Feeds:
Posts
Comments

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.

__________________________________________________________________________________________________________________________________________

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.

_________________________________________________________________________________________________________________________

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

________________________________________________________________________________________________________________________________

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. ”

_____________________________________________________________________________________________________________________________________

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

___________________________________________________________

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.

Advertisements

https://cdn.morguefile.com/imageData/public/files/d/DodgertonSkillhause/03/l/1456878178af2si.jpgSanta Clara County Superior Court Judge Aaron Persky was recalled Tuesday. He’s the jurist who faced huge blow-back for sentencing Stanford University student Brock Turner to what many believed a too lenient 6 months rather than as much as 14 years for sexual assault and attempted rape of an unconscious 22-year old woman. In a May interview the judge said he had no regrets over the sentence he gave Turner.

Persky, a judge since 2003, was turned out by the county’s electorate by a vote just under 60%. See “California Voters Remove Judge Aaron Persky.”

It’s been 86 years since a California judge was last recalled. It’s rare. Incumbent judges rarely lose. And so-called merit-selected judges up for retention also almost never lose. Yet given the overreaction of Judge Persky’s defenders, you’d have thought the legal system cratered. That’s because his defenders don’t put much stock on judicial accountability like they do on the sancrosanctity of judicial independence.

https://upload.wikimedia.org/wikipedia/commons/thumb/1/11/Angry_mob_of_four.jpg/320px-Angry_mob_of_four.jpg

At Flickr by Robert Couse-Baker, Creative Commons Attribution License

Per one account, “LaDoris Cordell, a retired judge and a spokeswoman for Judge Persky, called the recall an attack on judicial independence and said it had “encouraged people to think of judges as no more than politicians.” Conveniently omitted by the judge is that Persky was — after all — an elected public servant ultimately answerable to voters. Meantime, Palo Alto’s newspaper was also over-the-top editorializing that the Persky recall campaign had spawned “a lynch-mob movement that threatens the independence of the judiciary.”

And as for the ‘politicians in robes’ argument, it’s not like legal scholars haven’t argued that judges’ decisions are best explained by their political preferences.

Accountability

So what about the electorate? Are voters’ opinions irrelevant? And when did holding judges accountable become a kind of societal evil? Besides, if a judicial recall is wrong-headed, what other recourse is left to a community in cases like Judge Persky’s? Not even those opining against“recalling judges just because we don’t like their decisions” have good answers. Writing at The Hill lawyer Joel Cohen for one, swats at holding judges accountable, “But to the extent that judicial independence is a core value, we need to find a better way to ensure that decisions by elected state court judges don’t bow to the caprice of the electorate.”

Is there “a better way“? As it is, when judges engage in misconduct or violate professional ethics rules, judicial disciplinary commissions who operate mostly in secret mainly treat such ethics violations with wrist slips administered with kid gloves. An instance of one such wrist slap was the complaint of several years ago by the president of Houston’s defense bar association over the punishment meted out by the state commission on judicial conduct to former Judge Woody Denson. “Nothing ever happens, no one is ever disciplined and there’s no accountability back to anyone for anything,” he protested also adding “And it’s very secretive if anything ever does happen.”

It’s not just a Texas problem either. In 2015, St. Louis Public Radio ran a story about the alleged ineffectiveness of Missouri’s judicial watchdogs, “Missouri’s code of conduct for judges rarely leads to disciplinary action.” According to the report, “About 240 complaints are made against judges in the state of Missouri each year. When complaints are filed—and they can be, by citizens, city officials and other judges–they rarely result in disciplinary action.” Quoting St. Louis University Law professor Brendan Roediger, “The process is very secretive. Sometimes there were rumors around courthouses but that was about it.”

And according to a USA Today report, “Troubling trend: When judges need disciplining.“The Center for Judicial Ethics at the National Center for State Courts serves as a clearinghouse for judicial discipline and tracks misdeeds nationwide. Their records show that removing a judge from the bench is rare. In 2013, only five judges were removed from the bench nationwide, and 17 resigned or retired in lieu of removal. Also see Wisconsin’s Post-Current investigation, “Judges never evaluated, rarely challenged” and “Disciplinary Panel Rarely Takes Action Against Idaho Judges.”

Wikimedia Commons, public domain

To be clear, Judge Persky did not violate any canons of judicial ethics in People v Turner.  Moreover, the state commission on judicial performance concluded in its 12-page report “that there is not clear and convincing evidence of bias, abuse of authority, or other basis to conclude that Judge Persky engaged in judicial misconduct warranting discipline.”

Just the same, those campaigning against Judge Persky took exception calling the report:

a one-sided, closed-door proceeding that resulted in an error-ridden report (the “Persky Report”) by an agency with a long history of protecting judges. The Commission only imposes discipline in approximately 3% of cases, even though one study showed that similar states impose discipline at three to four times that rate. At the same time, the Commission refuses to provide any information about why it disciplines judges at such a low rate. In 2016, the Commission sued to block the State Auditor from completing a performance review ordered by the state legislature. As a result of this lack of transparency and oversight, the respected Center for Public Integrity recently gave California an “F” for judicial accountability in a detailed state study.

Recall proponents justified their campaign because, “It’s clear we need judges who understand sexual assault and violence against women and take it seriously. It’s up to us, the voters, to make a difference.”

In other words, when elected officials are found wanting and oversight watchdogs are napping under a tree, it’s left to the people to act as a final check. Long ago in his 1801 letter to Benjamin Waring Thomas Jefferson wrote, “The will of the people. . . is the only legitimate foundation of any government, and to protect its free expression should be our first object.”

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

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

_____________________________________________________________________________________________________________________

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

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

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

I. WHAT CHANGED AND WHY

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

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

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

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

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

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

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

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

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

II. THE REAL WORLD AND CONSEQUENCES, INTENDED AND OTHERWISE

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

IV. THE DELIBERATE DISCOURAGEMENT OF SCHOLARSHIP AND PUBLICATION

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

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

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

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

V. THE NEW POLICY IS WRONG AND COUNTERPRODUCTIVE

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

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

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

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

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

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

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

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

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

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

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

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

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

VII. AN ACTUAL SOLUTION TO THE “PROBLEM”

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

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

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

VIII. CONCLUSIONS

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

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

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

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

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

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

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

IX. QUOTES OF THE ISSUE

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

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

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

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

…………………………………………………..

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

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

_________________________________________________________________________________________

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

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

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

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

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

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

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

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

What the güey in ELA?

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

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

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

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

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

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

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

___________________________________________________________

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

Oregon Bar steps in it.

The Oregonian reported last week about the latest mandatory bar kerfuffle. This time, it involves a signed statement published in the Oregon State Bar’s April 2018 house organ, The Oregon State Bar Bulletin. It was signed by the bar’s governing board president, president-elect and its CEO and ran alongside a statement by several so-called special interest and specialty bar associations. You can read both statements here.

According to the news story that ran April 24, 2018 in the state’s largest newspaper, “Two signed statements in the latest Oregon State Bar bulletin – one by the bar condemning speech that incites violence and the other by non-bar specialty groups decrying the rise of the white nationalist movement under President Trump — have drawn fire from some lawyers aghast that the bar would allow such political statements.” The ABA Journal also has a story at “Statements by Oregon State Bar and specialty groups draw fire.”

Playing politics and ideology with mandatory monies.

Mandatory bar associations like having it both ways. In mandatory bar states like Oregon, these associations force lawyers to join and fund their activities as a precondition of earning a living. U.S. Supreme Court case-law, however, imposes certain restrictions on these forced-membership associations. They can constitutionally fund activities out of the mandatory dues of all members only if the activities are germane to the goals of regulating the legal profession and improving the quality of legal services.

But being masters of the self-serving, parsed interpretation, the associations generally have a field day gumbifying those goals into loopholes large enough to drive a dump truck through. This is why the temptation remains strong to use mandatory dues to fund activities even if they’re not germane to those regulatory and quality improvement goals, including those of an ideological or political nature. In the rare instances when they’re caught being political or ideological, they solely get to calculate the pittance refunded to objecting members.

Is it any wonder mandatory bars can’t resist their unaccountable access to and nontransparent use of mandatory dues to take positions on public policy matters — even controversial ones? Supreme Court restrictions or not, they depend on every cent of those mandatory member monies even while taking the latitude enjoyed by voluntary bar associations to weigh in on public policy.

Unlike mandatory bars, voluntary bars are free of First Amendment and Keller v. State Bar of California restrictions and can therefore comment and even advocate on political or ideological concerns. However, if members don’t like a position that a voluntary bar association takes, they aren’t forced to remain members.

This, then, is the crux of the mandatory bar problem. If members want to earn a living as lawyers — they might qualify for a nickel ninety-five refund if they have the nerve to complain about non-germane dues use — but they can’t get out.

______________________________________________________________

Credits: Donald Trump caricature by Donkey Hotey at Flickr via Attribution share-alike attribution license.

https://cdn.morguefile.com/imageData/public/files/h/hyperlux/preview/fldr_2005_05_29/file000516740961.jpgAfter reading about the death of 42-year old prominent, “outspoken” Las Vegas lawyer Jacob Hafter this past week, I thought again of how tough and even unforgiving the legal establishment can be. According to news reports, the Clark County, Nevada coroner’s office ruled Hafter’s death a suicide. See “Suspended Las Vegas lawyer Jacob Hafter dies at age 42.”

Last November, the Nevada Supreme Court handed down a six-month suspension order of Hafter “partly for Facebook comments accusing a judge of religious bias.” For more details concerning his disciplinary case see “Nevada Supreme Court suspends Las Vegas attorney Jacob Hafter.”

Hafter’s sudden unexpected and tragic death has roiled members of the Las Vegas legal community, some going as far as faulting the Nevada Bar for allegedly doing little to help the lawyers it disciplines.

Ironically, in May 2017 the Nevada Supreme Court approved a state bar petition mandating an additional annual hour of continuing legal education in substance abuse, addictive disorders and/or mental health. Also see “Overwrought and over exaggerated but no matter. Over prescribed CLE is always the regulators’ fix.”

Adding to the disquietude caused by Hafter’s death was unrelated news tonight about how Broward County, Florida Circuit Court Judge Merrillee Ehrlich “brutally berate a woman in a wheelchair. The woman died. The judge has quit.” The video is unpleasant to watch, underscoring again how hard the system can be, especially on non-lawyers, too. The Miami Herald story can be found here.

I wasn’t going to weigh in. But attorney-client confidentiality confusion is back in the news. This time it’s over President Trump’s personal lawyer Michael Cohen and Fox News Talk Show Host Sean Hannity and whether there’s an attorney-client relationship between them. So comment I will.

However, in place of comprehensively revisiting the topic again here, I direct you instead to one of this blog’s most highly read posts, “When is a client a client? On what establishes an attorney-client relationship.” It’s on point and why I decided not to let the moment pass, especially since pop culture (see below) and even some lawyers remain muddled about the subject.

https://cdn.morguefile.com/imageData/public/files/a/alvimann/preview/fldr_2008_11_07/file0001224520150.jpgLawyer, former judge, and Hannity’s Fox News compadre Andrew Napolitano typifies the misconceptions. Discussing this week’s revelation that Hannity was Cohen’s mystery client on “Outnumbered Overtime” with host Harris Faulkner, Napolitano pushed back on Hannity’s claim he “may have” paid Cohen $10 to get attorney-client privilege. Napolitano told Faulner, “I must tell you that that is a myth. The attorney-client privilege requires a formal relationship reduced to writing for a specific legal purpose.” 

Having someone pay a lawyer a buck or ten-spot to inoculate a conversation as a privileged attorney-client communication is a common contrivance in novels, movies and on shows like “Better Call Saul” and Breaking Bad.”

But the good judge is wrong. You don’t need a writing. In a nutshell, the bright-line test to create an attorney-client relationship is whether or not the person consulting a lawyer does so “with a view to obtaining legal services.” A signed attorney-client contract or the payment of a fee — whether $1, $10 or $10,000 — isn’t relevant to establish that relationship.

Why does this matter? It matters when a client becomes a client because of the protections of the attorney-client privilege upon which clients rely. For an attorney-client privilege to be raised, an attorney-client relationship must exist.

For more about “the myth of the dollar bill as a prerequisite to the formation of a privileged relationship and the myth that all communications with a lawyer are protected,” see “Better Call Saul: Is You Want Discoverable Communications: The Misrepresentation of the Attorney-Client Privilege on Breaking Bad” and “Sean Hannity’s idea of ‘attorney-client privilege’ was right out of Breaking Bad.”

____________________________________________________________

Credit: Sean Hannity, caricature by Dokey Hotey, at Flickr via Attribution-ShareAlike 2.0 Generic License.