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

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

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

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

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

I. WHAT CHANGED AND WHY

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

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

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

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

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

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

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

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

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

II. THE REAL WORLD AND CONSEQUENCES, INTENDED AND OTHERWISE

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

IV. THE DELIBERATE DISCOURAGEMENT OF SCHOLARSHIP AND PUBLICATION

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

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

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

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

V. THE NEW POLICY IS WRONG AND COUNTERPRODUCTIVE

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

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

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

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

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

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

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

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

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

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

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

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

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

VII. AN ACTUAL SOLUTION TO THE “PROBLEM”

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

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

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

VIII. CONCLUSIONS

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

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

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

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

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

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

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

IX. QUOTES OF THE ISSUE

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

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

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

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

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

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

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

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

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

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

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

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

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

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

What the güey in ELA?

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

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

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

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

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

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

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

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

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.

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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.”

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

Shocked in court.

I have to confess. I had no idea that for at least 20 years judges in some U.S. criminal courts have quite literally been shocking defendants with 50,000 volts of electricity when the judge deems the defendant to be out of line. It happens incredibly enough in jurisdictions where the criminally accused can be required to wear battery operated remote-controlled stun cuffs or shock belts to court. At the command of the judge, a bailiff or law enforcement officer presses the stun button.

Unimaginably, this is the stuff of the totalitarian state — an exclamation point putting the banana in banana republic.

It takes but a few online clicks to quickly turn up instances where it’s happened — no aberration for those paying attention. A couple of years ago there was the one caught on tape in Maryland. In that case, though, the judge was disciplined and removed from the bench. See Ex-judge who ordered man to be hit with stun gun pays fine

 

Embracing “savage measures.”

Ironically, it was also 20 years ago that I first read and saved a quote by Cesare Beccaria. He was an 18th century economist, philosopher, and criminologist whose words immediately came to mind when I read last week about another judicially administered electric shock in the courtroom. This time the news concerned the Texas Eighth Court of Appeals throwing out the conviction of Terry Lee Morris on the grounds that the electric shocks ordered by Tarrant County District Judge George Gallagher and Morris’s subsequent courtroom removal had violated his constitutional rights. Beccaria declared, “Societies seeking to moderate human conduct should not embrace savage measures.”

Hat tip to my buddy at The Legal Watchdog for emailing me about the Morris case. Also see ‘Barbarism’: Texas judge ordered electric shocks to silence man on trial. Conviction thrown out and Court Throws Out Conviction Of Texas Man Who Was Given Electrical Shocks By A Judge For Failing To “Follow The Rules”

Not having had any experience in the criminal courts, I had no idea some of the black-robed had been given this much power to physically punish the not yet convicted.

Where permitted, it’s left to the subjective discretion of the judge who decides if and when a defendant is being mouthy, difficult or otherwise ‘unmanageable.’ The justification for administering electrical shocks is “security.” But from the reports I’ve read too often the so-called threat to courtroom security falls more on the order of a garrulous defendant who has managed to annoy the judge.

Fortunately, not all jurisdictions allow the use of stun cuffs and shock belts in court. Indeed, four years after the first use of an electric security belt in Los Angeles County, in 2002 the California Supreme Court effectively banned their use during criminal trials. They were likewise barred in Indiana — but not so Texas.

And here I was previously exercised about judges with a penchant for shackling defense lawyers. That sanction pales by comparison to shock treatment. Just the same, let’s hope there’s never a time when handcuffing defense lawyers becomes an insufficient imposition and that instead further discretion is given to hit recalcitrant counsel with 50,000 volts of proper comportment.

A “membership requirements” survey emailed to the state’s lawyers last week by the Chief Justice of the Arizona Supreme Court features an unprecedented argument. Acknowledging that “some lawyers argue there should be an exception” to mandatory membership in the State Bar of Arizona, the introduction to the survey asserts “One argument is that some lawyers hold a ‘firm, fixed and sincere ethical, religious or moral objection’ to being required to be a member of the State Bar and should be able to opt out as a non-member attorney (NMA).”¹

As proposed, lawyers opting out of joining the Bar and funding its full freight of regulatory and non-regulatory trade association services would be required to personally swear or affirm in writing to “a firm, fixed, and sincere ethical, religious or moral objection” to Bar membership.

It’s not clear who would determine the adequacy of the affidavits or how often affiants would have to file their objections. California teachers, for example, must annually file an opt-out request to get a 30% refund of their union dues.

More significantly, objectors would be forced to tell their clients of their new status as NMAs. This assuredly implicates unconstitutional compelled speech. It also serves no legitimate government function. And without pinpointing any legitimate purpose, objectors would be issued new Bar cards with brand new bar numbers to identify them as attorneys licensed to practice — but NMAs. Talk about chilling the First Amendment right not to associate.

A lawyer second class.

As a newly created separate and unequal class of lawyers, NMAs would be excluded from voting in Bar elections or from running for its governing board. However, as others have pointed out, disenfranchising NMAs is only appropriate if the State Bar has no formal role in attorney discipline and governance. But that’s not the case here. The Court-empowered Bar will continue holding regulatory and disciplinary sway over both members and non members.

Categorized as ineligible for Bar discretionary services, including specialty section membership, NMAs would also be charged higher registration fees for Bar continuing legal education programs.

In exchange for giving up the foregoing, it’s estimated NMAs would save a modest $70 to $100 off the current $505 dues. Already one of the highest cost to practice bars in the U.S., Arizona’s dues go up to $520 a year from now.

It’s fair to wonder how this low savings estimate was calculated and whether it was derived from self-interested Bar number-crunchers. By contrast, when in 2013 the Nebraska Supreme Court ordered the Nebraska Bar to charge members only for lawyer regulation — licensing fees went down by two-thirds.

The lawyer as conscientious objector.

Forget for the moment that “an opt-out system places the burden on the wrong party and leads to the unjust and needless encroachment upon First Amendment rights.” Or that giving lawyers only one choice: making a Hacksaw Ridge style conscientious objection to get out of membership is not only absurd but unnecessary. Trade association services should be voluntary to begin with. And when did we sign up for the infantry?

As I have written here before, the Bar always conflates lawyer professionalism, expertise and qualifications with mandatory membership — because it serves their self-interest. Lawyers are admitted and authorized to practice by the state supreme court not because of Bar membership.

Yes or no.

After describing how the proposal would be implemented, the survey asks a yes or no question, “Given this information, do you believe the Arizona Supreme Court should provide a non-member attorney option to attorneys licensed to practice in Arizona?”

And then asks, “If the AZ Supreme Court were to provide a non-member attorney option as described above, would you:

___ Remain a full member of the State Bar

___ Choose to opt out”

Below are the parameters that frame these survey questions. But inasmuch as they amount to poison pills, it’s clear the intent is to not to delineate but to dissuade respondents from opting out.

The State Bar, which gave input on the survey, stands to profit should the results inure to its benefit. However, asking the Bar for input on whether its captive members should opt out is like asking the cat whether to release the mouse.

So notwithstanding the survey’s one-sided argument and suspect constitutionality, the Bar will just the same crow a result that cowed its members from opting out. How many lawyers will find amenable a requirement to out themselves to clients like modern-day Hester Prynnes?

But if there’s ever been a better case for a voluntary bar than the one presented by this unworkable scheme — I can’t think of one.

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Lawyers who choose the NMA option:

“Would be required to file an affidavit with the State Bar indicating they favor a firm, fixed and sincere ethical, religious or moral objection to being required to be a member of the State Bar.

▪ “Would be required to notify your clients that you are no longer a member of the State Bar, but are licensed to practice in Arizona.

▪”Would have to personally file the affidavit. The head of a firm or office could not opt out for all attorneys at the firm or office.

▪ “Would receive a separate law license number and their current bar number would be deactivated.

▪ “Would not be able to join a State Bar section.

▪ “Would be charged a higher non-member registration fee if the NMA wants to attend a State Bar sponsored CLE program.

▪ “Could not vote in State Bar elections, nor could they run for the Board of Governors.

▪ “Would not be eligible for State Bar discretionary services, e.g., the Arizona Attorney, e-Legal newsletters, Law Office Management assistance, use of FastCase, State Bar legal publications.

▪ “Would pay a mandatory licensing fee but would not pay for State Bar non-regulatory services. The Court estimates it would be a 14% to 20% reduction in the fee paid for only being licensed to practice. For a regular active Bar membership, the reduction would be $70 to $100.”

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¹Never having heard of any lawyer making such a peculiar argument, what first occurred to me on seeing the proposed NMA acronym was the Compton rap group N.W.A.