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In June I wondered whether the Nevada Bar would be first to impose an unconstitutional speech code on their members. In May, that Bar’s governing board had filed a petition asking the state supreme court to amend a lawyer professional conduct rule, specifically ABA Model Rule 8.4(g).

Purporting to prohibit lawyers from engaging in harassing or discriminatory conduct, the new, vague, and over broad ABA Model Rule 8.4(g) would have chilled free speech; weaponized lawyer discipline; and infringed on lawyers’ free exercise rights.

Surprise, surprise, surprise!

As it happens, though, another state beat Nevada to the punch. In August, Vermont surprised a lot of people — not the least being Vermont lawyers — to become the first and so far, the only jurisdiction to adopt the ABA’s suggested model rule.

Noting how there were “zero public comments submitted,” law professor Josh Blackman wrote on his blog, “The bar counsel for the state’s professional responsibility program boasted, “So as you can see, this rule obviously had a lot of support.” 

Opposition in Nevada

As for Nevada, acknowledging that “many comments were filed in opposition . . . that caused the Board to pause,” the Nevada Bar backed off its rule change petition in a letter to the state high court declaring “it prudent to retract.” Just the same, in what seems little more than face-saving, the Board also expressed its “reservation to refile” if and when supposed inconsistent language in other jurisdictions is sorted out. That all this so-called inconsistency in other jurisdictions was already well-known is, of course, unmentioned. Every jurisdiction, after all, is free to adopt its own professional conduct rules.

It’s also worthy of note that though the court twice extended the public comment period, no comments were ever filed in favor of the Bar’s petition. All comments filed were opposed. The Board’s request was granted September 25, 2017.

So Vermont notwithstanding, the proposal has to date continued facing strong opposition not just in Nevada but elsewhere. The key is lawyers being adequately informed about it. What has to be overcome are the preferences of mandatory bar majordomos inclined toward the enactment of onerous initiatives as fait accompli with little preceding notice, detection or commotion. But when lawyers are told and widely noticed the opportunity to comment, legal elites have problems flying their officious meddling under-the-radar.

So far the proposed ABA Model Rule 8.4(g) has been turned back in other states, including Illinois, South Carolina and Louisiana. It has been roundly criticized in Texas and failed to find traction in Montana. See “Montana legislature says ABA model rule on discrimination and harassment violates First Amendment.”

The rule is currently under review in Utah but has encountered powerful headwinds there, too. It is opposed in Idaho. And in Arizona, opponents are galvanized to fight an ABA Model Rule 8.4(g) petition queued up for January 2018.

Yet despite all this, this month the ABA Journal took artistic license to soft pedal the reality of this mounting widespread antagonism to the lawyer speech code, writing, “States split on new ABA Model Rule limiting harassing or discriminatory conduct.”

Vermont, apparently, wasn’t an outlier. “States split,” they say.

And I’m a superhero.

Alternative facts, alas, remain in vogue.

 

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Credits: “Oral Exam,” by Ben Sutherland at Flickr Creative Commons Attribution; “What,” by Alexander John, Flickr Creative Commons Attribution; “40+112 Superhero Fail,” by Bark at Flickr Creative Commons Attribution.

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Who knew President Trump was on to something? Forget ‘finger lickin’ goodness. Taking the President’s lead, fried chicken may be safest eaten with a knife  — not just a spork.

Well at least that was the lawsuit filed October 31, 2016 against Popeyes Louisiana Kitchen, Inc., et al. by Gulfport, Mississippi lawyer Paul Newton Jr.

In his complaint, Newton alleged that for want of a knife he choked on a piece of fried chicken breast and required emergency surgery the same evening to remove the chicken piece from his throat.

He claimed it was a consequence of Popeyes’ failure to provide customers with a plastic knife with their drive-thru orders. Neither man or woman eats by spork alone.

In addition to his medical and pain and suffering damages, Newton also asked for an order requiring Popeyes to provide its drive-thru customers “with the appropriate utensil or utensils such as a plastic knife to enable such customers to cut their purchased food orders into appropriate portions.”

Newtown’s chicken complaint won’t rise to the level of Roy Pearson Jr.notoriety. Pearson was the lawyer best remembered for suing his dry cleaners for millions over a missing pair of pants. That lawsuit got tossed out of court.

But in Newton’s case, he later dropped the suit on his own because of “extreme comments directed to me and my family.”

Bottom line, don’t choke on fried chicken — not when there’s still FREE CLE. Along with the standard disclaimers about availability; jurisdictional creditworthiness; and content quality, here’s the latest knife and fork-free update.

FREE CLE

Attorney Protective

Hindsight: A Great Thing To Borrow – Oct 12, 2017

“Many lawyers sued for malpractice gain clarity on best practices only after it is too late. This webinar is designed to help you acquire a clearer understanding of the risks by studying what went wrong for other attorneys during their malpractice cases.”

Date: Oct 12, 2017
Time: 12:00 PM-1:00 Central Time, 1:00 PM-2:00 Eastern Time and 10:00 AM-11:00 Pacific Time

One hour of Ethics CLE

Reserve your Webinar seat at:

https://attendee.gotowebinar.com/register/761297833764662529

 

Time Management Tips for Lawyers – Nov 6, 2017

Date: Nov 6, 2017
Time: 12:00 PM-1:00 Central Time, 1:00 PM-2:00 Eastern Time and 10:00 AM-11:00 Pacific Time

One hour of General CLE

__________________________________________________________________________________________

Nossaman LLP

[Webinar] Cybersecurity Threats Facing Water Utilities and the Steps You Should Take to Mitigate Risk

Date: October 12th, 10:00am PT

One hour of General CLE

To register for this webinar, click here

____________________________________________________________________________________________

Baker Hostetler

[Webinar] Real Estate, Cybersecurity and The Internet of Things

Tuesday, Oct. 10, 2017 / Noon – 1 p.m. EST

One hour of General CLE

To register, click here.

____________________________________________________________________________________________

Credits: President Donald Trump eating fried chicken, Twitter @Real Donald Trump; 0797 chicken love, by Mark Morgan, Flickr Creative Commons Attribution; Popeyes Louisiana Kitchen menu board, by Mike Mozart, at Flickr Creative Commons Attribution.

History was made today in California. Governor Jerry Brown signed Senate Bill 36, unprecedented legislation that required painstaking effort the past two years to realize. Bar reform failed in 2016 but this time was different. The legislation sailed through both legislative chambers.

SB 36 increases the California State Bar’s focus on its core regulatory functions — public protection, admissions, licensing and lawyer discipline. It accomplishes this by requiring the California Bar to transfer its 16 specialty sections (with more than 60,000 members) and the California Young Lawyers Association (with its 48,000 members) to create what becomes the nation’s second largest voluntary association of lawyers after the American Bar Association.

The functions and activities of the existing Sections will become a part of a new private, non-profit corporate entity, defined as the Association. The Association will be governed by a board of directors selected by the individual sections themselves. It is not part of the State Bar. Moreover, the Association is prohibited from being funded by membership fees and is not considered a state, local, or other public body for any purpose.

Membership in the new organization is strictly voluntary. It will receive no funding from the State Bar’s mandatory membership fees – though members will have the convenience of continuing their Section membership as the Section dues check-off will remain on the State Bar dues statements.

Focus on public protection

Under the new law, the implementation process begins January 1, 2018. The current 19-member State Bar governing board will transition to a 13-member board with a maximum of 6 non-lawyer public board members. Unlike the current State Bar Act that required the board to elect or select the president and vice president, the new law requires the California Supreme Court to appoint a chair and vice chair. The State Bar is also required to adhere to a Supreme Court-approved policy to identify and address any proposed board decisions that trigger antitrust concerns. Read the entire bill text here.

Two-headed Bar

Meanwhile back in the Arizona desert, similar legislative efforts to carve out the regulatory from the non-regulatory functions of the Arizona Bar continue road-blocked. Arizona Bar bureaucrats and entrenched establishment interests have strenuously fought any proposed bar reform legislation. More recently, the Bar opposed a rule petition that would have split the functions of the Arizona Bar into two distinct subsets, a mandatory membership organization (“Mandatory Bar”) and a purely voluntary membership organization (“Voluntary Bar”).

In Arizona — and what will soon no longer be the case in California — the Arizona Bar has two heads. It acts as both regulator protecting the public from unethical lawyers — while at the same time acting as the trade association looking out for the interests of lawyers. This creates a conflict of interest. The interests of the public and the interests of lawyers are not the same.

In California, the Sections had for decades been a part of the regulatory umbrella of the State Bar. During that time the Sections worked on behalf of lawyer interests providing them trade association-like benefits and services.

But unlike Arizona and other reform-resistant jurisdictions like Washington and Wisconsin, the separation of regulatory from non-regulatory functions was finally accomplished only through collective effort. The bill signed by California’s governor today came about through collaboration by the legislature, the State Bar, the Supreme Court’s Chief Justice, the Sections and other stakeholders working together to make history.

Only time will tell whether California’s hard-fought success now helps to put two-headed bars in other states not just on notice —  but on the block.

https://upload.wikimedia.org/wikipedia/commons/thumb/1/17/Flickr_-_USCapitol_-_Squirrel_in_front_of_the_U.S._Supreme_Court.jpg/339px-Flickr_-_USCapitol_-_Squirrel_in_front_of_the_U.S._Supreme_Court.jpgFree speech and free association relief for lawyers may be on the way. The nation’s highest court agreed this week to hear Janus v American Federation of State, County and Municipal Employees (AFSCME), a case that revisits the issue raised last year by Friedrichs v. California Teachers Associattion, “Whether Abood v. Detroit Board of Education should be overruled and public-sector “agency shop” arrangements invalidated under the First Amendment.”

Friedrichs unfortunately was left undecided. On the untimely death of Justice Antonin Scalia, the court split 4-4 and the lower court ruling was undisturbed.

Had the U.S. Supreme Court ruled for public school teacher Rebecca Friedrichs, her First Amendment rights would have been vindicated — and potentially so too the rights of the nation’s lawyers.

Indeed, in the words of 21 former Presidents of the District of Columbia Bar, it “would have a profoundly destabilizing impact on bars all over the country.”  Why? Because overturning Abood v. Detroit Board of Education, 431 U.S. 209 (1977) would also have meant cutting loose the funding gravy train for mandatory bar bureaucrats. See “SCOTUS Ruling Leaves Keller Alone—for Now.”

Abood underpins Keller v. State Bar of Cal., 496 U.S. 1 (1990). Under Keller, lawyers cannot be compelled to fund a state bar’s lobbying activities unrelated to regulating the practice of law. Just the same, state bars like Arizona’s nonetheless use compulsory member dues to not only regulate the practice of law — but to engage in other activities such as lobbying and advocating for ideological and political causes not all members agree with.

Janus v. AFSCME

The Illinois Public Labor Relations Act authorizes public employee unions to collect “fair share” or “agency shop” fees from non-member employees. Mark Janus is a public sector employee who on First Amendment grounds objected to paying money for union collective bargaining and contract administration activities he did not support. The Seventh Circuit held that Janus’ claims were barred solely because of Abood. See “Supreme Court poised to deal a sharp blow to unions for teachers and public employees.”

Writing at The Supreme Court’s Next Big Union Fight: Six Key Questions,” lawyer journalist Marcia Coyle opined about the impact on bar associations, “And although they are not private sector unions, a decision against the union agency shop fees could also affect mandatory dues arrangements of state bars . . . integrated bars have long relied in structuring their activities on Abood and Keller v. State Bar of California.” Justice Neil M. Gorsuch is expected to provide the fifth vote to overrule Abood and end the collection of agency fees by public employee unions.

Go along to get along

https://upload.wikimedia.org/wikipedia/commons/7/74/Agnes_Karikaturen_Vorwaerts.jpgTo earn a living in their chosen profession, lawyers are forced to go along to get along with an untold number of Constitutional impingements. Lawyers, for example, are subjected to freedom of speech and freedom of association restrictions not ordinarily applied to others. For example, notwithstanding that judges are government officials subject to the “uninhibited, robust and wide-open” core political speech constitutional standards under New York Times Co. v Sullivan, lawyers are nevertheless punished for remarks deemed disparaging about the judiciary.

Moreover, in violation of the First Amendment right of free association, law firms are prohibited from obtaining outside investments. And rather than ask lawyers to opt in to political spending, mandatory bars require members to actively object to the cavalier presumption that lawyers condone the use of their mandatory monies to fund political speech they disagree with. And in perhaps the greatest pirouette of the First Amendment, in 32 states lawyers are forced to join a bar association to practice law.

Sui generis?

https://upload.wikimedia.org/wikipedia/commons/2/28/Lula-WIKI.pngIt’s common to require members of professions and occupations to pay an annual fee used to regulate and enforce a licensing system. But it’s quite something else to disingenuously assert lawyers are a breed apart — sui generis special snowflakes that while professing to be aspirational guardians of the law protecting individual rights are nevertheless supposed to tolerate infringements of their own rights.

In truth, the only thing unique about lawyers is how unlike other professions and occupations, lawyers countenance compulsory organizational membership and the imposition of fees for non-regulatory purposes merely for the ‘privilege’ of earning a living.

Fortunately, not all lawyers put up with these constitutional infringements with timid or stoic forebearance. In Wisconsin, for example, lawyers have fought for almost 40 years against the requirement that dues-paying membership in a state bar organization preconditions licensure. As a matter of fact, those arguments even predate the Second World War.

In 2013, lawyers brought about changes in Nebraska when the state supreme court continued its bar as a mandatory but ordered that mandatory dues could only be used for regulatory purposes. As for non-regulatory activities, only voluntary funds could be used. This approach subsequently inspired legislation in Arizona and it tracks with legislation just passed overwhelmingly in California.

https://upload.wikimedia.org/wikipedia/en/thumb/f/fb/Blacksmith_icon_symbol_-_hammer_and_anvil.jpg/252px-Blacksmith_icon_symbol_-_hammer_and_anvil.jpgCalifornia’s Bar is an outlier in finally opting to stop fighting reforms. More typical are mandatory bars like Arizona’s and Wisconsin’s that fight lawyer emancipation from forced membership and forced funding of their attorney trade associations with hammer and tongs.

Last month, without a word of explanation, the Arizona Supreme Court denied a rule petition opposed by Arizona’s bar that would have separated funding of the bar’s regulatory and non-regulatory functions. And just last week, Wisconsin’s 52-member bar governing board unsurprisingly voted to oppose a petition pending before the Wisconsin Supreme Court that would similarly break up member funding based on mandatory dues to support the bar’s specified regulatory activities and voluntary dues to support all other non-regulatory activities.

Who ever said this was going to be easy? But with Abood overturned — it just might.

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Credits: Squirrel in front of the US Supreme Court, by US Capitol at Wikimedia Commons, public domain; Agnes Karikaturen Vorwaerts, by Agnes Avagyan , Narrabilis at Wikimedia Commons, creative commons share-alike attribution license; Português: Caricatura do presidente Lula. 2005, by Mariano Julio at Wikimedia Commons, creative commons attribution;Blacksmith icon symbol: hammer and anvil, at Wikimedia Commons, creative commons attribution license.

44 years after apparently being the first state to consider implementing a mandatory malpractice insurance program, the nannies at the Washington State Bar Association (WSBA) are at it again. In an article in the current NW Lawyer, the WSBA governors “recently took up the question of whether requiring malpractice insurance for lawyers as a condition of licensing is an appropriate mechanism to help fulfill the regulatory duty to protect the public.”

Invoking the latest governance-consultant babble, the board held “a generative discussion” on the topic at its May meeting. A decision whether to create a mandatory malpractice insurance task force is set for its September 28-29 meeting.

Ironically, it matters little that the same article mentioned that 85% of Washington private practice lawyers already carry malpractice insurance. Apparently, it’s time to round-up the 15%.

https://upload.wikimedia.org/wikipedia/commons/thumb/d/d4/The_Cr%C3%A8che.jpg/320px-The_Cr%C3%A8che.jpgBecause mandatory bar membership weaponizes governing boards to over-regulate and interfere with member personal choice and member financial interest, governors deem their latitudes unbounded. And when they claim guidance from the holy spirit of public protection, they feel empowered with the grace to do almost anything. Moreover, given the Washington Bar’s history, there’s hardly a doubt the WSBA will again ‘make friends’ among its restive members. It will march down the same liberty and property infringing road as its Pacific Northwest predecessors Oregon and Idaho, the only jurisdictions in the U.S. that currently force their lawyers to buy malpractice insurance.

A Scarlet Letter

https://upload.wikimedia.org/wikipedia/commons/thumb/2/2e/The_Scarlet_Letter_%281917%29_1.jpg/302px-The_Scarlet_Letter_%281917%29_1.jpg“Forcing an attorney to have malpractice insurance to protect those who would use his services, or forcing him to disclose that he doesn’t have such coverage, will predominantly adversely impact new solo and small-firm lawyers, punishing them for a being new and financially tight. Instead of branding new uninsured attorneys with a Scarlet Letter, why not simply educate the consumer on the benefits of having a lawyer who is insured. If they are litigious, they’ll seek out the insured attorneys, I promise.

“As a profession, we already have certain protections in place to help the victims of malfeasance. Let the state Client Security Fund reimburse qualified victims. Let the Statewide Grievance Committee disbar irresponsible or criminal lawyers. Then let the criminal courts take it from there.” – Attorney Susan Cartier Liebel writing at Build a Solo Practice, LLC, “Mandatory Malpractice Insurance Only Hurts Law-Abiding Lawyers”

In 2008, the Virginia State Bar also considered mandating malpractice insurance. According to opponents in addition to the high cost on solos and small firms, “The most troubling aspect of the proposal is the concern that it would allow insurance companies to dictate who gets to practice law. While insurance might be available to lawyers with a poor claims history or a lawyer in a high-risk area of practice, the cost of that insurance might be prohibitive.

“A significant hardship would be imposed on a lawyer who is denied coverage because of a pending disciplinary complaint when ultimately the lawyer is exonerated of wrongdoing. If in the meantime his or her license to practice law is suspended because of an inability to obtain insurance coverage as a result of the pending complaint, the lawyer may suffer irreparable harm.” See “Mandatory Malpractice Insurance—It’s Time To Call The Question”

More recently, a well-heeled Nevada personal injury lawyer opined in an “Open Letter” that in addition to mandatory disclosure, Nevada’s Bar and Supreme Court need to create “a not-for-profit professional liability insurance provider for Nevada attorneys to provide competitive low-cost malpractice insurance for its members.” And if his proposal happens to exclude “some lawyers from practicing in Nevada because they may not be able to obtain malpractice insurance” — so be it.

“. . . if a lawyer’s record is so bad that they are unable to obtain malpractice insurance because the risk is too high for the insurer, is it not better that they are precluded from practicing law in Nevada than putting consumers at risk for their malpractice?” The Nevada Bar’s governing board is currently task forcing the matter. And if Oregon’s Professional Liability Fund is any barometer, don’t look for “competitive low-cost” coverage for Nevada lawyers. This year, Oregon lawyers were each assessed $3,500.00 for less bang-for-the-buck $300,000 per claim and $300,000 aggregate coverage.

Terms of Estrangement

As for Washington, it’s not like its Board of Governors hasn’t already sufficiently estranged itself from its members. In 2015, it inflicted unwelcome competitive pressures on underemployed lawyers by spearheading non-lawyer delivery of legal services by Limited License Legal Technicians. The technicians compete for lawyers’ income-generating work — without the toil and treasure invested by lawyers to obtain a Juris Doctor degree. “Who says you need a law degree to practice law?” So much for lip service paid to the unauthorized practice of law — not when you can pucker those lips around a convenient ‘access-to-justice’ exemption.

And more lately, the Board increased licensing fees from $325 in 2016 to $458. And to further pickle the wound, the Board punctuated the increase by obtaining court sanction to ignore a licensing fee referendum petition signed by 2,180 members that would have rejected the astounding 141% increase.

Evidently, member criticism doesn’t faze WSBA leadership. Despite repeated lawsuits and attempts to rein them in legislatively, the Washington Bar’s tin-eared imperiousness is seemingly boundless. Indeed, their arrogance may even exceed that of the State Bar of Arizona.

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Credits: snugglebunny, by parian, at Flickr Creative Commons attribution; The Crèche, by Albert Anker, Wikimedia Commons, public domain; The Scarlet Letter (1917), Wikimedia Commons, public domain; Sooooooooooooooooooooopa Tramp!!!!!!!!!!!!!!!!, by AndYaDon’tStop, at Flickr Creative Commons attribution.

If you’re like me, at least once in your life you’ve received a mailed “Notice of Proposed Class Action Settlement.” In many instances, you aren’t required to do anything to get the so-called ‘benefits’ of the class action settlement.

However, as a bar-card carrying member of the tribe, I read the notice legalese, especially the part about how much the class action lawyers are getting paid.

Let me never be one to begrudge a lawyer’s payday — so long as the plaintiffs get genuine value consistent with the lawyers’ time and risk. Unfortunately, I’ve yet to receive a notice where the proposed remedy has been worth more than John Garner’s “bucket of warm spit.”

The reality is that too often, the class actions aren’t sensible. They don’t fix real client problems. And they don’t provide meaningful value. Indeed, the only ones making out are the lawyers.

Notably, there are exceptions. For example, there’s at least one class action lawyer calling out colleagues for filing what he terms, “lawyer’s cases.”  With unvarnished candor, he declares, “Stupid class action lawsuits filed by feckless lawyers are a disgrace.” See “Why ‘Class Action Attorney Fees’ Are Such Dirty Words.”

The foot-long.

https://upload.wikimedia.org/wikipedia/commons/9/9a/Spitoon1928Women.jpgThe rules judges and lawyers follow are supposed to govern the class action system. These rules say a class action settlement may not be approved unless it’s “fair, reasonable, and adequate.” 

In view of my own spittoon kicking experiences, I was happy to hear those rules were getting enforced thanks to last Friday’s 7th Circuit Appeals Court Opinion torpedoing the class action lawyers in the case of the foot-long Subway sandwich that wasn’t. In the words of Appeals Court Judge Diane Sykes, “Because the settlement yields fees for class counsel and “zero benefits for the class,” the class should not have been certified and the settlement should not have been approved.” The lower court was reversed.

The sub squabble sprang from a 2013 Facebook post by Australian Matt Corby whose tape measure indicated his Subway sandwich fell short of a foot-long. That was enough to get the class action bar interested. Or as the Court put it, “It went viral. Class-action litigation soon followed.”

Judge Sykes added, “In their haste to file suit, however, the lawyers neglected to consider whether the claims had any merit. They did not. Early discovery established that Subway’s unbaked bread sticks are uniform, and the baked rolls rarely fall short of 12 inches.”

For claimants’ counsel, however, no matter if there hadn’t been a compensable injury. They sandwiched in another claim instead — one for injunctive relief. And so they reached a settlement approved by the lower court.

In sum, the settlement required Subway’s 4-year implementation of steps to ensure as much as practicable that its foot-longs be at least a foot-long while at the same time acknowledging that notwithstanding such steps, chances were that natural baking variability would make such uniformity unattainable.

The size of the fees.

For plaintiffs’ lawyers, though, the heart of the hoagie was the parties’ agreement to cap class counsel fees at over half a million simoleons — $525,000.00 to be exact. It wasn’t the size of the sandwich in the fight but the size of the fees in the grinder that mattered. See “Lawsuit over Subway ‘footlong’ subs was a ‘racket’ benefiting only lawyers, judge says.”

Theodore Frank, a member of the class and as director of the Competitive Enterprise Institute’s Center for Class Action Fairness, a “professional objector to hollow class action settlements,” objected to the settlement on grounds it provided no meat to class members and only fed the lawyers.

Frank has a history of objecting to settlements that only benefit the lawyers and not the class, including a case relied on by the Court, In re Walgreen Co. Stockholder Litig., 832 F.3d 718 (7th Cir. 2016).

Citing Walgreen, the Court reversed. “A class action that “seeks only worthless benefits for the class” and “yields [only] fees for class counsel” is “no better than a racket” and “should be dismissed out of hand.” Id. at 724. That’s an apt description of this case.”

In an interview Friday, Theodore Frank declared, “It’s a great win for us and it’s an important principle that lawyers can’t bring class actions just to benefit themselves. They have actual duties to class members and when they structure litigation and settlements without any benefit to the class, courts shouldn’t tolerate that.” See “7th Circuit Says ‘Utterly Worthless’ Subway Footlong Settlement Has No Meat.”

So add the Subway case to the ignoble annals of cases like the too much ice Starbucks class action; the Jimmy Johns missing sprouts class action; the no berries in the Cap’n Crunch Crunchberry complaint and the no fruit in the Froot Loops litigation. And as I wait for the first solar eclipse eyeglass class action, there’s little doubt my expectations for more of the same will be met.

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Credits: Out in Aber, Boxing Day 2009, by David Jones at Flickr; Spitoon1928Women.jpg at Wikimedia Commons, public domain; Matt Corby Facebook post; Guy dressed as a Subway sandwich, 2014 04 03, by booledozer at Flickr Creative Commons Attribution; A foot long for lunch, by Gordon Flood at Flickr Creative Commons Attribution; Subway sandwiches & salads, by Chris Harrison at Flickr Creative Commons Attribution; Waiting patiently, by Quinn Dombrowski at Creative Commons Attribution.

https://upload.wikimedia.org/wikipedia/commons/thumb/b/b5/Yogi2.JPG/246px-Yogi2.JPGAnticipating Arizona’s 66% solar eclipse tomorrow — sans ISO-approved glasses — I was thinking about Yogi Berra’s, “You can observe a lot by watching.”

Unfortunately, I won’t be outside watching. In lieu of eye damage1 or a pinhole camera, instead I’ll observe the path of totality on TV or online.

A week out, I was wrong to believe I could readily pick up a pair of eclipse glasses at my local retailer. What was I thinking? The early bird gets a worm and solar eclipse glasses.

No matter. It’s not like I haven’t seen my share of Hollywood solar eclipses. Apocalypto remains a fave.

 

Known unknowns.

 

While not rising to the level of a Yogi Berra malapropism, this past week also found me reflecting on another almost ‘Yogi-ism.’ It was former Defense Secretary Don Rumsfeld’s memorable obviousness:

“There are known knowns. These are things we know that we know. There are known unknowns. That is to say, there are things that we know we don’t know. But there are also unknown unknowns. There are things we don’t know we don’t know.”

I thought of Rumsfeld when courtesy of our friendly state bar’s press office, I learned that a young lawyer had just been disbarred. He’d been practicing all of 6 years. What a lot of toil and treasure wasted I thought — hardly time to get an ROI.

I never met the lawyer. But I do know he was active on social media, seemingly the consummate modern-day lawyer marketer. He even officed in his own name-identified building.

There’s no point mentioning his name or discussing his case’s merits. My sole reason in raising the disbarment is that it highlights another of life’s most important truths — besides not staring at the sun. Lawyer, baker or candlestick maker, most of us don’t know as much as we think we do.

It’s an unfortunate truth that tends to be ignored, especially among some of the legal profession’s newest practitioners. Faced with paying down horrendous tuition loans, circumspection becomes an unaffordable luxury. And having survived law school and passed the bar exam, too many lawyers suffer from illusory superiority.

About the same time I read about the disbarment, the article, “Common Mistakes When Starting a Law Practice” arrived in my inbox. Disbarment wasn’t listed as one of the “common mistakes.” Overspending, incompetency and several others were. But since suspension and disbarment are always possible consequences of going it alone, mentioning those sanctions was perhaps deemed superfluous.

However, what I did think deserved mentioning but wasn’t was Rumsfeld’s succinct knowledge-gap admonition, “There are things we don’t know we don’t know.”

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1Never ones to disappoint, rest assured there’ll be lawyers geared up to file product liability lawsuits for anyone claiming retinal damage from uncertified eclipse glasses. Others will hope to sign aggrieved employees ready to tag employers for injured eyeball fallout after attending ill-advised company hosted eclipse-viewing parties at work.

Credits: Yogi Berra, by Google Man at Wikimedia Commons, Creative Commons Attribution.