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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.

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If a petition submitted last year by Nevada’s Board of Governors is approved by the state supreme court, it’s going to cost lawyers a wee bit more money to practice in Nevada. Currently, Nevada lawyers are obligated to complete 12 hours of annual continuing legal education to keep their licenses. But if the state bar’s governing board has its way, a 13th hour will be tacked on to the annual requirement.

At an average cost of $40 per credit hour, this means that the 5th highest cost to practice mandatory bar in the U.S. will just be that much more expensive. Nevada will top out at just over $1,000 per year between mandatory annual fees of $490 and soon, 13 hours of mandatory continuing legal education.

The original petition asked that of the current 12 required hours of continuing legal education, 1 CLE credit be mandated in the area of “substance abuse, addictive disorders and/or mental health issues that impair professional competence.” Somewhere along the way, however, there was an increase in the total hours required. It became a petition that increases annual mandatory hours from 12 to 13 with the new required hour in the aforementioned areas.

Petition ADKT 0478 was filed with the Nevada Supreme Court in January 2016 with oral argument last June. Unfortunately, the chance to either complain or to applaud has come and gone. It’s only a matter of time now for the Court to issue its Order for ‘lucky’ No. 13. To quote Hank Jr., “It’s all over but the crying.”

Gobsmacked.

I really must crawl out from under my desert boulder. How did this newest imposition, this latest cost to practice burden slip past? The gobsmacking news came by way of the Nevada Bar’s “Message From The President” in the April 2017 Nevada Lawyer magazine.

I rarely read the dull bar magazine except for checking the Bar Counsel Report each month to see if anyone I know has been pierced by the sword of lawyer discipline. For some reason, I read Nevada Bar President Bryan Scott’s presidential epistle in April where he briefly mentioned the mandatory bar bureaucracy’s latest ‘feel-good’ do-something impediment. Scott also helpfully offered that “Supplementing this petition, the state bar has enhanced its curriculum to ensure attorneys have access to quality CLE programs related to these important topics.” Well, that’s no surprise. CLE is big business for state bars.

To be fair, in reply to my ‘ how dare you’ email query, Scott said, “We did not do this as a money-making venture. In fact, should the Court issue an order, we expect to offer a CLE on this topic at no charge.” Let’s see how long that lasts.

No proof CLE does anything.

I won’t paraphrase Roger “Verbal” Kint but the greatest trick ever pulled was convincing the legal establishment that forcing lawyers to take continuing legal education classes would make them more competent, more ethical, more professional or in the latest wrinkle in Nevada — more sober. The fact is there’s never been empirical proof that CLE delivers more competency, ethics, professionalism — or sobriety. As a matter of fact, there isn’t even the most rudimentary form of subject matter assessment since CLE participants are never tested to see what they have learned. The testing demands are greater getting a speeding ticket dismissed via a defensive driving course.

As for tutoring the trait of improved sobriety, the petition does a terrible job of explaining why a mandatory CLE in abuse, addiction and mental health issues is necessary. To be fair, there’s a talking point Scott sent that mentions studies from the 80’s that “have shown a connection between the legal profession and higher rates of mental health issues and related addictive disorders.” The same reference adds that “In February of this year, a more definitive study was released showing attorneys display addiction levels of dependent drinking at 20.6 percent as compared to 11.8 percent of a generally highly educated workforce.”

If that’s true, the rest of the population is in even worse shape. Should the Nanny State start requiring everybody take a class in sobriety? According to a Newsweek report, 30 percent of Americans have had an alcohol-use disorder. Citing a study published in the journal JAMA Psychiatry, the article states: “America has a drinking problem, and it’s getting worse. A new study shows that 32 million Americans, nearly one in seven adults, have struggled with a serious alcohol problem in the last year alone. It gets worse if you look at numbers across people’s entire lives: In that case, nearly one-third have suffered an “alcohol-use disorder.”

https://cdn.someecards.com/someecards/usercards/630ae40facf324702bf98d936c73f348eb.pngBut even if you take at face value that lawyers are worse on substance abuse/mental health than the rest of the population, where’s the proof a one-hour class does anything to fix the problem? Then again, if there’s one thing lawyers are good at is reaching their conclusions.

So appropriately, under “Conclusion,” the petition jumps to the conclusion that because the board of governors’ purposes include “upholding the honor, integrity, professionalism and dignity of the profession of law and the enhancement of the professional competence and ethical conduct of members of the bar . . . mandatory education in abuse, addiction and mental health is necessary.” And it’s also “essential to public protection.”

More lawyer shape-shifting in the offing.

In September last year, the Florida Supreme Court approved a rule amendment granting Florida the dubious distinction of being first to require lawyers to take at least three hours of CLE in an approved technology program as part of the 33 total hours of CLE that Florida lawyers are forced to take over a three-year period. More than half the states have adopted the duty of technology competence for lawyers. It’s only a matter of time before other jurisdictions follow Florida and start demanding mandatory CLE in technology courses, too.

The ABA is the organization we have to ‘thank’ for these new recommended mandates, including mandatory substance abuse CLE. And it now has one more recommended lawyer transformation encumbrance in the works. Be on the look out for mandatory diversity continuing legal education.

Not satisfied with approving a new diversity policy for itself directing its ABA CLE program panelists be diverse, last June the ABA passed Resolution 107.  It asks “licensing and regulatory authorities that require MCLE to make diversity and inclusion programs a separate credit, but without increasing the total number of hours required.”

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Photo credit: “Surprise,” by Erik Cleves Kristensen at Flickr Creative Commons attribution license; “the view from below” by David Long at Flickr Creative Commons attribution license.

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https://cdn.morguefile.com/imageData/public/files/b/BishopPatterdale/01/l/1388869659h90om.jpgAlthough still not a Twitter fan boy, I confess there’s something to the immediacy of firing off 140 character tournedos of untenderized thought. Admittedly, there are drawbacks to expelling every rashly considered impulsivity into the ether. My dogs will disagree but some itches are best left unscratched.

Compared to tweeting, however, ruminations posted on a blog necessitate more marination. This hopefully translates into less likelihood of inflicted harm. Unfortunately, this means the windows of currency to comment on what’s topical a given day or week are soon closed.

Instead of one longer post, here are random notes — albeit longer than 140 characters.

From the SMH File

https://upload.wikimedia.org/wikipedia/commons/thumb/3/38/See_No_Evil%2C_Hear_No_Evil%2C_Speak_No_Evil.jpg/320px-See_No_Evil%2C_Hear_No_Evil%2C_Speak_No_Evil.jpgNot long after the ABA House of Delegates voted against a proposal that to meet accreditation standards, 75 percent of an ABA-accredited law school’s graduates must pass a bar exam within a two-year period — the ABA put Arizona Summit Law in Phoenix on probation for low bar-passage rates. Bar passage rates have dropped to 25 percent at Arizona Summit for first-time bar exam takers, which obviously meant that the studiously unaware ABA was finally forced to take action against one of the nation’s most expensive law schools.

In a bit of unintentional understatement following the probation announcement, the executive director of Law School Transparency, a nonprofit legal education policy and watchdog organization, declared “the decision highlights the A.B.A.’s increasing courage in holding schools accountable.” With apologies to Polonius, if this be courage let there be method in it. See “For-Profit Law School in Arizona Is Put on Probation.”

More from the SMH File

File:Noaa-walrus31.jpgOne only has to read this year’s candidates’ statements to appreciate the continuing conflated confusion of lawyer thinking that results from the State Bar of Arizona’s conflicted regulator and trade association mission. Is the State Bar of Arizona a regulator protecting the public interest? Or is it a trade association serving and protecting members’ interests? It can’t be both — not without a walrus-sized conflict of interest.

And what about its court-mandated raison d’être “to serve and protect the public with respect to the provision of legal services and access to justice”?

But as the following excerpts demonstrate, virtually every candidate believes that running for a seat on the Arizona Bar’s Board of Governors means they’ll be acting on behalf of members’ interests. With elections coming up in two counties, candidates are asking either for “the opportunity to serve my fellow lawyers” or to be “a voice for solo and young lawyers” or that “the needs of our members are voiced and heard” or pledging to “make sure the Bar is here to help attorneys, not hurt them.” And of course there are the usual vague variations on the tried-and-tested trade association theme of serving “to ensure the Bar is working for its members” or that it “performs more services for the membership.”

Promises promises.

Also from the SMH File

Almost 7 years to the day after New Jersey said a so-called “virtual office” did not qualify as a bona fide office, a New Jersey lawyer also licensed in New York and also without benefit and burden of a bricks and mortar office in New York has filed a U.S. Supreme Court petition to overturn the New York rule that prohibits her from practicing in New York without said bricks and mortar office in the state. New Jersey didn’t change its anti-virtual office rule until 2013.

New Jersey used to have the same bona fide office restriction, i.e., “a bona fide office is a place where clients are met, files are kept, the telephone is answered, mail is received and the attorney or a responsible person acting on the attorney’s behalf can be reached in person and by telephone during normal business hours to answer questions posed by the courts,clients or adversaries and to ensure that competent advice from the attorney can be obtained within a reasonable period of time.” 

For more about lawyer Ekaterina Schoenefeld’s 9-year bona fide office battle, see Catherine Elefant’s always timely My Shingle post at “Solo Seeks To Challenge Archaic Bonafide Office Rules at the Supremes.”

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Photo credits: The three monkeys: See No Evil, Hear No Evil, Speak No Evil, by John Snape at Wikimedia Commons, the Creative Commons Attribution-Share Alike 3.0 Unported License; Odobenus rosmarus at Wikimedia Commons, public domain; frustrated gif at giphy.com;SMH at http://gph.is/1WqoSOE at giphy.com.

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https://cdn.morguefile.com/imageData/public/files/g/GromovatayaIrina/03/l/1458732114nc9vo.jpgIf the American Bar Association (ABA) is underwriting something — America’s lawyers be wary. This is the organization led a few years ago by an oblivious President with the stones to blame students for opting for law school in a declining economy — this while the selfsame was roundly criticized for its own considerable regulatory failings.

And despite having done more than its share to create the lawyer glut, the ABA stands around even now, in the words of one critic, “limp-wristed” while law schools race to the bottom repeatedly lowering LSAT admission scores trawling for matriculants as enrollments decline. Any wonder another commentator declares, “The ABA can’t be trusted”?

More recently, politically correct ABA do-gooders have recommended bar associations adopt a “speech code” for lawyers — the violation of which means discipline.

And just days ago, the ABA House of Delegates adopted a new model rule concerning continuing legal education, recommending in part that state bars uniformly impose a 15-hour minimum continuing legal education requirement per jurisdictional reporting period. As usual, the ABA trots out the self-serving claptrap offered without a scintilla of empirical proof that “MCLE continues to play a crucial role in maintaining public confidence in the legal profession and the rule of law and promoting the fair administration of justice.” Pretentious pretextual poppycock notwithstanding, left out as usual is the truth that MCLE mostly serves to line bar association coffers nationwide. Ka-ching!

Such was the context for the announcement of a pro bono survey project launched by the ABA last year. It was just rolled out in Arizona.

On its website, the ABA explains it offered “its pro bono survey instrument, free of charge, to states interested in studying various aspects of the profession’s pro bono culture.” One can only guess what that means although after welcoming survey-takers, the questionnaire reveals its intentions:

“You have been asked to participate in this survey so that we may gain a better understanding of legal services provided to low and moderate income people in your state. This is a nationwide effort to quantify and recognize the pro bono work provided by attorneys, as well as to understand the factors that encourage or discourage pro bono service. We are interested in the perspectives of attorneys who have provided such services as well as attorneys who have not.”

What the “better understanding” leads to, however, is another question. Otherwise, to the frequently asked question, “What are the states expected to do with the results?” — it answers:

The ABA encourages the state leadership teams to review the findings and collaborate to generate state program and policy recommendations. In the summer and fall of 2017, the ABA will facilitate conference calls with each of the participating states to review the findings and discuss recommendations.”

https://cdn.morguefile.com/imageData/public/files/j/Jamierodriguez37/03/l/1426633399eunhs.jpg Carrots turned cudgels.

Since I ignored the first email solicitation from the Arizona Bar CEO to take the survey, last week I received a reminder to “take a few minutes” to participate in “this worthy effort” along with “an incentive to complete the survey.” No further reminders necessary for this resolute non-participant.

Based on the time it took Nebraska lawyer survey participants to complete the survey, it’s anticipated it will take lawyers more than “a few minutes” since Nebraska participants took an average of 32 minutes to finish it. And ostensibly an anonymous survey, that anonymity flies out the window if Arizona Bar members elect the Bar’s incentive to “be included in a drawing for a $150.00 gift card.”

In 2014, the State Bar of Arizona dangled a $250 Visa gift card as the sole prize for contestants vying to create a 15-second Instagram video with the mandatory phrase, “Finish the ballot. Vote for the judges!” To the best of my knowledge, the Bar never disclosed the winner or the wining video most likely because of embarrassing sparse participation. More recently, the Bar offered another gift card incentive to induce participation in its triennial lawyer compensation survey.

Compulsory lawyer servitude.

Ever the jaundiced one, I suspect these surveys will be used to advance program and policy goals of those clamoring for mandatory pro bono. Their salivary glands have never stopped drooling ever since New York became the first state to mandate pro bono work.

In New York, the forced pro bono rule was inflicted on law school graduates as a condition for bar admission. New York bar applicants must perform 50 hours of pro bono work before they can be admitted and some day hope to earn a living as lawyers.

Unlike other professionals, lawyers inexplicably remain the sole special snowflakes compelled to belong to their trade associations as conditions to earn a living. And soon enough lawyers may be the solitary profession whose services should also be compulsorily given away.

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Credits: Morguefile.com, no attribution; Making Faces, at Flickr by a2gemma via Creative Commons-attribution license.

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https://upload.wikimedia.org/wikipedia/commons/thumb/d/df/Jan_de_Bray_-_The_Governors_of_the_Guild_of_St_Luke%2C_Haarlem_-_WGA03124.jpg/640px-Jan_de_Bray_-_The_Governors_of_the_Guild_of_St_Luke%2C_Haarlem_-_WGA03124.jpg

I recently attended a seminar where a lawyer-lobbyist opined that non-lawyers should not be lobbyists. Influence peddling, it seems, should be the sole province of lawyers. Not that much explanation was given. Perhaps none was needed. After all, most in attendance were lawyers. Somewhere in the lawyer DNA is genetically grafted an exaggerated belief that “Anything you can do I can do better; I can do anything better than you.” 

Not that it’s true — especially in lobbying where cunning, connections, comprehension and experience count as much if not more than a legal education. Nevertheless, those advocating the supposed advantages of lawyer-lobbyists over nonlawyer-lobbyists also sniff that “Nonlawyer lobbyists lack a system of obligatory ethics norms akin to the Rules of Professional Conduct.” Apparently it matters little that such self-serving smugness is undercut by the likes of former lawyer-lobbyist Jack Abramoff.

File:Theodoor Rombouts - Christ Driving the Money-changers from the Temple.jpg

Bottom line, for lawyers fiercely wedded to the medieval guild’s monopoly-has-its-privileges — free market competition sucks. Or to Ben Franklin’s “nothing can be said to be certain, except death and taxes” — add with certitude the protectionist instincts of lawyers.

The ABA takes the lead.

Under the sheltering cover of “ponderous, backward looking, and self-preserving” bar associations, licensure was the sine qua non to supposedly protect “the uninformed public against incompetence or dishonesty.” Or at least that’s what Professor Walter Gelhorn said in “The Abuse of Occupational Licensing”  where more significantly, he also pointed out how such pretextual public protection always has “the consequence that members of the licensed group become protected against competition from newcomers.”

Ah, the joys of monopoly or as Professor Gerard Clark explains in “Monopoly Power in Defense of the Status Quo: A Critique of the ABA’s Role in the Regulation of the American Legal Profession,”

“Since its founding in 1878, the American Bar Association (ABA) has served the legal profession in two principal ways: by limiting membership in the profession, and by protecting its prerogatives. It has done so by: advocating a system of licensing backed by unauthorized practice rules; supporting and then regulating law schools and thereby diminishing the apprenticeship-clerkship route to admission; regulating the delivery of professional services through detailed professional codes; by lobbying the state and federal legislatures for favorable legislation; providing a continuous public relations campaign to put the bar in a favorable light; and supporting the growth of state bar associations that press for these prerogatives at the state and local level. The result is an outsized and comfortable profession that is costly, and inefficient. By seizing the initiative in the creation of a trade association, which simply declared itself the official voice of the bar over all aspects of the profession (although less than one-third of the 1.2 million lawyers in the United States are ABA members), and then convincing state bar authorities to accept its judgments, the ABA accomplished its goal of self-regulation through the use of monopoly power.”

Just-us.

Lawyer regulation to protect the public sounds good. But by regulating who can practice law, lawyers also maintain a monopoly on who provides legal services. The legal establishment accomplishes this by regulating the unauthorized practice of law (UPL) either by statute or court rule. But the rub is that bar association regulators have an inherent conflict of interest. On the one hand, they’re supposed to protect and serve the public by regulating lawyers. But at the same time, they function like trade associations promoting the legal profession’s common interests.

https://i1.wp.com/cdn.morguefile.com/imageData/public/files/m/meowzeroni/04/l/1397514359cws5o.jpgThese two purposes conflict because lawyers and the public often have different interests. When these interests conflict—such as when out-of-state lawyers or lower-cost legal services wish to compete with lawyers — lawyers use their regulatory powers to stop that competition.

Last year, for example, in the aftermath of the U.S. Supreme Court’s ruling against a protectionist North Carolina Dental Board, the State Bar of North Carolina settled its suit against LegalZoom. LegalZoom is now free to offer online document services and prepaid legal services plans to North Carolinians.

Here in Arizona, examples of lawyer interests trumping public interests include the Arizona State Bar’s efforts to stop realtors in the 1960s, legal document preparers in the 1990s, and out-of-state lawyers in the 2000s from offering services in Arizona.

When it comes to access to justice, those at the temple precincts mean access to just-us.

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Credits: The governors of the guild of St. Luke, Haarlem, 1675 by Jan de Bray, Wikimedia Commons, public domain; Theodoor Rombouts, Christ Driving the Money-changers from the Temple, Wikimedia Commons, public domain; other photos via Morguefile.com, no attribution required.

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There was a very good Op-ed in this morning’s New York Times, Steven Harper’s “Too Many Law Students, Too Few Legal Jobs.”

I know. It’s all been said before, especially by the now declining scamblog movement.

But I still encourage you to read it, especially since Harper again challenges the American Bar Association (ABA) to do something about the dysfunctional system it’s had such a strong hand in perpetuating: law schools “operating without financial accountability and free of the constraints that characterize a functioning market.” As Harper and others have critiqued, despite its recent task force on the future of legal education, the ABA persists in doing little to effectuate real reforms concerning law school funding, tuition pricing, student debt loads and earnings potential.

Bite and breadth.

The criticisms about the state of legal education have also been made before with arguably more bite — but with equal breadth by law school professor and reform advocate Paul Campos. Indeed, in September 2014, writing in The Atlantic, Paul Campos summarized the problem like this:

“. . . the Congressional Budget Office projected that Americans will incur nearly $1.3 trillion in student debt over the next 11 years. That figure is in addition to the more than $1 trillion of such debt that remains outstanding today. This is the inevitable consequence of an interwoven set of largely unchallenged assumptions: the idea that a college degree—and increasingly, thanks to rampant credential inflation, a graduate degree—should serve as a kind of minimum entrance requirement into the shrinking American middle class; the widespread belief that educational debt is always “good” debt; the related belief that the higher earnings of degreed workers are wholly caused by higher education, as opposed to being significantly correlated with it; the presumption that unlimited federal loan money should finance these beliefs; and the quiet acceptance of the reckless spending within the academy that all this money has entailed.” See The Law-School Scam

Harper, a former big law partner, has like Professor Campos, opined extensively on the same topics, including in his 2013 book, The Lawyer Bubble: A Profession in Crisis and more recently in his law review article, Bankruptcy and Bad Behavior – The Real Moral Hazard: Law Schools Exploiting Market Dysfunction.

The themes are familiar ones, including the law school market dysfunction and how “Current federal student loan and bankruptcy policies encourage all law school deans to maximize tuition and fill classrooms, regardless of their students’ job prospects upon graduation.”

And as Harper explains, a “law school moral hazard” has been created where having incentives to do so, persons take more and more risks because someone else will bear the burden of those risks. He says this moral hazard has combined “with prelaw students’ unrealistic expectations about their careers to produce enormous debt for a JD degree that, for many graduates, does not even lead to a JD-required job.”

Meantime, as Harper and Campos are so good at reminding, for law schools this just means pay no mind as their beat goes on.

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Photo Credits: All photos via morguefile.com

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