Archive for the ‘Law’ Category

“You can’t fire me — because I quit!” was the old joke until it wasn’t. Now it’s “you can’t fire me — because you’re not the boss of me!”

The Honorable Luis Quintana of the Municipal Court of the Village of Corrales, New Mexico was disbarred a few months ago for not turning over a $4,500 workers compensation settlement check to his client. But because he says the professional conduct violation took place before he was elected judge, he maintains it has nothing to do with his ability to carry out his term. Thus, he says he’s not quitting his berobbed day job.

And besides, New Mexico municipal court judges don’t have to be lawyers so Judge Quintana contends he’s not disqualified — even if the state supreme court pulled his license. Law license? Not required to wear the muni. court robe — so he’s not going.

Non-lawyers can sit on the municipal court bench in New Mexico. The only qualifications are voter registration; being over 21 years of age, and current and continual city residence throughout the judicial term.

They have limited jurisdiction to dispense justice over petty criminal and traffic violations of the municipal code punishable by not more than 90 days in jail and/or a $500 fine and which occur within the municipality’s boundaries. They can also issue subpoenas and warrants to carry out court duties and exact punishment for contempt of court.

The bar complaint against lawyer Luis Quintana was filed in 2013 but in New Mexico, it appears disciplinary justice turns on wheels in a ditch full of prickly pear molasses. He was finally disbarred in July.

All the same, you’d think the New Mexico Supreme Court and its Judicial Standards Commission would have something more to say about it — even if the misconduct admittedly occurred before he became a judge. I’m unaware of a similar case in Arizona.

Justices of the peace here are elected. They don’t have to be lawyers. But I’ve not heard of an Arizona lawyer elected justice of the peace who subsequently gets disbarred for a lawyerly ethical violation but who nevertheless keeps his job on the bench. Then again most elected Justices of the Peace around here are non-lawyers and that might explain why it hasn’t come up. Moreover, they get removed when they run afoul of the code of conduct while in office.

hiding from the paparazzi | by The Shifted Librarian

   Talk to the hand.

Otherwise, my only recollection of an Arizona municipal court judge in hot water was a jurist in Tucson. But in that case, the Honorable Theodore Abrams who was also a lawyer didn’t tell the court or the state bar to ‘talk to the hand.’  Plus the ethical violations occurred while he was a judge not a prior act as a lawyer.

Judge Abrams resigned from the bench and stipulated to violating the Code of Judicial Conduct based on allegations of having repeatedly sexually harassed an assistant public defender for more than a year.

But because Judge Abrams resigned, the Arizona Supreme Court could only censure him and prohibit him from ever seeking or holding judicial office.

And Arizona’s lords of discipline drop kicked him like a football through Bobby Bare’s goalpost of life.

https://upload.wikimedia.org/wikipedia/commons/thumb/7/75/Standing_dropkick.jpg/375px-Standing_dropkick.jpgMeantime, back in the Village of Corrales, New Mexico, Judge Quintana remains nonplussed despite the now national notoriety. And because he’s an elected official and because he’s committed no malfeasance as a judge, the village council has no authority to remove him.

https://lawmrh.files.wordpress.com/2011/05/office-stress-62.jpg?w=157&h=178And while some residents and officials are increasingly restive, at least the mayor appears supportive. Judge Quintana told Mayor Scott Kominiak his disbarment was a private matter concerning his private law practice. So as far as Judge Quintana was concerned, it’s business as usual on the municipal bench. And Mayor Kominiak, whose post is not full-time, told the Albuquerque Journal, “The analogy is that if I were to lose my job, would I be required to resign as mayor?”

Ironically, when Judge Quintana ran for judicial office in 2008 in response to a question, he discussed access to the court. At that time, he cracked he would “always look for ways to make any improvements needed and create new programs to allow greater access (except when the villagers come after me with their torches).”  Barring any torch-carrying villagers, his four-year term expires next year.


Photos: “Shawn Spears executes a standing dropkick on Pepper Parks, GCW, 16th September 2011” by Tabercil at Wikipedia Commons via Flickr Creative Commons Attribution-Share Alike license; hiding from the paparazzi by The Shifted Librarian at Flickr Creative Commons non-commercial share-alike license, kid photos via Morguefile.com, no attribution license.

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Portrait of the Artist Looking Unimpressed (day 27) | by Drab Makyo

Scientists at the University of London concluded last year “that the key to happiness is having low expectations.”

But did it really take scientists to reach that conclusion? Among others, the late novelist Olivia Goldsmith previously cornered the sentiment when she wrote, “The secret to true happiness is a combination of low expectations and insensitivity.”

Nonetheless, such aphorisms are helpful particularly for State Bar of Arizona members managing their low expectation happiness with their mandatory membership Bar.

Indeed, when mentoring law students and especially new lawyers, my oft-used lawyer happiness advice remains, “Remember, the State Bar is not your friend.” How else to interpret the Bar’s chest-pounding proclamations that its primary mission is to protect the public from its members?

Low-value smiley-face offers.

But thanks to successive blast emails the past weeks announcing new member ‘benefits,’ Arizona lawyers continue confounded. When it’s not acting like the guardian of the public weal, the Bar plays at being a professional association pretending to represent and advance the interests of Arizona lawyers.

Just the same, the Bar’s latest emails announce commercial discounts that barely trip the excitement meter with conventional discounts off products or services.

pfft! | by mat_walkerAlthough addressed from the Bar’s well-paid CEO, they’re undoubtedly creatures of low-level administrative staff and pitch stuff like insurance; share filing software; and most recently, virtual receptionist services. Each email was trapped by my spam filter and relegated to the junk folder. But that’s not to say the low-value affinity marketing discounts weren’t bereft of low expectations.

Little or no value to members.

Its own member surveys continually affirm most Bar members find these commercial offers wanting. In fact, the latest Arizona Bar member survey results announced last November are consistent. As many as 75% of respondents regard the Bar’s member discounts as having little or no value.

Car rental and office supply discounts or reduced prices on overpriced hotels? Most impressive — said no one, ever.

And even when the discounts involve law-related products and services, they aren’t singularly exclusive to a compelled membership association. Virtually all voluntary, optional-membership state bar associations offer similar commercial discount ‘benefits.’ See, for instance, the long list of “Member Benefits” provided by the voluntary membership Iowa State Bar Association.

Dog played with his food. | by BuzzFarmers

“I can’t let go of the excitement.”


Sadly, cutting bar dues or offering free continuing legal education didn’t pass the membership benefit threshold. That’s totally understandable — not when the Arizona Bar can instead tilt our excitement meters with 5% discounts on long-term care insurance.


Truly the negotiations to wrest the tremendous discounts from the grip of marketers must have been mano a mano.

https://upload.wikimedia.org/wikipedia/commons/b/b2/ChicagoCourtroomSpitoon_retouched.jpgNot since its lame “finish the ballot” contest (without as far as I know, bothering to announce a winner) has the Arizona Bar stirred so many spittoons of salivated anticipation.


Photo Credits: “Portrait of the Artist Looking Unimpressed” by Madison Scott-Clary at Flickr Creative Commons Attribution;”Dog played with his dog food,” by BuzzFarmers at Flickr Creative Commons Attribution; “Unimpressed” by Kirk Strauser at Flickr Creative Commons Attribution; “pfft!” by mat Walker at Flickr Creative Commons Attribution; Chicago courtroom scene with spittoon at Wikimedia Commons, public domain.

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Big Finish! | by massless

A while back, someone recommended John Molloy’s 2004 book, The Fraternity: Judges and Lawyers in Collusion. Molloy? I wondered. Wasn’t that the guy who wrote the now dog-tired advice book on sartorial corporate success?

Wrong guy I discovered. The Fraternity was written by the late John F. Molloy — not John T. Molloy. That’s a world of difference. The former was a lawyer-turned-judge-turned-lawyer and the other was a researcher and consultant who first made his bones advising New York City law firms on how clothes could enhance the credibility and authority of young lawyers before judges and juries.

Nevertheless, I finally read The Fraternity. But as it turns out, the old Dress for Success guru’s book, which I read two lifetimes ago was eminently more useful by comparison.

Instead, I was disappointed by the self-proclaimed “confessional diatribe” by the late Tucson, Arizona jurist John Fitzgerald Molloy. Long on confession and short on redemption, it was also empty of promise. With so much discussion about the Fraternity’s self-serving, profit-seeking grip on the legal system, where were the practical prescriptions?

Clarks Pie | by Capt' Gorgeous

Among Judge Molloy’s pie-in-the-sky suggestions: Eliminate the exclusionary rule. Reduce peremptory challenges. Keep lawyers out of juvenile courts in favor of trained social workers. Take away the plaintiff’s first and last argument in a civil trial. Stop random selection of juries in favor of jurors selected by public officials. Limit the bench to only those with trial experience. Ban judges from working as lawyers after serving on the bench.

In whose lifetime will those sky pies be eaten?

To be fair, there’s enough in Judge Molloy’s wisp of a 244-page memoir sans index to justify the book’s subtitle, “Lawyers and Judges in Collusion.” But the problem is that it mostly reeks of cognitive dissonance, i.e., the conflict that results from simultaneously holding inconsistent beliefs and attitudes. It’s like the chow hound who complains about his meal while asking for a third helping.

Out of both sides.

On the one hand, Judge Molloy regales his readers with how much money he made as a trial lawyer after leaving the bench, even admitting “We were infatuated with the flow of delightful cash.” And to make certain you’re suitably impressed, he goes as far as helpfully calculating the present value of his old law firm earnings.

But then on the other hand and only at the end of his career, does the 74-year old former trial and appellate judge belatedly call for incremental reform of a legal system that’s been “massaged” by “a Fraternity composed of lawyers and judges . . . into something quite different from what was intended — one that derives powers from claiming to have come from our Forefathers, but which in fact is a system that has been restructured, almost beyond recognition, by the Fraternity, for the benefit of the Fraternity.”

NYC: New York Supreme Court, Appellate Division | by wallyg

Indeed, concluding his recollections of his service on Arizona’s appellate bench, he writes, “In reviewing this chapter, I realize that I may have given the impression that as an appellate judge I was a brave dissenter, always leaning against the tornadic winds of the Fraternity’s movement toward more litigation and more lawyer-profit. The written record gives lie to such a claim.”

Sort of undercuts the argument for reform, that it’s made — only after you’ve gotten yours. Better I think what Edna St. Vincent Millay said long ago about penance, “But if I can’t be sorry, why I might as well be glad.”

Photo Credits: “Big Finish” by Chris Wetherell at Flickr Creative Commons Attribution; other photos via Morguefile.com;”Clark’s Pie,” by Ben Salter at Flickr Creative Commons Attribution; “NYC: New York Supreme Court, Appellate Division,” by Wally Gobetz at Flickr Creative Commons Attribution.

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Samoan man in Hawaii | by foot fingers

Voluntary is ‘mo bettah.’


 Voluntary bar jurisdictions:

  1. Have a longer history than mandatory bar jurisdictions. The so-called integration movement didn’t start until 1913. That’s when the now defunct American Judicature Society‘s Herbert Harley motivated by the goals of overcoming low voluntary membership rolls; increasing revenues; reducing fragmentation; and enhancing professionalism; adopted bar unification as part of the Society’s law reform movement. According to research by Professor Theodore Schneyer, “voluntary state bar memberships in the 1920s included only 10% to 30% of the bar.” Parenthetically, predating the creation of the American Bar Association by 4 years and besting the New York State Bar Association by 2 years, the Iowa State Bar Association was formed in 1874 and claims to be “the oldest voluntary state bar association in the United States.” 18 jurisdictions in the U.S. are still voluntary. And to this day, voluntary bar membership in Iowa approaches 90%;
  2. Scandalized | by CarbonNYC [in SF!]Tend to have lower overall costs to practice; See Fact Check;

  3. Accomplish the public-protection goals of regulating discipline, managing bar admission, ensuring ethical standards, and registering lawyers, without integrating an existing bar association because these objectives are subject to statute or court rule and are not the responsibility of an integrated bar. For example, virtually every state in the country has in place court rules or statutes prescribing caretaker regulations when a lawyer disappears, dies, or is declared incompetent. And the same holds true for client protection funds, which likewise exist in both voluntary and mandatory bar jurisdictions. (The State Bar of Arizona makes much of its own lawyer caretaker conservatorship program although it budgets a mere 0.206% of a $14.5M budget to further buttress the purported necessity of a mandatory bar by virtue of having the program. But as of June 1, 2015 like almost every state in the country, Arizona has no rule requiring an attorney to designate a successor/surrogate/receiver in case of death or disability. A Rules Petition, however, was submitted in January but the matter was continued);

  4. Avoid the conflicts of interest between lawyers and the public. Voluntary state bar associations are autonomous private professional associations that unlike compulsory bar associations serve the interests of their voluntary members. They do not function like public agencies or regulatory bodies that subordinate member interests in favor of what mandatory bar leaders define as ‘the public good.’ And also unlike mandatory bar associations, the financial self-interest of voluntary associations is tied to a value proposition. Lawyers will refuse to maintain consensual membership in an association where the financial cost exceeds the value received;

  5. Without the Keller restrictions imposed on mandatory membership bar associations, voluntary state bar associations amplify the legal profession’s legislative voice in the lawmaking advocacy process. See, for example, Minnesota State Bar Government Relations and the Illinois State Bar Legislative Affairs Department;

  6. Jen, kissing the First Amendment goodbye? | by jasoneppinkProtect lawyer First Amendment rights without infringing on free speech and an individual’s freedom not to associate, which in the case of mandatory bar jurisdictions, results in the individual being compelled as a condition of earning a living in their profession, to contribute to an association which uses those fees to conduct activities to which that individual objects;

  7. Avoid recurring litigation over the use of compulsory dues for ideological activities; Most recently, see Fleck v. McDonald;

  8. Offer programs and services that favorably compare and even exceed those offered by mandatory state bar associations, including law office management practice services; insurance programs; reduced-cost and free CLE; Find-a-Lawyer member directories; Access to Justice initiatives; job hunting resources; Sections and Committees; lawyer referral services; Publications; Young Lawyer Divisions; Legal Research like Fastcase and Casemaker; Mentoring programs; leadership development programs; Annual Meetings; high school mock trial programs; community pro bono; ethics opinions and practice resources and even online practice tools. (Instead of making a good faith effort to ascertain the scope, content and quality of programs, services, and activities conducted by voluntary bars, mandatory bar proponents prefer to hide behind patent nonsense to justify compelled association);

  9. Are no different from mandatory bar associations in offering lawyer assistance resources to assist lawyers with problems with alcoholism, drug abuse and mental or emotional disorders. See, for instance, the New York State Bar Association’s Lawyer and Judges Assistance Program;

  10. Do not increase costs to the public since lawyers pay 100% of the costs of lawyer regulation in every U.S. state and territory. It is completely fallacious for mandatory bar proponents to spuriously claim that a mandatory bar has to be preserved because their programs and services could not be duplicated by a voluntary bar or that the elimination of a mandatory bar would place burdens on taxpayers. 


Photo Credits: Samoan man in Hawaii, by Steve Bozak at Flickr Creative Commons Attribution; Jen, kissing the first amendment goodbye, by Jason Eppink at Flickr Creative Commons Attribution; Scandalized by David Goehring Flickr Creative Commons Attribution.

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(1) there’s no empirical support that mandatory continuing legal education enhances lawyer competency or professionalism and;

(2) the state bar has a financial interest in CLE marketing.

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There was a very good Op-ed in this morning’s New York Times, Steven Harper’s “Too Many Law Students, Too Few Legal Jobs.”

I know. It’s all been said before, especially by the now declining scamblog movement.

But I still encourage you to read it, especially since Harper again challenges the American Bar Association (ABA) to do something about the dysfunctional system it’s had such a strong hand in perpetuating: law schools “operating without financial accountability and free of the constraints that characterize a functioning market.” As Harper and others have critiqued, despite its recent task force on the future of legal education, the ABA persists in doing little to effectuate real reforms concerning law school funding, tuition pricing, student debt loads and earnings potential.

Bite and breadth.

The criticisms about the state of legal education have also been made before with arguably more bite — but with equal breadth by law school professor and reform advocate Paul Campos. Indeed, in September 2014, writing in The Atlantic, Paul Campos summarized the problem like this:

“. . . the Congressional Budget Office projected that Americans will incur nearly $1.3 trillion in student debt over the next 11 years. That figure is in addition to the more than $1 trillion of such debt that remains outstanding today. This is the inevitable consequence of an interwoven set of largely unchallenged assumptions: the idea that a college degree—and increasingly, thanks to rampant credential inflation, a graduate degree—should serve as a kind of minimum entrance requirement into the shrinking American middle class; the widespread belief that educational debt is always “good” debt; the related belief that the higher earnings of degreed workers are wholly caused by higher education, as opposed to being significantly correlated with it; the presumption that unlimited federal loan money should finance these beliefs; and the quiet acceptance of the reckless spending within the academy that all this money has entailed.” See The Law-School Scam

Harper, a former big law partner, has like Professor Campos, opined extensively on the same topics, including in his 2013 book, The Lawyer Bubble: A Profession in Crisis and more recently in his law review article, Bankruptcy and Bad Behavior – The Real Moral Hazard: Law Schools Exploiting Market Dysfunction.

The themes are familiar ones, including the law school market dysfunction and how “Current federal student loan and bankruptcy policies encourage all law school deans to maximize tuition and fill classrooms, regardless of their students’ job prospects upon graduation.”

And as Harper explains, a “law school moral hazard” has been created where having incentives to do so, persons take more and more risks because someone else will bear the burden of those risks. He says this moral hazard has combined “with prelaw students’ unrealistic expectations about their careers to produce enormous debt for a JD degree that, for many graduates, does not even lead to a JD-required job.”

Meantime, as Harper and Campos are so good at reminding, for law schools this just means pay no mind as their beat goes on.


Photo Credits: All photos via morguefile.com

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Untitled | by Eddy Pula

Engagingly educational continuing legal education program? I don’t remember when. But who said lawyers were supposed to be engaged let alone entertained at these programs. Continuing legal education is instead meant to supposedly make lawyers more competent and more professional. But the thing is, there’s never been empirical support for that proposition.

File:Pirouette.gifAll the same, virtually all state supreme courts continue to mandate CLE while state bar program providers continue to pirouette around whether the programs improve attorney competence or enhance professionalism.

Indeed, among my favorite dance meanders are the ones offered by the New Jersey Supreme Court’s Ad Hoc Committee on Continuing Legal Education, which was tasked in 2007 “to determine whether it could find a compelling case against the establishment of mandatory continuing legal education (MCLE or CLE) in New Jersey.”

“Admittedly,” the Committee said in its 2008 report, “empirical data affirming the effectiveness of mandatory CLE do not appear to exist.” But did that bit of obviousness stop the Committee from predictably recommending the comprehensive implementation of mandatory CLE?


Of course not, even as the Committee was admitting that the absence of evidentiary support “has been acknowledged by almost every jurisdiction that has adopted mandatory CLE, perhaps in recognition that the critical problems associated with defining competence and developing a test regimen to measure for improved performance have not been resolved.”

Or just maybe, the better reason for the lingering inability to find a competency testing metric is that it’s preferable to keep offering up that ‘X is true because there is no proof that X is false.’ Or as the Committee said in its report, “Given that continuing education is inherent in the concept of professionalism and the widely held view that voluntary continuing legal education is beneficial, what reasons, other than the absence of empirical data, mitigate against making CLE mandatory? We have found few, if any.”


So as of January 1, 2010, Rule 1:43 has required all New Jersey licensed attorneys to take 24 hours of continuing legal education every two years, including at least 4 hours on topics related to ethics and/or professionalism.

And with that preamble, here’s the latest FREE CLE update. The usual disclaimers about availability, content and jurisdictional creditworthiness apply.



Florida Bar

Earn More, Stress Less: Using Technology To Make Solo and Small Firm Practice Sustainable

(1) hour on demand CLE

Building the Small Firm Marketing Program: From Planning to Ethical, Effective Action

2.5 hours of on demand CLE



Free one-hour webinar, “The Happy Lawyer’s Guide to Running Your Practice Like a Business.”

Sign up at:


Practising Law Institute

Reentry in California – Overcoming Legal Barriers to Community Reintegration Following Incarceration 2014 (Free)

On-Demand Web Programs
Full Seminar Approved for up to 3.0 or 3.5 hour credits in multiple jurisdictions
Launch Now


Photo Credits: Untitled by Eddy Pula at Flickr Creative Commons Attribution; Pirouettes performed by Daria L during Paquita grand pas de deux adagio by Jim Lamberson at Wikipedia Commons.

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