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Posts Tagged ‘conflict of interest’

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/h/hotblack/preview/fldr_2008_11_02/file0002062790027.jpgYesterday I got another mass email from the State Bar of Arizona (SBA). “Last Chance to Answer the State Bar of Arizona Member Survey” declared the subject line. “Please take a few minutes NOW to fill out the survey.”  And then to sweeten my interest, “As a token of our appreciation for your prompt response, we’ll enter your name into a raffle to win a $100 Visa gift card.” 

As usual, I ignore the Bar’s survey requests. This was the third mass email about the same topic. After the second email, I asked for a blank copy of the survey questions. After a couple of days, the Bar’s public relations chief emailed a copy. The survey runs 9 pages and 48 questions. By my stopwatch, it won’t “take a few minutes” to answer. Not like it matters. I won’t be taking the survey and humbly suggest no one else should either.

Long ago I worked for a guy whose favorite expression was the blindingly obvious, “Timing is everything.” So right in the middle of a big fight at the Arizona Legislature to reform the State Bar comes a self-serving survey replete with the usual leading questions. Talk about timing.

The questions are meant to lead survey-takers down the Bar’s primrose path. Tell us “how valuable” a member benefit is? “How well does the SBA deliver . . . .”

It’s been a while since I read Elizabeth Barrett Browning but in other words, “How Do I Love Thee?” The State Bar of Arizona wants us to “count the ways.”

And among the 48 questions is the one nearest to the unsated stomach of every bloated bureaucrat, “If the SBA could provide you with one additional resource or service that currently is not offered, what would it be?”

Just in case, there’s a second follow-up that fishes for “a second additional resource or service” to add to your expense line. Missing is the better question, “Does this program make me look fat?”

Buried in the questionnaire is the seemingly innocuous question No. 45, “Do you have a succession plan for continuation of your practice in the event that you are unable to continue in the practice of law due to death, disability, or bar discipline?” On that last point of “bar discipline,” Arizona lawyers may not all be aware of this but the Bar recently made a succession plan a mandatory ethical obligation. So if you answer in the negative and then disclose your identity to enter the raffle, beware you aren’t also entering an unintended second raffle for a bar complaint.

The truth is this survey like all the others isn’t intended to identify or to serve members’ interests. These surveys only serve the Bar’s interests. They are tools to drive the Bar’s mission-creeping agenda and to cover its analysis (CYA).

https://cdn.morguefile.com/imageData/public/files/h/hrustall/12/p/c6de1ef8a0319f6a6dfcd0c22fb8b06d.jpgMoreover, the survey and whatever the results may be — either good or bad — serve as a sword and a shield the Bar employs to hide behind or to flagellate critics, especially those ‘pests’ at the Arizona Legislature.

No matter if the Bar again gets an underwhelming response. It usually does. By overwhelming numbers, members ignore these surveys knowing full well what the agenda is about — $100 Visa gift card or not.

But just the same, count on the Bar to loudly trumpet the fake news: ‘Look at the great job we’re doing! Members love us.’ Such pronouncements will continue to fly in the face of reality. How can you dare to assess the satisfaction of captive members forced to join and forced to finance an ever-expanding bureaucratic empire in order to earn a living as lawyers?

And finally leaving absolutely no doubt its intentions comes the money paragraph: “The survey will help us serve you better. It’s also critical to the long-term success of State Bar of Arizona.”

This from the same organization that as ordered by the state supreme court “exists to serve and protect the public with respect to the provision of legal services and access to justice.”

There again is the State Bar of Arizona’s two-headed conflict of interest. It rears its two heads once more. Serve and protect the public but at the same time serve and protect the interests of lawyers —“help us serve you better.”

Reminds me of Jerry Maguire — minus the humor. ‘Help me, help you.’

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Photos: Via Morguefile.com, no attribution required.

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Business 1381How fitting that following an almost hour debate, the very last bill that passed out of the Arizona House at 5 o’clock last Thursday was historic legislation to protect the free speech rights of Arizona attorneys. HB 2221 passed 31-29. Among other provisions, the bill requires that mandatory dues collected by the State Bar of Arizona be used only for regulatory functions and not for nonregulatory activities like it does now. The bill now moves to the Senate.

Attorneys in Arizona must currently belong to a trade association and pay mandatory membership dues as preconditions to earning a living in their chosen profession. Arizona attorneys are the only Arizona professionals bound by such an expedient. What makes this problematic is that the State Bar uses compulsory member dues to not only regulate the practice of law — but to engage in other activities such as lobbying and advocating for ideological and political causes that not all members agree with.

Artists 93The Bar says it “focuses on protecting the public by enhancing the profession, not politics.” In reality, the Bar has an odd way of showing it’s apolitical. Pay no attention, for example, to Bar executives and its lobbyist fighting legislation to eliminate the Bar’s inherent conflict of interest manifest in the claim to protect the public from lawyers while contemporaneously serving lawyer interests.

Last year despite the Bar’s steadfast ongoing opposition to voluntary bar legislation, Bar CEO John Phelps told the ABA’s Bar Leader Magazine, “If we can’t answer the questions about why a mandatory bar is a better model for folks in Arizona, then we ought not to be a required bar.”

The Bar’s resistance has everything to do with preserving a model that protects its bureaucratic self-regard. The loss of most of its mandatory dues monies would mean a sea change for its blithesome bureaucrats.

State Bar’s Free Speech.

Politicians 81Besides reaffirming state supreme court authority over lawyer regulation under the Arizona Constitution, HB 2221 also respects the State Bar’s free speech rights. It does not restrict the Bar’s ability to lobby or take political or ideological positions so long as those activities are voluntarily funded by attorneys. This provision is key because the bar is again distorting facts to serve naked self-interest.

Under Keller v. State Bar of California, 496 U.S. 1 (1990), the State Bar cannot compel attorneys to fund the Bar’s lobbying activities unrelated to regulating the practice of law. But nothing in Keller prevents the State Bar from collecting voluntary funds from attorneys to engage in any political activity that it wants. Just because the State Bar presently has a policy that it will not engage in political activities beyond those authorized in Keller, there is nothing to stop the Bar from changing that policy tomorrow. As a result, HB 2221 has no bearing on whether or not the State Bar will expand the array of political activities it chooses to engage in with voluntary funds.

Chutzpah redefined.

Game Show Hosts 9And in what can best be characterized as redefining that classic definition of Chutzpah, the Bar has begun audaciously arguing that a vote against HB 2221 would protect attorneys’ First Amendment rights! Why? Because Bar members are supposedly currently protected by U.S. Supreme Court precedent limiting the political speech of mandatory bar associations. The precedential case is Keller v. State Bar of California that held that mandatory membership bar associations can use members’ dues only for regulating the legal profession or improving the quality of legal services — not for political or ideological activities.

FunHouse 119Turning the argument on its head, the State Bar is saying with a straight face that it’s now protecting free speech by lobbying against legislation that protects free speech. It’s a brazen rephrasing: “I was against free speech before I was for free speech.”

Heavens Angels 87Were it truly interested in safeguarding the free speech rights of its members, the Bar would have by now taken affirmative steps and much more meaningful ones than its pious protestations of so-called ‘Keller-purity.’

Moreover, how does lobbying against voluntary bar legislation that has nothing to do with intruding on the Court’s lawyer regulation authority or with improving the quality of legal services satisfy the criteria under Keller? It doesn’t.

Instead, the Bar complies with Keller under the broadest of interpretations. Anything and everything goes so long as the activities encompass “core interests of the mandatory bar, interests of the legal profession, improve the administration of justice, or promote advancements in Arizona jurisprudence.” And oh, just in case, there’s the ‘catch-all’ —  “any other activity authorized by law.” See Criteria so expansive you could drive a dump truck through it.”

Assuming members ever find out about objectionable activities — and only after the fact — the Arizona Bar says members have “the option of challenging the Bar to ensure that any position taken is within the Keller guidelines.”  This is a purgative past the point of needing it. What matter if a member objects to the Bar’s lobbying against legislation protecting attorney free speech if the objection occurs after the lobbying has killed the legislation? It’s a nickel-and-dime ‘remedy’ so not much of one.

No separation of powers problem.

Wildlife & Animals 5041The State Bar’s last-ditch efforts to block the bill in the House last week also centered on alleged separation of powers grounds. On the House Floor, Rep. Randall Friese, D-Tucson, a leading opponent argued that the Legislature was overstepping its bounds. He told a local newspaper, “I’m afraid this bill specifically directs the Supreme Court to do certain things. And I’m still concerned this body cannot.”

But this is incorrect as was pointed out in a well-crafted separation of powers legal memorandum that maintains “HB 2221 is consistent with the Legislature’s authority to protect constitutional rights and assure transparency in government, while respecting the Supreme Court’s role in attorney regulation.”

Friese is an Arizona physician. But unlike Arizona attorneys, he is not required to join a professional trade association to practice his profession. His only precondition to earn a living as a doctor is to pay the Arizona Medical Board $500 every two years for regulation and licensing.

Unfortunately, ‘what’s sauce for this goose is not sauce for that gander.’ In spite of the obvious intellectual inconsistency, the good doctor is not dissuaded. He’ll continue carrying water for the Bar against any legislation that puts lawyers on the same footing as his profession.

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photoWe live in a time where scandals are routine — chattered about and even celebrated. Larger-than-life ‘heroes’ so much as devolve into what the belatedly contrite Lance Armstrong calls himself — “that arrogant prick.” Or they’re molded into the stuff of deified delusional fabulists as apparently the case of Notre Dame star linebacker Manti Te’o and his made-up girlfriend who ‘died.’

photoSo what if our ‘heroes’ haveno spur to prick the sides of  [their] intent.” What they do have in abundance is ego and “vaulting ambition” along with the corresponding feet and hearts of clay.

And to otherwise reliably remind us of “the thousand natural shocks that flesh is heir to,” there are always lawyers. For in the realm of fabulists, as Russian novelist Yevgeny Zamyatin writes “Don’t forget that we lawyers, we’re a higher breed of intellect, and so it’s a privilege to lie.” Or as Justice Oliver Wendell Holmes Jr. even said, “Lawyers spend a great deal of their time shoveling smoke.” 

https://i1.wp.com/img.gawkerassets.com/img/18bt6uj7b1h0sjpg/original.jpgSex and an invoice.

So comes now Thomas P. Lowe, who runs a private family law practice in Burnsville, Minnesota, and whose troubles started because of having sex with his client and then billing her for services rendered. Also see “When I Get That Feeling, I Want Sexual Billing” « Above the Law.

Like better-known personages with uncontrolled appetites, was it because Lowe cared too much?

Or maybe the married 58-year old Minnesota divorce lawyer Thomas Lowe should’ve just moved to Texas where lawyer sex with clients has yet to be made ethically impermissible?

Lawyers and light bulbs.

It wasn’t that long ago when an unrelated Minneapolis, Minnesota law firm, Nilan Johnson Lewis, posed the question, How many lawyers does it take to change a light bulb?  It was a query which, unfortunately for the law firm’s marketeers, also recalled a bad old joke, “How many lawyers does it take to screw in a light bulb? To which the answer was, “Lawyers don’t screw in light bulbs; they screw their clients.”

In Lowe’s case, it was literal. Or so says an Order signed January 10, 2013 concerning “In re Petition for Disciplinary Action against Thomas P. Lowe, a Minnesota Attorney,” and wherein the Minnesota Supreme Court ordered that Thomas Lowe be suspended for a minimum of 15 months.

Lowe unconditionally admitted to committing “professional misconduct, namely, engaging in a sexual relationship with a vulnerable client and billing the client for meetings in which they engaged in sexual relations . . . .” Lowe’s actions violated Minnesota Rule of Professional Conduct 1.5 concerning reasonableness of fees as well as two rules governing conflicts of interest, Rule 1.7 and Rule 1.8.

Not wide open Texas.

In Texas, having sex with clients isn’t a violation of the lawyer ethical rules, specifically Texas Legal Ethics Rule 1.08, “Conflict of Interest: Prohibited Transactions.”

In most other jurisdictions, there’s a rule that bans sex between a lawyer and their client unless they’re married or engaged in a consensual relationship that began before the representation. But not in Texas. In 2011, Also see Texas Lawyers reject a ban on Sex with Clients.

That’s not to say, however, that even in Texas, there still mightn’t have been a conflict of interest or an argument that a lawyer Lothario’s fees were unreasonable.

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Photo Credits:”Lance Armstrong in Yellow – Nevada City Bike Race,” by John Trefethen, Trefethen, at Flickr via Creative Commons-licensed content requiring attribution;”Chinese Art,” by IvanWalsh.com at Flickr via Creative Commons-licensed content requiring attribution; “Thomas P. Lowe,” at Facebook, via Gawker.

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