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Archive for the ‘Your friendly state bar.’ Category

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In August, I reported the Arizona Supreme Court had directed the creation of a state bar task force to review “The Role and Governance Structure of the State Bar of Arizona.” But knowing how things roll around here, I had of meaningful reforms. In the words of Laurence J. Peter, “Bureaucracy defends the status quo long past the time when the quo has lost its status.”

Groupthinking task force.

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Arizona Bar leadership is notorious for group-think; tone-deafness; and smug self-congratulation. Far as Bar leadership’s concerned, ‘Everything Is AWESOME!!!

business,attire,suits,cheering,emotions,excitement,facial expressions,groups,hands up,happy,jumping,men,people,women

 

Business as usual.

Entertainment 606The task force has met five times and even started prepping its “initial, and very rough, draft report.”  But ‘fugetaboutit,’ there’s nothing to clap about.

Zero-based inquiry? Dissenting opinions? After reading five meeting minutes, save for cosmetic changes consisting of renaming the Bar’s board; seating fewer board members; and imposing overdue term limits — it’s clear without dissenters on the task force, it was preordained business as usual.

When thirty-six percent of the task force is composed of past members of the Bar’s board of governors, four of them also past presidents, including the immediate past president — expect no surprises.

Then there’s this, the appointed task force “consultant” ‘splainin‘ things to underinformed task force public members is the Bar’s well-paid CEO. Or as former Italian prime minister Silvio Berlusconi once said, “If I, taking care of everyone’s interests, also take care of my own, you can’t talk about a conflict of interest.” A mission and governance review with such guiding lights is like hunting with the game warden.

BoredThe recommendations so far:

“#1: The Task Force recommends amendments to Supreme Court Rule 32(a) to clarify that the mission of the State Bar of Arizona is primarily to protect and to serve the public, and secondarily, to serve its members.

“#2: The Task Force recommends “restyling” Rule 32(a) for clarity and for easier comprehension.

“#3: The name of the board of governors should be changed to the board of trustees. This change acknowledges the fiduciary responsibility of board members . . . .

“#4: The size of the board should be reduced to 15 to 18 voting members. The Task Force recommends a board of 15 members.

“#5: Some members of the board should be selected through an electoral process, and other members should be appointed.

“#6: A significant portion of the board should be public members who have no financial interest in the practice of law . . . .

“#7: To assure that appointed members have the skills and experience necessary for service on the board, a process should be created for recruitment, vetting, and nomination of appointees . . . .

“#8: Board members should serve staggered terms to preserve continuity of leadership and institutional knowledge.

Politicians 34“#9: Board members should have term limits. The number of terms depends on the length of terms, but generally, board members should serve no more than 8-12 years.

“#10: Attorney members of the board, whether elected or appointed, should have no less than 5 years’ experience as lawyers, and a clean disciplinary record for the 5 years preceding service on the board.

“#11: Court rules should include a process for removing board members for good cause. The Task Force did not define “good cause,” but it might include commission of serious crimes, commencement of or sanction for formal discipline, etc. The Task Force proposes removal of a board member on a two-thirds vote of the board, conditioned on the Court’s ratification.

LAW AND JUSTICE 12“#12: Ex officio members bring value to the board. The immediate past president of the bar, and an associate Supreme Court justice, should serve on the board as ex officio, non-voting members. The Court should appoint one law school dean as an ex officio member, with the appointment rotating annually or bi-annually among the deans of Arizona’s law schools.

“#13: The leadership track of the board of trustees should consist of three officers: a president, a president-elect, and a secretary-treasurer, who should serve one-year terms of office.”

Having the cake and eating it, too.

The task force glanced at the 148-page report submitted by the Task Force on the Role of the State Bar of Michigan — but like the guy that licks the frosting but leaves the cake, the task force only liked Michigan’s affirmation of mandatory membership. The rest was irrelevant.

This file is licensed under Creative Commons Attribution ShareAlike 2.0 Germany License.

Creative Commons Attribution ShareAlike 2.0 Germany License.

To the surprise of possibly only a squirrel with a backpack, Arizona’s task force recommended “that Arizona continue to have a mandatory (integrated) bar.”  See Mission & Governance Draft Minutes

As for the Arizona Bar’s posture concerning the reason the Michigan State Bar Task Force was created, i.e., whether as a mandatory bar, the Michigan Bar could fulfill “its core mission of service to the public and our members within the constitutional boundaries defined by Keller v. State Bar of California” — well, that was given short shrift.

Not like it mattered that the genesis of the Michigan Task Force was a state bar letter to the Michigan Supreme Court opposing a Michigan Bill to make bar membership voluntary. Noting that the bill raised “questions about the operation of the State Bar as a mandatory organization that are most appropriately addressed within the judicial branch pursuant to the Supreme Court’s exclusive constitutional authority . . . For that reason, we write to request that the Supreme Court initiate a review of how the State Bar operates within the framework of Keller v. State Bar of California, 496 US 1 (1990).”

But since the State Bar of Arizona back-pats itself “Keller-pure” – the task force opted not to go there. ‘We’re good.’ Ditto on the Bar’s programs, services and activities — its amazingness is everywhere!

To review all meeting minutes and related documents go to AZCourts.gov

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Photo Credits: cartoon source “group think or team win” by brandtao;chart based on Irving Janis groupthink model by HaleyB3, Wikimedia Commons, Creative Commons attribution;11326426096.jpg and 113264261341.jpg by sideshowmom at Morguefile.com; Nom cake! by Sirenz Lorraine at Flickr via Creative Commons Attribution-NoDerivs License.

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The Eastern Seaboard may still be buried in ice and snow. But Spring beckons all the same. And come March — like swallows that supposedly always return to Mission San Juan Capistrano, U.S. lawyers receive their yearly state bar propaganda promoting that vestigial anachronism known as the annual state bar convention.

2015 Patrons ProgramLast month I received the Arizona Bar’s annual sponsorship solicitation letter ‘inviting’ members to underwrite the convention as “Convention Patrons.” Suggested donations range from $200 plus to $4000 plus. The Nevada Bar, where I also belong, likewise looks for convention sponsors. But not nearly as enthusiastically as Arizona’s Bar, which spends thousands of dollars in member dues to solicit each member by direct mail.

To pry open lawyer billfolds, the cover letter from Arizona Bar leadership that accompanies the patron contribution form extols (without corroboration) the convention as “consistently recognized as one of the finest in the nation” and asks members’ “help to maintain this position of prominence by returning the attached sheet with your contribution.”

Given such tireless entreaties, mandatory state bars never ever leave a lawyer’s consciousness. So notwithstanding that creaky old song about swallows coming back to Capistrano — likewise the truth is that swallows never ever leave Capistrano. They’re always around.

In the good ole’ summertime.

State bar conferences are usually held in summer preferably at climatically pleasant locales like, for instance, Seattle, Washington where the State Bar of Nevada’s Annual Meeting is set for July 9-11, 2015. Or lovely Sun Valley, Idaho on July 29th when the Utah State Bar’s Summer Convention features keynote speaker Citizens United author U.S. Supreme Court Justice Anthony Kennedy.

All well and good — except locally. The Arizona State Bar holds its annual meetings in June and in Arizona — hardly a climatically pleasant locale that time of year. Summer around here means hot enough to fry an egg on the sidewalk.

And alternating the venues between Phoenix and Tucson is of little use. The average June temperatures in each city easily surpasses 100 degrees°F. And in Phoenix, site of this year’s Butt-Numb-A-Thon, the June thermometer averages 104 degrees°F. The good news for the Bar is that by keeping the air conditioning cranked up, bored conferees don’t wander far from the all-you-can-eat CLE buffet or from the shameless self-congratulation ceremonies.

Getting cheeky.

Another way to keep ‘cheeks in seats’ — at least per the State Bar of Wisconsin, is to headline the event with the likes of humorist, actor, and author Mo Rocca. Wisconsin holds its 2015 Annual Meeting in June at Lake Geneva, Wisconsin and a Kenosha lawyer apprised me about this year’s speaker.

https://upload.wikimedia.org/wikipedia/commons/thumb/6/6c/WaitOctaviaMoR2.JPG/360px-WaitOctaviaMoR2.JPG

But Mo Rocca? In 2010, the Wisconsin Bar featured retired U.S. Supreme Court Justice Sandra Day O’Connor delivering the keynote address. But in 2015, it’s the sobriquet sharing “Mo” whose fame comes via CBS Sunday Morning and frequent stinting as a panelist on NPR’s weekly quiz show, “Wait, Wait . . . Don’t Tell Me.”

The other NPR quiz show panelists Tom Bodett and Paula Poundstone were probably busy. At any rate, they didn’t invite Dick Cheney who stirred up Wyoming lawyers when he was keynote speaker at last year’s Wyoming State Bar Convention.

So no matter years of lackluster attendance and past pronouncements about the demise of the annual cheesehead lawyer convention, it appears its death was “greatly exaggerated.” Instead, the Wisconsin Bar has come roaring back — with Mo Rocca.

Ready. Fire. Aim.

But in Arizona, no worries. Keynote speaker? Who knows? Last year, according to the bar’s website, the principal address was also by a humorist but leastways, that fellow was also a lawyer even though nobody I know had ever heard of him. Of course, the same may later be said of Mo Rocca.

If the Arizona Bar hasn’t thought of it, NBC News Anchor Brian Williams is probably available now that he has six months of extra time on his hands. Or maybe that’s not such a good idea since his honorarium would most likely top Mo Rocca’s.

But for now, those waiting with ‘bated breath and whispering humbleness‘ will simply have to wait longer for the identity of the keynote speaker. The schedule hasn’t been fully announced for Arizona’s 2015 feast of self-congratulation, even though there’s a theme. Reminiscent of “Ready, Fire, Aim” — it’s “Ready, Set, Practice.”

In the end, however, it makes scant difference. Like some 90 percent of my colleagues, I won’t be showing face at the convention — so all those marketing appeals will go for naught.

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Photo Credits: 010 022.jpg by butkovicdub at Morguefile; IMG_4895copy.jpg By carmemlucia at Morguefile; Mo Rocca by Infrogmation (talk) at Wikimedia Commons via Creative Commons Attribution 3.0 Unported license; Dick Cheney by DonkeyHotey at Flickr Creative Commons Attribution; Brian Williams by DonkeyHotey at Flickr Creative Commons Attribution.

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Since it’s pretty much routine anymore for the State Bar of Arizona to survey its lawyers every three years to put together its Economics of Law Practice Report, I don’t dwell on it anymore. I also don’t participate in the survey, which inquires: “How much money do attorneys in Arizona make? What is the average billing rate? Are attorneys in Arizona satisfied with their choice of profession?

“We need your help to find the answers,” the Bar asks. “These are just a few of the questions that will be answered in the State Bar’s 2013 Economics of Law Practice Survey Report. It doesn’t matter whether you’re a sole practitioner, a big firm partner, public defender or in-house counsel; please help us by taking 20 minutes to complete this questionnaire.” See “Welcome to the 2013 Economics of Law Practice Survey.”

It’s offensive the Bar deigns to impose on an Arizona lawyer’s time by asking them to complete a 20-minute survey and then has the brass to sell the survey data it collects to those very same data points.

Besides, the whole thing is so much spin anyway — not to mention you need a modicum of allowance for the informal rule holding that the integrity of output is dependent on the integrity of input.

But since state bars are pretty much copy-cats of one another, particularly when it comes to getting lathered up over new revenue streams, it’s no surprise that Cheesehead lawyers in Wisconsin are being similarly surveyed and then asked to purchase the fruits of their labors,Economics of Law Practice in Wisconsin 2013 Survey Report.

https://i1.wp.com/upload.wikimedia.org/wikipedia/commons/thumb/2/2d/Hippopotame_%28Zoo_de_Berlin%29_%286081008830%29.jpg/320px-Hippopotame_%28Zoo_de_Berlin%29_%286081008830%29.jpgWhen last I mentioned the Arizona Bar’s law practice economics survey in 2010, State bar says ‘take our survey so we can sell you the results,” Wisconsin may not have been marketing and selling its economic survey. But then times change and the bureaucratic maw always needs feeding.

File:Cheesehead.jpgAnd so the Wisconsin Bar has of late been aggressively hustling its own law practice economics report. They’ve been emailing members and have even featured the videotaped ministrations of a marketing maven and encouraged the use of their survey so lawyers can assess their markets. (Hat tip to Wisconsin buddy, The Legal Watchdog).

But at least in Wisconsin, the state bar gives its lawyers a wee break by charging $99 for their report versus $125, which is what Arizona Bar members are asked to pay for their complete results. In both jurisdictions, though, the public pays well north of $200 for a copy.

Frankly, I think the only reason a lawyer might be interested in the results is to learn the net income attorneys in their jurisdiction purportedly claim to be earning. And while the first liar rule is always in effect, the Costanza rule also applies, “It’s not a lie … if you believe it.

Anti-trust doesn’t apply.

https://i1.wp.com/upload.wikimedia.org/wikipedia/commons/thumb/5/55/Twenty_dollar_bills.JPG/320px-Twenty_dollar_bills.JPGThe data is also the only lawful means to uncover what other lawyers are charging without running afoul of posted minimum fee schedules. That stratagem was banned almost 40 years ago by Goldfarb v. Virginia State Bar, 421 U.S. 773 (1975). And more importantly, lawyer fee surveys are also relied upon in support of counsel applications to a court for fee awards.

Thanks to guidelines from the U.S. Department of Justice and the Federal Trade Commission albeit concerning health-care fee surveys, state bars conducting economics of law practice surveys nonetheless depend on that guidance to ‘safely’ gather member fee survey data.

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This allows competitors to provide information on prices and to review the resulting survey data without violating antitrust prohibitions. To qualify, the data collection must be managed by a third party, not a competitor; the information provided must be at least three months old; the information must be aggregated based on information from at least five participants; and no individual participant can be identified. Conducting information exchanges in this manner would not be likely to raise an inference that prices or fees were set collusively.” And coincidentally this explanation happens to come courtesy of Wisconsin Lawyer: “Shhhh! The Antitrust Risks of Discussing Legal Fees.”

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Photo Credits: Blogging fatigue, by Jonas Löwgren at Flickr via Creative Commons attribution; Cheesehead Pat, by Patrick Haney Patrick Hat Flickr via Creative Commons Attribution-NoDerivs 2.0 Generic License; Hippopotame (Zoo de Berlin), Wikimedia Commons, Creative Commons Attribution; Cheesehead, Wikimedia Commons, public domain; twenty-dollar bills.by public domain by its author, Merzperson at the wikipedia project; I Cut the Cheese by Erik Ogan at Wikimedia Commons.

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https://upload.wikimedia.org/wikipedia/commons/thumb/7/70/Wooden_hourglass_3.jpg/300px-Wooden_hourglass_3.jpg

Image, Wikimedia Common

So here it’s almost year-end with so much to update and so little time, including that the Arizona State Bar’s ‘pay to play’ CLE precertification scheme was unexpectedly voted down by an otherwise management-submissive board of governors.

Conveniently overlooking that it started the commotion in the first place but acting now as though members suddenly mattered, here’s the Bar’s self-serving announcement, “After hearing comments from members and CLE providers, the Board of Governors has voted unanimously not to create a process for precertifying CLE providers.”

“Fanciful benefits” of CLE

But in place of other updates and since there’s a few more days before the last day of the year, let me instead here applaud colleague James C. Mitchell’s boldly trenchant move to petition to amend Arizona Supreme Court Rule 45. This is the rule that sets out the Court’s mandatory continuing legal education (CLE) requirements.

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Arizona lawyer Mitchell petitioned the state supreme court last month to require an acknowledgement on all continuing legal education advertising, to wit,“that the value of mandatory continuing legal education (MCLE) is unproven and that the State Bar of Arizona has a financial interest in CLE marketing.” The acknowledgement would read as follows:

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Rule 45. Mandatory Continuing Legal Education
(a) through (k) [No changes]

“(l) Advertising. Any advertisement for a continuing legal education program, product or service offered by or in conjunction with the State Bar of Arizona shall contain the following disclaimer:

“The State Bar of Arizona makes no representation that this program, product or service will improve any attorney’s competence or protect the public. No evidence proves that mandatory continuing legal education provides such benefits. The State Bar seeks revenue from CLE programs, products and services.

The disclaimer shall appear conspicuously in capital letters in black type at least half the point size of the largest type in the advertisement, but in no event smaller than 12-point type.”

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As he writes in his petition, “The statement would align claims for mandated CLE with available evidence of its value, acknowledging that CLE as practiced has little or no verifiable impact on attorney competence or public protection.

“This amendment is needed to create transparency in a significant program of law practice regulation. It would protect the public and lawyers themselves from deception by unproven claims of value in a mandated scheme of so-called continuing legal education, and protect the State Bar from potentially making or embracing false claims of value in products and services that it provides for money.”

Asking for “honest disclosure.”

Of course, the Court will never approve this petition and will most likely deny it without explanation. Still, kudos to Mr. Mitchell for daring so eloquently and so wittily to expose what most of us already knew, MCLE is bare of verifiable, substantiated argument.

Calling for truth-in-advertising and referring to the Bar’s claims about CLE content quality as “hyperbole,” he adds, “. . . until that joyous day when MCLE joins Smell-O-Vision films and Michael Dukasis’s tank in Terrible Idea Heaven, Petitioner simply urges this Court to order a policy of honest disclosure in advertising.

“None of the Bar’s hyperbole likely violates the prohibitions on false and misleading commercial speech in ARIZ. REV. STAT. § 44-1481(A)(1) (fraud-in advertising statute bars omission of material facts) or our own ER 7.1 (material omission prohibited in communication concerning a lawyer’s services). But should our State Bar really slither through the same loopholes that permit overselling automotive clunkers? Should our State Bar, when advertising, omit material facts in a way that no ethical advertising lawyer may? Should the State Bar claim a right to withhold essential information about CLE’s worth, namely the fact that none has been proven? Petitioner respectfully suggests that it should not. We’re lawyers. We should do better. We should get out front with the truth.”

https://i1.wp.com/upload.wikimedia.org/wikipedia/commons/thumb/f/fc/Hands-Clapping.jpg/312px-Hands-Clapping.jpgTo which I cheer, “Bravo, bravo, bravo!”

Read the entire petition here.

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Photos: From The Æsop for Children, by Æsop, illustrated by Milo Winter at Wikimedia Commons, public domain;La publicite en France par Emile Mermet, advertising poster, ca. 1880 by trialsanderrors at Flickr Creative Commons attribution;hands clapping, Wikimedia Commons.

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Two months ago, the State Bar of Arizona ran a lame contest via Instagram to encourage voters to 

Voters here aren’t particularly fond of playing to figure out who to vote for among scores of judges up for judicial retention elections. The numbers can run upwards of 50 to 60 — even 70. Unfortunately, most of the populace has never heard of the candidates. And for Red State Arizonans, it’s even tougher since judicial elections aren’t partisan.

So in lieu of throwing darts at a list or visiting the judicial performance review website, which 99% of the time rubber-stamps its approval anyway — many voters take a pass. They either vote “No” on everyone or they don’t vote altogether for the judges.

Faced with this, the Bar, at the behest of the Court, — came up with its contest to encourage the electorate to fill out the ballots completely. In fairness, it’s is a tall order trying to pour energy into voter ennui.

Just the same this wasn’t the contest to do it, not by any stretch. Assuming anyone paid attention, the contest was purely a sop for those crying out for something — anything to stem the tide of persistent problematic ballot roll-off.

The sole prize for the winning video entry was supposed to have been a $250 Visa gift card. But since the November election, it’s been a minor mystery on whether or not the Bar received any contest video entries or whether anybody actually won. I’ve seen no pronouncements from our friendly state bar, which is highly unusual since this stands in stark contrast to all the email announcements ballyhooing the start of the contest. Odd, too, as the local Bar is quite fond of filling up lawyer inboxes with unsolicited email newsletters, redundant CLE advertisements and just today, an especially unwelcome “time to pay your State Bar of Arizona’s annual dues” email.

At least for now, it appears mum’s the word on “Finish the Ballot,” which naturally prompts the question whether or not the Bar ever plans to “Finish the Contest.”

To be clear, I don’t actually care a rat’s hindquarters about the contest. This is merely my snarky segue into posting more FREE CLE offerings for lawyers still trying to “Finish the CLE” by year-end. The usual disclaimers on content; continued availability; and jurisdictional approval apply.

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FREE CLE

First American Exchange Company

http://firstexchange.com/webinars

1031 Exchanges and
Commercial Real Estate

Thursday, December 4th, 2014

11 AM Pacific / 2 PM Eastern
50 minutes
Topics will include:

  • Current Trends
  • Allowable Closing Costs
  • Recapture of Depreciation
  • How Reverse Exchanges Can Save a Transaction
  • Exchange Deposit Accounts
  • State Regs for QIs

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Wolters Kluwer
Alternative Entities — Navigating New Choices for Business Formations Webinar
December 9, 2014 – 1:00PM(ET)

http://www.cvent.com/events/alternative-entities-navigating-new-choices-for-business-formations-webinar-december-9-2014-1-00p-et/event-summary-ec6cf48dac2244db92fd51c114fd0e2d.aspx?elq_mid=3977&elq_cid=41694

1.0 CLE credit hours in California, Illinois, Missouri, NALA, New York, Pennsylvania and Texas and other jurisdictions under reciprocity.

Topics:

  • Series LLC
  • Benefit Corporations
  • Low-Profit LLC
  • Unincorporated nonprofit associations
  • Limited cooperative associations
  • Master Limited Partnership

Attendees will learn:

  • What new entities are now available
  • How they are different from and similar to traditional entities such as the corporation or LLC
  • Where they can be formed
  • How they are formed, maintained and terminated
REGISTER NOW

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LexisNexis® Presents a Complimentary CLE-eligible Webinar: Ethical Concerns Conducting Research via the open Web
Wednesday, December 10, 2014
2 – 3:35 P.M. ET (11 A.M. PT)
Duration: 95 minutes
Earn 1.5 CLE credits
Topics:
• Risks of legal research on the open Web
• Developing a firm policy on utilizing the open Web
• Preserving information found on the Internet
• Protecting your own Internet content

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Photo Credits: 214/365, at Flickr by Morgan via Creative Commons attribution.

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File:Simpleton takes The Golden Goose to the inn - Project Gutenberg eText 15661.jpgThis Wednesday, it’ll be two months since the State Bar of Arizona considered a proposal to protect its two-million dollar revenue laying Golden Goose known as Bar-sponsored continuing legal education (CLE).

On September 19th, the Bar weighed a recommendation to seek state supreme court approval for a requiring third-party CLE providers to pay a precertification fee for Bar-accreditation to sell credit-eligible courses in Arizona.

Angry businessman yelling into bullhorn 1Following a universal outcry from members who criticized the proposal as an unnecessary added cost, the vote was apparently tabled. But who knows for sure? Since the board of governors meeting minutes have yet to see the light of day, the lawyer hoi polloi in Arizona are left to wonder whether or not the Bar’s goose will lay another golden egg.

But fortunately, there’s no need to wonder about the continued availability of FREE CLE — from third-party providers, naturally. Along with the usual disclaimers about content, continued availability and jurisdictional approval, here are the latest updates.

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Rimon Law

Nov 21, 2014 11:00 AM to 12:00 PM EST

One hour CLE; approved in California and credit-eligible in NY.

CPE/CLE Webinar – State and Local Taxation: Headline News and Trends.

http://rimonlaw.com/events/cpe-cle-webinar-state-and-local-taxation-headline-news-and-trends

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Lewis Brisbois 

http://www.lewisbrisbois.com/webinars

November 20, 2014

Managing and Mitigating Damages in the Wrongful Death Case

Time: 9:00 am – 10:00 am PST

Fee: Complimentary

REGISTER

December 18, 2014

Encore Performance: Affordable Care Act – Part I: The Impact of The Affordable Care Act on Personal Injury Litigation. A Plan to Defend Against Claims for Future Medical Costs, Loss of Health Insurance, and Life Care Plans.

Time: 9:00 am – 10:00 am PST

Fee: Complimentary

REGISTER

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West Legal Ed

Content Partner: Robert Half Legal

Client Dynamics Driving Change in the Legal Profession

http://westlegaledcenter.com/program_guide/course_detail.jsf?courseId=100031914

One hour, Video On Demand, Complimentary

Approved in multiple jurisdictions.

Enroll in Course

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American Society of Law, Medicine and Ethics, ASLME

Alcohol Law and Policy: Lessons Learned from the Field

Thursday, November 20th
1:00pm – 2:30pm (ET)

Free

http://www.aslme.org/webinar-alcohol-law-and-policy-lessons-learned-from-the-field

Presented in Partnership by: American Society of Law Medicine and Ethics (ASLME); Network for Public Health Law; and Public Health Law Research

(Hat tip: 4FreeCLE: Free Continuing Legal Education)

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Photo Credits: Simpleton_takes_The_Golden_Goose_to_the_inn_-_Project_Gutenberg_eText_15661.jpg, Wikimedia Commons, public domain.

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Last week, the State Bar of Arizona launched an odd campaign. It’s a social media contest using the photo sharing, video streaming site Instagram.

Called Finish the Ballot!, the contest is supposed to promote voter information about judicial retention elections. Yeah, there’s a challenge — ginning up excitement for a dull but important topic.

Dangling all of a $250 Visa gift card as the sole prize, contestants vie by creating a 15-second Instagram video that must include the phrase, “Finish the ballot. Vote for the judges!”

Bar employees will pick the winner based on “creativity and originality as they reflect the contest’s theme.” Instead of “Just Say No!” think “Just Say Vote!” 

Undervoting worries.

The goal is to increase voter participation — at least on that really long part of the ballot with all the judicial names expecting retention.

Problem is that voters in Arizona and in other judicial retention states continue choosing not to complete their ballots. The phenomenon has a name. It’s called “undervoting” or “roll off.”

The worry is that for merit selection and judicial retention election proponents, all those non-votes undermine the argument that retention elections are supposedly great at ensuring judicial accountability.

And with ever longer ballots and so many judges listed, it’s not getting any better. In one recent Maricopa County election, for example,

Indeed, according to a June 2014 Arizona Law Review article, “Judicial Performance Review in Arizona: A Critical Assessment,” authors former Arizona Supreme Court Chief Justice Rebecca White Berch and her former law clerk now attorney Erin Norris Bass, reference Professor Larry Aspin’s studies revealing that between 1964 and 2010, Arizona judges up for retention averaged an undervote of 42.9%.

In his report, Judicial retention election trends,” Aspin highlighted the undervoting increase in the state’s largest county, Maricopa, where it ran “an average 48.8% in the 1996-2006 period, peaking at 54.5% in 2004.”  And citing 2012 Maricopa County Election Results, Justice Berch and Ms. Bass noted more recently that “In the 2012 retention election, Maricopa County Superior Court judges on the ballot had an average 50.7% undervote.”

But besides undervoting, there’s another concern troubling the legal establishment. Justice Berch and Ms. Bass’ law review article, also cited findings that “approximately 30% of the electorate routinely votes ‘no’ in judicial retention elections no matter who the judge happens to be.” 

In Maricopa County, among those taking the time to vote for all the judges, the median affirmative vote in the 2012 county election was 69%. Anecdotally at least, one can speculate this may be a form of protest by restive voters dissatisfied with the present system.

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Photo Credits: 214/365, at Flickr by Morgan via Creative Commons attribution; Making Faces, at Flickr by a2gemma via Creative Commons-attribution license;My Kitty Boys Doing the Big Eye Stare, by joanna8555 at Flickr Creative Commons attribution license;Instagram-logo, uploaded by José Moutinho at Flickr Creative Commons attribution;DeMoulin’s Patented Hoodwink, at Flickr Creative Commons-attribution license uploaded by Arallyn!

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