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Archive for the ‘Your friendly state bar.’ Category

“Lawyers,” I once wrote, “have an obligation to continued improvement of their professional knowledge and competence.” Not stopping there and marinating in further pontification, I waxed on about how “continuing legal education commitment forms the foundation of client service.”

That soap-boxing was almost 20 years ago. But I nevertheless continue believing that learning ought to be a lifelong pursuit — but not just for lawyers. Lifelong learning is for everybody. “Live as if you were to die tomorrow; learn as if you were to live forever.” That famous quote once inaccurately attributed to Mahatma Gandhi still has much to recommend it — even though like much of the stuff on the Internet — it’s ‘fake news.’ The Gandhi attribution is unadulterated B.S. The actual source remains a mystery.

All that said, there’s learning and then there’s ‘learning.’ Take continuing legal education classes, a yearly requirement lawyers must dutifully follow on pain of forfeiting their tickets to practice. Last month I received a blast email invitation from a third-party continuing legal education provider to take several hours of video CLE courses coming and going via a round-trip Phoenix to Las Vegas ‘party bus.’ Sounds like painless fun and far preferable to the group bus torture I endured many years ago when we were forced to listen to an unfunny recording of the bus driver’s favorite stand-up comedian. Had we not been in the middle of the Arizona desert, I’d have thrown myself from the bus into the nearest Saguaro. But video CLE on a bus ride to Vegas? Well, nothing surprises me anymore — I’m a lawyer.

Last week, there was a different blast email invitation from a different third-party CLE provider. This time it was for a CLE round of miniature golf. “Participants,” said the email,“will enjoy 18 holes of mini-golf, 1-hour of self-study CLE, and dinner (hamburgers and hot dogs). A Supreme Court decision will be posted at each hole for participating attorneys to read and answer the related question on the back of the score card provided. Once all holes and cases are completed, the score card will be turned in to receive CLE certificate.” Like I said, nothing surprises me anymore — I’m a lawyer.

“A nettlesome beast.”

It’s been some 19 years since my friend and colleague Jim Mitchell trenchantly observed in “MCLE—The Joke’s On Us,” 36 ARIZ. ATT’Y, Aug.–Sept. 1999, at 27, that “[k]nowledge is good, but coerced seat time is wasteful [and] insulting.” A year and a half later, he was at it again, opining that mandatory continuing legal education (MCLE) was a “facade” and “a nettlesome beast.”

More recently two years ago, speaking truth to power a law professor wrote, “The primary rationale for mandatory CLE is to help ensure competent client representation, but the mandatory system fails to achieve that goal. Instead, mandatory CLE has become a self-perpetuating industry that earns hundreds of millions of tuition dollars for course purveyors but demonstrates little, if any, connection to better serving the public.”

If I asked my friend, Jim, about the professor’s comment, undoubtedly he’d say ‘Amen.’ Long before, after all, he more colorfully phrased it as” the unseemly mating of cash cow and public relations bull.” But until things change, the nettlesome beast must be fed.

And so every year lawyers in virtually every jurisdiction scramble to satisfy the state bar associations riding herd over their continuing legal education mandates at the behest of their state judicial overseers. In Arizona, why they can even fulfill those requirements through bus rides or miniature golf.

But as longtime readers here know, I prefer to give the course purveyors at the state bar associations in particular — as little of my dinero as possible. Indeed, had I an interest in a bus trip to Vegas or an appetite for burgers and mini-golf, I’d prefer to spend my money on CLE that way instead. Considering I just paid two hefty mandatory bar association annual dues invoices, the bars take enough as it is.

To that end, I share what I find by way of free continuing legal education on this blog. With the usual disclaimers about jurisdictional creditworthiness, content and continued availability, here are some FREE CLE updates:

Bankruptcy Basics for Low-Income Clients 2018 (Free)

Practising Law Institute

Six hours on-demand video

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Better Serving Older or Disabled Veterans: A Special Session on the Intersections between Veterans Benefits, Social Security, and Medicaid (Free)

Practising Law Institute

Three hours on-demand video

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“Because of Sex”: Federal Protections for LGBT People (Free)

Practising Law Institute

Three hours of on-demand video

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The Myths and Mysteries of Substance Use Disorder

Attorney Protective

February 27, 2019
12:00 PM-1:00 Central Time, 1:00 PM-2:00 Eastern Time and 10:00 AM-11:00 Pacific

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Answering the Call: Overcoming Substance Abuse in the Legal Profession

Lexis-Nexis University

February 26, 2019

10:30am EST- 11:30am EST

One hour virtual training

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Last week Nevada’s Supreme Court spared the state’s private practice lawyers from being forced to pay thousands of dollars in annual costs. The court unanimously denied an ill-considered state bar-sponsored rule petition to impose as a condition of licensure a requirement that all lawyers engaged in private practice buy professional liability insurance. The court ruled, “Having considered the petition and the comments from the State Bar and the public, we conclude that the Board of Governors has provided inadequate detail and support demonstrating that the proposed amendment to SCR 79 is appropriate.”

The Court also took particular note of its existing rule that already provides for public disclosure of whether an attorney maintains professional liability insurance.

Interestingly, in preparing its misguided rule change petition Nevada’s Board of Governors relied on data and input provided by an interested stakeholder and current market participant,“its endorsed lawyers’ malpractice insurance company and “the nation’s largest direct writer of lawyers” malpractice insurance.”

The high cost to practice.

As it is, most lawyers voluntarily carry legal malpractice insurance. But it’s one thing to do so by choice and quite another to do so by coercion. Nevada’s high court is to be saluted for its prudence in rejecting the Bar’s proposal, which would have catapulted Nevada into the uppermost ranks of the highest cost to practice jurisdictions in the U.S.

At least, for now, Oregon has the dubious distinction of remaining king of the high cost mountain.

But high cost contenders remain. Mandatory bar association leaders apparently love nothing more than finding new ways to scorch their members with new practice pains and greater financial burdens, especially for those in private practice. Indeed, as of the first of the this year, to keep their tickets to practice Idaho private practice lawyers are now required to submit “proof of current professional liability insurance coverage at the minimum limit of $100,000 per occurrence/$300,000 annual aggregate.”

That resolution passed in Idaho by a scant 51% to 49% vote of bar members. It’s unclear how many Idaho private practice lawyers voted or were even aware of the proposal. I suspect not many. Moreover, had the word gotten out in time as it barely did in Nevada, the outcome might have been much different.

Anecdotally, for example, in July I exchanged emails with a Nevada lawyer also licensed in Idaho. While objecting to the proposed Nevada insurance mandate, he expressed concern should Idaho follow with a similar requirement. He was floored to learn that not only had it already been considered in Idaho — but that even now he was subject to the new rule as of January 1, 2018!

No remedy.

Besides significantly increasing the cost to practice, mandatory professional liability insurance is no remedy for the victims of a lawyer’s intentional acts or omissions and criminal or fraudulent conduct. Why? Because these acts along with numerous others fall under common policy exclusions that too often foreclose relief to claimants. Insurers don’t cover intentional, criminal or fraudulent acts. In addition, mandatory insurance is not designed to protect the public — but to protect the insured. I discussed some of this in my “No lawyer love in Nevada” July blog post.

Finally, Washington lawyers in private practice should remain vigilant lest they be caught unaware like their next door neighbors. Mandatory bars are notorious copy cats. And the folks running the Washington Bar are particularly adept at giving it to their members.

File:Aprilmaze.jpg

For sometime now and as reported here, the Washington Bar has been considering its own legal malpractice insurance mandate. In July, the Association’s Mandatory Malpractice Insurance Task Force issued its interim report.

I doubt Nevada’s failure to afflict its lawyers with compulsory insurance will do much to dissuade the Washington Bar from its hard-nosed agenda.

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Credits: Aprilmaze.jpg, at Wikimedia Commons, public domain.

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Like the bed-destroying dog that expects praise or the guy that lights the house on fire and later claims credit for putting it out, yesterday the State Bar of Arizona blast emailed supposed “good news about member fees.” The Bar’s final $15 dues increase slated for implementation January 1, 2019 “has been put on hold.”

Already one of the highest cost to practice states in the U.S. at either No. 3 or 4 on the high-priced hit parade, the Bar’s email message from its new president seemed to expect members to praise or credit it for this latest dues suspension.

Let’s instead give the new president a dozen chutzpah cupcakes to pass around at next month’s board meeting.

This is the second postponement authorized by the state supreme court. The last $15 was originally scheduled for roll out January 1 of this year.

But to be clear, the increase hasn’t been terminated. It’s only “on hold” — again.

That nuance, however, needn’t get in the way of the Bar audaciously reframing the latest postponement. It’s the result of the Bar having “done a great job managing its budget and resources,” says the new president.

In actuality, it’s business as usual at the Bar. Every year the budget swells thanks to unbridled bureaucratic growth; generous executive pay raises; mission creep; new hires; and the new Public Service Center’s consumer-lawyer internet matching service. Talk about spin.

By way of history, in December 2013 the Bar first proposed a $100 total dues increase, $25 per year phased in over four years. The board tried to slip through this hefty, unwarranted dues hike 12 days before Christmas when they likely believed members weren’t paying attention.

But members did catch wind of the Bar’s unwelcome early yuletide gift. Following member uproar, the board backed off a vote on the proposal and rescheduled it for February 2014. The board also scaled back the $100 increase in favor of a $60 increase, $15 per year over four years. The board’s amended proposal, however, also tried to shamelessly embed an automatic CPI escalator. Leave it to lawyers to step on the tail of due process. Fortunately, the cost-of-living escalator was denied by the court although the $60 increase alas won approval.

Then as now, the Bar claimed to be cutting expenses and operating with efficiency. The president at the time even declared the Bar had “streamlined to the point that we spend less today per member than we did in 2005 when the last dues increase occurred.”

These days, at least per its latest Form 990 IRS-mandated public return, the Bar remains as bloated as ever. There are 133 employees¹ on the payroll not including an undisclosed number of independent contractors and consultants.

And while it brags about “the great resources the Bar offers its members,” in point of fact most members don’t care, want or bother with these self-styled “great resources.”

Indeed, what the Bar fears most is a time when it is finally forced to give their compulsory members a choice whether or not to voluntarily fund these “great resources.” When that happens, no amount of spin or cherry-picking chutzpah will repurpose that reality.

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¹After this post was published, I received an email from the Arizona Bar’s Chief Communications Officer with the following: “Just for the record, the State Bar currently has 102 employees. The 133 number on the form 990 basically refers to anyone who received a W2. Because of employee turnover the numbers will always be greater than the number of employees.”

Credits: “O Mingus,” by Jenn at Flickr Creative Commons Attribution-NonCommercial-ShareAlike; “Dog Cupcakes,” by Jenny Kaczorowski at Flickr Creative Commons Attribution-NonCommercial-ShareAlike.

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The mandatory-membership State Bar of Nevada has been on a troll. Petal by petal, Nevada lawyers are finding the Daisy Oracle’s divining just one answer. When it comes to their bar’s affections — she loves them not.

15simplependulum.gifNot too long ago Nevada’s bar was rightly criticized for indifferent handling of bar complaints. Inattention caused a backlog of attorney complaints. In response, the bar hired a new prosecutor to head Nevada’s Office of Bar Counsel. But in the minds of some lawyers, the result was an overreaction — an excessively prosecutorial pendulum swinging way past the other side.

Alongside this perceived heightened hostility, the Nevada bar’s tone-deaf governing board started amping up a series of alarmingly adverse initiatives — each a solution in search of a problem. Fortunately, thanks to member uproar some of what the board spewed out was dispersed away — like a speech code petition that would have unconstitutionally restricted lawyer free speech, free exercise of religion, and freedom of association.

Likewise, another ill-conceived, under-studied board initiative to impose trust account random audits was also denied by a dubious state supreme court concerned about the untold costs on lawyers forced to pay for audits — whether they were warranted or not.

But other board schemes did not go by the wayside. These include a needless increase in mandatory continuing education hours via a new mental health and addiction credit requirement and a freshly implemented $100 bar tax on lawyer advertising. In addition, Nevada lawyers with the temerity to take continuing legal education courses from non-bar accredited providers are now subject to what amount to penalty fees.

But that’s not all. Already one of the top five highest cost to practice states, things will get exponentially more expensive for Nevada’s lawyers if a pending petition to require legal malpractice insurance gets approved. Like the board’s other harebrained ideas, it’s also evoked strong member dissent.

The malpractice insurance proposal — a boon to insurers — is the governing board’s lame response to recent news stories about lawyer theft and exploitation of the vulnerable.

But it’s especially galling since it won’t protect victims. Malpractice insurance won’t pay any claims to those injured by a lawyer’s criminal acts. Everyone except apparently a grandstanding board knows that legal malpractice policies exclude claims arising out of dishonest, fraudulent, criminal, malicious, or deliberately wrongful acts, errors or omissions.

These days, it’s hard to keep up with all the meddling. As with all mandatory bars, those in power prefer to operate below-the-radar with as little notice as possible. Remarkably, some lawyers in Nevada have started to pay attention at the wave of noxious Nanny-state runoff flowing from the board.

When will it end? It’s hard to say. The past several bar presidents have been cookie-cutter activists self-anointed with their own overweening meddlesome mandates each seemingly trying to outdo their immediate predecessor.

It’s been said legacy is just another name for ego. And do these folks have egos. In April, the Nevada Bar unveiled a Past Presidents Wall of Fame and feted these erstwhile ‘luminaries’ at a reception held at bar headquarters.

The easiest money to spend is always somebody else’s — such as the mandatory monies of Nevada lawyers forced to join and fund the State Bar of Nevada in order to practice law.

At long last some lawyers are waking up. They’re getting restless, rebellious and restive. Three of the four incumbent board members in Clark County, for instance, were just voted out of office following board elections this past June. They were replaced by three reform-minded governors. Unfortunately, the three reformers will be outnumbered on the 15-member board. But it’s a start. Kudos to Nevada’s Clark County lawyers for administering an overdue reality-check. By contrast there’s nary a reformer in sight on the Arizona bar’s board.

Regulator or Trade Association?

Mandatory bar associations can’t figure out whether they’re regulators fretfully charged with disciplining lawyers to protect the public or fun-loving trade associations looking out for lawyers.

It gets confusing even for bar governing boards let alone bar members. All mandatory bars suffer from the same regulator/trade association confusion. A lawyer recently running for bar president in Texas, for example, brought a refreshing take on his presidential vision. On his campaign website, he declared, “the State Bar should be in the customer service business with Texas lawyers being the customers.”

More often, particularly in Nevada, the vision is anything but customer-friendly. Just the same on its website, the Nevada Bar says its “Mission is to govern the legal profession, to serve our members, and to protect the public interest.”

First do no harm.

In Arizona, governing board members are required to take the pledge. Unfortunately, it’s the wrong pledge. Having imposed a “Code of Conduct” on board members, the Arizona Bar requires their loyalty and “respect” for “the validity of the Board’s decisions and their value to the organization, even if not in the voting majority.” The Code further obligates board members to “uphold and enhance the reputation and public image of the Bar.”

More preferable in my opinion is an oath modeled on the physicians’ Hippocratic Oath. Before taking office, mandatory bar board members everywhere should be forced to swear to “primum non nocere,” – first, do no harm. Help if you can but at least do no harm.

This new pledge, though, is merely a stopgap. The true remedy is to uncouple the regulatory and the trade association functions performed by mandatory bars. Eliminate the confusion and the inherent conflict of interest of trying to serve two masters — the public and lawyers. It can’t be done. Recent board history in Nevada amply bears this out.

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Credit: 15simplependulum by Lookang at Wikimedia Commons Creative Commons Attribution-Share Alike 3.0 Unported

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In deciding Janus v. AFSCME for Mark Janus today, the U.S. Supreme Court by a vote of 5 to 4 overturned Abood v. Detroit Bd. of Educ., 431 U.S. 209 (1977). The ruling was widely expected.

In overruling Abood, the nation’s high court said that Illinois’ extraction of agency fees from nonconsenting public-sector employees like Mark Janus violated the First Amendment. In other words, the Court said that the First Amendment protects public employees from being required to support a private group whose views may differ from theirs. Abood, the Court said, “has proved unworkable.”

For lawyers forced to join and to fund a state’s mandatory bar association this is wonderful news. Abood was the linchpin case upon which mandatory membership bars comprehensively ordered their activities. Today’s Janus ruling breaks one leg off the stool mandatory bars plop down on to straddle lawyer First Amendment rights.

Abood and Keller.

In Abood, the Court ruled unanimously that union shop clauses in public sector collective bargaining agreements could not be used to compel nonunion employees to fund the union’s political or ideological activities to which they objected. The Court, however, also held that nonunion public sector employees could be required to fund union activities related to “collective bargaining, contract administration, and grievance adjustment purposes.”

Abood was subsequently used to underpin Keller v. State Bar of California, the U.S. Supreme Court case that said mandatory membership bar associations could use compulsory members’ dues only for regulating the legal profession or improving the quality of legal services — not for political or ideological activities.

Nonetheless, ever since Keller was decided, lawyers have objected to the inherent conflict of interest that exists when mandatory bars — in line with the ruling in Abood — are the sole arbiters deciding which of their activities are “germane” to the permissible purposes of lawyer regulation or improving the quality of legal services (chargeable expenditures) and which activities are political or ideological and therefore not germane (non-chargeable expenditures).

In highlighting Abood‘s infirmities, the Court declared “its line between chargeable and nonchargeable expenditures has proved to be impossible to draw with precision.”

But since member non-transparency is their stock in trade, mandatory bars have historically never bothered with such ‘trifles’ — ignoring altogether the line between chargeable and nonchargeable expenses. ‘Germaneness’ analysis? What’s that?

This is why a good case can be made for the inability and the unwillingness of mandatory bars to determine what are chargeable or nonchargeable expenditures. Lawyers, like public sector employees, have similarly faced what the Court termed “a daunting and expensive task if they wish to challenge union chargeability determinations.”

No more opt-out — affirmative consent required.

Prior case-law required notices with “sufficient information to gauge the propriety of the union’s fee.” The reality, however, has been different. The unions, including AFSCME, have failed to provide sufficient information to permit such a determination. Indeed, the Court Opinion included “some examples regarding the Union respondent’s expenditures.” The Court listed “categories of expenses’ and the amount in each category “said to be attributable to chargeable and nonchargeable expenses.”

“How could any nonmember determine whether these numbers are even close to the mark without launching a legal challenge and retaining the services of attorneys and accountants? Indeed, even with such services, it would be a laborious and difficult task to check these figures.” at 41.

Interestingly, these vague, imprecise expenditure declarations frankly bear a strong resemblance to the unhelpful high-level expenditure disclosures provided by mandatory bars such as Nevada and Arizona.

Forget for now the fox assigning herself to count the chickens in the hen-house. Mandatory bars do like hanging their capes on what they say is their members’ ability to object and to request a refund– albeit after-the-fact — of any expenditures objectors believe are political or ideological. If the objection is successful, objecting members can expect at best a nickel ninety-eight refund for their trouble.

And in even in those jurisdictions where lawyers can opt out of a bar’s self-serving penny-ante lobbying expenditure calculation, it still requires lawyers to affirmatively check a box on the dues invoice to get the measly deduction.

Happily for mandatory bar members everywhere, the Court today, also ruled that taking money from nonconsenting employees for a public-sector union is a First Amendment violation. Employees must choose, the Court said, to support the union before anything is taken from them. “Accordingly, neither an agency fee nor any other form of payment to a public-sector union may be deducted from an employee, nor may any other attempt be made to collect such a payment, unless the employee affirmatively consents to pay.”

And while lawyers and their trade associations are not exactly identical to public employees and their unions, there’s nonetheless a long line of cases, including Keller, that have consistently analogized bar associations to union shops. For this reason, mandatory bars were apprehensive about the demise of Abood. Little wonder that 21 former Presidents of the District of Columbia Bar signed an amicus brief asking the Court to leave Abood “undisturbed.”

The ex-bar presidents claimed, “The Abood/Keller line of cases represents a firmly rooted body of law upon which not only states and unions but also integrated bars, File:Aimee Semple McPherson-AngelusTemple Sermon 1923 01.jpgincluding the D.C. Bar, have long relied in structuring their activities. Overruling Abood would have a profoundly destabilizing impact on bars all over the country.”

So expect reverberations at the nation’s mandatory bar associations — whether engendered voluntarily or mandated by external forces.

All that aside, I can scarcely wait for the reaction of mandatory bars across the nation to Janus, especially in jurisdictions with particularly restive members such as Arizona, Nevada, Washington and Wisconsin.

But expect mandatory bar leaders not to go along quietly or quickly to restructure operations in accord with today’s decision.

Instead, they will pretend it’s business as usual. Abood or not, still others may piously prattle and parse that “Keller-purity” means “Janus-purity,” too.

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Credits: Thumbs up for PYPS, by Alex Luyckx at Flickr Creative Commons Attribution; Paul gives the thumbs up, by Mikey at Flickr Creative Commons Attribution; normal, happy, sad, by David Pacey, Flickr Creative Commons Attribution; Aimee Semple McPherson. Wikimedia Commons, public domain.

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https://cdn.morguefile.com/imageData/public/files/b/BonnieHenderson/01/l/1451713664si0nf.jpgThis week signals the official start of summer, which also means — it’s state bar convention time! The annual silly season has begun.

In addition to being the last continuing legal education money grab for state bars before the fiscal year ends, it’s also the annual “orgy of self-adulation”like the Oscars for bar insiders and connected elites.

Lawyers you never heard of — chosen by who-knows-who — will get awards only recipients will care about.

And oh, yeah incoming bar leaders will fatuously speechify after being pompously sworn in.

The Texas, South Dakota and Wisconsin Bar Annual Conventions started this week. Next week Arizona holds its 2018 State Bar of Arizona Annual Convention.

Termed its “flagship event,” Arizona conventioneers can anticipate at least a partial antidote to the rest of the Butt-Numb-A-Thon with a Thursday Party and the State Bar’s “Lawyers Got Talent” Contest.” And the jokes almost write themselves — a lawyer amateur talent show.

Anyhow, if there’s a dance competition, I hope these guys show up. They’re among Arizona’s cheekiest, ineradicable personal injury advertisers. Ka-ching! — they even bought a full-page color ad in the convention brochure. And with dance steps like these, how can they miss?

The Naked Truth.

In truth, the silliness started months ago. In March, the Utah State Bar inadvertently emailed a photo of a topless woman to every lawyer in the state to herald its upcoming Spring Bar Convention.

ABA Journal recounted, “The message, sent to all active Utah lawyers, was intended to promote the bar’s spring convention, reported the Salt Lake Tribune, the Deseret News and Above the Law, which posted the email and the nude photo (not safe for work) here. The email also included photos of a clothed Lady Justice statue and a rock formation.”

Embarrassed bar officials tweeted “Apologies to all who received an inappropriate email from the Utah State Bar. We are aware of the situation and are investigating the matter.”

And underscoring how you can’t make this stuff up, the Utah Spring Bar Convention kickoff reception also featured, “the 16th Annual “Secret Lives of Lawyers” Silent Auction.” See “Utah State Bar sends every local lawyer an email of a topless woman.”

Parenthetically, the Utah Bar holds not just one yearly convention — but two. The Summer Convention is July 25-28 in St. George — undoubtedly with new safeguards to prevent another bare-chested recurrence.

‘How do I love me . . . let me count the ways.’

Generally speaking, bar conventions are not well attended. Well under 10% of the bar’s lawyers, for example, annually attend in Arizona and even fewer in Nevada. This is unlikely to improve, especially for Nevada, which continues to price itself out of reach of many members by holding conventions in expensive venues.

Last year’s convention was in Austin and the year before it was Hawaii. This year’s paean to self-congratulation is next month at Chicago’s iconic Drake Hotel. Registration for the Nevada Bar Convention comes in at a hefty $590 per registrant — likely the most expensive registration of any bar annual meeting this year.

Those paying the hefty fee on top of airfare and hotel expenses can at least look to their inclusion at the President’s Dinner. According to the convention brochure, “This semi-formal (black tie optional) event celebrates the recipients of the 2018 State Bar of Nevada’s Membership Awards and incoming bar President Rick Pocker, who will become the state bar’s 90th president. In addition to a plated meal, guests will be able to enjoy entertainment and dancing, as well as a red-carpet style photographed entrance.”

Not to be outdone, though, the Arizona Bar will similarly fete its incoming president and dole out member awards only the recipients care about. And why not? Patting yourself on the back is part and parcel of these annual meetings.

With a hat tip to my buddy, The Legal Watchdog, Wisconsin’s 2018 Annual Meeting & Conference starts June 21st and apparently still scrounging for attendees, bar cheeseheads mistakenly curtailed the registration deadline before extending it to the penultimate day.

And in a rather ironic programming twist, one of the plenary speakers is P.J. O’Rourke, “author, humorist, and political satirist.” I hope he includes some of his most quotable observations about hubris — “one of the great renewable resources” as well as his pointed observations on bureaucracy, greed, and power — in other words all the traits of a compulsory membership bar association.

I suspect, however, there may be limits to the silliness in Lake Geneva, WI. O’Rourke will probably leave out his lawyer jokes such as this chestnut: “During the mid-1980s dairy farmers decided there was too much cheap milk at the supermarket. So the government bought and slaughtered 1.6 million dairy cows. How come the government never does anything like this with lawyers?”

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Credits: silly, bonnie henderson at morguefile.com; Thank You Gif via Tenor; Blog OMG! by Mike Licht at Flickr Creative Commons attribution; Shocking!!! “that guy isn’t wearing pants,” by Chuck Olson, Flickr Creative Commons attribution license.

 

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From the random notebook:

Presidential Pardons

The media has done a poor job in my opinion of explaining the Presidential Pardon power. First, it’s not unlimited. Second, it doesn’t extend to state crimes. (I won’t delve into whether or not a president can pardon himself notwithstanding President Trump’s claims that he can — other than to remark it’s open to constitutional interpretation depending on the legal eagle [or beagle] you ask). That said, under Article II, Section 2, Clause 1 of the U.S. Constitution, the president has the “power to grant reprieves and pardons for offenses against the United States, except in cases of impeachment.”

The U.S. Supreme Court affirmed the presidential pardon power in ex parte Garland, an 1866 case involving an Arkansas attorney who had served in the Confederate Congress and was thereafter refused admission to practice in the Supreme Court because he couldn’t [or wouldn’t] swear a Congressionally mandated loyalty oath. President Andrew Johnson gave Garland “full pardon and amnesty.” The question then became whether the bar admission law passed by Congress infringed on the president’s pardon power.

The Court ruled in Garland’s favor, declaring the president’s pardon power “extends to every offense known to the law, and may be exercised at any time after its commission, either before legal proceedings are taken, or during their pendency, or after conviction and judgment.” Also see “Presidential Pardons – ABA Legal Fact Check – American Bar Association” and “Trump can dodge federal crimes with pardons — but not state law.”

The other Kim.

https://upload.wikimedia.org/wikipedia/commons/thumb/9/95/Kim_Kardashian_2%2C_2012.jpg/164px-Kim_Kardashian_2%2C_2012.jpgWith President Trump pardoning the famous like Jack Johnson; the not-so-famous like conservative author and filmmaker Dinesh D’Souza; and possibly, the infamous, including former Illinois Gov. Rod Blagojevich, along with other assorted unmentionables the media has repeatedly failed to differentiate that those pardons involve federal crimes not state ones. ‘Blago,’ for instance, was convicted of federal corruption charges and it’s still uncertain whether he gets the nod. The president can’t pardon people convicted of offenses against the states.

So more recently when the other Kim got President Trump’s ear resulting in a sentence commutation for 63-year-old Alice Marie Johnson serving life in prison for a nonviolent drug conviction — the failure to clarify reared itself again. Just the same, good for Kim Kardashian West. But in the reality television world I can’t pinch myself awake from, it’s still important to keep the facts clear and straight.

Two more thoughts on mandatory bars.

https://cdn.morguefile.com/imageData/public/files/c/cyblor/01/l/1357158058o4ylu.jpgWhen fighting for legislative reforms of mandatory bar associations, there’s one bromide favored above all others by those opposed to even the slightest stirring of the legal establishment sacred cow. It’s the bunkum, “Why fix it, if it ain’t broke.”

Up until last week, I hadn’t heard as good a retort as the one favored by the late Ella Brennan. “Miss Ella” who died May 31 at age 92 was the famed New Orleans restaurateur whose crown jewel was Commander’s Palace. I dined there once and have to say it deserved every accolade. In an obituary in the Wall Street Journal this past weekend, mention was made of Brennan’s passion for learning, brainstorming and continual improvement encapsulated in what the paper declared was “one of her favorite maxims: ‘If it ain’t broke, fix it anyway.'”

The other thought I was struck by recently was a line in cultural and political commentator Jonah Goldberg’s June 1st installment, “Great Oaks Have Deep Roots,” in National Review. Among various topics, Goldberg reflected on the excesses of the Right and Left and “alienation from politics” while deconstructing what he said were public policy ends. The second point of his “three-point plan” resonated with me because it epitomizes what’s wrong generally with mandatory bar elites, particularly those of late running the Nevada State Bar.

“Second, we need a lot less nationalism (for want of a better term),” wrote Goldberg. “What I mean by that is that the federal government and various national elites need to stop thinking that the whole country needs to think and act in one way.” [emphasis added] This state-mandated one way thought and action is precisely what elites at mandatory bars like Nevada’s need to stop doing. Stop thinking that their state’s lawyers need “to think and act in one way.” What’s worse, of course, is that the one way is the one that they ordain.

You won’t find better examples of this holier-than-thou monistic my way-or-the-highway arrogance than in the last two “Messages From The President” in the May 2018 and June 2018 editions of the bar’s uninspiring house organ, Nevada Lawyer.

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It’s been awhile but below are the latest updated FREE CLE listings provided again with the usual disclaimers about content quality, continued availability, and jurisdictional creditworthiness.

FREE CLE

Collecting Responsive ESI from Difficult Places – June 20th, 12:00pm CT

by CloudNine on 5/31/2018

This CLE-approved* webcast will discuss what lawyers need to know about the various sources of ESI today, examples of how those sources of data can be responsive to litigations and investigations, and how lawyers may be able to collect much of this data today using intuitive applications and simple approaches.

Presented by:

William J. Kane, Director of the New Jersey Lawyers Assistance Program

Nancy Stek, Associate Director of the New Jersey Lawyers and New Jersey Judges Assistance Programs

From Distressed to De-Stressed

Presented by:

William J. Kane, Director of the New Jersey Lawyers Assistance Program

Nancy Stek, Associate Director of the New Jersey Lawyers and New Jersey Judges Assistance Programs.

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Lexis Nexis University

Blowing Smoke: Managing New Risks in the Workplace

  • Class Type: Virtual Training
  • Time: 12:00pm – 1:00pm EDT
  • Dates: 06/15/2018

Blowing Smoke: Managing New Risks in the Workplace

  • Class Type: Virtual Training
  • Time: 12:00pm – 1:00pm EDT
  • Dates: 07/13/2018

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Franczek Radelet

Webinar: Responding to Sexual Harassment in Schools

“In light of the #metoo movement and the current news coverage of high profile sexual harassment cases, we addressed the issue of sexual harassment as it applies to elementary and secondary schools. Specifically, we: (i) discussed the general obligation of a school district to respond to harassment claims by employees and students; (ii) offered an overview of state laws regarding sexual harassment policies, including the recently enacted Public Act 554 reported on here; and (iii) provided a checklist of action items schools and school districts should take to ensure they are prepared to properly respond to sexual harassment claims. Download the presentation here and watch the recording here. ”

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Fowler School of Law – Chapman University

“The school of law has certified several webcast archives for “self study” credit. Those webcasts marked with an “MCLE” notation will qualify for non-participatory “self study” MCLE for California attorneys for the amount of credit listed. Each webcast counts as general MCLE and does not count for special credit in any subject matter or required topic unless noted.”
https://www.chapman.edu/law/academic-programs/continuing-education.aspx

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Credits: Trump, by DonkeyHotey at Flickr via Creative Commons Attribution License; Kim Kardashian by Eva Rinaldi, Wikimedia Commons, via Flickr Creative Commons Attribution License; cow by cyblor, morguefile.com.

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