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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.

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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.

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Recent news out of Ohio concerning debt-ridden new lawyers underscores the difference between a mandatory membership bar association and a voluntary one. Ohio is one of 18 states where lawyers can practice without being forced to join their trade association.

https://upload.wikimedia.org/wikipedia/commons/thumb/3/37/Bury_your_head_in_the_sand.jpg/160px-Bury_your_head_in_the_sand.jpg

In states where lawyers are forced to join a mandatory membership bar association as a precondition to practice, there are bar leaders with heads in the sand who act as though the crashing tides of debt drenching young lawyers were nonexistent.

But in voluntary states like Ohio, bar leaders have at last started examining the “unprecedented burdens faced by new lawyers.” Ten years past the “law school tuition bubble,” they may be a tad late — but in contrast to mandatory bars in Nevada and Arizona — at least they’re now considering potential solutions to the astronomical six-figure debt service new lawyers get along with their diplomas.

Futures Commission.

Tasked with researching and developing long-term solutions and “first action steps,” the Ohio State Bar Association established a 29-member Futures Commission more than one year ago to look at new lawyer burdens and “the need for acquisition of knowledge and the skills necessary to develop and carry on a successful practice; the lack of regulation for new legal service delivery options; and the widening access to justice gap.” In July, the Commission released its preliminary report.

Unlike mandatory bars that too often act below-the-radar through top-down mandates, the Ohio Bar sought input from members through town hall style meetings held in each of its 18 districts and supplemented these with input from its 2017 Leadership Academy class of new lawyers.

In Ohio, bar leaders believe “member satisfaction” is one of their association’s “core values” driving the stated goal of making “membership in the Ohio State Bar Association indispensable to Ohio lawyers.” 

It’s one thing to force lawyers to join an organization in order to earn a living in their chosen profession. But it’s another matter entirely when lawyers choose membership because the value proposition is so strong that membership is “indispensable.”

 

So much debt.

https://upload.wikimedia.org/wikipedia/commons/thumb/f/f9/Tin_Woodman.png/105px-Tin_Woodman.pngIt’s not like mandatory bars haven’t heard about the unprecedented tuition debt incurred by today’s young lawyers. More likely, they can’t relate to it. Many graduated from law school when women had big hair to the skies and fashion meant shoulder pads, parachute pants and Members Only jackets. Tuition then was a fraction of today’s troubles. Unsurprisingly, these bar leaders are tin-eared about the problem.

According to Law School Transparency (LST)  “legal education inflation far exceeds the inflation rate.

“In 1985, the average private school tuition was $7,526 (1985 dollars), which would now cost a student $16,294 (2013 dollars). Instead, the average tuition is $41,985 (2013 dollars). In other words, private law school is now 2.6 times as expensive as it was in 1985 after adjusting for inflation. Public school (for residents) is now about 5.5 times as expensive.”

As reported by the Cleveland Plain Dealer in July, “Ohio law school grads face debt of nearly $100,000 and few job prospects, report says,” the Commission’s report finds that the average 2015 Ohio law school graduate has approximately $98,475 in law school debt. Worse yet, “Only approximately 58 percent of 2015 Ohio law school graduates are employed in jobs requiring bar passage.”

And it’s only getting worse. For entering 2017 students, Ohio’s Law School Transparency (LST) numbers are even higher — well north of $150,000 on average.

In Arizona, LST projects even more sobering statistics for wanna-be lawyers starting law school in the Grand Canyon State this year. They should expect a “full price projected debt” for their J.D. degree of $175,084 if they are state residents graduating from Arizona State University. If they’re residents and start and finish at the University of Arizona, the number is $173,280.

At Arizona Summit Law School, one of the nation’s most expensive law schools, the “full price projected debt” is an astounding $252,571. This averages out to $200,978 among the three Arizona schools. It breaks out to an average debt service headache over 10 years of $2290 per month.

In Nevada, LST reports that students matriculating in 2017 at the University of Nevada, Las Vegas, the state’s only law school, can anticipate a “full price projected debt” of $175,310 and a $2000 per month nut over 10 years.

‘What me worry?’

https://upload.wikimedia.org/wikipedia/commons/thumb/3/36/Happiness.gif/209px-Happiness.gifThe root problem is that mandatory bars like those in Nevada and Arizona aspire to serve competing interests — those of the legal profession and those of the public. But it can’t be done because these interests often conflict.

Instead of alleviating practice burdens, for instance, mandatory bars constantly tinker with their bureaucratic spigots to open ever increasing cost, time and stress pressures on members. This is because they’re not necessarily looking out for the interests of lawyers.

In mandatory bar Nevada, for example, there’s a bar study group looking at the supposed merits of forcing all the state’s lawyers to buy professional liability insurance. If the model is mandatory bar Oregon, currently the only jurisdiction mandating professional liability insurance, expect only one blessed provider.

Moreover, the cost will be substantial. In 2017, Oregon lawyers ponied up a whopping $3,500 apiece for bare minimum coverage of $300,000 per incident and $300,000 aggregate. And Oregon has almost twice as many lawyers as Nevada.

Voluntary bars look out for the interests of members.

In closing, here’s what the Ohio Bar’s Futures Commission looked at:

•  How to ensure new lawyers enter the profession practice ready and without the crushing burden of student debt;
•  How busy lawyers at all stages of their careers can get the most out of their required continuing legal education credits;
•  The appropriate role of online legal service providers, limited multidisciplinary practice, fee-splitting and other emerging new business models in the delivery of legal services and if they can they help lawyers better serve clients and stay true to the values of the profession;
•  And with the real and perceived expense of legal services, how to ensure access to justice for all, regardless of income.

Besides supporting cost reducing law school initiatives, the Commission also took a departure from the latest gambit being promoted by mandatory bars: the licensing of non-lawyers to practice law. “Believing firmly that any provision of legal services should be done under the direction of a licensed attorney,” the Commission pronounced its opposition to “any effort to establish new categories of non-lawyer legal service providers (NLP) in Ohio and instead, support the development of programs or actions that would connect the unrepresented with available attorneys.”

So before state bars go all in and eliminate unauthorized practice of law rules to allow non-lawyers to directly compete with lawyers, something ought to be done to level the field. Stem the tide of unconscionable tuition debt from overpriced law schools.

But as they bang away on their Access to Justice drums, don’t expect a pronouncement like Ohio’s from mandatory bars in Washington, Utah and Arizona to name just three where non-lawyers already compete for business with lawyers.

Unfortunately, mandatory bar leaders aren’t listening. When they’re not holding expensive annual convention boondoggles like the Nevada Bar in Hawaii (2016), Texas (2017) and Illinois (2018), they’re busy finding new ways to make it harder for lawyers to earn a living. 

The Futures Commission Report is available here

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Credits: Bury your head in the sand, by Sander van der Wel at Wikimedia Commons;Tin Woodman, by William Wallace Denslow at Wikimedia Commons, public domain; Life user Manual, by Unuplusunu at Wikimedia Commons, public domain; Smug by IburiedPaul at Flickr Creative Commons Attribution;3D Shackled Debt by Chris Potter  at Flickr Creative Commons Attribution; Second Band Drummer 5 Mono, by Dave Shaver, at Flickr Creative Commons Attribution.

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There was an apocryphal story — meaning it was likely bullshit — told by a law school professor about a 1-L engineer. As the story goes, the engineer turned wanna-be lawyer quit law school his first year because he was frustrated with the Socratic Method; the insufficiency of bright line rules; and the seeming poverty of absolutes in Law. For someone trained to give answers with an engineer’s precision, “it depends” was never going to be good enough. The Law may be a jealous mistress but it’s also an inconstant one.

https://upload.wikimedia.org/wikipedia/commons/thumb/5/5c/The_Scientific_Method_as_an_Ongoing_Process.svg/583px-The_Scientific_Method_as_an_Ongoing_Process.svg.pngThe point of the tale was clear. Empirical mindsets flee law schools. The scientific method is displaced by what’s called the legal method. One lawyer blogger observed that lawyers invert the scientific method, adding, “Luckily for attorneys, law is not science; it is not defined by reference to a pre-existing reality, and it is not limited to formulations that are consistent with this pre-existing state.” Precisely.

An “epidemic” of substance abusing lawyers.

So it was hardly a surprise that the lawyer commentariat would sigh with collective angst as soon as The New York Times published “The Lawyer, the Addict” subtitled “A high-powered Silicon Valley attorney dies. His ex-wife investigates, and finds a web of drug abuse in his profession.” The essay was penned by Eilene Zimmerman.

THE SKY IS  FALLING!!!

It wasn’t long after publication that the legal blogosphere ramped up, for example, here and calling it “an epidemic” here. Predictably, the-sky-is-falling.

One over-heated hand-wringer, a 2017 SMU Law grad even blogged at “In A Punishing Profession, Too Many Lawyers Are Paying The Ultimate Price,” “I hope law school candidates, law students, and lawyers take Zimmerman’s message to heart . . . the difference between heading the warnings and missing the signals can be life and death.”

As though all lawyer reputations needed further blemishment for the life choices of a few.

Just Say No.

https://upload.wikimedia.org/wikipedia/commons/thumb/2/20/NRJUSTSAYNO.jpg/160px-NRJUSTSAYNO.jpgThere are 1.3 million lawyers in the United States and like most of society, they are a cross-section of all that reduces and elevates the human condition. But thanks to the much disseminated tragic tale of the Silicon Valley lawyer’s drug overdose death and the accompanying quotes in the article from two recovering lawyers, the public might reasonably albeit illogically conclude that the million plus member profession is racked by addiction. Why not paint all lawyers with the same broad brush? Do we need a Nancy Reagan for lawyers?

To be fair, the story takes a stab at empiricism mentioning a Hazelden Betty Ford Foundation and American Bar Association (ABA) 2016 report that concluded “that attorneys experience problematic drinking that is hazardous, harmful, or otherwise consistent with alcohol use disorders at a higher rate than other professional populations.”

Data deficient conclusions.

Unfortunately, in their haste to pronounce knee-jerk remedies based on an incomplete sample size, the following cover your analysis (CYA) paragraph in the report is apparently being given short shrift. Could it be because it doesn’t buttress the narrative of a widespread drug and alcohol problem among lawyers?

“Our study is subject to limitations. The participants represent a convenience sample recruited through e-mails and news postings to state bar mailing lists and web sites. Because the participants were not randomly selected, there may be a voluntary response bias, over-representing individuals that have a strong opinion on the issue. Additionally, some of those that may be currently struggling with mental health or substance use issues may have not noticed or declined the invitation to participate. Because the questions in the survey asked about intimate issues, including issues that could jeopardize participants’ legal careers if asked in other contexts (eg, illicit drug use), the participants may have withheld information or responded in a way that made them seem more favorable. Participating bar associations voiced a concern over individual members being identified based on responses to questions; therefore no IP addresses or geo-location data were gathered. However, this also raises the possibility that a participant took the survey more than once, although there was no evidence in the data of duplicate responses. Finally, and most importantly, it must be emphasized that estimations of problematic use are not meant to imply that all participants in this study deemed to demonstrate symptoms of alcohol use or other mental health disorders would individually meet diagnostic criteria for such disorders in the context of a structured clinical assessment.”

Glossed over, too, is what the researchers declared was “the need for greater resources for lawyer assistance programs, and also the expansion of available attorney-specific prevention and treatment interventions.” Greater resources? I know of at least one Arizona lawyer assistance program volunteer who would agree. See “The Arizona Bar has no Member Assistance Program. They just want you to think they do.”

For mandatory bars, compulsory CLE is always the answer.

https://i.imgflip.com/10t4ve.jpg?a416544But instead of recommending comprehensive, objective evaluations to assess the need and efficacy of existing lawyer assistance programs, state bar associations instead look to more of the same: non-data driven ‘solutions.’ When legal elites perceive a problem, widespread or not, they do what lawyers do best, they impose rules. And the favorite option is imposing rules and regulations on others based solely on hasty generalizations. Verification or proof by observation are beside the point. Better to leap to a conclusion — not by data — but by guess and by golly.

The Bar’s easy fix is to write new rules to compel all lawyers, even the sober and abstinent to take a continuing legal education class in substance abuse and mental health awareness whether they need it or not. “Once more unto the breach, dear friends, once more” — but armed not with might — just an hour of untested mandatory CLE.

Nevada, for instance, was one of three jurisdictions requiring all active Nevada attorneys to take a minimum of one CLE hour once every three years on substance abuse, addictive disorders and or mental health issues. But as of January 1, 2018, Nevada will go everybody one better by increasing the total number of CLE hours annually required from twelve to thirteen, to include ten hours of general education, two hours of ethics, and one hour in the area of substance abuse, addictive disorders and/or mental health. Nevada Justice Kris Pickering, however, dissented stating, “I would expect evidence showing the efficacy of mandatory annual CLE on these issues for 100% of the bar, as opposed to more intensive measures targeting the 20% of the bar that is afflicted with them. Yet, there appear to be no peer-reviewed studies that examine the impact of MCLE classes on attorney alcoholism or substance abuse rates.”1

In the forced march history of CLE, there’s never been empirical proof much less data verifiably demonstrating that continuing legal education classes make lawyers more competent, more ethical or more professional. Will mandatory CLE make lawyers more sober? The only real certainty is that mandatory CLE has an indispensably salutary impact on a state bar’s bottom line. No wonder the legal establishment’s cognoscenti deem mandatory continuing legal education the answer to virtually every problem.

In the end, lawyers can always count on mandatory bar associations to impose further impingements on their liberty interests. It’s how they roll. Therefore, is it too extreme to conjure up what might be next? Specimen collection and random drug tests anyone?

 

 

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1 Nevada Supreme Court Justice Kristina Pickering’s dissent concerning the 13th mandatory substance abuse CLE hour is worth reading:

“Studies suggest that 20% of lawyers suffer from alcoholism or other addiction. This quintile of the bar accounts for more than 50% of the court’s bar discipline docket. These numbers, and the human and professional cost they represent, led me four years ago to approve amending SCR 210 to require one hour of continuing legal education (CLE) every three years on addiction and mental health issues. Directing that one out of the total 36 CLE hours required over a three-year period address these subjects seemed a modest imposition on the members of the bar if doing so accomplished this: ensuring all lawyers know about the help available free of charge through the Nevada Lawyers’ Assistance Program and the separate and entirely confidential Lawyers Concerned for Lawyers program.

“Today’s amendment to SCR 210 goes significantly further. It raises the number of mandatory CLE hours from 12 to 13 hours per year and specifies that the additional hour address addiction, substance abuse, or mental health.’ The cost of this increase to the 5,083 bar members who are subject to Nevada’s mandatory CLE requirements has not been calculated, or even acknowledged. Assuming a cost of $175 per hour for time not working and $25 per hour for tuition, both low estimates, we are looking at over $1 million in added annual expense. For that, I would expect evidence showing the efficacy of mandatory annual CLE on these issues for 100% of the bar, as opposed to more intensive measures targeting the 20% of the bar that is afflicted with them. Yet, there appear to be no peer-reviewed studies that examine the impact of MCLE classes on attorney alcoholism or substance abuse rates. And, while 18 states allow CLE credit for education on substance abuse and mental health issues, and three states have rules requiring an hour of substance abuse/mental health CLE once every three years, I have found none that have made it an annual requirement. As recognized by the states that make such education optional, not mandatory, there are other issues besides substance abuse and mental health on which CLE, chosen by the individual lawyer according to his or her interests and needs, is appropriate.

“While I share my colleagues’ concern with substance abuse and addiction in our society, generally, and in the legal community, in particular, I have true reservations about the wisdom and efficacy of today’s rule amendment. I therefore respectfully dissent.”

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Credits: Mad Scientist Photo Booth, by Zlaxfish Photography  at Flickr Creative Commons; Scientific Method, by ArchonMagnus at Wikimedia Commons, Share-Alike Attribution; Drawn live on January 23, 2010, by René van Belzen, Flickr Creative Commons Attribution-NonCommercial-ShareAlike; Nancy Reagan speaking at a ‘Just Say No’ Rally in Los Angeles, California. 5/13/87,” Wikimedia Commons, public domain; Puppet master meme generater at Imgflip;“Surprise,” by Erik Cleves Kristensen at Flickr Creative Commons attribution license.

 

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High temperatures, sweaty cheeks, thunderstorms, flash floods and fungus-dispersing dust storms are our annual devil’s brew during monsoon season. This time of year is the flip side of what locals otherwise consider heaven.

Circumstances permitting, more fortunate desert dwellers of the non-snowbird variety temporarily pack up their monkey butt powder and flee for whatever short-lived respite is found in cooler climes.

https://upload.wikimedia.org/wikipedia/commons/c/c2/Demonstration_of_Sweat.jpgBut notwithstanding sticky summer’s infernal doldrums, elsewhere there’s news of a different sort involving your friendly state bar associations. Here’s a quick rundown from The Irreverent notebook:

Washington State Bar President Unexpectedly Resigns

https://upload.wikimedia.org/wikipedia/commons/thumb/5/54/Flag_of_Washington.svg/320px-Flag_of_Washington.svg.pngWithout much notice or fanfare but citing “personal matters that require her attention,” Washington State Bar President Robin Haynes abruptly resigned last month following news reports she was under investigation stemming from accusations by two former law firm employers claiming Haynes had committed financial improprieties, specifically allegations she embezzled some $9,300. See “WA State Bar Association president accused of embezzling nearly $10k” and “President Of Washington Bar Association Resigns — Right Before The Criminal Charges.”

In a statement reported by Spokane’s Spokesman-Review newspaper, Haynes’ lawyer explained, “While Ms. Haynes has done nothing wrong and looks forward to clearing her name in a fair tribunal, she was also aware that even the rumor of an investigation would cast a shadow over the important work that the State Bar Association does.” See “Former bar president accused of using law firms’ credit cards for gym, political donations.”

Haynes who at 39 was also publicized as the youngest Washington Bar president ever — had a term that was not without some controversy. This is because she used her ‘bully pulpit’ to editorialize often in the state bar magazine against sexism and bias. In some ways, her admonitions took on the cast of what’s become the méthode du jour embodied in the polarizing proposed ABA Model Rule 8.4(g) amendment that would impose an unconstitutional speech code on lawyers. See “Allies in the Law” at February 2017 NW Lawyer where author and former WSBA Governor Phil Brady writes in her defense, “We’ve seen a lot of negative reaction to WSBA President Robin Haynes speaking up about the sexism present in our profession.”

Haynes, like the rest of bar leadership was also an ardent defender of the bar’s recently passed 141% dues increase. See “The Dialogue Continues.” Inasmuch as the bar’s governing board and court had nullified a member referendum calling for a dues increase vote, Washington State Senator and WSBA Member Mike Padden subsequently introduced Senate Bill 5721 to require the WSBA “to obtain an affirmative vote prior to increasing bar dues for membership.” Unfortunately, Padden’s bill did not get out of committee and to the floor for a vote.

California State Bar non-regulatory function split moving forward

https://upload.wikimedia.org/wikipedia/commons/thumb/9/98/California_State_Assembly_room_p1080879.jpg/320px-California_State_Assembly_room_p1080879.jpgLast week, the California Assembly Judiciary Committee unanimously approved SB 36, a bill that has had multiple amendments since it’s 2016 introduction. According to the July 17, 2017 assembly bill analysis, it “prioritizes the State Bar’s regulatory functions by separating the trade association functions into a new nonprofit and helping improve governance of the State Bar.”

To do this, SB 36 splits off the Cal Bar’s 16 specialty practice groups into a private nonprofit. The bill covers a lot of terrain impacting both bar governance and structure, including eliminating elections for officers of the Board of Trustees and changing the current governing board super majority into a simple majority of practicing lawyers. It also gives the Bar explicit authority to re-fingerprint active lawyers so that it can receive arrest alerts about them. Assuming swift legislative passage next month and gubernatorial signing, it becomes effective January 1, 2018.

Meanwhile in Arizona, a rule amendment petition asking the Arizona Supreme Court to similarly prioritize public protection by bifurcating the State Bar of Arizona’s regulatory and non-regulatory functions is still awaiting court action. In June, a reply was filed by the petitioner responding to the State Bar of Arizona’s wholly predictable comment against the petition. It’s worth reading here.

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Credits: monkey via morguefile.com; Washington flag, Wikimedia Commons, public domain; sweat demonstration by Dogbertio 14 at Wikimedia Commons Creative Commons Attribution; California State Assembly via Wikipedia by David Monniaux, Creative Commons Attribution-Share Alike license.

 

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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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