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On Monday, the U.S. Supreme Court unanimously ruled that government, in this instance, the U.S. Patent and Trademark Office (PTO) may not refuse to register potentially offensive names under a law against registering trademarks likely to disparage people or groups.

The case, Matal v. Tam, strengthens the case against state bar associations seeking to further trample lawyer First Amendment rights via ABA Model Rule 8.4(g). For more about the ABA’s misguided decision “to discipline lawyers who engage in politically incorrect speech,” see “The ABA’s Control Over What Lawyers Say Around the Water Cooler.”

The Nevada Bar, for one, has petitioned its state supreme court to adopt a new lawyer speech code to punish Nevada attorneys for what newly weaponized lawyer disciplinary authorities subjectively deem “derogatory,” “demeaning,” or “harmful” speech“related to the practice of law.” Matal v. Tam renders the viewpoint discrimination enshrined by such a proposed rule presumptively unconstitutional.

Nonetheless, how much ultimate weight state supreme courts give to Matal v. Tam on such matters will depend on the jurists’ ability to temper the agenda-driven viewpoint of lawyers as sui generis ‘special snowflakes.’ Under this rubric, lawyers are expected to unreservedly pay for their ‘privilege’ with constraints on their Constitutional rights not visited upon any other profession.

Whether as agents of the state, i.e., ‘officers of the court,’ or as “public citizens” as the ABA Report describes them, lawyers are expected to tolerate the continued erosion of their rights, especially with respect to the First Amendment. See here, here, here and here and additionally, The Intersection of Free Speech and the Legal Profession; Constraints on Lawyers’ First Amendment Rights. It’s way past time for lawyers to say “Enough!”

Matal v. Tam.

In 2011, Simon Tam, the founding member of the Asian-American dance-rock band, The Slants, tried to register the band’s name with the PTO. His application was denied based on a federal law prohibiting the registration of trademarks that may “disparage . . . or bring . . . into contemp[t] or disrepute” any “persons, living or dead.” 15 U. S. C. §1052(a).

Tam characterized his trademark registration as an attempt to reclaim a slur and use it as “a badge of pride.” Associate Justice Samuel Alito wrote, “We now hold that this provision violates the Free Speech Clause of the First Amendment. It offends a bedrock First Amendment principle: Speech may not be banned on the ground that it expresses ideas that offend.”

Student free speech.

Writing today at “The Legal Watchdog,” notable Wisconsin defense attorney Michael Cicchini trenchantly points out at “Free speech: A message for public universities (and their students) how Matal v. Tam should help curb free speech constraints currently the rage among do-gooding bureaucrats at public universities. Quoting from the opinion, Cicchini illustrates how There is no hate-speech exception to the First Amendment;”  “You can’t suppress speech you don’t agree with;” and “You should be thankful that you can’t suppress speech you don’t agree with.” His entire post bears reading.

Finally, some have inanely suggested the case is one for folks on the Right to applaud, e.g., “Today in Conservative Media: Applause for a Free Speech Victory at the Supreme Court.” To which, I rejoin, when did the U.S. Constitution and specifically, our fundamental rights become the exclusive purview or calling of one side of the political spectrum?

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Photo credits: Seal of the U.S. Supreme Court, by DonkeyHotey at Flickr Attribution; “sad emoticon,” by shamaasa  at Flickr Attribution; “Resusci-Annie’s Children Remark On the Effectiveness of the First Amendment,” by John Scalzi at Flickr Attribution.

 

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Last month, an Arizona psychic was at a restaurant having lunch when a car crashed through the window, threw him up in the air, and pinned him against a wall. “I didn’t foresee it happening,” joked injured psychic Blair Robertson after the accident. See “Arizona psychic injured when he ‘didn’t foresee’ car crash.”

Whether or not you believe in clairvoyance, you don’t need psychic powers to foresee that state bars without fail welcome their own collisions with the liberty interests of their members. It’s integral to the “do-gooder” mentality endemic among the “moral busybodies” running state bar associations.

“Those who torment us for our own good,” said C.S. Lewis, “will torment us without end for they do so with the approval of their own conscience.” 

Do-gooders.

https://lawmrh.files.wordpress.com/2017/06/travel-tourism-18.jpg?w=1000&h=The latest do-gooder intrusion comes from a surprising quarter, the State Bar of Nevada. At one time, the Nevada Bar could be characterized by a laissez-faire attitude consistent with Nevadans’ strong independent, libertarian streak. But oh, how times have changed.

Last year, in a misguided effort grounded on anecdotal conjecture about supposed prevalent substance abuse and mental health problems among Nevada’s lawyers, Nevada’s Bar Governors petitioned the high court for another mandatory hour of annual continuing legal education in substance abuse prevention and mental health.

Continuing legal education has never been proven it makes lawyers more competent or ethical. Just the same, the Nevada Bar thought an hour of mandatory substance abuse/mental health CLE would help make lawyers abstemious and healthy-minded.

And not satisfied with only that moral meddlesomeness, the board next appointed a task force to study whether Nevada lawyers should pay more to practice by following the Oregon Bar’s improvident model of forced professional liability insurance. Oregon’s insurance mandate currently compels lawyers to pay a hefty $3,500.00 annually for the merest nominal coverage.

https://lawmrh.files.wordpress.com/2017/06/people-16688.jpg?w=163&h=155At Revenge of the Do-Gooderin The American Thinker, Scott Boerman explained what animates the do-gooder is “a great desire to cure humanity’s ills and imperfections with solutions that invariably focus on controlling other people’s property and productivity. Not to be confused with real volunteers and philanthropists — who use their own skills and wealth to directly help a favored cause — the do-gooder uses only his brain to decide precisely what everyone else what should do with their abilities and wealth. And because the do-gooder is so confident that his plans are good for humanity, he strives to impose his will with a stick, be it regulatory, monetary, or via public brow-beating.”  

An unconstitutional speech code.

Nevada’s Bar, however, may have finally reached the apex of do-gooding thanks to a petition filed May 8th asking the state supreme court to adopt the new ABA Model Rule 8.4(g) which amends Nevada Rule 8.4 by adding an entirely new subsection (g). It reads:

It is professional misconduct for a lawyer to: . . . (g) engage in conduct that the lawyer knows or reasonably should know is harassment or discrimination on the basis of race, sex, religion, national origin, ethnicity, disability, age, sexual orientation, gender identity, marital status or socioeconomic status related to the practice of lawThis paragraph does not limit the ability of a lawyer to accept, decline or withdraw from a representation in accordance with Rule 1.16.  This paragraph does not preclude legitimate advice or advocacy consistent with these Rules.

No jurisdiction has yet adopted the ABA 8.4 (g) model rule concoction passed last fall. Nevada hopes to be first.

Meanwhile, the amendment hits Boerman’s do-gooder regulatory, monetary and public brow-beating trifecta. Violations mean notoriety. Regulatory sanctions impact a lawyer’s ability to earn a living.

Academics like UCLA Law Professor Eugene Volokh and South Texas College of Law Professor Josh Blackman have weighed in against the proposed rule on constitutional grounds. The Attorneys General of Texas and South Carolina have also officially opined that a court would likely conclude ABA Model Rule 8.4(g) not only amounts to an unconstitutional restriction on the free speech, free exercise of religion, and freedom of association of attorneys but it’s also unconstitutionally overbroad and void for vagueness. See Opinion No. KP-0123, Attorney General of Texas and 14 South Carolina Attorney General Opinion.

Other commentators contend that by only proscribing speech that is derogatory, demeaning, or harmful toward members of certain designated classes, the Rule is an unconstitutional content-based speech restriction. Others argue attorney conscience rights are also adversely implicated.

Professor Blackman further raises separation of powers problems when bar disciplinary authorities lacking the “boundless discretion over all aspects of an attorney’s life” nevertheless attempt to regulate conduct beyond their legal power or authority.

More bar complaints.

But the real upshot is heightened lawyer liability when state bar disciplinary police are given unprecedented new powers to punish lawyers for conduct not directly connected with what ethical rule 8.4 already prohibits, which is misconduct while representing a client or implicating fitness to practice or prejudicing the administration of justice. The new rule enlarges the scope to include social conferences, bar association activities and private speech far removed from providing actual legal services.

As Professor Blackman further wrote in The Georgetown Journal of Legal Ethics about Model Rule 8.4(g):

“Lectures and debates hosted by bar associations that offer Continuing Legal Education (CLE) credits are necessarily held “in connection with the practice of law.” Lawyers are required to attend such classes to maintain their law licenses. It is not difficult to imagine how certain topics could reasonably be found by attendees to be “derogatory or demeaning” on the basis of one of the eleven protected classes in Rule 8.4(g).

Blackman lists sample topics chosen as he says for their “deliberate provocativeness” where a lawyer attendee might subject herself to discipline since the speaker “reasonably should know” that someone at the event could find the remarks disparaging towards one of the eleven protected groups.” Here are a few:

“● Race—A speaker discusses “mismatch theory,” and contends that race based affirmative action should be banned because it hurts minority students by placing them in education settings where they have a lower chance of success.
● Gender—A speaker argues that women should not be eligible for combat duty in the military, and should continue to be excluded from the selective service requirements.
● Religion—A speaker states that the owners of a for-profit corporation who request a religious exemption from the contraceptive mandate are bigoted and misogynistic.
● National Origin—A speaker contends that the plenary power doctrine permits the government to exclude aliens from certain countries that are deemed dangerous.
● Ethnicity—A speaker states that Korematsu v. United States sas correctly decided, and that during times of war, the President should be able to exclude individuals based on their ethnicity.
● Sexual Orientation—A speaker contends that Obergefell v. Hodges was incorrectly decided, and that the Fourteenth Amendment does not prohibit classifications on the basis of sexual orientation.”

All of which means an amended Nevada Rule 8.4 will unwisely empower a mandatory bar to extend existing lawyer First Amendment encroachments upon new terrains of unconstitutional discipline.

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The Nevada Supreme Court invites written comment from the bench, bar, and public regarding the proposed amendments. The Hearing date is July 17, 2017, at 2:30 p.m., Supreme Court Courtroom, 408 East Clark Avenue, Las Vegas, Nevada 89101. The Comment deadline is July 5, 2017, at 5:00 p.m., Supreme Court Clerk’s Office, 201 South Carson Street, Carson City, Nevada 89701.


Photo Credits: “Psychic,” by The She-Creature at Flickr Attribution;  “Satisfaction,” by Walter Kramer at Flickr Attribution; “aaaaaaaaaahhhhhhhh,” by Marco Boscolo at Flickr Attribution;”Tread Upon Now What?” by John Eisenschenk at Flickr Attribution; “kindness, persuasion, punishment,” by Meagan Fisher at Flickr Attribution.

Longtime readers know I like movies. They’re fun as a stand-alone proposition.

But movie-going is almost essential when Arizona’s solar-intensifying sprummer has come, gone, and Satan’s excessive heat warning says it’s 109 outside. Overnight it ‘cools down’ to the high 90’s.

So when outdoor activity partners with heat stroke, getting out often means movies. This weekend, it was Wonder Woman — highly enjoyable and big fun. Although I enjoy all genres, there’s nothing like a well done action film.

As some of you know, I’ve also seen my share of movies featuring lawyer protagonists. Admittedly, it’s been a while since there was one I liked. The Lincoln Lawyer is perhaps the last one I thought entertaining — but that was 6 years ago.

It’s not like I rush to see movies featuring lawyers. Quite the opposite. I think most are to be avoided. 2014’s The Judge was awful.

Nearly always they get the law and the ethics wrong. For instance, I missed last year’s The Whole Truth, starring that latter-day Olivier, the wooden thespian known as Keanu Reeves. I’m sorry to say I finally caught it online.

Of The Whole Truth, movie critic Rex Reed said, “A guaranteed cure for insomnia, an abomination called The Whole Truth is a courtroom movie that looks like a colorized version of an old Perry Mason TV show, starring Renée Zellweger’s new face and Keanu Reeves, who has the charisma and animated visual appeal of a mud fence.” Keanu plays that over-used movie stereotype, the ethically challenged criminal defense lawyer.

And why always an ethically challenged defense lawyer? Why not an amoral ERISA or corrupt water rights lawyer? In truth it’s probably because ERISA and water rights lawyers would have to arm-wrestle to avoid the title of most boring field of practice.

In any event, Keanu’s much better as pup-loving legendary hitman John Wick not as a lawyer. Just the same, I admit to liking his turn as the lawyer son of Satan in The Devil’s Advocate.

Recliner movie watching.

Glenn Whipp amusingly reported this past Friday that theater chains have “decided that the best way to sell tickets is to replicate moviegoers’ living rooms.” See “When moviegoers treat theaters like living rooms — texting, talking, even diaper changing happens.”

It’s true. Recliners have arrived at the cineplex, including the one in our neighborhood. I’m not sure, however, that Wonder Woman was better because my feet were up. The Whole Truth, on the other hand, is a different matter. The recliner would’ve meant In dormis delicto.

Fortunately, the movie-going pleasure of Wonder Woman was mostly unmarred unlike other recent movie experiences involving serial chatterboxes and obsessive texters. Save for a movie patron twice checking his cellphone two rows in front, we escaped Glenn Whipp’s exponentially worse experience with the in-the-theater toddler diaper-changing mother. “Because,” as Whipp explained, “that’s what those adjustable armrests are for, right?”

And that Bill Kilgore is not the smell of napalm in the morning.

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Photo Credits: Empty cinema movie theater, by Iwan Gabovitch  at Flickr Creative Commons Attribution; First movie of the year, recliner chair theater, by stupid systemus at Flickr Creative Commons Attribution.

Note: The following story was originally published by ProPublica, “an independent, nonprofit newsroom that produces investigative journalism in the public interest.” It is republished with permission.

The behavior of Bill Kephart, who led the murder prosecution of Fred Steese, was repeatedly lambasted by the Supreme Court of Nevada. But that didn’t stop him from becoming a judge. This month he was charged with misconduct in that position too.

by Megan Rose, ProPublica

May 26, 2017

In the legal world, prosecutors are rarely called out by name. Their misconduct is usually attributed to unidentified prosecutors or the “State” in rulings by appellate judges. But as a Las Vegas prosecutor, Bill Kephart — now a judge — achieved a dubious distinction: He was chastised publicly.

The Supreme Court of Nevada took the rare step in 2001 of ordering him to prove why he shouldn’t be sanctioned for his behavior in one of his cases with a fine or a referral to the state bar for “violation of the Rules of Professional Conduct.” The ruling was disseminated statewide and, in Kephart’s own words, “professionally embarrassed” him. In his response, he wrote that the ruling had “already had a great impact” on him and promised that there wouldn’t be “a bona fide allegation of prosecutorial misconduct against me in the future.” The justices nevertheless fined him $250.

Fred Steese served more than 20 years in prison for murder even though evidence in the prosecution’s files proved he didn’t do it. But when the truth came to light, he was offered a confounding deal. Read the story.

The Supreme Court’s rebuke was particularly notable in Nevada, where the judges are elected and part of the state’s insular legal community. They typically rule unanimously and seldom come down too hard on prosecutors. As one retired chief justice put it: “Picking fights with district attorneys might not be the best thing for [a judge’s] career continuation.” But Kephart’s behavior challenged that status quo, compelling one or more of the justices to issue dissents in several cases, saying his behavior called for convictions to be overturned.

Overall, the Nevada high court has noted prosecutorial misconduct in at least five of his cases over a dozen years, not including his actions during the trial of Fred Steese — who was tried by Kephart for a 1992 murder and ruled innocent 20 years later after exculpatory evidence was found in the prosecution’s files. In the cases in which Kephart is not named, he is the prosecutor whose misconduct is cited:

  • In 1996, the court noted “several instances of prosecutorial misconduct” in a sexual assault case. The conviction was upheld, but one justice dissented, saying that Kephart had “infected” an already “muddled case” and it warranted reversal. (In 2001, a judge granted the defendant an evidentiary hearing and he was released.)
  • In 1997, the court reversed the murder convictions of two men based entirely on the “deliberate” and “improper comments” made by the prosecution during cross examination and closing argument. The DA’s office had sought the death penalty, which in Nevada increases costs by about a half million dollars on average, making this and other reversals based on Kephart’s behavior expensive screw-ups for taxpayers. (Both men were retried and convicted again in 1998, one sentenced to life in prison and the other to death.)
  • In 2001, in the case he was fined $250, the court said Kephart gave the jury a misleading explanation of the standard for reasonable doubt when he instructed them: “you have a gut feeling he’s guilty, he’s guilty.” A justice said at a hearing that the remark seemed “like deliberate misrepresentation.” The court upheld the conviction, but noted that Kephart’s “improper remark was particularly reprehensible because this is a capital case and the remark was gratuitous and patently inadequate to convey to the jury its duty…”
  • In 2002, the court took issue with Kephart for assaulting a witness. During the trial of a sexual assault case, Kephart said he wanted to demonstrate how the victim said she was choked, pressing his forearm into the defendant’s neck while he was on the stand. The court upheld the verdict, but noted there was “absolutely no reason” for Kephart’s behavior, which went “well beyond the accepted bounds of permissible advocacy.” One justice dissented, saying “the instances of prosecutorial misconduct were pervasive and substantial…an accused who takes the stand runs many risks. One of them should not be that the prosecutor would physically assault him or her.”
  • In 2008, the court tossed out a murder conviction in another death penalty case, saying, among other issues, the prosecution’s misconduct was “significant” and “occurred throughout the trial,” including Kephart’s remarks during jury selection and in closing. One judge dissented, saying the prosecutorial misconduct and other issues didn’t require reversal. (The defendant eventually pled guilty in 2014.)

In 2002, Kephart prosecuted another highly contested murder case against Kirstin Lobato, then 19, which has garnered national outcry for the meager and sometimes contradictory evidence against her. Lobato was recently granted an evidentiary hearing and is represented by the Innocence Project. This month, the prosecuting officer for the Nevada Commission on Judicial Discipline filed misconduct charges against Kephart for a media interview he gave about the case last year, in which he said it “was completely justice done.” Kephart’s “statements could affect the outcome or impair the fairness of Miss Lobato’s case,” according to the formal statement of charges. The statement said Kephart violated several rules of the judicial code of conduct. He has not yet filed a reply.

Kephart, who joined the DA’s office in the early 1990s as a brash young attorney, once got in a shoving match with a defense attorney. Another time a judge had to admonish him for repeatedly shaking his head, making faces and rolling his eyes. His behavior eventually led to minor reprimands from the Clark County District Attorney’s Office, according to several people who worked with him during that time. In 2002, after Kephart’s reasonable-doubt flub, the entire DA’s office had to complete a two-hour ethics course and continuing legal education classes, which the deputy district attorneys tagged the “Kephart CLE.” That same year, Kephart was briefly banned from trials. Regardless, he later became a chief deputy.

Kephart also was called before the state bar for his behavior in Steese’s murder trial, but, according to lawyers at the hearing, his boss made an appeal on behalf of him and the other prosecutor on the case, and neither was sanctioned.

Kephart declined several requests for comment.

Despite these repeated critiques of his conduct, Kephart was voted onto the bench in 2010 as a justice of the peace and in 2014 moved to the Eighth Judicial District Court of Nevada, where he today he presides over civil, construction and criminal cases.

Update, May 31, 2017: In his official written response to the disciplinary commission, Kephart has denied charges that he violated judicial canons with his remarks to the media about an open case. His response said that he had “participated in interim rehabilitation by taking classes,” and the commission should consider his honest motives, clean judicial disciplinary record, and “character and reputation.”

Megan Rose covers the military for ProPublica. Previously she was the national correspondent at Stars and Stripes.

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A month from now, it’ll be exam time. Not an oral exam — but the July bar exam administered the last week of the month everywhere except for Wisconsin, which has the “diploma privilege.”[1]

For the rest of the states, including the District of Columbia, this year’s May crop of law school graduates will be tested to satisfy “what bar examiners have always posited as the bar exam’s purpose, i.e. minimum competence to practice law unsupervised.”[2]

https://cdn.morguefile.com/imageData/public/files/t/taliesin/preview/fldr_2008_11_02/file0001110781475.jpgMeanwhile, law school applications continue to fall.[3] And as law schools vie for a dwindling number of enrollees, some schools are competing for cheeks in the seats by cutting admissions and by lowering admission standards.

Bar exam scores are also plummeting at some schools. So questions are naturally arising on whether falling exam scores are attributable to a decline in law school standards.

Driven in my view mostly by self-preservation, “frustrated law school deans” are suddenly complaining to anyone who will listen about the exam. Their criticism of bar exam methods and mechanics is largely unprecedented. One law school dean went as far as calling the bar exam “an unpredictable and unacceptable impediment for accessibility to the legal profession.” See “Bar Exam, the Standard to Become a Lawyer, Comes Under Fire.”

https://cdn.morguefile.com/imageData/public/files/s/Sgarton/09/l/1379295120ysjr3.jpgNot to be missed, however, is how one school is trying to slow their own nosediving exam scores. Charlotte Law School’s Assistant Dean of Student Success employed four-letter exhortations to her professors serving as bar prep coaches. Straddled with Charlotte’s abysmal bar passage rates, Assistant Dean Odessa Alm admonished the professors to insist on more urgency from their graduates. “We’re not cheerleaders. We’re coaches. ‘Get down on the f***ing floor and give me 40. You’re going to run more laps.’ That’s what a coach is. A coach is not a cheerleader.” See “Recordings Shed Light On Charlotte School Of Law’s Methods To Boost Bar Passage.”

In 2014, with scores falling, the Iowa State Bar Association looked for another remedy. It proposed an in-state “diploma privilege” like its Wisconsin neighbor. But the Iowa Supreme Court closed the door on the proposal opting to keep the bar exam in place. According to one news report, “Critics said it was a way for Iowa law schools to boost enrollment, which has been falling in recent years.” Also see “As schools lower standards, more flunk the Iowa bar.”

And in a step akin to moving the iceberg closer to the Titanic, the American Bar Association (ABA) put law schools on notice last year that it intended to tighten the deadline rule for graduates to pass state bar exams. Yeah, full steam ahead.

According to data compiled by the Internet Legal Research Group, the bottom ten law schools with the worse bar passage rates reflecting first-time test takers for the summer 2014 and winter 2015 bar examinations were:

1. Appalachian School of Law                                 33.3%
2. Thomas Jefferson School of Law                      44.7%
3. Golden Gate University Law School                45.1%
4. Mississippi College                                                 45.8%
5. Whittier Law School                                               45.9%
6. U. of the District of Columbia                             52.2%
7. Liberty University                                                   52.8%
8. Ave Maria School of Law                                      54.4%
9. Arizona Summit Law School                              54.7%
10. Southern University                                              55.8%

https://upload.wikimedia.org/wikipedia/commons/thumb/2/28/Pieter_Codde_-_Young_Scholar_in_His_Study_-_Melancholy_-_WGA05115.jpg/356px-Pieter_Codde_-_Young_Scholar_in_His_Study_-_Melancholy_-_WGA05115.jpgSince the report, life hasn’t gotten any easier for some of the listed schools. Last month, the Los Angeles Times reported that“due in part to low student achievement,” Whittier Law School was closing. And earlier this month, Arizona Summit Law School in Phoenix was put on probation by the ABA after just 24.6 percent of its graduates who took the Arizona state bar exam for the first time in July 2016 passed.

In California, after the state’s bar exam passage score fell to a 32-year low, the deans of 20 California law schools wrote the Chief Justice of the state Supreme Court asking that the minimum or cut score needed to pass its bar examination be lowered to allow a higher pass rate.

In truth, with apologies to John Randolph, the mackerel have been shining and ripening in the moonlight for sometime. Declining law school enrollments; falling admission standards; and collapsing bar passage rates are mere symptoms.

Until the legal establishment makes a substantive, detached, top-to-bottom assessment of what’s ailing the profession, the diagnosis will be incomplete; the medication will be misprescribed; and the patient will remain as sick as ever.

 

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[1]”Under diploma privilege, graduates of the University of Wisconsin Law School and Marquette University Law School are admitted to the practice of law by complying with the terms of SCR 40.03 — their school certifies their legal competence and the Board of Bar Examiners certifies their character and fitness for the practice of law.”

[2]Kristin Booth Glen, Thinking out of the Bar Exam Box: A Proposal to “MacCrate ” Entry to the Profession, 23 Pace L. Rev. 343 (2003)

[3] As of March 31, 2017, the total number of applicants was down 1.9 percent. See Karen Sloan, Number of LSAT Takers is Up, But Law School Applications Are Down, April 7, 2017.

Photo Credits: Oral exam, by Ben Sutherland at Flickr Creative Commons attribution; Quiet Please Testing, morguefile.com; stdy break, by nerissa’s ring at Flickr Creative Commons Attribution; Young Scholar in His Study: Melancholy by Pieter Codde, Wikimedia Commons, public domain; Long-jawed mackerel by Christian Gloor at Flickr Creative Commons Attribution.

 

 


 

 

 

 

 

 

 

https://upload.wikimedia.org/wikipedia/commons/thumb/0/0a/Domenico_Fetti_-_Portrait_of_a_Scholar_-_WGA07862.jpg/446px-Domenico_Fetti_-_Portrait_of_a_Scholar_-_WGA07862.jpg“Live as if you were to die tomorrow. Learn as if you were to live forever.”  I thought of Gandhi’s quote when I read about Tom Winston, who at 73 graduates from the University of Tennessee Law School this month. Retired and having concluded there’s “only so much golf you can play,” he decided to attend law school at age 70.

Besides having a resilient and hungry mind, Winston also benefited from something unique to the Volunteer State. Tennesseans 65 years and older can attend any state public institution of higher learning tuition-free. Winston says he’s “surprised more people haven’t taken advantage of it.”

His parting advice is to, “Enjoy the magic of learning all over again.” See “Stat Of The Week: Extreme ‘Non-Trad’ Law Student”

Speaking of free learning, below are the latest links to free continuing legal education programs, both scheduled and on-demand. As always, there are no warranties of continued availability, content quality, or creditworthiness in your jurisdiction.

 

FREE CLE

K & L Gates

https://upload.wikimedia.org/wikipedia/commons/thumb/6/66/GAINSBOROUGH%2C_Thomas_-_Johann_Christian_Fischer_%281780%29.jpg/152px-GAINSBOROUGH%2C_Thomas_-_Johann_Christian_Fischer_%281780%29.jpg

Legal Professional Privilege

On Demand

Credit: One Hour Ethics

Competition and Consumer Law Update

On Demand

Credit: One Hour General Credit

A Practical Guide to Representing Victims of Sexual Cyber Harassment Ethically and Effectively (Part 1)

On Demand

Credit: 1.5 Hour Ethics

Register Now

The Honest Lawyer

On Demand

Credit: One Hour Ethics

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Thompson Coburn LLP

Multijurisdictional Issues Stateside and International Privacy Concerns When Traveling

Wednesday, May 31, 2017

Begins at 12:00 PM Central Time

Credit: One Hour Ethics

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Lawyernomics by AVVO

View on-demand webinars

View upcoming Webinars

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https://upload.wikimedia.org/wikipedia/commons/thumb/9/99/Workshop_of_Pieter_Coecke_van_Aelst%2C_the_elder_-_Saint_Jerome_in_His_Study_-_Walters_37256.jpg/320px-Workshop_of_Pieter_Coecke_van_Aelst%2C_the_elder_-_Saint_Jerome_in_His_Study_-_Walters_37256.jpg

Law Pay

Ethical Considerations in Drafting Contracts

“This webinar examines a variety of contract drafting scenarios and the ethical questions that they present.”

Thursday, May 24, 2017
3:00 PM Central, 4:00 PM Eastern, 2:00 PM Mountain, 1:00 PM Pacific
Credit: One Hour
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Birch, Stewart, Kolasch & Birch, LLP (BSKB)

Complimentary Webinar Presented by BSKB and WIPR – The Halo Effect: Walking the Willfulness Tightrope

“Register for free on the webinar registration page. Virginia CLE credit is pending, and can be used to seek CLE credit in other jurisdictions.”

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DLA Piper

CLE webinar: preparing for margining

Credit: One Hour General

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Legal Advantage

Free CLE – Best Practices in Patent Illustration

Wednesday, June 07, 2017 – 12 PM EDT

Credit: One Hour General

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Credits: Portrait of a Scholar, by Domenico Fetti at Wikimedia Commons, public domain; Portrait of Johann Christian Fischer by Thomas Gainsborough at Wikimedia Commons, public domain; St. Jerome in his Study, by Pieter Coecke van Aelst at Wikimedia Commons, public domain.

Elections for seats on the respective governing boards of the State Bar of Arizona and the State Bar of Nevada kicked off coincidentally on the same day, May 4, 2017. Although I’m an active member of the Nevada Bar, I can’t vote in board elections since I’m no longer a full-time resident of the Silver State. For this out-of-state Nevada lawyer, it’s taxation without representation, including coming new burdens like the board-approved extra hour of mandatory continuing legal education to support lawyer sobriety and sanity.

But even if I wanted to vote in Nevada, I haven’t a clue or a care about who’s running. Not like I know much about the 20 candidates running for 9 seats in Maricopa County, Arizona. Talk about a crowded field. Arizona has a 30-member board that “oversees the policy making and operation of the organization.”

https://upload.wikimedia.org/wikipedia/commons/thumb/5/50/Paper_bag_mask_with_4chan_smiley_at_Anon_raid.jpg/640px-Paper_bag_mask_with_4chan_smiley_at_Anon_raid.jpgThere’s only one openly declared reformer, although there may be one or two stealth nonconformists in the field. But if they’re not saying, who knows for certain?

The fact is it’s nothing but a popularity contest anyway. The candidates are largely unknown to most lawyers. How are you supposed pick 9 out of 20? It’s almost like a judicial retention election. So expect a lot of undervoting.

For lawyers in Pinal County, Arizona’s third-most populous county, there’s only one choice since only one candidate bothered to run. No surprise, it’s the pro status-quo incumbent.

What representation?

Taxation without representation used to be the order of the day here at least for board elections. But starting May 4th, out-of-state active members of the Arizona Bar can vote. Inactive and retired members, though, still have to assume the position. They can’t vote even though the Bar happily collects a yearly $265 and $215 respectively, for the compulsory ‘privilege’ of subsidizing a bloated bureaucracy.

The ugly truth is that even with the opportunity to vote, it’s taxation without representation just the same. State bar governing boards are free to act without the consent of those they supposedly represent, especially since board members don’t act as their actual representatives. Board members don’t serve to deliver the views of those that elected them. They’re told to be trustees of the public interest not guardians for the well-being, prosperity, and happiness of lawyers.

Unfortunately for candidates and their electors, it’s a conflicted interest that most who run haven’t acknowledged, understood or reconciled. They sidestep the Bar-advertised to serve-and-protect mission of regulating lawyers to protect the public. Instead, they campaign like they’re running for a trade association with promises of giving “increased value to all of its members—without imposing additional regulations” or providing “valuable services to its members.” 

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Term limits and beans.

Still, at least there will finally be new faces on the Arizona Board. That’s because the only good news coming out of the 2015 State Bar Mission & Governance Task Force was the overdue imposition of term limits on board members who with not much better to do wouldn’t go away. Holy frijoles, some of those board members were nearing 20 years on the board!

The new rule says a board member can serve “no more than three consecutive three-year terms.” Alas, like the proverbial bad penny, if after 9 consecutive years they sit out a full term, they can seek reelection to additional terms.

In Arizona, the election runs 15 days until 5 pm Friday, May 19th. Not that apparently members care. Based on voter turnout for the 2014 Arizona Bar Board Elections, fewer than one-quarter of active Arizona attorneys gave a hoot or a clue about voting for the candidates running that year.

In 2014, only 4093 members cast votes — and that was with much more interest and aggravation since the board had just passed an unwarranted dues increase. Clearly, the disinterest, resignation, and apathy is worse among lawyers than for political elections. With that in mind, I think voter turnout may be even less this time.

The solution.

The real solution is not a board election or ginning up voter enthusiasm. Structural change won’t come from within. The status quo is too well entrenched. The true believers are too satiated drinking bar integration Kool-aid.

Mandatory bars like Arizona’s and Nevada’s need to be split between a mandatory membership component that regulates lawyers to protect the public and a purely voluntary membership component that looks out for lawyers. Such a division of functions at last fixes the existing confusion and conflict between board members who view the mandatory bar as a regulatory agency and those who see its purpose as promoting member interests.

This means supporting reforms — either legislatively or through court petition. It doesn’t mean voting for more of the same.

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Photo Credits: “Run an effective meeting,” by Nguyen Hung Vu at Flickr Creative Commons attribution; “Paper bag Anon,” via Flickr Creative Commons through Wikimedia Commons; Diego’s frijoles at Flickr via Wikimedia Commons;”IMG_687,” by Michael Arrington at Flickr Creative Commons attribution; “wake up sheeple,” by ♫ feingoldens at Flickr Creative Commons attribution.