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Archive for the ‘Legal ethics.’ Category

Note: The following is re-blogged with the express permission of author, noted family law specialist, and Nevada attorney, Marshal S. Willick. It was originally posted May 25, 2018 as Volume 66 of the Willick Law Group‘s Newsletter.

Willick’s insights and prescriptions are timely, persuasive and on-the-mark. Among his key recommendations is that the Nevada Supreme Court “assess the efficacy and impacts of mandatory CLE.” His commentary is definitely must reading.

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Vol. 66 – The New CLE Fee Structure Stinks and Should Be Changed

A legal note from Marshal Willick about how Nevada’s CLE system has been made destructive to both education and scholarship while increasing dramatically in cost, and why only the Nevada Supreme Court – which ultimately is responsible for this mess – can do anything about solving it.

The cost of CLE in Nevada just increased by an order of magnitude while the number and variety of available offerings has been greatly curtailed, and scholarship is being actively punished.

I. WHAT CHANGED AND WHY

The Nevada Board of Continuing Legal Education was created in 1982; it is distinct from – but intertwined with – the Nevada Bar Board of Governors (“BOG”). In 2014, in a “turf” squabble, the CLE Board asked the Supreme Court to reduce the number of CLE Board members appointed by the BOG since the Bar was a “provider” and the CLE Board complained of a conflict of interest.

The CLE Board declared that to do its job, it had to be a “stand-alone” entity that was “financially self-sustaining” so as to “avoid or eliminate conflicts of interest.” It complained that the number of lawyers and fees only “grows slowly” but the Board’s “profitability erodes as operating expenses [primarily its own salaries and benefits] increase over time.” It complained that in 2014, the CLE Board expended $15,000 more than it received from fees, while quietly noting a “reserve” from prior fees received of over $600,000.

So the CLE Board submitted ADKT 499 to change its “business plan” from reliance on annual attorney CLE fees (and late fees), claiming (at the beginning, anyway) its intent to get the “hugely profitable” CLE providers to start funding the cost of mandatory CLE to “reduce or eliminate fees for the lawyers.” It apparently never occurred to the CLE Board to explain why it should seek to be “profitable.”

The new plan was supposed to replace lawyer CLE fees by imposing on “accredited” CLE providers an annual fee of $500 plus $5 for each credit hour earned by every attendee, with another $5 per credit to be paid by each lawyer. For “non-accredited” providers, the new business plan charged a $25 “application fee” per program plus $5 per credit hour per attorney to be paid by the CLE provider, with another $5 per credit to be paid by each lawyer.

Begrudgingly, the fees would not apply to providers “that are non-profit and do not charge attorneys for attending their programs,” or to “Federal, State, and local governmental agencies, nor for legal aid, provided they do not charge attorneys.”

The CLE Board predicted that the change would improve CLE in Nevada because “higher quality providers will accept new fees to continue operating in Nevada, while others will exit the State.” No explanation was suggested as to what denoted “quality” or how that had anything to do with being large for-profit enterprises.

The CLE Board also promised to increase efficiency and economy through use of electronic communications to replace paper, to streamline its processes, and to save staff time by ceasing to “cajole” or “hand-hold” lawyers and instead greatly increase financial penalties imposed against lawyers for non-compliance, predicting that doing so would actually decrease the total of those fees by increasing lawyer compliance.

The Bar opposed the reorganization and parts of the new CLE “business plan,” but agreed to collect the annual CLE fees along with annual Bar dues so that fewer lawyers would be confused and end up having to pay the very expensive “late fee” penalty that constituted 40% of the funding of the CLE Board.

After public comment, a hearing, and several rounds of written input, mainly from the BOG and other bar associations, the Supreme Court approved both the reorganization and the new business plan.

II. THE REAL WORLD AND CONSEQUENCES, INTENDED AND OTHERWISE

Many Nevada lawyers have complained about the CLE “industry” for years, noting that it was already much too expensive, and that for many lawyers it was a totally hollow exercise which generated money for both the Bar and the CLE Board but had no discernable effect on actually improving lawyer competence.

For example, see Legal Notes Vol. 33, “Make Lawyer CLE Meaningful” (Jan. 2011); Vol. 36, “Judicial CLE” (Mar. 2011); Vol. 40, “Other Updates to Prior Notes” (Jun. 2011), and Vol. 54, “Putting Your Money Where Your Mouth Is: Cheap & Useful CLE” (Oct. 2012), all posted at https://www.willicklawgroup.com/newsletters/.

Those notes stepped through the history of CLE in Nevada, detailing how it had devolved from the aspiration of promoting lawyer competence into the meaningless extraction of funds to fund the CLE bureaucracy, and how both the Bar and the CLE Board had ignored the obvious reforms that would make it actually useful to the public.

We detailed the huge sums involuntarily extracted from lawyers and being fed to the Bar, to the CLE Board, and to private companies, and protested that since all known studies showed no actual improvement to lawyer competency from mandatory CLE, what Nevada had created was a time-and-money-consuming bureaucracy that falsely portrayed itself as providing a service important to the public, but which actually did not make lawyers better or provide the public any useful information, and so did no actual good.

We explained how my firm was going to try to encourage reform by producing and presenting substantive and specialized CLE at no cost to attendees for the purpose of trying to improve the practice and drive down the fees charged by others.

And we expressed the hope that if that approach was emulated by a sufficient number of others, enough of the profit motive could be taken out of the CLE racket to cause the CLE bureaucracy to focus on actually serving the legitimate interests of lawyers, public, and the courts.

Over the following six years, we produced low-to-no cost CLEs on a wide variety of family law topics, with any money beyond the cost of snacks going to Legal Aid. The “Basics” series (Jurisdiction, Child Custody, Relocation, Property Division, and Practical Mechanics of Family Trial Practice) was acclaimed by those attending, as was the 1-hour Lunch-and-Learn series addressing topics from pension division to the new local rules.

And others did emulate that model – experts throughout the Bar started putting on programs at no cost in their various specialty areas, significantly enhancing the actual education of lawyers in multiple fields.

But this did not generate any money for the CLE bureaucracy, which reacted like a bureaucracy does, seeking its own perpetuation and expansion at the expense of those it purports to serve.

So now, if you want to give away your time, experience, and expertise for the benefit of others, you are required to submit a $25 “application” fee and pay another $5 for every credit that every attendee receives. In other words, for the privilege of volunteering to do all the work to provide a one-hour CLE for 30 people, you have to pay the CLE Board $175. If 100 people happen to show up, it will cost you $525. Lord help you if 1,000 people want to hear what you have to teach.

Who is exempted from paying these fees? The Bar, its sections, and specialty Bars, but only if all proceeds go to legal aid, or to TIP mentors, or the credits offered are 1.5 hours or less. Or if the provider is the government, or a non-profit agency. Otherwise, too bad. The full set of “how we intend to take more money from you” regulations is set out at https://www.nvcleboard.org/formsinformation.asp#.

And this was by no means accidental. The CLE Board, in the debate leading up to adoption of the new regulations, stated in its submissions that it fully intended to cause the “exit of low volume non-accredited providers.” In other words, prevent lawyers from teaching other lawyers for free.

The CLE Board brushed aside the fact that large for-profit providers would obviously pass along to their captive lawyer market the increased fees and costs and that the lawyers would end up paying a lot more every year, saying “Overall, the Board expects no more than a modest effect on provider pricing, as anecdotal input suggests.”

In other words, the CLE Board very deliberately wanted to destroy the ability of lawyers to provide free CLE, because it was not good for the bureaucracy’s income growth, actual damage to the education of members of the Bar be damned. And they knew all along that their new plan would not “reduce fees” to lawyers but would instead greatly increase them, and they didn’t care about that, either.

III. YOU EVEN HAVE TO PAY THEM TO PAY SOMEONE ELSE

The regulations are unclear on the point, but apparently you have to pay the CLE Board if you actually want to obtain specialized education and training in your field.

A divorce lawyer gets the highest-possible quality of education from programs put on by the American Academy of Matrimonial Lawyers. But if you go to the 3-day annual CLE in Chicago – paying to travel there, to register, and to stay out of town for three days – you apparently also have to pay the CLE Board $5.00 for every credit you already paid to get.

So the AAML annual meeting, with its 10.5 hours of general and ethics credit, will cost every attendee another $52.50. Every year. On top of the cost of anything earned in Nevada (you have to pay $5 for most credits earned here, too).

The system has been altered so that the more any lawyer seeks out specialized training and education to actually be better, the more expensive it will be. Low-quality, irrelevant, and outdated CLE can be found which is cheap, but of course signing up for such won’t actually make any lawyer any more competent. The incentives are backward.

IV. THE DELIBERATE DISCOURAGEMENT OF SCHOLARSHIP AND PUBLICATION

Every major legal publication in Nevada works hard to attract quality substantive articles – The Nevada Family Law Report, the Nevada Lawyer, the Clark County Communique, the Washoe County Writ, etc.

One of the few tangible benefits for spending the dozens of hours of research, writing, and editing it takes to create such articles has always been the ability to obtain CLE credit for helping to teach other members of the Bar through such publications.

Now, it will also cost you. Regulation 9 of the new CLE rules imposes a $25 fee to get credit for writing scholarly articles – so if you volunteer your time and expertise to help educate the Bar by writing an article for the NFLR or Nevada Lawyer, you have to pay for that, too.

It is hard to imagine a way to more actively discourage lawyers from volunteering their time and expertise to write scholarly articles. And this thought apparently did not even cross the mind of anyone involved in adoption of the new rules – it appears nowhere in the written record of ADKT 499.

V. THE NEW POLICY IS WRONG AND COUNTERPRODUCTIVE

The “mission statement” of the CLE Board is to ensure that Nevada lawyers “continue their education through a wide range of quality educational programs and to have and maintain the requisite knowledge and skills to fulfill their professional responsibilities.”

But every aspect of the new model discourages providing quality education or scholarship, and decreases what is available to Nevada lawyers who want to actually improve their knowledge and skills. Costs are increased for every lawyer, and the more a lawyer actually cares about getting the best possible education and training, the more it will cost that lawyer.

Every impact of the new plan is directly antithetical to the CLE Board’s supposed reason for existing – but it does feed more money to its bureaucracy. The priorities for those involved in the discussion seem crystal clear.

It is not as if the Supreme Court has not previously been presented with budget impacts related to CLE. In 2016, the Court approved an expansion of CLE from 12 to 13 hours annually, so that every lawyer, every year, had to get a credit related to substance abuse and mental health. We were already the fifth most-expensive-to-remain-in-practice Bar before that change.

Justice Pickering dissented from the addition, noting the minimum $1 million in cost/lost productivity that change would cost, and the entire lack of any empirical evidence that it would actually do any good.

It seems likely that with that new “business plan” being adopted, the CLE Board will make Nevada number one – in cost to remain in practice on zero evidence of any actual benefit to the bench, Bar, or public. Hooray.

VI. RESPONSES BY THE BAR AND SECTION LEADERSHIP HAVE BEEN INADEQUATE

Essentially every entity that participated in the debate over ADKT 499 was solely interested in looking out for its own budget and programs, with scant attention or concern for the lawyers who would end up paying the freight (or their clients, on whom the increased cost of the lawyers remaining in practice ultimately descends). Each entity was focused on trying to secure exemptions from the new fees – for itself.

The State Bar submissions at least claimed to be concerned for the general Bar membership – in addition to the Bar’s own fees and programs, of course – but with all the numbers thrown out during the debate for over two years, no one involved apparently took the time to project what the new policy would actually cost each individual lawyer.

More than anything else, the written submissions looked like Russell Long’s famous summary of input to how tax policy is made in Washington:

Don’t tax you,
Don’t tax me,
Tax that fellow behind the tree.
(William B. Mead, “Congress Tackles the Income Tax” (Money, July, 1973)).

As with the debacle that is e-filing in Clark County, which has been extensively detailed in these notes, it has apparently never occurred to anyone involved that the proper response to increased efficiency, automation, and technology is to lower the cost to the user. If the size of the Bar membership (apparently about 8,000), and the fees that all those members pay, is only growing “incrementally,” then the growth of the bureaucracy’s budget should be likewise constrained to “incremental” increase.

If that is not “adequate,” require the CLE Board to piggy-back on existing State Bar mailings, notices, and staff for functions and communications that can be combined for the purpose of lowering costs.

VII. AN ACTUAL SOLUTION TO THE “PROBLEM”

It is worth circling back to the policy that is supposedly being served by creation of this CLE bureaucracy and the massive money it takes to run it: improving lawyer competence, ultimately for the benefit of the public hiring those lawyers.

The actual “solutions” that would serve that policy goal are simple and cheap, as detailed in Legal Notes 33 and 54 seven years ago: If you want to ensure that lawyers are actually learning something at CLE, require providers to test them on the subject matter of the course. If you want the public to hire the best trained and most educated lawyers, have the Bar publicly post the CLE record of all lawyers so that the public can see the currency and validity of attorneys’ continuing education.

What is not helpful to either lawyers or the public is to fund an ever-better-paid CLE bureaucracy primarily fixated on its own perpetuation and growth.

VIII. CONCLUSIONS

By my estimate, the cost of CLE in Nevada just (at least) doubled, while the number and variety of available offerings has been drastically reduced. Half a dozen companies have pulled out of Nevada entirely, and free CLE offered by law firms has essentially disappeared. Our CLE Board is actively discouraging anyone from wanting to provide either education to others, or scholarship and authorship. The new policy is counterproductive in virtually every imaginable way.

Only the Nevada Supreme Court can do anything about this. The CLE Board will never do anything to reduce its own budget and growth, and neither will the Bar. Both of those entities report to the Court, which should start with figuring out what end results it is trying to produce, and then target policies and directives to actually achieve them.

Given the enormous costs in both time and money, it may be time to re-evaluate the value of the entire system. Getting empirical evidence as to whether mandatory CLE actually does any good would seem to be a good first step.

At bare minimum, policies that discourage volunteering and scholarship should be reversed. There should be no fee of any kind for providing CLE without charging for it, and there should be no fee of any kind for seeking credit for scholarly articles and publications. It would be a good idea to have some kind of sliding scale beyond that, so that folks that have a modest charge to attendees (for example, to finance lunch or renting space) are not punished for providing a public service.

Overall, the concept is that the CLE Board should be focused on facilitating the actual providing of useful information and training to members of the Bar at the lowest possible cost, rather than maximizing revenues to perpetuate its own bureaucracy.

The CLE Board long ago lost all sight of the purpose of CLE, and the bureaucracy spawned is now solely concerned with its own perpetuation, expansion, and increase in budget. As currently constituted, the Nevada mandatory CLE system does nothing measurable to improve the competence of lawyers or judges, and the Bar does nothing to let the public get any potentially useful information from or about it. CLE is now about nothing but funding.

There is no defensible rationale for what has metastasized into the current hot mess. The State Bar, on behalf of the general membership, should ask the Court to assess the efficacy and impacts of mandatory CLE, and the Court, on behalf of the lawyers and the public, should do so.

IX. QUOTES OF THE ISSUE

“In any bureaucracy, the people devoted to the benefit of the bureaucracy itself always get in control, and those dedicated to the goals the bureaucracy is supposed to accomplish have less and less influence, and sometimes are eliminated entirely.”
– Jerry Pournelle (Pournelle’s Law of Bureaucracy)

“Bureaucracies force us to practice nonsense. And if you rehearse nonsense, you may one day find yourself the victim of it.”
– Laurence Gonzales, Everyday Survival: Why Smart People Do Stupid Things

“Bureaucracies are inherently antidemocratic. Bureaucrats derive their power from their position in the structure, not from their relations with the people they are supposed to serve. The people are not masters of the bureaucracy, but its clients.”
– Alan Keyes

“You will never understand bureaucracies until you understand that for bureaucrats procedure is everything and outcomes are nothing.”
– Thomas Sowell

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For some of the CLE materials and articles produced by the Willick Law Group, go to https://willicklawgroup.com/cle-materials/ and https://willicklawgroup.com/published-works/. For the archives of previous legal notes, go to https://www.willicklawgroup.com/newsletters.

If there are any problems with or suggestions for these newsletters, please feel free to email back to me. Thanks.

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First there was Aaron Schlossberg that New York City lawyer whose rant against restaurant Spanish-speakers went viral. In the video taken of Schlossberg’s exchange, he said he’d be calling Immigration and Customs Enforcement (ICE) to have the Spanish-speaking workers “kicked out of my country.”

He also complained to a restaurant manager, “it’s America” and “staff should be speaking English.” What the hey güey? “SEE IT: White man threatens to call ICE on Spanish-speaking workers at Midtown Fresh Kitchen.”

But like I told someone who asked — no, I don’t think he’s going to be disbarred for his off-the-wall outburst. Loyola Law Professor Jessica Levinson has it right — mostly.

NPS map symbol fishing.svgI say “mostly” because last time I looked, New York is one of a handful of remaining jurisdictions with a so-called ethical ‘catch-all’ rule. It’s Rule 8.4: Misconduct that says “A lawyer or law firm shall not: (h) engage in any other conduct that adversely reflects on the lawyer’s fitness as a lawyer.” In other words, if the discipline folks really want to hook you on something, there’s always the catch-all rule to do it.

You could ride a freight train through that vague tunnel of overbroad ambiguity.

https://upload.wikimedia.org/wikipedia/commons/thumb/4/4e/Bakersfield%2C_California._On_the_Freights._Helping_a_newcomer_hop_a_freight_-_NARA_-_532069.tif/lossy-page1-229px-Bakersfield%2C_California._On_the_Freights._Helping_a_newcomer_hop_a_freight_-_NARA_-_532069.tif.jpg

Which means that the lawyer disciplinary folks in the Empire State could still parse out punishment — short of disbarment — based on the elasticity of that rule, especially when two NYC pols have filed bar complaints against angry Aaron. Politically speaking, I won’t be surprised if they come up with a wrist-slap of some kind. But beyond all that, it’s not like public opinion isn’t already pillorying the guy. SeeLawyer’s firm gets bad Yelp reviews after he is named as man in video ranting about Spanish-speakers.”

Just the same, fearful of its potential for abuse some commentators have called for eliminating the ‘catch-all,’ See “New York’s Catch-All Rule: Is It Needed? Part 1.”

What the güey in ELA?

I despise racism whenever and wherever it rears its ugly poisonous head. As a proud melanic Hispanic (aka Latino) and a native Spanish speaker who grew up in East Los Angeles (ELA), I’ve seen my share both then and now. I take comfort, however, in knowing that since ELA remains 98% Latino that a guy like Schlossberg wouldn’t get away with his kind of rant at, for example, an eatery like what was once my local King Taco — not at least without potentially unpleasant consequences.

https://s3-media2.fl.yelpcdn.com/bphoto/DyY2VEusbHoS0_nXqsEssg/o.jpg

Even so, I’m for free speech — even his despicable kind. Moreover, the last thing I’d want to see are the self-styled lords of lawyer discipline deciding permissible and impermissible speech. There are plenty of state and federal laws already on point dealing with discrimination without unleashing the agenda-driven prosecutorial paragons of partiality from the state bar.

But now there’s news of more. A story out of small-burg Montana talks about how last Wednesday a Border Patrol Officer stopped and detained two Spanish-speaking U.S. Citizen convenience store patrons for speaking Spanish. The New York Times reports, They Spoke Spanish in a Montana Store. Then a Border Agent Asked for Their IDs.”

So has it really come to this? Of course — it has. Again, what the hey güey?

But racial profiling? As the Times reports, “It had nothing to do with that,” the officer, who identified himself as Agent O’Neal, responded in the cellphone video. “It’s the fact that it has to do with you guys speaking Spanish in the store in a state where it’s predominantly English-speaking.”

And yet I ponder what will become of those immortal words of stand-up comic and fellow ELA homeboy Paul Rodriguez from his comedy album — “You’re in America now, speak Spanish”?

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Credits: NPS map symbol fishing, National Park Service fishing symbol, Wikimedia Commons, public domain; Bakersfield, California. On the Freights. Helping a newcomer hop a freight, Partridge, Rondal, 1917-, Photographer (NARA record: 8464464, Wikimedia Commons, public domain; Boyle Heights King Taco, by Mimi C. at Yelp, fair use commentary; Paul Rodriguez album cover, fair use commentary.

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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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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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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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