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https://cdn.morguefile.com/imageData/public/files/h/hyperlux/preview/fldr_2005_05_29/file000516740961.jpgAfter reading about the death of 42-year old prominent, “outspoken” Las Vegas lawyer Jacob Hafter this past week, I thought again of how tough and even unforgiving the legal establishment can be. According to news reports, the Clark County, Nevada coroner’s office ruled Hafter’s death a suicide. See “Suspended Las Vegas lawyer Jacob Hafter dies at age 42.”

Last November, the Nevada Supreme Court handed down a six-month suspension order of Hafter “partly for Facebook comments accusing a judge of religious bias.” For more details concerning his disciplinary case see “Nevada Supreme Court suspends Las Vegas attorney Jacob Hafter.”

Hafter’s sudden unexpected and tragic death has roiled members of the Las Vegas legal community, some going as far as faulting the Nevada Bar for allegedly doing little to help the lawyers it disciplines.

Ironically, in May 2017 the Nevada Supreme Court approved a state bar petition mandating an additional annual hour of continuing legal education in substance abuse, addictive disorders and/or mental health. Also see “Overwrought and over exaggerated but no matter. Over prescribed CLE is always the regulators’ fix.”

Adding to the disquietude caused by Hafter’s death was unrelated news tonight about how Broward County, Florida Circuit Court Judge Merrillee Ehrlich “brutally berate a woman in a wheelchair. The woman died. The judge has quit.” The video is unpleasant to watch, underscoring again how hard the system can be, especially on non-lawyers, too. The Miami Herald story can be found here.

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I wasn’t going to weigh in. But attorney-client confidentiality confusion is back in the news. This time it’s over President Trump’s personal lawyer Michael Cohen and Fox News Talk Show Host Sean Hannity and whether there’s an attorney-client relationship between them. So comment I will.

However, in place of comprehensively revisiting the topic again here, I direct you instead to one of this blog’s most highly read posts, “When is a client a client? On what establishes an attorney-client relationship.” It’s on point and why I decided not to let the moment pass, especially since pop culture (see below) and even some lawyers remain muddled about the subject.

https://cdn.morguefile.com/imageData/public/files/a/alvimann/preview/fldr_2008_11_07/file0001224520150.jpgLawyer, former judge, and Hannity’s Fox News compadre Andrew Napolitano typifies the misconceptions. Discussing this week’s revelation that Hannity was Cohen’s mystery client on “Outnumbered Overtime” with host Harris Faulkner, Napolitano pushed back on Hannity’s claim he “may have” paid Cohen $10 to get attorney-client privilege. Napolitano told Faulner, “I must tell you that that is a myth. The attorney-client privilege requires a formal relationship reduced to writing for a specific legal purpose.” 

Having someone pay a lawyer a buck or ten-spot to inoculate a conversation as a privileged attorney-client communication is a common contrivance in novels, movies and on shows like “Better Call Saul” and Breaking Bad.”

But the good judge is wrong. You don’t need a writing. In a nutshell, the bright-line test to create an attorney-client relationship is whether or not the person consulting a lawyer does so “with a view to obtaining legal services.” A signed attorney-client contract or the payment of a fee — whether $1, $10 or $10,000 — isn’t relevant to establish that relationship.

Why does this matter? It matters when a client becomes a client because of the protections of the attorney-client privilege upon which clients rely. For an attorney-client privilege to be raised, an attorney-client relationship must exist.

For more about “the myth of the dollar bill as a prerequisite to the formation of a privileged relationship and the myth that all communications with a lawyer are protected,” see “Better Call Saul: Is You Want Discoverable Communications: The Misrepresentation of the Attorney-Client Privilege on Breaking Bad” and “Sean Hannity’s idea of ‘attorney-client privilege’ was right out of Breaking Bad.”

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Credit: Sean Hannity, caricature by Dokey Hotey, at Flickr via Attribution-ShareAlike 2.0 Generic License.

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I have to confess. I had no idea that for at least 20 years judges in some U.S. criminal courts have quite literally been shocking defendants with 50,000 volts of electricity when the judge deems the defendant to be out of line. It happens incredibly enough in jurisdictions where the criminally accused can be required to wear battery operated remote-controlled stun cuffs or shock belts to court. At the command of the judge, a bailiff or law enforcement officer presses the stun button.

Unimaginably, this is the stuff of the totalitarian state — an exclamation point putting the banana in banana republic.

It takes but a few online clicks to quickly turn up instances where it’s happened — no aberration for those paying attention. A couple of years ago there was the one caught on tape in Maryland. In that case, though, the judge was disciplined and removed from the bench. See Ex-judge who ordered man to be hit with stun gun pays fine

 

Embracing “savage measures.”

Ironically, it was also 20 years ago that I first read and saved a quote by Cesare Beccaria. He was an 18th century economist, philosopher, and criminologist whose words immediately came to mind when I read last week about another judicially administered electric shock in the courtroom. This time the news concerned the Texas Eighth Court of Appeals throwing out the conviction of Terry Lee Morris on the grounds that the electric shocks ordered by Tarrant County District Judge George Gallagher and Morris’s subsequent courtroom removal had violated his constitutional rights. Beccaria declared, “Societies seeking to moderate human conduct should not embrace savage measures.”

Hat tip to my buddy at The Legal Watchdog for emailing me about the Morris case. Also see ‘Barbarism’: Texas judge ordered electric shocks to silence man on trial. Conviction thrown out and Court Throws Out Conviction Of Texas Man Who Was Given Electrical Shocks By A Judge For Failing To “Follow The Rules”

Not having had any experience in the criminal courts, I had no idea some of the black-robed had been given this much power to physically punish the not yet convicted.

Where permitted, it’s left to the subjective discretion of the judge who decides if and when a defendant is being mouthy, difficult or otherwise ‘unmanageable.’ The justification for administering electrical shocks is “security.” But from the reports I’ve read too often the so-called threat to courtroom security falls more on the order of a garrulous defendant who has managed to annoy the judge.

Fortunately, not all jurisdictions allow the use of stun cuffs and shock belts in court. Indeed, four years after the first use of an electric security belt in Los Angeles County, in 2002 the California Supreme Court effectively banned their use during criminal trials. They were likewise barred in Indiana — but not so Texas.

And here I was previously exercised about judges with a penchant for shackling defense lawyers. That sanction pales by comparison to shock treatment. Just the same, let’s hope there’s never a time when handcuffing defense lawyers becomes an insufficient imposition and that instead further discretion is given to hit recalcitrant counsel with 50,000 volts of proper comportment.

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A “membership requirements” survey emailed to the state’s lawyers last week by the Chief Justice of the Arizona Supreme Court features an unprecedented argument. Acknowledging that “some lawyers argue there should be an exception” to mandatory membership in the State Bar of Arizona, the introduction to the survey asserts “One argument is that some lawyers hold a ‘firm, fixed and sincere ethical, religious or moral objection’ to being required to be a member of the State Bar and should be able to opt out as a non-member attorney (NMA).”¹

As proposed, lawyers opting out of joining the Bar and funding its full freight of regulatory and non-regulatory trade association services would be required to personally swear or affirm in writing to “a firm, fixed, and sincere ethical, religious or moral objection” to Bar membership.

It’s not clear who would determine the adequacy of the affidavits or how often affiants would have to file their objections. California teachers, for example, must annually file an opt-out request to get a 30% refund of their union dues.

More significantly, objectors would be forced to tell their clients of their new status as NMAs. This assuredly implicates unconstitutional compelled speech. It also serves no legitimate government function. And without pinpointing any legitimate purpose, objectors would be issued new Bar cards with brand new bar numbers to identify them as attorneys licensed to practice — but NMAs. Talk about chilling the First Amendment right not to associate.

A lawyer second class.

As a newly created separate and unequal class of lawyers, NMAs would be excluded from voting in Bar elections or from running for its governing board. However, as others have pointed out, disenfranchising NMAs is only appropriate if the State Bar has no formal role in attorney discipline and governance. But that’s not the case here. The Court-empowered Bar will continue holding regulatory and disciplinary sway over both members and non members.

Categorized as ineligible for Bar discretionary services, including specialty section membership, NMAs would also be charged higher registration fees for Bar continuing legal education programs.

In exchange for giving up the foregoing, it’s estimated NMAs would save a modest $70 to $100 off the current $505 dues. Already one of the highest cost to practice bars in the U.S., Arizona’s dues go up to $520 a year from now.

It’s fair to wonder how this low savings estimate was calculated and whether it was derived from self-interested Bar number-crunchers. By contrast, when in 2013 the Nebraska Supreme Court ordered the Nebraska Bar to charge members only for lawyer regulation — licensing fees went down by two-thirds.

The lawyer as conscientious objector.

Forget for the moment that “an opt-out system places the burden on the wrong party and leads to the unjust and needless encroachment upon First Amendment rights.” Or that giving lawyers only one choice: making a Hacksaw Ridge style conscientious objection to get out of membership is not only absurd but unnecessary. Trade association services should be voluntary to begin with. And when did we sign up for the infantry?

As I have written here before, the Bar always conflates lawyer professionalism, expertise and qualifications with mandatory membership — because it serves their self-interest. Lawyers are admitted and authorized to practice by the state supreme court not because of Bar membership.

Yes or no.

After describing how the proposal would be implemented, the survey asks a yes or no question, “Given this information, do you believe the Arizona Supreme Court should provide a non-member attorney option to attorneys licensed to practice in Arizona?”

And then asks, “If the AZ Supreme Court were to provide a non-member attorney option as described above, would you:

___ Remain a full member of the State Bar

___ Choose to opt out”

Below are the parameters that frame these survey questions. But inasmuch as they amount to poison pills, it’s clear the intent is to not to delineate but to dissuade respondents from opting out.

The State Bar, which gave input on the survey, stands to profit should the results inure to its benefit. However, asking the Bar for input on whether its captive members should opt out is like asking the cat whether to release the mouse.

So notwithstanding the survey’s one-sided argument and suspect constitutionality, the Bar will just the same crow a result that cowed its members from opting out. How many lawyers will find amenable a requirement to out themselves to clients like modern-day Hester Prynnes?

But if there’s ever been a better case for a voluntary bar than the one presented by this unworkable scheme — I can’t think of one.

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Lawyers who choose the NMA option:

“Would be required to file an affidavit with the State Bar indicating they favor a firm, fixed and sincere ethical, religious or moral objection to being required to be a member of the State Bar.

▪ “Would be required to notify your clients that you are no longer a member of the State Bar, but are licensed to practice in Arizona.

▪”Would have to personally file the affidavit. The head of a firm or office could not opt out for all attorneys at the firm or office.

▪ “Would receive a separate law license number and their current bar number would be deactivated.

▪ “Would not be able to join a State Bar section.

▪ “Would be charged a higher non-member registration fee if the NMA wants to attend a State Bar sponsored CLE program.

▪ “Could not vote in State Bar elections, nor could they run for the Board of Governors.

▪ “Would not be eligible for State Bar discretionary services, e.g., the Arizona Attorney, e-Legal newsletters, Law Office Management assistance, use of FastCase, State Bar legal publications.

▪ “Would pay a mandatory licensing fee but would not pay for State Bar non-regulatory services. The Court estimates it would be a 14% to 20% reduction in the fee paid for only being licensed to practice. For a regular active Bar membership, the reduction would be $70 to $100.”

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¹Never having heard of any lawyer making such a peculiar argument, what first occurred to me on seeing the proposed NMA acronym was the Compton rap group N.W.A.

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Except for the part about giving a no-strings $1,000 per month to anyone amorphously defined “low-income” or “middle-income,” I mostly agreed with the sobering look at the Millenial Generation I read on Sunday. (Christmas Grinch or not, for a lot of reasons a $1,000 handout is a bad idea. For one, who’s going to pay for it? Don’t count on noblesse oblige.)

Just the same, I urge you to read the dire financial deconstruction in the cleverly conceptualized Highline story by Michael Hobbes, “Millenials Are Screwed,” subtitled, “Why millenials are facing the scariest financial future of any generation since the Great Depression.”

Their “touchstone experience” is “uncertainty” Hobbes explains. He runs through factors like salary stagnation, job and housing insecurity, and other cratered economic sectors to project that his will be “the first generation in modern history to be poorer than our parents.”

As it is, one in five currently live in poverty. And they have at least 300 percent more debt than their parents — more about that after. Plan for retirement? Buy a home? Not even.

And as for all that free money, here’s the other problem. The definition of “middle-income” or “middle class” is increasingly in the eye of the bean-holder. Uncle Joe Biden once ridiculously asserted, for example, that an annual salary of $379,000 was middle class.

Putting Biden’s neuron misfire into perspective, per the latest U.S. Census data, “In 2016, the median household income for all counties ranged between $22,045 and $134,609, with a median county-level value of $47,589.” A more learned economist than Uncle Joe says based on that data,“middle class ought to be defined as households making 50 percent higher and lower than the median.”

File:Soirée WikiCheese le 23 janvier 2015 - 57.jpgThat, of course, is not to dismiss with a straight face folks insisting through a mouthful of ripe ‘cru’ Beaujolais and Brie de Meaux that $300,000 to $400,000 annually is middle class.

Which brings me to something equally troubling, which is that millennials who are lawyers are smack in the throes of the same structural disadvantages Hobbes describes. Millenials earning a J.D. degree the past ten years have assured themselves of only one thing — astronomical student debt.

On average, borrowers in the law school class of 2014 took on $111,899 in debt according to US News & World Report. And the average indebtedness of 2016 law school graduates who incurred law school debt is worse still — in one word — appalling. Also see Stat Of The Week: Law School Graduate Debt Soars.”

https://upload.wikimedia.org/wikipedia/commons/thumb/3/37/Bury_your_head_in_the_sand.jpg/160px-Bury_your_head_in_the_sand.jpgMeantime, head-in-the-sand mandatory bar associations like the one in Nevada keep coming up with new ways to tighten the economic screws on their members, especially hard-pressed millenials. Last week the Nevada Bar sent a blast email survey asking members to weigh in on mandatory malpractice insurance. Also see “Join the Discussion: Whether Malpractice Insurance Should be Mandatory in Nevada.”

The survey was laughably replete with leading questions and agenda-driven outcome-bias. Knowing how these things work, the survey’s real purpose was to offer the tone-deaf governing board a fig leaf of cover for what they’re going to do anyway — no matter objections of the lawyer hoi polloi.

Happy then, the carriers with captive customers. Also for carriers — hallowed be the Nevada Bar since this insurance can easily run a few thousand dollars per year. But unhappy those who like Blanche Dubois will look to the kindness of carriers to resist the temptation to increase the cost of insurance across the board.

For Nevada’s millenial lawyers, it’s just one more structural disadvantage like all the ones faced by millenials generally. And as for the rest of us, time for a reassessment. Millenials aren’t entitled. And they aren’t slackers — they’re just screwed.

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Photo Credit: Soiree Wikicheese, by Lionel Allorge at Wikimedia Commons under GNU Free Documentation License ;Bury your head in the sand, by Sander van der Wel at Wikimedia Commons Creative Commons Attribution-Share Alike 2.0 Generic license.

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What happens in Vegas never did stay in Vegas contrary to that now 15-year old marketing slogan I got sick of 15 years ago. The succeeding, “What happens here, stays here” was scarcely an improvement.

Take, for example, what happens in a Vegas courtroom. To the uninitiated, you might think from news reports the past couple of years that there’s a perverse penchant for handcuffing lawyers in Clark County, Nevada. That kind of news doesn’t stay in Vegas.

In 2016, Las Vegas Justice of the Peace Conrad Hafen ordered his bailiff to handcuff Clark County Deputy Public Defender Zohra Bakhtary while she was arguing for leniency for her client. Showing Bakhtary no leniency, Judge Hafen ordered his bailiff to place the handcuffed defense lawyer in a chair next to the jury box.

The justice of the peace was subsequently disciplined by the Nevada Commission on Judicial Discipline for his conduct. He consented to a public censure and agreement not to seek, accept or serve in any judicial or adjudicative position or capacity in the future in any jurisdiction in the State of Nevada.

Then last month Clark County Family Court Judge William Potter was suspended for two months without pay for several violations of the Nevada Code of Judicial Conduct arising out of ordering the handcuffing of lawyer Michancy Moonblossom Cramer and threatening to handcuff another lawyer, Ernest Buche, in his courtroom.

The 15-page decision of the Judicial Discipline Commission is worth reading. Besides the two month unpaid suspension, Judge Potter is required to apologize in writing to both lawyers; perform 10 hours of community service; pay a $5,000 fine to an antibullying group; and because the commission panel questioned Judge Potter’s “mental stability and capacity to control his anger,” he is required to submit to a psychiatric exam. As noted in the decision, “The most troubling aspect of the hearing occurred when (Potter’s) temper exploded during the commission hearing itself, thus allowing the commission to witness first-hand the very same behavior that the judge exhibited during the Cramer incident.” 

And finally, there’s this, which thankfully doesn’t involve more lawyer handcuffing by judges. Instead, it’s Clark County District Court Judge Susan Johnson who told several felons to follow through on their probation so they’d be able to vote for Donald Trump in the next presidential election. The judge’s political recommendation made national news — yet again undermining “What happens here, stays here.”

And no matter that she subsequently claimed her comments were meant as jokes. See Las Vegas judge who told felons if they meet probation requirements they can vote for Trump in 2020 says she wanted to ‘invoke some humor'”

I’ll be surprised if a complaint isn’t filed with Nevada’s Judicial Discipline Commission against Judge Johnson for possibly violating the code of conduct’s prohibitions against politicking from the bench. Most likely, though, if a complaint is lodged, it won’t be from a lawyer.

With apologies to Oliver Wendell Holmes, Jr., among other viable reasons, including potential prejudice to clients, detached reflection isn’t in great demand while handcuffed.

Lawyers are among the least likely to file complaints against judges. See Commission’s 2016-2017 Biennial Report.

As for the humor of it, The Nevada Independent reported December 1st that Judge Johnson has made her vote for Donald Trump ‘joke’ three times. The schtick apparently did not get stale after the first or second time.

As a matter of fact, the last documented instance came in August when the jurist told defendant Monique Fresquez, “So if you do everything I tell you to do, you will have your civil rights restored in about three years. You’ll be able to vote for Mr. Trump, I’m sure he could use your vote.”

So far there are no reports of any defendants ‘humorously’ receiving MAGA caps.

See Judge again tells felon to behave because Trump “could use your vote”

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Photo Credits: Welcome to fabulous Las Vegas, by Håkan Dahlström at Flickr Creative Commons Attribution; No Justice for Toons, by JD Hancock at Flickr Creative Commons Attribution; female in handcuffs, by Jobs For Felons Hub, at Flickr Creative Commons Attribution; keep_in, by Robin Davies at Flickr Creative Commons Attribution; Donald Trump, by Donkey Hotey, at Flickr Creative Commons Attribution.

 

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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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