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Archive for the ‘Culture’ Category

https://upload.wikimedia.org/wikipedia/commons/thumb/8/8a/William_Wordsworth.jpg/172px-William_Wordsworth.jpg

William Wordsworth

Wordsworth decried “getting and spending,” calling it “a sordid boon” that lays waste to our self and clouds our wonder of the physical world. “We have given our hearts away” he complains in “The World Is Too Much with Us.”

I memorized that poem in college. And I still find more encouragement in that English Romantic’s bleak sonnet than in the dark comedy I saw last weekend that traipses across similar anti-materialism terrain.

As the credits rolled up at the end of Beatriz at Dinner, I didn’t know whether to run or reach for a razor blade. “Critical praise = a depressing movie,” I once declared. Well this riff on healing vs. destroying called Beatriz at Dinner has been heaped with critical praise. Quick, pass the critics their Prozac.

Led by Salma Hayek, Connie Britton and John Lithgow, the cast is admittedly praiseworthy. Even the minor characters are uniformly excellent although I do tire of the trope of the ethically challenged attorney that always predictably pops up in tales of depraved material excess. This time, the lawyer is Alex played by Jay Duplass who finagles a real estate deal for mega-rich property developer Doug Strutt played by the uber-talented Lithgow.

But the good gal vs. bad guys story with Hayek as the Mexican immigrant and empathetic earth mother massage-therapy-healing Beatriz — contradictorily massages the message right out of you. I doubt that’s what the writer or the director intended.

Indeed, I think Beatriz at Dinner is meant as a sociopolitical commentary on class division and healing not hurting. One commentator even sees it as a take on innocuous questions that he calls a “gateway to casual racism.” While that commentator makes some telling points about hypocrisy, false perceptions, and how “wealth and status don’t overpower racial discrimination,” he’s too overwrought for my taste. See “Why Dark Comedy ‘Beatriz at Dinner’ Is So Cathartic for POC Audiences.” [To my insurance defense lawyers, POC here does not mean proof of claim but people of color. Who knew?]

Years ago, I had a guy try to hand me the keys to his Beemer in front of a tony Ritz-Carlton. Had I not been running late to a meeting in the hotel, I might have simply said thanks and left him with his mouth open when instead of parking the sports car like he mistakenly assumed, I’d have peeled rubber down the Coast Highway on a fast spin. And besides, these days who really thinks wealth and status don’t overpower grace and manners? Money still doesn’t buy class.

No spoiler alert necessary here. But I disagree further with the aforementioned commentator who additionally opines that the film indicts “white supremacy.” At the same time, he also asserts that this implausible sapo-de-otro-pozo [frog from the other well] story is “empowering.” It’s empowering alright — but only if by that you mean knowing how your story is going to end.

This weekend, on the other hand, I saw The Big Sick. It’s also a film about cultural differences. It relates the real life courtship of Kumail Nanjiani and his now-wife, Emily Gordon. But by contrast to Beatriz, it’s indeed a comedy. It’s full of pathos, humor, and romance. There’s terrific acting, too, by Kumail Nanjiani, Zoe Kazan and the actress that never disappoints, the inimitable Holly Hunter.

And no lawyers or the profession’s reputation were harmed in the making of this movie. In fact, there are no lawyers in it.

The movie is fun, funny and in point of fact empowering of the spirit. Moreover, unlike Beatriz at Dinner, you feel good walking out of the cineplex.

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Credits: William Wordsworth, public domain, at Wikimedia Commons; Beatriz at Dinner poster, Fair use, https://en.wikipedia.org/w/index.php?curid=53897899; Montclair Film by “Amy Gallatin / Montclair Film” at Flickr Creative Commons Attribution; Swallowed in the Sea, by KellyB at Flickr Creative Commons Attribution; The Big Sick, By Source (WP:NFCC#4), Fair use, https://en.wikipedia.org/w/index.php?curid=53943370

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On Monday, the U.S. Supreme Court unanimously ruled that government, in this instance, the U.S. Patent and Trademark Office (PTO) may not refuse to register potentially offensive names under a law against registering trademarks likely to disparage people or groups.

The case, Matal v. Tam, strengthens the case against state bar associations seeking to further trample lawyer First Amendment rights via ABA Model Rule 8.4(g). For more about the ABA’s misguided decision “to discipline lawyers who engage in politically incorrect speech,” see “The ABA’s Control Over What Lawyers Say Around the Water Cooler.”

The Nevada Bar, for one, has petitioned its state supreme court to adopt a new lawyer speech code to punish Nevada attorneys for what newly weaponized lawyer disciplinary authorities subjectively deem “derogatory,” “demeaning,” or “harmful” speech“related to the practice of law.” Matal v. Tam renders the viewpoint discrimination enshrined by such a proposed rule presumptively unconstitutional.

Nonetheless, how much ultimate weight state supreme courts give to Matal v. Tam on such matters will depend on the jurists’ ability to temper the agenda-driven viewpoint of lawyers as sui generis ‘special snowflakes.’ Under this rubric, lawyers are expected to unreservedly pay for their ‘privilege’ with constraints on their Constitutional rights not visited upon any other profession.

Whether as agents of the state, i.e., ‘officers of the court,’ or as “public citizens” as the ABA Report describes them, lawyers are expected to tolerate the continued erosion of their rights, especially with respect to the First Amendment. See here, here, here and here and additionally, The Intersection of Free Speech and the Legal Profession; Constraints on Lawyers’ First Amendment Rights. It’s way past time for lawyers to say “Enough!”

Matal v. Tam.

In 2011, Simon Tam, the founding member of the Asian-American dance-rock band, The Slants, tried to register the band’s name with the PTO. His application was denied based on a federal law prohibiting the registration of trademarks that may “disparage . . . or bring . . . into contemp[t] or disrepute” any “persons, living or dead.” 15 U. S. C. §1052(a).

Tam characterized his trademark registration as an attempt to reclaim a slur and use it as “a badge of pride.” Associate Justice Samuel Alito wrote, “We now hold that this provision violates the Free Speech Clause of the First Amendment. It offends a bedrock First Amendment principle: Speech may not be banned on the ground that it expresses ideas that offend.”

Student free speech.

Writing today at “The Legal Watchdog,” notable Wisconsin defense attorney Michael Cicchini trenchantly points out at “Free speech: A message for public universities (and their students) how Matal v. Tam should help curb free speech constraints currently the rage among do-gooding bureaucrats at public universities. Quoting from the opinion, Cicchini illustrates how There is no hate-speech exception to the First Amendment;”  “You can’t suppress speech you don’t agree with;” and “You should be thankful that you can’t suppress speech you don’t agree with.” His entire post bears reading.

Finally, some have inanely suggested the case is one for folks on the Right to applaud, e.g., “Today in Conservative Media: Applause for a Free Speech Victory at the Supreme Court.” To which, I rejoin, when did the U.S. Constitution and specifically, our fundamental rights become the exclusive purview or calling of one side of the political spectrum?

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Photo credits: Seal of the U.S. Supreme Court, by DonkeyHotey at Flickr Attribution; “sad emoticon,” by shamaasa  at Flickr Attribution; “Resusci-Annie’s Children Remark On the Effectiveness of the First Amendment,” by John Scalzi at Flickr Attribution.

 

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Last month, an Arizona psychic was at a restaurant having lunch when a car crashed through the window, threw him up in the air, and pinned him against a wall. “I didn’t foresee it happening,” joked injured psychic Blair Robertson after the accident. See “Arizona psychic injured when he ‘didn’t foresee’ car crash.”

Whether or not you believe in clairvoyance, you don’t need psychic powers to foresee that state bars without fail welcome their own collisions with the liberty interests of their members. It’s integral to the “do-gooder” mentality endemic among the “moral busybodies” running state bar associations.

“Those who torment us for our own good,” said C.S. Lewis, “will torment us without end for they do so with the approval of their own conscience.” 

Do-gooders.

https://lawmrh.files.wordpress.com/2017/06/travel-tourism-18.jpg?w=1000&h=The latest do-gooder intrusion comes from a surprising quarter, the State Bar of Nevada. At one time, the Nevada Bar could be characterized by a laissez-faire attitude consistent with Nevadans’ strong independent, libertarian streak. But oh, how times have changed.

Last year, in a misguided effort grounded on anecdotal conjecture about supposed prevalent substance abuse and mental health problems among Nevada’s lawyers, Nevada’s Bar Governors petitioned the high court for another mandatory hour of annual continuing legal education in substance abuse prevention and mental health.

Continuing legal education has never been proven it makes lawyers more competent or ethical. Just the same, the Nevada Bar thought an hour of mandatory substance abuse/mental health CLE would help make lawyers abstemious and healthy-minded.

And not satisfied with only that moral meddlesomeness, the board next appointed a task force to study whether Nevada lawyers should pay more to practice by following the Oregon Bar’s improvident model of forced professional liability insurance. Oregon’s insurance mandate currently compels lawyers to pay a hefty $3,500.00 annually for the merest nominal coverage.

https://lawmrh.files.wordpress.com/2017/06/people-16688.jpg?w=163&h=155At Revenge of the Do-Gooderin The American Thinker, Scott Boerman explained what animates the do-gooder is “a great desire to cure humanity’s ills and imperfections with solutions that invariably focus on controlling other people’s property and productivity. Not to be confused with real volunteers and philanthropists — who use their own skills and wealth to directly help a favored cause — the do-gooder uses only his brain to decide precisely what everyone else what should do with their abilities and wealth. And because the do-gooder is so confident that his plans are good for humanity, he strives to impose his will with a stick, be it regulatory, monetary, or via public brow-beating.”  

An unconstitutional speech code.

Nevada’s Bar, however, may have finally reached the apex of do-gooding thanks to a petition filed May 8th asking the state supreme court to adopt the new ABA Model Rule 8.4(g) which amends Nevada Rule 8.4 by adding an entirely new subsection (g). It reads:

It is professional misconduct for a lawyer to: . . . (g) engage in conduct that the lawyer knows or reasonably should know is harassment or discrimination on the basis of race, sex, religion, national origin, ethnicity, disability, age, sexual orientation, gender identity, marital status or socioeconomic status related to the practice of lawThis paragraph does not limit the ability of a lawyer to accept, decline or withdraw from a representation in accordance with Rule 1.16.  This paragraph does not preclude legitimate advice or advocacy consistent with these Rules.

No jurisdiction has yet adopted the ABA 8.4 (g) model rule concoction passed last fall. Nevada hopes to be first.

Meanwhile, the amendment hits Boerman’s do-gooder regulatory, monetary and public brow-beating trifecta. Violations mean notoriety. Regulatory sanctions impact a lawyer’s ability to earn a living.

Academics like UCLA Law Professor Eugene Volokh and South Texas College of Law Professor Josh Blackman have weighed in against the proposed rule on constitutional grounds. The Attorneys General of Texas and South Carolina have also officially opined that a court would likely conclude ABA Model Rule 8.4(g) not only amounts to an unconstitutional restriction on the free speech, free exercise of religion, and freedom of association of attorneys but it’s also unconstitutionally overbroad and void for vagueness. See Opinion No. KP-0123, Attorney General of Texas and 14 South Carolina Attorney General Opinion.

Other commentators contend that by only proscribing speech that is derogatory, demeaning, or harmful toward members of certain designated classes, the Rule is an unconstitutional content-based speech restriction. Others argue attorney conscience rights are also adversely implicated.

Professor Blackman further raises separation of powers problems when bar disciplinary authorities lacking the “boundless discretion over all aspects of an attorney’s life” nevertheless attempt to regulate conduct beyond their legal power or authority.

More bar complaints.

But the real upshot is heightened lawyer liability when state bar disciplinary police are given unprecedented new powers to punish lawyers for conduct not directly connected with what ethical rule 8.4 already prohibits, which is misconduct while representing a client or implicating fitness to practice or prejudicing the administration of justice. The new rule enlarges the scope to include social conferences, bar association activities and private speech far removed from providing actual legal services.

As Professor Blackman further wrote in The Georgetown Journal of Legal Ethics about Model Rule 8.4(g):

“Lectures and debates hosted by bar associations that offer Continuing Legal Education (CLE) credits are necessarily held “in connection with the practice of law.” Lawyers are required to attend such classes to maintain their law licenses. It is not difficult to imagine how certain topics could reasonably be found by attendees to be “derogatory or demeaning” on the basis of one of the eleven protected classes in Rule 8.4(g).

Blackman lists sample topics chosen as he says for their “deliberate provocativeness” where a lawyer attendee might subject herself to discipline since the speaker “reasonably should know” that someone at the event could find the remarks disparaging towards one of the eleven protected groups.” Here are a few:

“● Race—A speaker discusses “mismatch theory,” and contends that race based affirmative action should be banned because it hurts minority students by placing them in education settings where they have a lower chance of success.
● Gender—A speaker argues that women should not be eligible for combat duty in the military, and should continue to be excluded from the selective service requirements.
● Religion—A speaker states that the owners of a for-profit corporation who request a religious exemption from the contraceptive mandate are bigoted and misogynistic.
● National Origin—A speaker contends that the plenary power doctrine permits the government to exclude aliens from certain countries that are deemed dangerous.
● Ethnicity—A speaker states that Korematsu v. United States sas correctly decided, and that during times of war, the President should be able to exclude individuals based on their ethnicity.
● Sexual Orientation—A speaker contends that Obergefell v. Hodges was incorrectly decided, and that the Fourteenth Amendment does not prohibit classifications on the basis of sexual orientation.”

All of which means an amended Nevada Rule 8.4 will unwisely empower a mandatory bar to extend existing lawyer First Amendment encroachments upon new terrains of unconstitutional discipline.

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The Nevada Supreme Court invites written comment from the bench, bar, and public regarding the proposed amendments. The Hearing date is July 17, 2017, at 2:30 p.m., Supreme Court Courtroom, 408 East Clark Avenue, Las Vegas, Nevada 89101. The Comment deadline is July 5, 2017, at 5:00 p.m., Supreme Court Clerk’s Office, 201 South Carson Street, Carson City, Nevada 89701.


Photo Credits: “Psychic,” by The She-Creature at Flickr Attribution;  “Satisfaction,” by Walter Kramer at Flickr Attribution; “aaaaaaaaaahhhhhhhh,” by Marco Boscolo at Flickr Attribution;”Tread Upon Now What?” by John Eisenschenk at Flickr Attribution; “kindness, persuasion, punishment,” by Meagan Fisher at Flickr Attribution.

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Longtime readers know I like movies. They’re fun as a stand-alone proposition.

But movie-going is almost essential when Arizona’s solar-intensifying sprummer has come, gone, and Satan’s excessive heat warning says it’s 109 outside. Overnight it ‘cools down’ to the high 90’s.

So when outdoor activity partners with heat stroke, getting out often means movies. This weekend, it was Wonder Woman — highly enjoyable and big fun. Although I enjoy all genres, there’s nothing like a well done action film.

As some of you know, I’ve also seen my share of movies featuring lawyer protagonists. Admittedly, it’s been a while since there was one I liked. The Lincoln Lawyer is perhaps the last one I thought entertaining — but that was 6 years ago.

It’s not like I rush to see movies featuring lawyers. Quite the opposite. I think most are to be avoided. 2014’s The Judge was awful.

Nearly always they get the law and the ethics wrong. For instance, I missed last year’s The Whole Truth, starring that latter-day Olivier, the wooden thespian known as Keanu Reeves. I’m sorry to say I finally caught it online.

Of The Whole Truth, movie critic Rex Reed said, “A guaranteed cure for insomnia, an abomination called The Whole Truth is a courtroom movie that looks like a colorized version of an old Perry Mason TV show, starring Renée Zellweger’s new face and Keanu Reeves, who has the charisma and animated visual appeal of a mud fence.” Keanu plays that over-used movie stereotype, the ethically challenged criminal defense lawyer.

And why always an ethically challenged defense lawyer? Why not an amoral ERISA or corrupt water rights lawyer? In truth it’s probably because ERISA and water rights lawyers would have to arm-wrestle to avoid the title of most boring field of practice.

In any event, Keanu’s much better as pup-loving legendary hitman John Wick not as a lawyer. Just the same, I admit to liking his turn as the lawyer son of Satan in The Devil’s Advocate.

Recliner movie watching.

Glenn Whipp amusingly reported this past Friday that theater chains have “decided that the best way to sell tickets is to replicate moviegoers’ living rooms.” See “When moviegoers treat theaters like living rooms — texting, talking, even diaper changing happens.”

It’s true. Recliners have arrived at the cineplex, including the one in our neighborhood. I’m not sure, however, that Wonder Woman was better because my feet were up. The Whole Truth, on the other hand, is a different matter. The recliner would’ve meant In dormis delicto.

Fortunately, the movie-going pleasure of Wonder Woman was mostly unmarred unlike other recent movie experiences involving serial chatterboxes and obsessive texters. Save for a movie patron twice checking his cellphone two rows in front, we escaped Glenn Whipp’s exponentially worse experience with the in-the-theater toddler diaper-changing mother. “Because,” as Whipp explained, “that’s what those adjustable armrests are for, right?”

And that Bill Kilgore is not the smell of napalm in the morning.

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Photo Credits: Empty cinema movie theater, by Iwan Gabovitch  at Flickr Creative Commons Attribution; First movie of the year, recliner chair theater, by stupid systemus at Flickr Creative Commons Attribution.

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https://upload.wikimedia.org/wikipedia/commons/thumb/0/0a/Domenico_Fetti_-_Portrait_of_a_Scholar_-_WGA07862.jpg/446px-Domenico_Fetti_-_Portrait_of_a_Scholar_-_WGA07862.jpg“Live as if you were to die tomorrow. Learn as if you were to live forever.”  I thought of Gandhi’s quote when I read about Tom Winston, who at 73 graduates from the University of Tennessee Law School this month. Retired and having concluded there’s “only so much golf you can play,” he decided to attend law school at age 70.

Besides having a resilient and hungry mind, Winston also benefited from something unique to the Volunteer State. Tennesseans 65 years and older can attend any state public institution of higher learning tuition-free. Winston says he’s “surprised more people haven’t taken advantage of it.”

His parting advice is to, “Enjoy the magic of learning all over again.” See “Stat Of The Week: Extreme ‘Non-Trad’ Law Student”

Speaking of free learning, below are the latest links to free continuing legal education programs, both scheduled and on-demand. As always, there are no warranties of continued availability, content quality, or creditworthiness in your jurisdiction.

 

FREE CLE

K & L Gates

https://upload.wikimedia.org/wikipedia/commons/thumb/6/66/GAINSBOROUGH%2C_Thomas_-_Johann_Christian_Fischer_%281780%29.jpg/152px-GAINSBOROUGH%2C_Thomas_-_Johann_Christian_Fischer_%281780%29.jpg

Legal Professional Privilege

On Demand

Credit: One Hour Ethics

Competition and Consumer Law Update

On Demand

Credit: One Hour General Credit

A Practical Guide to Representing Victims of Sexual Cyber Harassment Ethically and Effectively (Part 1)

On Demand

Credit: 1.5 Hour Ethics

Register Now

The Honest Lawyer

On Demand

Credit: One Hour Ethics

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Thompson Coburn LLP

Multijurisdictional Issues Stateside and International Privacy Concerns When Traveling

Wednesday, May 31, 2017

Begins at 12:00 PM Central Time

Credit: One Hour Ethics

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Lawyernomics by AVVO

View on-demand webinars

View upcoming Webinars

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https://upload.wikimedia.org/wikipedia/commons/thumb/9/99/Workshop_of_Pieter_Coecke_van_Aelst%2C_the_elder_-_Saint_Jerome_in_His_Study_-_Walters_37256.jpg/320px-Workshop_of_Pieter_Coecke_van_Aelst%2C_the_elder_-_Saint_Jerome_in_His_Study_-_Walters_37256.jpg

Law Pay

Ethical Considerations in Drafting Contracts

“This webinar examines a variety of contract drafting scenarios and the ethical questions that they present.”

Thursday, May 24, 2017
3:00 PM Central, 4:00 PM Eastern, 2:00 PM Mountain, 1:00 PM Pacific
Credit: One Hour
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Birch, Stewart, Kolasch & Birch, LLP (BSKB)

Complimentary Webinar Presented by BSKB and WIPR – The Halo Effect: Walking the Willfulness Tightrope

“Register for free on the webinar registration page. Virginia CLE credit is pending, and can be used to seek CLE credit in other jurisdictions.”

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DLA Piper

CLE webinar: preparing for margining

Credit: One Hour General

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Legal Advantage

Free CLE – Best Practices in Patent Illustration

Wednesday, June 07, 2017 – 12 PM EDT

Credit: One Hour General

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Credits: Portrait of a Scholar, by Domenico Fetti at Wikimedia Commons, public domain; Portrait of Johann Christian Fischer by Thomas Gainsborough at Wikimedia Commons, public domain; St. Jerome in his Study, by Pieter Coecke van Aelst at Wikimedia Commons, public domain.

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If a petition submitted last year by Nevada’s Board of Governors is approved by the state supreme court, it’s going to cost lawyers a wee bit more money to practice in Nevada. Currently, Nevada lawyers are obligated to complete 12 hours of annual continuing legal education to keep their licenses. But if the state bar’s governing board has its way, a 13th hour will be tacked on to the annual requirement.

At an average cost of $40 per credit hour, this means that the 5th highest cost to practice mandatory bar in the U.S. will just be that much more expensive. Nevada will top out at just over $1,000 per year between mandatory annual fees of $490 and soon, 13 hours of mandatory continuing legal education.

The original petition asked that of the current 12 required hours of continuing legal education, 1 CLE credit be mandated in the area of “substance abuse, addictive disorders and/or mental health issues that impair professional competence.” Somewhere along the way, however, there was an increase in the total hours required. It became a petition that increases annual mandatory hours from 12 to 13 with the new required hour in the aforementioned areas.

Petition ADKT 0478 was filed with the Nevada Supreme Court in January 2016 with oral argument last June. Unfortunately, the chance to either complain or to applaud has come and gone. It’s only a matter of time now for the Court to issue its Order for ‘lucky’ No. 13. To quote Hank Jr., “It’s all over but the crying.”

Gobsmacked.

I really must crawl out from under my desert boulder. How did this newest imposition, this latest cost to practice burden slip past? The gobsmacking news came by way of the Nevada Bar’s “Message From The President” in the April 2017 Nevada Lawyer magazine.

I rarely read the dull bar magazine except for checking the Bar Counsel Report each month to see if anyone I know has been pierced by the sword of lawyer discipline. For some reason, I read Nevada Bar President Bryan Scott’s presidential epistle in April where he briefly mentioned the mandatory bar bureaucracy’s latest ‘feel-good’ do-something impediment. Scott also helpfully offered that “Supplementing this petition, the state bar has enhanced its curriculum to ensure attorneys have access to quality CLE programs related to these important topics.” Well, that’s no surprise. CLE is big business for state bars.

To be fair, in reply to my ‘ how dare you’ email query, Scott said, “We did not do this as a money-making venture. In fact, should the Court issue an order, we expect to offer a CLE on this topic at no charge.” Let’s see how long that lasts.

No proof CLE does anything.

I won’t paraphrase Roger “Verbal” Kint but the greatest trick ever pulled was convincing the legal establishment that forcing lawyers to take continuing legal education classes would make them more competent, more ethical, more professional or in the latest wrinkle in Nevada — more sober. The fact is there’s never been empirical proof that CLE delivers more competency, ethics, professionalism — or sobriety. As a matter of fact, there isn’t even the most rudimentary form of subject matter assessment since CLE participants are never tested to see what they have learned. The testing demands are greater getting a speeding ticket dismissed via a defensive driving course.

As for tutoring the trait of improved sobriety, the petition does a terrible job of explaining why a mandatory CLE in abuse, addiction and mental health issues is necessary. To be fair, there’s a talking point Scott sent that mentions studies from the 80’s that “have shown a connection between the legal profession and higher rates of mental health issues and related addictive disorders.” The same reference adds that “In February of this year, a more definitive study was released showing attorneys display addiction levels of dependent drinking at 20.6 percent as compared to 11.8 percent of a generally highly educated workforce.”

If that’s true, the rest of the population is in even worse shape. Should the Nanny State start requiring everybody take a class in sobriety? According to a Newsweek report, 30 percent of Americans have had an alcohol-use disorder. Citing a study published in the journal JAMA Psychiatry, the article states: “America has a drinking problem, and it’s getting worse. A new study shows that 32 million Americans, nearly one in seven adults, have struggled with a serious alcohol problem in the last year alone. It gets worse if you look at numbers across people’s entire lives: In that case, nearly one-third have suffered an “alcohol-use disorder.”

https://cdn.someecards.com/someecards/usercards/630ae40facf324702bf98d936c73f348eb.pngBut even if you take at face value that lawyers are worse on substance abuse/mental health than the rest of the population, where’s the proof a one-hour class does anything to fix the problem? Then again, if there’s one thing lawyers are good at is reaching their conclusions.

So appropriately, under “Conclusion,” the petition jumps to the conclusion that because the board of governors’ purposes include “upholding the honor, integrity, professionalism and dignity of the profession of law and the enhancement of the professional competence and ethical conduct of members of the bar . . . mandatory education in abuse, addiction and mental health is necessary.” And it’s also “essential to public protection.”

More lawyer shape-shifting in the offing.

In September last year, the Florida Supreme Court approved a rule amendment granting Florida the dubious distinction of being first to require lawyers to take at least three hours of CLE in an approved technology program as part of the 33 total hours of CLE that Florida lawyers are forced to take over a three-year period. More than half the states have adopted the duty of technology competence for lawyers. It’s only a matter of time before other jurisdictions follow Florida and start demanding mandatory CLE in technology courses, too.

The ABA is the organization we have to ‘thank’ for these new recommended mandates, including mandatory substance abuse CLE. And it now has one more recommended lawyer transformation encumbrance in the works. Be on the look out for mandatory diversity continuing legal education.

Not satisfied with approving a new diversity policy for itself directing its ABA CLE program panelists be diverse, last June the ABA passed Resolution 107.  It asks “licensing and regulatory authorities that require MCLE to make diversity and inclusion programs a separate credit, but without increasing the total number of hours required.”

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Photo credit: “Surprise,” by Erik Cleves Kristensen at Flickr Creative Commons attribution license; “the view from below” by David Long at Flickr Creative Commons attribution license.

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Had I waited another day, I could’ve added one more head shake to my last post. Last night, the Arizona Republic reported Jodi Arias prosecutor Juan Martinez would not be disciplined over the publication of his book about the Jodi Arias murder trial.

Several bar complaints were separately filed against Martinez last year in connection to the internationally notorious murder case. In its story, the Republic makes particular mention of the bar complaint filed by the local defense lawyer bar that in part accused Martinez of violating ethical rules regarding “the existence and content of certain exhibits previously sealed by court order.”

There’s little doubt the complaining defense lawyers aren’t pleased with the decision of the Arizona Supreme Court’s Attorney Probable Cause Discipline Committee. The Committee reviews Arizona State Bar recommendations for attorney discipline.

It is also a group which parenthetically happens to have a petition pending before the Arizona Supreme Court that would permit the imprudent entrenchment of its current membership by removing the two consecutive three-year limitation on members’ terms of office.

https://upload.wikimedia.org/wikipedia/commons/thumb/c/c8/%22As_we_see_%27em%2C%22_a_volume_of_cartoons_and_caricatures_of_Los_Angeles_citizens_%281900%29_%2814589842549%29.jpg/163px-%22As_we_see_%27em%2C%22_a_volume_of_cartoons_and_caricatures_of_Los_Angeles_citizens_%281900%29_%2814589842549%29.jpg

According to the news report, the Committee dismissed a charge filed against Deputy Maricopa County Attorney Juan Martinez for writing the book, Conviction: The Untold Story of Putting Jodi Arias Behind Bars.

The story quotes from the Committee’s decision, “This matter is being dismissed as respondent obtained permission from his employer to disseminate information relative to his representation in the state v. Arias case. Similarly, while his book made general reference to the existence of sealed testimony and exhibits, the references did not contain specific content and was, in some circumstances, publicly available despite the court order(s) sealing the testimony and exhibits.”

Interestingly, demonstrating that book writing about a trial is not the sole province of the prosecution, Arias’ former defense lawyer Kirk Nurmi was disciplined over an ethical violation involving publication of a ‘tell all’ book without client consent, Trapped with Ms. Arias: Part 1 of 3 From Getting the File to Being Ready for Trial.  However, in Nurmi’s case, the sanction was disbarment. See “Jodi Arias’ defense lawyer agrees to be disbarred over tell-all book rather than face disciplinary hearings”

There’s an ethical rule, ER 1.9, that prohibits a lawyer who has formerly represented a client in a matter from thereafter using information relating to the representation to the disadvantage of the former client except as permitted by the ethical rules “or when the information has become generally known.” The trick, of course, comes in defining what is “generally known.”

The rule is not without its critics, one of the most notable being Michael Cicchini. Also see Cicchini’s “On the Absurdity of Model Rule 1.9,” 40 Vermont L. Rev. 69 (2015) and his “Petition to Modify SCR 20:1.9(c).” filed last year with the Wisconsin Supreme Court

File:"As we see 'em," a volume of cartoons and caricatures of Los Angeles citizens (1900) (14773300391).jpgVagaries of Proportionality.

There are rules governing the imposition of lawyer discipline. But when it comes to when and how those rules are applied, weighted, and especially how sanctions are proportioned remains anybody’s guess. One wonders, for instance, if another lawyer similarly situated but less well-known than Martinez would have received the same pass on discipline?

No less than the Arizona Supreme Court has recognized that when it comes to reviewing similar cases to assess the proportionality of the recommended sanction, proportionality review is “an imperfect process.” In re Owens, 182 Ariz. 121, 127, 893 P.3d 1284, 1290 (1995). This is because no two cases “are ever alike.” Id

Frankly, there are times when the sanction meted out appears to bear little resemblance to so-called similar cases. See, for example, the disciplinary case of Edward Moriarity where pursuant to a settlement the accused attorney was disbarred in Arizona — a sanction no other reciprocal jurisdiction opted to follow. Indeed, the sanction was subsequently criticized by a federal judge as noted in Board of Prof’l Responsibility v. Moriarity 345 P.3d 51 (2015). Also see “Wyoming Supreme Court Censures Montana Attorney.”

After reviewing the attorney’s notification of the Arizona disbarment, Judge Dana L. Christensen, Chief United States District Judge for the District of Montana, issued an order declining “to impose any discipline at this time. However, if the Montana Supreme Court decides to levy discipline, this Court will revisit the matter at that time.” Moreover, Judge Christensen discussed “substantial reasons not to order identical discipline” not the least being that it “was grossly disproportionate to Moriarity’s alleged misconduct.”

To further make his point, the judge cited an earlier case where the Arizona Supreme Court had suspended an attorney for six months after the attorney was found to have filed multiple frivolous actions over the course of several years whereas by contrast, Moriarity was disbarred on the accusation of having filed “only one frivolous lawsuit.”

To protect not to punish.

File:Stuart Chapin and Company (3093686330).jpgHas there ever been a disciplined lawyer — let alone a zealous bar counsel prosecutor — that hasn’t deemed the sanction imposed a punishment? The state supreme court, however, steadfastly demurs reflexively noting it “has long held that ‘the objective of disciplinary proceedings is to protect the public, the profession and the administration of justice and not to punish the offender.’” Alcorn, 202 Ariz. at 74, 41 P.3d at 612 (2002) (quoting In re Kastensmith, 101 Ariz. 291, 294, 419 P.2d 75, 78 (1966).

All the same, one can’t help but be reminded of the oft-quoted spare-the-rod-spoil-the-child sop: This hurts me more than it hurts you.” Like sanctions ‘to protect not to punish,’ the words are counterintuitive cold comfort for those on the receiving end.

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Photo Credits: Dog gif “Really,” at Giphy.com; “As we see ’em,” at Wikimedia Commons;“As we see ’em,” at Wikimedia Commons; Building gif, at Giphy.com; Stuart_Chapin_and_Company_(3093686330).jpg at Wikimedia Commons, public domain.

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