The interest-group brief is especially noteworthy because it is, to my knowledge, the single most ideologically and professionally diverse amicus brief ever filed in the Supreme Court. The signatories include, for example, the ACLU, the Institute for Justice, the Second Amendment Foundation, Americans for Prosperity (the Koch brothers’ primary advocacy group), the American Association for Justice (formerly the Association of Trial Lawyers of America), the Law Enforcement Action Partnership (composed of current and former law-enforcement professionals), the Alliance Defending Freedom (a religious-liberties advocacy group), and the National Association of Criminal Defense Lawyers. The brief’s “Statement of Interest” section, after identifying and describing all of the individual signatories, concludes as follows:

The above-named amici reflect the growing cross-ideological consensus that this Court’s qualified immunity doctrine under 42 U.S.C. § 1983 misunderstands that statute and its common-law backdrop, denies justice to victims of egregious constitutional violations, and fails to provide accountability for official wrongdoing. This unworkable doctrine has diminished the public’s trust in government institutions, and it is time for this Court to revisit qualified immunity. Amici respectfully request that the Court grant certiorari and restore Section 1983’s key role in ensuring that no one remains above the law.

The primary theme of this brief is that our nation is in the midst of a major accountability crisis. The widespread availability of cell phones has led to large-scale recording, sharing, and viewing of instances of egregious police misconduct, yet more often than not that misconduct goes unpunished. Unsurprisingly, public trust in law enforcement has fallen to record lows. Qualified immunity exacerbates this crisis, because it regularly denies justice to victims whose constitutional rights are violated, and thus reinforces the sad truth that law enforcement officers are rarely held accountable, either criminally or civilly.

Moreover, qualified immunity not only hurts the direct victims of misconduct, but law enforcement professionals as well. Policing is dangerous, difficult work, and officers—most of whom do try to uphold their constitutional obligations—increasingly report that they cannot effectively carry out their responsibilities without the trust of their communities. Surveys of police officers thus show strong support for increased transparency and accountability, especially by holding wrongdoing officers more accountable. Yet continued adherence to qualified immunity ensures that this worthy goal will never be reached.

The Supreme Court is in recess now, and the defendants’ response brief won’t be due until September 10th, so we’re going to have to wait until early October to find out if the Supreme Court will take the case. But the Court, the legal community, and the public at large should now be aware that criminal defense lawyers, trial lawyers, public-interest lawyers of every ideological stripe, criminal-justice reform groups, free-market & limited-government advocates, and law enforcement professionals themselves all agree on at least one thing—qualified immunity is a blight on our legal system, and the time has come to cast off this pernicious, counter-productive doctrine.

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Photo Credit: Hiding, by Kristin Schmit, at Flickr Creative Commons Attribution License.

In deciding Janus v. AFSCME for Mark Janus today, the U.S. Supreme Court by a vote of 5 to 4 overturned Abood v. Detroit Bd. of Educ., 431 U.S. 209 (1977). The ruling was widely expected.

In overruling Abood, the nation’s high court said that Illinois’ extraction of agency fees from nonconsenting public-sector employees like Mark Janus violated the First Amendment. In other words, the Court said that the First Amendment protects public employees from being required to support a private group whose views may differ from theirs. Abood, the Court said, “has proved unworkable.”

For lawyers forced to join and to fund a state’s mandatory bar association this is wonderful news. Abood was the linchpin case upon which mandatory membership bars comprehensively ordered their activities. Today’s Janus ruling breaks one leg off the stool mandatory bars plop down on to straddle lawyer First Amendment rights.

Abood and Keller.

In Abood, the Court ruled unanimously that union shop clauses in public sector collective bargaining agreements could not be used to compel nonunion employees to fund the union’s political or ideological activities to which they objected. The Court, however, also held that nonunion public sector employees could be required to fund union activities related to “collective bargaining, contract administration, and grievance adjustment purposes.”

Abood was subsequently used to underpin Keller v. State Bar of California, the U.S. Supreme Court case that said mandatory membership bar associations could use compulsory members’ dues only for regulating the legal profession or improving the quality of legal services — not for political or ideological activities.

Nonetheless, ever since Keller was decided, lawyers have objected to the inherent conflict of interest that exists when mandatory bars — in line with the ruling in Abood — are the sole arbiters deciding which of their activities are “germane” to the permissible purposes of lawyer regulation or improving the quality of legal services (chargeable expenditures) and which activities are political or ideological and therefore not germane (non-chargeable expenditures).

In highlighting Abood‘s infirmities, the Court declared “its line between chargeable and nonchargeable expenditures has proved to be impossible to draw with precision.”

But since member non-transparency is their stock in trade, mandatory bars have historically never bothered with such ‘trifles’ — ignoring altogether the line between chargeable and nonchargeable expenses. ‘Germaneness’ analysis? What’s that?

This is why a good case can be made for the inability and the unwillingness of mandatory bars to determine what are chargeable or nonchargeable expenditures. Lawyers, like public sector employees, have similarly faced what the Court termed “a daunting and expensive task if they wish to challenge union chargeability determinations.”

No more opt-out — affirmative consent required.

Prior case-law required notices with “sufficient information to gauge the propriety of the union’s fee.” The reality, however, has been different. The unions, including AFSCME, have failed to provide sufficient information to permit such a determination. Indeed, the Court Opinion included “some examples regarding the Union respondent’s expenditures.” The Court listed “categories of expenses’ and the amount in each category “said to be attributable to chargeable and nonchargeable expenses.”

“How could any nonmember determine whether these numbers are even close to the mark without launching a legal challenge and retaining the services of attorneys and accountants? Indeed, even with such services, it would be a laborious and difficult task to check these figures.” at 41.

Interestingly, these vague, imprecise expenditure declarations frankly bear a strong resemblance to the unhelpful high-level expenditure disclosures provided by mandatory bars such as Nevada and Arizona.

Forget for now the fox assigning herself to count the chickens in the hen-house. Mandatory bars do like hanging their capes on what they say is their members’ ability to object and to request a refund– albeit after-the-fact — of any expenditures objectors believe are political or ideological. If the objection is successful, objecting members can expect at best a nickel ninety-eight refund for their trouble.

And in even in those jurisdictions where lawyers can opt out of a bar’s self-serving penny-ante lobbying expenditure calculation, it still requires lawyers to affirmatively check a box on the dues invoice to get the measly deduction.

Happily for mandatory bar members everywhere, the Court today, also ruled that taking money from nonconsenting employees for a public-sector union is a First Amendment violation. Employees must choose, the Court said, to support the union before anything is taken from them. “Accordingly, neither an agency fee nor any other form of payment to a public-sector union may be deducted from an employee, nor may any other attempt be made to collect such a payment, unless the employee affirmatively consents to pay.”

And while lawyers and their trade associations are not exactly identical to public employees and their unions, there’s nonetheless a long line of cases, including Keller, that have consistently analogized bar associations to union shops. For this reason, mandatory bars were apprehensive about the demise of Abood. Little wonder that 21 former Presidents of the District of Columbia Bar signed an amicus brief asking the Court to leave Abood “undisturbed.”

The ex-bar presidents claimed, “The Abood/Keller line of cases represents a firmly rooted body of law upon which not only states and unions but also integrated bars, File:Aimee Semple McPherson-AngelusTemple Sermon 1923 01.jpgincluding the D.C. Bar, have long relied in structuring their activities. Overruling Abood would have a profoundly destabilizing impact on bars all over the country.”

So expect reverberations at the nation’s mandatory bar associations — whether engendered voluntarily or mandated by external forces.

All that aside, I can scarcely wait for the reaction of mandatory bars across the nation to Janus, especially in jurisdictions with particularly restive members such as Arizona, Nevada, Washington and Wisconsin.

But expect mandatory bar leaders not to go along quietly or quickly to restructure operations in accord with today’s decision.

Instead, they will pretend it’s business as usual. Abood or not, still others may piously prattle and parse that “Keller-purity” means “Janus-purity,” too.

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Credits: Thumbs up for PYPS, by Alex Luyckx at Flickr Creative Commons Attribution; Paul gives the thumbs up, by Mikey at Flickr Creative Commons Attribution; normal, happy, sad, by David Pacey, Flickr Creative Commons Attribution; Aimee Semple McPherson. Wikimedia Commons, public domain.

What all my criminal defense attorney pals long believed to be true got some supportive press this week along with some empirical backing. Defense lawyers know the criminal system is broken largely because of prosecutorial misconduct and the failure of some courts to act as “the guardian of our constitutional rights.”

https://upload.wikimedia.org/wikipedia/commons/thumb/4/4f/M2500_washed_sand_on_conveyor_%286238147930%29.jpg/320px-M2500_washed_sand_on_conveyor_%286238147930%29.jpgIndeed, as one of those defense lawyer friends who’s also a scholar writes, “Prosecutorial misconduct has infected every stage of the criminal process ranging from the initial charging decision through post-conviction proceedings.”

Moreover, in the words of a dissenting jurist, criminal defendants, especially the indigent, are treated like just another fungible item to be shuffled along on a criminal-justice conveyor belt.”

Several days ago, Nina Morrison, a senior staff attorney at the Innocence Project in New York, wrote a scathing op-ed in The New York Times, What Happens When Prosecutors Break the Law?”

https://cdn.morguefile.com/imageData/public/files/c/click/preview/fldr_2008_11_08/file000521358819.jpg“All too often,” she wrote, the justice system“falls silent when the culprit is a prosecutor, and the victim is an ordinary citizen accused of a crime.”

Relying on a recent case to make the point that misconduct by prosecutors too often goes unpunished, she discusses what happened when Suffolk County, NY homicide prosecutor Glenn Kurtzrock was caught violating Brady v. Maryland, 373 U.S. 83 (1963). This is the U.S. Supreme Court decision that requires prosecutors to turn over any materially exculpatory evidence in the government’s possession to defendants. Well, Kurtzrock was caught withholding exculpatory evidence in violation of Brady in multiple cases.

“So what happened to Mr. Kurtzrock?” Morrison asked.

Nothing.

Thirteen months after his public firing, and five murder cases overturned because of his illegal actions, Mr. Kurtzrock hasn’t been charged with a single crime. Not fraud, not tampering with government records, not contempt of court.

And he hasn’t even been suspended from practicing law, much less disbarred. He’s now working as a defense lawyer in private practice. That’s right: he’s making a living representing people accused of crimes, in the same courthouse from which he was (supposedly) banished a year ago. His law firm website even touts his experience as a “former homicide prosecutor.”

The law also makes it virtually impossible for Mr. Kurtzrock’s victims to sue him, with the Supreme Court having declared that individual prosecutors and their offices are “immune” from civil rights lawsuits in all but the rarest of cases.

Nina Morrison’s commentary should be widely read.

Verifiable support.

Empirically speaking, the current Houston Law Review as usefully summarized by the website, The Open File, at TX: In Harris County Capital Cases, Prosecutors Get to Be the Judges,” discusses what they call a “thorough and definitive” essay, “The Problem of ‘Rubber-Stamping’ in State Capital Habeas Proceedings: A Harris County Case Study,” by Jordan Steiker, James Marcus, and Thea Posel.

It’s about “how Harris County criminal court judges act as little more than feckless vessels, used by prosecutors to sign off on whatever version of events the local prosecutors believe will be most helpful to their litigation interests.”

The researchers examined 199 Harris County capital post-conviction cases since 1995 to find that

Harris County post-conviction prosecutors have authored and proposed 21,275 separate findings of fact and conclusions of law and the Harris County courts have adopted 20,261 of the prosecutors’ proposed findings verbatim: an adoption rate of 95%. In fact, judges in Harris County have adopted all of the prosecutors’ findings verbatim in 183 out of 191 sets of findings, or 96%. In the vast majority (167) of those cases, the judges simply signed the state’s proposed document without changing the heading.

[The lawyers, policy advocates, law professors and students at The Open File were galvanized to write about prosecutorial misconduct and system failure by the 2011 U.S. Supreme Court case, Connick v. Thompson, a decision that also raised my hackles here.]

But what’s most concerning about the Harris County case study is what The Open File author opined, “More studies like this one ought to be undertaken to uncover these practices in other parts of the nation. It would not surprise us if the percentages of rubber-stamped recommendations in many death penalty jurisdictions rival the Harris County findings.”

And summing up, he declared, “Prosecutors do not need any more power than they already possess. Letting them act simultaneously as judge and prosecutor makes a mockery of due process and our criminal courts.”

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Credits: “washed sand on conveyor,” by Peter Cravens, Wikimedia Commons, creative commons attribution generic license; “justice,” morguefile.com.

https://cdn.morguefile.com/imageData/public/files/b/BonnieHenderson/01/l/1451713664si0nf.jpgThis week signals the official start of summer, which also means — it’s state bar convention time! The annual silly season has begun.

In addition to being the last continuing legal education money grab for state bars before the fiscal year ends, it’s also the annual “orgy of self-adulation”like the Oscars for bar insiders and connected elites.

Lawyers you never heard of — chosen by who-knows-who — will get awards only recipients will care about.

And oh, yeah incoming bar leaders will fatuously speechify after being pompously sworn in.

The Texas, South Dakota and Wisconsin Bar Annual Conventions started this week. Next week Arizona holds its 2018 State Bar of Arizona Annual Convention.

Termed its “flagship event,” Arizona conventioneers can anticipate at least a partial antidote to the rest of the Butt-Numb-A-Thon with a Thursday Party and the State Bar’s “Lawyers Got Talent” Contest.” And the jokes almost write themselves — a lawyer amateur talent show.

Anyhow, if there’s a dance competition, I hope these guys show up. They’re among Arizona’s cheekiest, ineradicable personal injury advertisers. Ka-ching! — they even bought a full-page color ad in the convention brochure. And with dance steps like these, how can they miss?

The Naked Truth.

In truth, the silliness started months ago. In March, the Utah State Bar inadvertently emailed a photo of a topless woman to every lawyer in the state to herald its upcoming Spring Bar Convention.

ABA Journal recounted, “The message, sent to all active Utah lawyers, was intended to promote the bar’s spring convention, reported the Salt Lake Tribune, the Deseret News and Above the Law, which posted the email and the nude photo (not safe for work) here. The email also included photos of a clothed Lady Justice statue and a rock formation.”

Embarrassed bar officials tweeted “Apologies to all who received an inappropriate email from the Utah State Bar. We are aware of the situation and are investigating the matter.”

And underscoring how you can’t make this stuff up, the Utah Spring Bar Convention kickoff reception also featured, “the 16th Annual “Secret Lives of Lawyers” Silent Auction.” See “Utah State Bar sends every local lawyer an email of a topless woman.”

Parenthetically, the Utah Bar holds not just one yearly convention — but two. The Summer Convention is July 25-28 in St. George — undoubtedly with new safeguards to prevent another bare-chested recurrence.

‘How do I love me . . . let me count the ways.’

Generally speaking, bar conventions are not well attended. Well under 10% of the bar’s lawyers, for example, annually attend in Arizona and even fewer in Nevada. This is unlikely to improve, especially for Nevada, which continues to price itself out of reach of many members by holding conventions in expensive venues.

Last year’s convention was in Austin and the year before it was Hawaii. This year’s paean to self-congratulation is next month at Chicago’s iconic Drake Hotel. Registration for the Nevada Bar Convention comes in at a hefty $590 per registrant — likely the most expensive registration of any bar annual meeting this year.

Those paying the hefty fee on top of airfare and hotel expenses can at least look to their inclusion at the President’s Dinner. According to the convention brochure, “This semi-formal (black tie optional) event celebrates the recipients of the 2018 State Bar of Nevada’s Membership Awards and incoming bar President Rick Pocker, who will become the state bar’s 90th president. In addition to a plated meal, guests will be able to enjoy entertainment and dancing, as well as a red-carpet style photographed entrance.”

Not to be outdone, though, the Arizona Bar will similarly fete its incoming president and dole out member awards only the recipients care about. And why not? Patting yourself on the back is part and parcel of these annual meetings.

With a hat tip to my buddy, The Legal Watchdog, Wisconsin’s 2018 Annual Meeting & Conference starts June 21st and apparently still scrounging for attendees, bar cheeseheads mistakenly curtailed the registration deadline before extending it to the penultimate day.

And in a rather ironic programming twist, one of the plenary speakers is P.J. O’Rourke, “author, humorist, and political satirist.” I hope he includes some of his most quotable observations about hubris — “one of the great renewable resources” as well as his pointed observations on bureaucracy, greed, and power — in other words all the traits of a compulsory membership bar association.

I suspect, however, there may be limits to the silliness in Lake Geneva, WI. O’Rourke will probably leave out his lawyer jokes such as this chestnut: “During the mid-1980s dairy farmers decided there was too much cheap milk at the supermarket. So the government bought and slaughtered 1.6 million dairy cows. How come the government never does anything like this with lawyers?”

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Credits: silly, bonnie henderson at morguefile.com; Thank You Gif via Tenor; Blog OMG! by Mike Licht at Flickr Creative Commons attribution; Shocking!!! “that guy isn’t wearing pants,” by Chuck Olson, Flickr Creative Commons attribution license.

 

From the random notebook:

Presidential Pardons

The media has done a poor job in my opinion of explaining the Presidential Pardon power. First, it’s not unlimited. Second, it doesn’t extend to state crimes. (I won’t delve into whether or not a president can pardon himself notwithstanding President Trump’s claims that he can — other than to remark it’s open to constitutional interpretation depending on the legal eagle [or beagle] you ask). That said, under Article II, Section 2, Clause 1 of the U.S. Constitution, the president has the “power to grant reprieves and pardons for offenses against the United States, except in cases of impeachment.”

The U.S. Supreme Court affirmed the presidential pardon power in ex parte Garland, an 1866 case involving an Arkansas attorney who had served in the Confederate Congress and was thereafter refused admission to practice in the Supreme Court because he couldn’t [or wouldn’t] swear a Congressionally mandated loyalty oath. President Andrew Johnson gave Garland “full pardon and amnesty.” The question then became whether the bar admission law passed by Congress infringed on the president’s pardon power.

The Court ruled in Garland’s favor, declaring the president’s pardon power “extends to every offense known to the law, and may be exercised at any time after its commission, either before legal proceedings are taken, or during their pendency, or after conviction and judgment.” Also see “Presidential Pardons – ABA Legal Fact Check – American Bar Association” and “Trump can dodge federal crimes with pardons — but not state law.”

The other Kim.

https://upload.wikimedia.org/wikipedia/commons/thumb/9/95/Kim_Kardashian_2%2C_2012.jpg/164px-Kim_Kardashian_2%2C_2012.jpgWith President Trump pardoning the famous like Jack Johnson; the not-so-famous like conservative author and filmmaker Dinesh D’Souza; and possibly, the infamous, including former Illinois Gov. Rod Blagojevich, along with other assorted unmentionables the media has repeatedly failed to differentiate that those pardons involve federal crimes not state ones. ‘Blago,’ for instance, was convicted of federal corruption charges and it’s still uncertain whether he gets the nod. The president can’t pardon people convicted of offenses against the states.

So more recently when the other Kim got President Trump’s ear resulting in a sentence commutation for 63-year-old Alice Marie Johnson serving life in prison for a nonviolent drug conviction — the failure to clarify reared itself again. Just the same, good for Kim Kardashian West. But in the reality television world I can’t pinch myself awake from, it’s still important to keep the facts clear and straight.

Two more thoughts on mandatory bars.

https://cdn.morguefile.com/imageData/public/files/c/cyblor/01/l/1357158058o4ylu.jpgWhen fighting for legislative reforms of mandatory bar associations, there’s one bromide favored above all others by those opposed to even the slightest stirring of the legal establishment sacred cow. It’s the bunkum, “Why fix it, if it ain’t broke.”

Up until last week, I hadn’t heard as good a retort as the one favored by the late Ella Brennan. “Miss Ella” who died May 31 at age 92 was the famed New Orleans restaurateur whose crown jewel was Commander’s Palace. I dined there once and have to say it deserved every accolade. In an obituary in the Wall Street Journal this past weekend, mention was made of Brennan’s passion for learning, brainstorming and continual improvement encapsulated in what the paper declared was “one of her favorite maxims: ‘If it ain’t broke, fix it anyway.'”

The other thought I was struck by recently was a line in cultural and political commentator Jonah Goldberg’s June 1st installment, “Great Oaks Have Deep Roots,” in National Review. Among various topics, Goldberg reflected on the excesses of the Right and Left and “alienation from politics” while deconstructing what he said were public policy ends. The second point of his “three-point plan” resonated with me because it epitomizes what’s wrong generally with mandatory bar elites, particularly those of late running the Nevada State Bar.

“Second, we need a lot less nationalism (for want of a better term),” wrote Goldberg. “What I mean by that is that the federal government and various national elites need to stop thinking that the whole country needs to think and act in one way.” [emphasis added] This state-mandated one way thought and action is precisely what elites at mandatory bars like Nevada’s need to stop doing. Stop thinking that their state’s lawyers need “to think and act in one way.” What’s worse, of course, is that the one way is the one that they ordain.

You won’t find better examples of this holier-than-thou monistic my way-or-the-highway arrogance than in the last two “Messages From The President” in the May 2018 and June 2018 editions of the bar’s uninspiring house organ, Nevada Lawyer.

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It’s been awhile but below are the latest updated FREE CLE listings provided again with the usual disclaimers about content quality, continued availability, and jurisdictional creditworthiness.

FREE CLE

Collecting Responsive ESI from Difficult Places – June 20th, 12:00pm CT

by CloudNine on 5/31/2018

This CLE-approved* webcast will discuss what lawyers need to know about the various sources of ESI today, examples of how those sources of data can be responsive to litigations and investigations, and how lawyers may be able to collect much of this data today using intuitive applications and simple approaches.

Presented by:

William J. Kane, Director of the New Jersey Lawyers Assistance Program

Nancy Stek, Associate Director of the New Jersey Lawyers and New Jersey Judges Assistance Programs

From Distressed to De-Stressed

Presented by:

William J. Kane, Director of the New Jersey Lawyers Assistance Program

Nancy Stek, Associate Director of the New Jersey Lawyers and New Jersey Judges Assistance Programs.

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Lexis Nexis University

Blowing Smoke: Managing New Risks in the Workplace

  • Class Type: Virtual Training
  • Time: 12:00pm – 1:00pm EDT
  • Dates: 06/15/2018

Blowing Smoke: Managing New Risks in the Workplace

  • Class Type: Virtual Training
  • Time: 12:00pm – 1:00pm EDT
  • Dates: 07/13/2018

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Franczek Radelet

Webinar: Responding to Sexual Harassment in Schools

“In light of the #metoo movement and the current news coverage of high profile sexual harassment cases, we addressed the issue of sexual harassment as it applies to elementary and secondary schools. Specifically, we: (i) discussed the general obligation of a school district to respond to harassment claims by employees and students; (ii) offered an overview of state laws regarding sexual harassment policies, including the recently enacted Public Act 554 reported on here; and (iii) provided a checklist of action items schools and school districts should take to ensure they are prepared to properly respond to sexual harassment claims. Download the presentation here and watch the recording here. ”

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Fowler School of Law – Chapman University

“The school of law has certified several webcast archives for “self study” credit. Those webcasts marked with an “MCLE” notation will qualify for non-participatory “self study” MCLE for California attorneys for the amount of credit listed. Each webcast counts as general MCLE and does not count for special credit in any subject matter or required topic unless noted.”
https://www.chapman.edu/law/academic-programs/continuing-education.aspx

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Credits: Trump, by DonkeyHotey at Flickr via Creative Commons Attribution License; Kim Kardashian by Eva Rinaldi, Wikimedia Commons, via Flickr Creative Commons Attribution License; cow by cyblor, morguefile.com.

https://cdn.morguefile.com/imageData/public/files/d/DodgertonSkillhause/03/l/1456878178af2si.jpgSanta Clara County Superior Court Judge Aaron Persky was recalled Tuesday. He’s the jurist who faced huge blow-back for sentencing Stanford University student Brock Turner to what many believed a too lenient 6 months rather than as much as 14 years for sexual assault and attempted rape of an unconscious 22-year old woman. In a May interview the judge said he had no regrets over the sentence he gave Turner.

Persky, a judge since 2003, was turned out by the county’s electorate by a vote just under 60%. See “California Voters Remove Judge Aaron Persky.”

It’s been 86 years since a California judge was last recalled. It’s rare. Incumbent judges rarely lose. And so-called merit-selected judges up for retention also almost never lose. Yet given the overreaction of Judge Persky’s defenders, you’d have thought the legal system cratered. That’s because his defenders don’t put much stock on judicial accountability like they do on the sancrosanctity of judicial independence.

https://upload.wikimedia.org/wikipedia/commons/thumb/1/11/Angry_mob_of_four.jpg/320px-Angry_mob_of_four.jpg

At Flickr by Robert Couse-Baker, Creative Commons Attribution License

Per one account, “LaDoris Cordell, a retired judge and a spokeswoman for Judge Persky, called the recall an attack on judicial independence and said it had “encouraged people to think of judges as no more than politicians.” Conveniently omitted by the judge is that Persky was — after all — an elected public servant ultimately answerable to voters. Meantime, Palo Alto’s newspaper was also over-the-top editorializing that the Persky recall campaign had spawned “a lynch-mob movement that threatens the independence of the judiciary.”

And as for the ‘politicians in robes’ argument, it’s not like legal scholars haven’t argued that judges’ decisions are best explained by their political preferences.

Accountability

So what about the electorate? Are voters’ opinions irrelevant? And when did holding judges accountable become a kind of societal evil? Besides, if a judicial recall is wrong-headed, what other recourse is left to a community in cases like Judge Persky’s? Not even those opining against“recalling judges just because we don’t like their decisions” have good answers. Writing at The Hill lawyer Joel Cohen for one, swats at holding judges accountable, “But to the extent that judicial independence is a core value, we need to find a better way to ensure that decisions by elected state court judges don’t bow to the caprice of the electorate.”

Is there “a better way“? As it is, when judges engage in misconduct or violate professional ethics rules, judicial disciplinary commissions who operate mostly in secret mainly treat such ethics violations with wrist slips administered with kid gloves. An instance of one such wrist slap was the complaint of several years ago by the president of Houston’s defense bar association over the punishment meted out by the state commission on judicial conduct to former Judge Woody Denson. “Nothing ever happens, no one is ever disciplined and there’s no accountability back to anyone for anything,” he protested also adding “And it’s very secretive if anything ever does happen.”

It’s not just a Texas problem either. In 2015, St. Louis Public Radio ran a story about the alleged ineffectiveness of Missouri’s judicial watchdogs, “Missouri’s code of conduct for judges rarely leads to disciplinary action.” According to the report, “About 240 complaints are made against judges in the state of Missouri each year. When complaints are filed—and they can be, by citizens, city officials and other judges–they rarely result in disciplinary action.” Quoting St. Louis University Law professor Brendan Roediger, “The process is very secretive. Sometimes there were rumors around courthouses but that was about it.”

And according to a USA Today report, “Troubling trend: When judges need disciplining.“The Center for Judicial Ethics at the National Center for State Courts serves as a clearinghouse for judicial discipline and tracks misdeeds nationwide. Their records show that removing a judge from the bench is rare. In 2013, only five judges were removed from the bench nationwide, and 17 resigned or retired in lieu of removal. Also see Wisconsin’s Post-Current investigation, “Judges never evaluated, rarely challenged” and “Disciplinary Panel Rarely Takes Action Against Idaho Judges.”

Wikimedia Commons, public domain

To be clear, Judge Persky did not violate any canons of judicial ethics in People v Turner.  Moreover, the state commission on judicial performance concluded in its 12-page report “that there is not clear and convincing evidence of bias, abuse of authority, or other basis to conclude that Judge Persky engaged in judicial misconduct warranting discipline.”

Just the same, those campaigning against Judge Persky took exception calling the report:

a one-sided, closed-door proceeding that resulted in an error-ridden report (the “Persky Report”) by an agency with a long history of protecting judges. The Commission only imposes discipline in approximately 3% of cases, even though one study showed that similar states impose discipline at three to four times that rate. At the same time, the Commission refuses to provide any information about why it disciplines judges at such a low rate. In 2016, the Commission sued to block the State Auditor from completing a performance review ordered by the state legislature. As a result of this lack of transparency and oversight, the respected Center for Public Integrity recently gave California an “F” for judicial accountability in a detailed state study.

Recall proponents justified their campaign because, “It’s clear we need judges who understand sexual assault and violence against women and take it seriously. It’s up to us, the voters, to make a difference.”

In other words, when elected officials are found wanting and oversight watchdogs are napping under a tree, it’s left to the people to act as a final check. Long ago in his 1801 letter to Benjamin Waring Thomas Jefferson wrote, “The will of the people. . . is the only legitimate foundation of any government, and to protect its free expression should be our first object.”