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Posts Tagged ‘ER 8.4’

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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Celia Cruz – “Reina De La Música Latina”

Early Saturday morning I was catching up on my reading while listening to “Queen of Latin Music” Celia Cruz, lawyer-turned-salsero Rubén Blades and soulful Sam Smith’s – “In The Lonely Hour.” I like mixing my music. Ditto my casual reading.

So my reading stack was pretty disconnected with magazines, news clippings, newspapers and digital items featuring book and movie reviews, history, sociopolitical commentaries, sports notes and an outrageous report about juvenile truants in court being jailed without assistance of counsel. (I’ll be blogging about that one later).

One item, though, also drew my interest. It concerned a just-released survey suggesting lawyers ought to be marketing with online review sites. More specifically, the report referred to “the online urban guide” Yelp as supposedly “the most commonly used site to search for attorney reviews online, with 58 percent of [the] respondents saying it is the first place they turn.” The study also claimed that for 83 percent of respondents, online reviews were the first step taken by would-be clients. Who knew?

Burritos not barristers.

What I do know is that I like Yelp for hunting burritos not barristers. Help me get a bagel, a beignet or some bouillabaisse. Or how about finding me a bowlful of cocido, pho or curry when I’m traveling. But lawyers?

I haven’t seen this study’s metrics, methodology or ‘motivation.’ So I’m skeptical.

And since anecdotally and experientially, I haven’t seen it happening, I’m having trouble — especially accepting the inference that all these consumer are allegedly posting reviews about lawyers, which in turn is helping other consumers find legal counsel.

While it’s true that consumers use the Internet to find legal services, consumers aren’t generating a whole lot of online reviews about lawyers. Maybe it’s because it’s not like going out for burgers and brews. Not many folks can afford to hire legal representation. In spite of the historic glut of lawyers, the high cost of legal services has nonetheless resulted in more and more litigants doing without.

So I don’t know who’s supposedly posting all those few and far-between reviews the study says the public’s relying on. Granted, as one marketing researcher at the University of Utah’s School of Business contends, perhaps you don’t need a lot of online buzz. It’s the quality of the online sentiment that’s more important than the quantity of the conversations when it comes to driving customers to your door. Dr. Shyam Gopinath and his research co-authors suggest “that, in our data, ‘what people say’ is more important than ‘how much people say.'”

Woman in orange sunglasses uid 1All the same, given the paucity of online word of mouth about lawyers, I doubt you’ll see a time where like those ‘Elite’ Yelp restaurant reviewers, people dissing or raving about their lawyers will be feted at parties and treated “like royalty.”

Online legal reviews.

According to “How Prospective Clients Use Online Legal Reviews,” the randomly sampled 385 adults in the U.S. generated “385 unique responses to each of nine questions” for a “total of 3,465 respondents.” Say what?

Map of USA with state names 2.svg

To the everyday Joe, 385 adults is an infinitesimal number when there are an estimated 243,419,206 adults in the U.S. The findings then, are a real leap when the sample represents .00015816336201507453% of 243,419,206. But since statisticians assert this is a sufficiently sizable sampling to make the survey valid, I’ll just have to choke down my incredulity.

Here were the key findings from Software Advice, a consulting firm which according to their website, “helps buyers choose the right software. As a trusted resource, our website offers detailed reviews, comparisons and research to assist organizations in finding products that best fit their current and future needs.”

“1. Yelp is the most popular and trusted website for legal reviews.

“2. The most important information to prospective clients is quality of service and years of legal experience.

“3. Seventy percent of prospective clients would travel further to see an attorney with better online reviews.”

I don’t have a handle on how many lawyers currently rely on web-based business referral and review sites like Avvo, Yelp or the stodgy old school, Martindale-Hubbell. Lord knows they’re out there trolling for lawyer business.

And to some extent, lawyers should pay attention to what’s said about them online. But it’s a touchy proposition, especially when a lawyer feels compelled to respond to a negative review posted by a former client. Unlike other business owners who sue reviewers, lawyers may find that option a no-win proposition.

woman giving thumbs up 3 L uidWhat reviews?

But as to my further thoughts about the survey, I’m hypothesizing not many lawyers are marketing through Yelp — not unless they’re also serving chowder with their counsel. Save for emerging social media savvy Millenials, lawyers as a class are rarely early adopters. If there’s gonna be a digital technology party, most will be late.

From my own admittedly unscientific Yelp search of “lawyers,” for example, in the Phoenix, AZ market, very few had any client reviews. Indeed, the Phoenix lawyer with the most reviews had 8. And even in the bigger metropolis of Los Angeles, CA, the “most reviewed” lawyer in Downtown Los Angeles garnered a mere 93 reviews. The “most reviewed” lawyer in San Francisco’s Civic Center had 53 reviews and in Cleveland, OH, of the Yelp lawyers listed, all were tied with a whopping one review each. One San Diego, CA firm had over 200 reviews — but the next two highest were at 47 and 34 reviews.

And unfortunately, among all those scant reviews, some were negative. When it comes to lawyers, I disagree with Brendan Behan that “All publicity is good, except an obituary notice.”

The Rules.

People 1857To be fair, not all lawyers are Luddites. Some are just risk-adverse. They may be reluctant to run afoul of ethical rules governing how they advertise. After all, client recommendations are analogous to testimonials and so lawyers can’t have clients violate or attempt to violate Ethical Rule 8.4 (a) by knowingly assisting their clients to say things they aren’t allowed to say — like making false or misleading communications about the lawyer or the lawyer’s services.

And then there’s that other burden that requires lawyers to monitor their social networks and blogs for reviews and recommendations that may need to be revised or deleted. In Virginia, for instance, “the lawyer cannot permit to remain on his LinkedIn page a client recommendation that says the lawyer is the “best personal injury lawyer in town” because it is a comparative statement that cannot be factually substantiated. Rule 7.1(a)(3).”

From my own sorry experiences, I’ve also developed my own ‘rules’ for finding restaurants not lawyers on Yelp. Unless I’m in the middle of Smallville, USA where you won’t find 100 residents let alone 100 reviewers, I don’t pick a restaurant with less than 100 reviews. This takes out the possibility the restaurateur may have tried gaming the system by having biased friends and family stack the deck with glowing reviews.

boy in coat and hat sticking tongue outReviews should also be recent. And hopefully, substantive — not just whining because the waiter didn’t make eye contact, smile enough or sympathize about your troubling hangnail. Last, I also don’t pick restaurants with less than 4 stars.

And yet despite my ‘rules,’ I’ve still been burned — more than once, especially in the bad dining town where I live.

Yet come to think about it, if my Yelp restaurant rules were ever applied to picking lawyers, consumers would find it near impossible to find one.

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Photo Credits: Celia Cruz, Reina De La Música Latina, by Tribes of the World at Flickr via Creative Commons-required attribution; I Heart Yelp by Ewen Roberts at Flickr via Creative Commons- required attribution; Map of USA with state names, Wikimedia Commons, Creative Commons Attribution-Share Alike 3.0 Unported license; 031207_16231.jpg 4 Jane, by

Luz at Flickr via Creative Commons-required attribution.

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photo“Once more unto the breach” — even at the risk of boring non-lawyer readers. An updated post of free online continuing legal education follows.

And for the uninitiated, I will keep posting free online CLE resources so long as it remains my sardonic opinion that the real reason some if not all bar associations continue mandating continuing legal education is to ensure cash cow money-making revenue. And oh yes, there is that pretextual public relations reason to protect consumers from incompetent lawyers. (Kudos Kentucky Bar Association for offering every member the opportunity to meet their annual CLE requirement, including ethics, close to home and with no registration fee through their “Kentucky Law Update” program).

The ‘value’ proposition.

If consumer protection is supposedly so valued — why does CLE continue to be so damn expensive, especially when the quality, utility and content often sucks?

Any wonder that so many lawyers, especially those young legions of the heavily-indebted and the out-of-work keep hunting for free CLE? “Free” always trumps $150 for a webcast hour.

But beware of that other CLE: the “Career Limiting Event.”

But before getting to that updated online freebie list, it’s worthwhile mentioning that the acronym, “CLE,” every now and then means something else, as in “Career Limiting Event.”

As an ethical refresher for every lawyer at a live continuing legal education class who zones out in the midst of pompous prattle or who checks fantasy football scores on their smartphone during sleep-inducing Powerpoint, Ethical Rule 8.4: Misconduct says it’s “professional misconduct for a lawyer to: “(c) engage in conduct involving dishonesty, fraud, deceit or misrepresentation” and “(d) engage in conduct that is prejudicial to the administration of justice.” Said another way, if you’re going to certify you took a course, it may be “misrepresentation” to claim you took part — if you didn’t pay attention.

photoTo illustrate, take the real-life instance of an Illinois lawyer who last year after being charged with “Dishonesty and Submission of False Information to the MCLE Board,” was eventually suspended for 3 months for violating ER 8.4 — because the Court found he had “directed a secretary in his office to watch the courses on a laptop computer and respond to the prompts as if he were watching the course.”

More specifically, according to the Illinois State Bar Association, the longtime lawyer “falsely reported to the Minimum Continuing Legal Education Board of the Supreme Court of Illinois that he had completed 20 hours of continuing legal education activity during the 2007 to 2009 reporting period. In fact, he had enrolled to take only 19.25 hours of CLE work and his secretary . . . completed some of the online CLE classes [the lawyer] claimed to have completed.”

Forewarned.

Sure that’s a noteworthy cautionary tale but I doubt any of the perspicacious lawyers reading this blog and accessing free online CLE would ever deign to leave laptops unattended and walk away in the middle of a still playing online program.

photoNor is it easy to believe these astute lawyers would dare relinquish ethical responsibilities to anyone else. Still, better forewarned and forearmed.

The updated online free continuing legal education list follows along with the usual disclaimers concerning continued accessibility, content or whether your jurisdiction accepts any of these programs for credit.

I also mean no reproaches on the philanthropic providers of these freebie programs. However, I will again cast a disparaging word upon a certain ungrateful lawyer with the stones to complain about something for nothing.

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The Network for Public Health Law – Webinar Series

http://www.networkforphl.org/network_resources/webinar_series/

Future of Primary Care: The Changing Role of the Primary Care Provider -20111117 1800-1

Listen to and watch this webinar held November 17, 2011 for an introduction of “evidence on the role of nurse practitioners as primary care providers . . . issues of quality, cost and access . . . the current differences of related state laws. You may qualify for CLE credit.”

~ The Supreme Court’s Decision on the Constitutionality of the ACA-20120719 1650-1

Listen to and watch the webinar held July 19, 2012 concerning the Supreme Court’s decision and its implications for the Affordable Care Act’s reforms to the individual insurance market, the Medicaid expansion, and the future of the ACA’s public health-related provisions and accompanying federal funding. Depending on jurisdiction, may qualify for CLE credit.

~ Data Surveillance and Data Exchange: A Tool for Comparative Effectiveness-20120517 1659-1

Listen to and watch the webinar held May 17, 2012 providing an overview of “recent developments regarding data exchange and surveillance, explore the inherent privacy issues associated with data exchange and data surveillance and discuss using data exchange and data surveillance as a tool for comparative effectiveness.”

You may qualify for CLE credit via the American Society of Law, Medicine & Ethics (ASLME).”

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Free CLE Course: Disability Insurance Claims

From Attorneys Dell & Schaefer, Chartered, “We invite you to sign up for our free online CLE course. This CLE course was created by Disability Attorneys Dell & Schaefer and is titled ‘Introduction to Disability Insurance Claims and ERISA Law.’ The course is comprised of multiple videos totaling 255 minutes (between 4.25 to 5 CLE credits depending on your state).”

http://www.diattorney.com/cle/

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Expanding Your Practice Using Limited Scope Representation 2012

Item# 39211
Format: On-Demand Web Programs

Full Seminar
Free
Launch Now

http://www.pli.edu/Content/OnDemand/Expanding_Your_Practice_Using_Limited_Scope/_/N-4nZ1z12uzg?fromsearch=false&ID=153434

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~ A “Charging Lien” as an Adverse Interest Under Rule 3-300 of the Rules of Professional Conduct
State Bar Office of Professional Competence

1.0 hour of ethics, self-study credit

Get Now

~ The Proposed New and Amended Rules of Professional Conduct
State Bar Office of Professional Competence

1.0 hour ethics, self-study credit

Get Now

http://www.legalspan.com/calbar/e-pubs.asp?CategoryID=20011116147985140428&UGUID=&offset=1

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Oregon State Bar’s “Making a Difference: Mentoring New Lawyers

Complimentary program approved for 1.25 General CLE, 1.25 Ethics, and .75 Access to Justice credits. Click here for video.

http://law.lclark.edu/continuing_education/

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From the University of Minnesota’s Consortium on Law and Values in Health, Environment & the Life Sciences. View Video Online. “Continuing Legal Education credit (CLE) has been approved (1.5 hours).

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Along with several other jurisdictions, the Florida Bar has accredited up to 8.5 hours of CLE for “Treating the Invisible Wounds of War” (IWW) online training course.  Go to “New Users” tab at www.aheconnect.com/citizensoldier to access the course and the registration form on the site.

https://www.floridabar.org/DIVCOM/JN/JNNews01.nsf/Articles/871936AE4A8538648525791700499C2A

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~ The Americans with Disabilities Act: How to protect your deaf, hard of hearing or deaf/blind client.

Course No. 81151 at the Florida Bar’s 24/7 On-Demand CLE.

.05 hour of ethics credit

“This course provides attorneys with a basic and pragmatic understanding of the requirements of the Americans with Disabilities Act (ADA) and how it relates to working with deaf, hard of hearing and deaf/blind clients.”

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Photo Credits: “Bored,” by scragz, Jason Scragz, at Flickr via Creative Commons-licensed content requiring attribution;”Blogger at breakfast after Eglon van der Neer,” by Mike Licht, NotionsCapital.com at Flickr via Creative Commons-licensed content requiring attribution; “punctelia at work,” by owlmonkey at Flickr via Creative Commons-licensed content requiring attribution.

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Last Friday, I was in Boulder City, Nevada having dinner with friends when a sign on the wall drew my attention, “Everybody’s got to believe in something. I believe I’ll have another beer.” The quote needs no attribution since most everyone knows it’s W.C. Fields.

File:Wcfields36682u.jpgWith that, I segue to the topic of belief and prejudice but in a context different from that of the misanthropic comedian who also famously said he was “free of all prejudices” – – – “I hate every one equally.”

Earlier this month, I was assessing the pros and cons of an Arizona State Bar proposal that further particularizes the prohibitions against prejudice by lawyers. As it turns out, the subject of religious belief has also found itself interspersed into the assessment by opponents of the proposed amendment to AZ-ER 8.4 of the lawyer canons of professional conduct.

The ‘nanny bar.

I often take an exception to the Arizona Bar’s habitually meddlesome penchant for finding solutions in need of problems, e.g., “Are virtual law offices ethically impermissible?” My default inclination is to chalk up any rules amendments as just more unwelcome nanny bar forays.

The change this time, which is designated as R-10-0031, is a petition to“make bias against certain classifications of people professional misconduct, and would add the classification of “gender identity or expression” to the enumerated classifications.” See Attachment: 161513235958.pdf

ER 8.4 deals with “Misconduct.” It is a general ‘catch-all’ rule that states it is professional misconduct for a lawyer to:

(a) violate or attempt to violate the Rules of Professional Conduct, knowingly assist or induce another to do so, or do so through the acts of another;

(b) commit a criminal act that reflects adversely on the lawyer’s honesty, trustworthiness or fitness as a lawyer in other respects;

(c) engage in conduct involving dishonesty, fraud, deceit or misrepresentation;

(d) engage in conduct that is prejudicial to the administration of justice;

(e) state or imply an ability to influence improperly a government agency or official or to achieve results by means that violate the Rules of Professional Conduct or other law; or

(f) knowingly assist a judge or judicial officer in conduct that is a violation of applicable Code of Judicial Conduct or other law.

(g) file a notice of change of judge under Rule 10.2, Arizona Rules of Criminal Procedure, for an improper purpose, such as obtaining a trial delay or other circumstances enumerated in Rule 10.2(b).

Objects 1324

The proposed change seeks to formalize existing Comment [3] to ER 8.4, which reads, “A lawyer who, in the course of representing a client, knowingly manifests by words or conduct, bias or prejudice based upon race, sex, religion, national origin, disability, age, sexual orientation or socioeconomic status, violates paragraph (d) when such actions are prejudicial to the administration of justice.”

Here’s the proposed amended language: “(e) knowingly manifest bias or prejudice based upon race, gender, religion, national origin, disability, age, sexual orientation, gender identify or expression, or socioeconomic status in the course of representing a client when such actions are prejudicial to the administration of justice; provided, however, this does not preclude legitimate advocacy when such classification is an issue in the proceeding.”

Attack of the First Amendment defenders.

File:Bill of Rights Pg1of1 AC.jpgCritics of the proposal raise objections on First Amendment grounds. They also attack the amendment for “vagueness” and viewpoint discrimination.

The objections emanate from concerns that the proposed lawyer ethics amendment will violate a lawyer’s religious liberty by inflicting “harm. . . on professionals who hold religious convictions about sexual morality” and infringing on “the free-exercise rights of religiously motivated attorneys . . . by requiring them to advocate views and legal positions that conflict with their sincerely held religious beliefs.” See Attachment: 1715332674471.pdf

The justification.

And yet, that argument’s hardly dispositive. History is replete with examples of both sinfulness and righteousness propounded in the name of sincerely held religious beliefs.

More than a decade ago, a report submitted to the Arizona State Bar Board of Governors from the Lesbian and Gay Taskforce revealed that 77% of judges and attorneys in Arizona had heard disparaging remarks against gays and lesbians. 47% had heard them in public areas of the courthouse. Additionally, 30% of Arizona judges and attorneys believed that gays and lesbians were discriminated against in the legal profession. See “Discovering and Addressing Sexual Orientation Bias in Arizona’s Legal System.”

More recently, to the dismay of the enemies of political correctness, 200 Arizona attorneys signed a letter from Lambda Legal in support of adding non-discrimination language to the Arizona Attorney Oath.

File:"Colored" drinking fountain from mid-20th century with african-american drinking.jpgBut this is the land of Arizona SB 1070, of animus for immigrants without papers (i.e., “those damn illegals”), and of a dust storm assisted enlightenment. There’s need aplenty to formalize into the rules, prohibitions against bias. See, for example, “Arizona Jim Crow – The History of Jim Crow” andAs MLK memorial is dedicated, Arizonans recall fight for holiday” and  “Finding an open table while Latinos leave Arizona” and Nashville court awards damages to shackled pregnant woman but in Arizona, it’s the ‘same-old, same-old.’

A deplorable discrimination case, for-instance, can also be found at In re. Goodfarb, 880 P.2d 620, 179 Ariz. 400 (Ariz., 1994). In that case, it took the Commission on Judicial Conduct more than 4 years after the underlying misconduct to belatedly discipline a Maricopa County Superior Court Judge for using the words “fucking niggers.” (1)

So notwithstanding the concerns of “religiously motivated lawyers,” why isn’t a proscription against bias based on race, gender, religion, national origin, disability, age, sexual orientation, gender identity or expression, or socioeconomic status a good thing?

Last, this blog is read by both religious believers and atheists. But despite my own religious bona fides, I end with a provocative clip from a UK television show. Believers in Heaven will recoil in offense at Kate Smurthwaite’s snarky syllogistic premise. But the clip nevertheless underscores the problem with objectified intolerance.

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(1) Prior to a post-conviction evidentiary hearing in State v. Joseph, CR 87-08901, counsel for Joseph argued that the black man’s conviction should be vacated because the State used, or failed to use, peremptory strikes on the basis of race, in violation of Batson v. Kentucky. In chambers and in front of counsel, the jurist incredibly uttered the obscenely offensive racial epithet. He later explained it was all “in jest.”

And forgetting that poor judgment can also conflate into actual bias, in a jaw-dropping mitigating factor, “the Commission found that Judge Goodfarb’s use of racist and profane language was just that, and did not interfere with his ability to fairly decide cases.” 179 Ariz. at 401, 880 P.2d at 621.

The Goodfarb case is also cited in Harvard law professor-author Randall Kennedy‘s book, “Nigger: the strange career of a troublesome word.” (I am currently reading Professor Kennedy’s latest book, The Persistence of the Color Line.”)

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File:The Procuress.jpgThe highly unusual news from Chicago of 25-year old lawyer Reema Bajaj accused of moonlighting as the “Sycamore Attorney Accused Of Prostitution” is right out of news of the weird. She has been charged in DeKalb, Illinois with 2 misdemeanor counts and 1 felony count of prostitution, which allegedly took place in August 2010. Also seeAbove the Law: A Legal Tabloid.”

The last time anything this odd made the national news, it was last year when the secret life of lawyer Marcy Baron was exposed as the “Long Island lawyer accused by boyfriend of being Internet dominatrix.”

As for Reema N. Bajaj, at this point, other than making the usual vigorous defense assertions and maintaining her presumption of innocence, one can only hope for Bajaj’s sake that this is nothing more than a case of “much ado.”

Risky business.

Drowning

Still, these stories are reminders for lawyers that there’s always more at risk beyond criminal prosecution, possible conviction, embarrassment and damaged reputation “For Lawyers Who Misbehave, Stakes Can Be Higher.” On March 25, 20111, writing at NYTimes.comJohn Eligon noted that even if a lawyer is eventually cleared of misbehavior, “Some lawyers, knowing how imperfect the system can be, say they always have it in the backs of their minds to stay clear of potential trouble.”

And trouble has a way of finding some people. In Florida this past March, for example, a story ran about a “Jupiter attorney disbarred after pleading guilty to running an illegal internet gambling ring.”

Poster2And I can still remember playing golf with a locally prominent defense lawyer a few years ago and how after our round, he told me he avoided trouble by limiting himself to only one beer after golf. He said, “There’s nothing that a deputy sheriff would enjoy more than pulling me over for a possible DUI.”

Lawyer ethics and discipline.

Moreover, contrary to what some members of the public think, there are indeed jurisdictions known for their gung-ho prosecutorial bent when it comes to investigating and imposing lawyer discipline. Consequently, the public disclosure of alleged lawyer misconduct can initiate a probable cause inquiry and the potential loss of a lawyer’s license to practice. The ethical rule most likely implicated is the one on “Misconduct,Rule 8.4.

cunning,emotions,faces,heads,males,men,people,persons,sly,sneaky

Comment [2] to this rule is instructive: “Many kinds of illegal conduct reflect adversely on fitness to practice law, such as offenses involving fraud and the offense of willful failure to file an income tax return. However, some kinds of offenses carry no such implication. Traditionally, the distinction was drawn in terms of offenses involving “moral turpitude.” That concept can be construed to include offenses concerning some matters of personal morality, such as adultery and comparable offenses, that have no specific connection to fitness for the practice of law.

File:The Cardsharps.jpg“Although a lawyer is personally answerable to the entire criminal law, a lawyer should be professionally answerable only for offenses that indicate lack of those characteristics relevant to law practice. Offenses involving violence, dishonesty, breach of trust, or serious interference with the administration of justice are in that category. A pattern of repeated offenses, even ones of minor significance when considered separately, can indicate indifference to legal obligation.”

And if that’s not clear or expansive enough, then there’s always reliance on the legal encyclopedia, “Corpus Juris Secundum,” which goes on to add, “Attorneys, in performance of the obligations and duties assumed, must conform to certain standards in relation to their clients, to the court, to the profession and to the public, and an attorney can be deprived of his rights as an attorney by the judgement of the court for moral or professional delinquency.

“While a license to engage in the practice of law will not be revoked for trivial causes, impropriety, or breaches of good taste, discipline for misconduct is not limited to cases where the attorney’s acts are infamous or of a gross or serious nature, and the courts will ordinarily discipline for offenses involving moral turpitude.” See 7 CJ.S. Attorney & Client §19 (1937).

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