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Day 196 - Kicking Ass | by lintmachineIn 2012, a member referendum cut Washington State Bar Association (WSBA) dues from $480 to $325. Members were thrilled. Lawyers elsewhere were envious. From WSBA leaders, teeth-gnashing and underwear-twisting ensued. But truth be told, the panty-twisting began well ahead of the referendum. The sky was gonna fall. The Seattle Starks said “Winter is coming.”

The Big Payback.

Four years later on September 29, 2016, it was payback time. On that day, the WSBA Board of Governors and its executive director got their ‘gimme back.’ The Board approved substantial lawyer licensing fee increases starting next year and running through 2020. The first jump of 138% raises dues from $325 to $449 in 2018. Fees then bump up to $452 in 2019 before riding the Up escalator again in 2020 to $458. The hikes amount to a 141% increase over current fees.

Back on top.

As soon as 2018, the first increase to $449 puts Washington back in the top ten of highest mandatory bar dues states topping Idaho, Utah, Louisiana and California. Of the total 32 mandatory bar states, only Alaska, Oregon, New Hampshire, Hawaii, Wisconsin, Nevada and of course, Arizona are higher.

Although the WSBA Board approved the increases last September, it wasn’t until this past January 5, 2017 that the score was truly evened. On that date the Washington Supreme Court approved the dues increases declaring them without explanation “reasonable” and in the alternative, ruled in the same Order again without explanation that the fees proposed through a new member license fee rollback petition “would not be reasonable.”

40+118 POW!! | by barkLicense fee rollback petition.

Following the WSBA Board’s dues vote last September, members took immediate steps under WSBA Bylaws that provide that within 90 days of a final decision of the Board of Governors, any active member may file a referendum to reverse or modify that decision. Consequently, a license fee rollback petition was timely filed to reject the 2018-2020 fees approved by the Board and to alternatively require that the fee amount for a given year not be increased by a greater percentage than the consumer price index (CPI) increased during the calendar year ending 12 months previous to the effective date of the increase.

Only 1,604 or 5% of the active membership were needed to qualify the petition. A total 2,180 WSBA members signed the petition. The Court gave no explanation other than the conclusory statement: “That the lawyer license fees proposed by the license fee rollback petition, if the petition were to pass, would not be reasonable both as to the level of fees that it proposes and as to the requirement that future license fee increases be tied to the consumer price index.”

Giving my bro a "good old kick up the arse" (AKA a "Bishop Brennan") outside Parochial House, County Kerry,Ireland. | by 2thin2swim

Later this month, the WSBA’s Board of Governors meets to decide whether or not to hold the referendum vote given the Court’s order rejecting the petition.

I’m not a Washington lawyer but they should still hold the vote — because even while the Board applauds the Court’s action while sitting on their hands, WSBA members will still want to kick some ass of their own.

 

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Credits: Day 196 – Kicking Ass, by lintmachine at Flickr via Attribution-NonCommercial-ShareAlike 2.0 Generic license; 40 + 118 POW!!, by bark at Flickr Creative Common Attribution license; Giving my bro “a good old kick up the arse,” by 2thin2swim at Flickr Creative Common Attribution license.

 

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I love juxtapositions. It’s an odd personality trait. Or maybe, it’s the heat. Or it’s niggling sleep deprivation now that I’m up earlier than usual — before 4:30 AM to walk our dogs before the summer sun scorches paws and dehydrates lolling tongues. It clears 90°F before 8 AM.

Take, for instance, my frequent lumping together of ‘Old Skool’ rhythm and blues with otherwise unrelated substantive topics. Regular readers know, for example, I especially like Old Skool’ Riffing on Godfather of Soul James Brown.

So when news hit that Brevard County Florida Judge John C. Murphy was back but handling civil cases after less than 30 days of paid vacation leave for reportedly scuffling outside his courtroom with Assistant Public Defender Andrew Weinstock, you’ll understand why “Get Up Offa That Thing” started playing in my head. However, I’ll admit that this particular jurist doesn’t strike me as someone who’d channel Soul Brother No. 1‘s happy “I’m back! I’m back!” refrain.

Brawl in Brevard.

You remember the “Stop pissing me off . . . if you want to fight, let’s go out back”  ‘Brawl in Brevard.’ That’s when after ripping the public defender a new one in his court, Judge Murphy irascibly took matters out to the hallway for a more serious heart-to-heart with the surprisingly unintimidated Andrew Weinstock.

I prognosticated then, “I don’t expect much to happen to Judge Murphy.” So he’s back already. Also see “Judge who hit public defender returns to bench, less than a month later.”

People 7442Sure the Judicial Qualifications Commission reportedly opened an investigation. But seeing how the wagons have already circled around Judge Murphy, I still predict, if anything, the gentlest of admonitions. Besides, according to news reports, no criminal charges were filed in the incident.

 

Boy with his hands on his face uidOpen Letter Contrition — but not for all.

In an open letter released “To the Residents of Brevard County,” Judge Murphy has moved to put the embarrassing episode behind him. “I am happy and relieved to be back at work serving the people of Brevard County and I thank [Chief Justice] Judge Harris for his support and the confidence he has shown to me,” he wrote.

Not to worry, I guess, if the Judicial Qualifications Commission happens to make a probable cause determination and the whole thing’s sent for adjudication to supportive Chief Justice Harris and the Florida Supreme Court.

In his letter, Judge Murphy expressed “regret” for his actions. And he “committed to continuing personal improvement” and to “win back” public trust and confidence. He offered “my personal apology” to each of his 18th Judicial Circuit colleagues and to “judges everywhere.” Curiously, he made no mention of Weinstock, the object of his ire, nor did he apologize to him. But at least he left out the standard non-apology apology.

Yet as the New York Times reported a few days ago, voters can expect more judicial contrition in Florida. See “Here Comes the Judge, in Cuffs – In Broward County, Fla., Spate of Judges in D.U.I. Arrests.” Yeah, I know — let he who is without sin hide behind the nearest rock pile.

Dominick/Flickr

And to reassure the county electorate that he hopes will again reelect him, Judge Murphy also added, “I seek to ensure that this sort of unacceptable behavior will never happen again.” The words “seek to ensure” reminded me of that scene from “The Outlaw Josey Wales.” It was where Dan George as Lone Watie described his visit with the other Chiefs of the Five Civilized Tribes to the Secretary of the Interior and the Secretary nonsensically tells them “Endeavor to persevere.” I imagine the judge will likewise “endeavor to persevere” not to spar, biff, or poke public defenders on premises.

1158073_paper_emotions_-_hateNot the last angry man.

To assist those aspirations, while on his taxpayer-paid leave, Judge Murphy took part in a favorite bureaucratic fix — anger management. The courts may not have them but I have my doubts about anger management programs and whether they even work.

Of anger management classes, the Health Journal at the Wall Street Journal said, “It’s not clear if the programs work, as few studies have analyzed their effectiveness. There are no licensing requirements for anger-management trainers — anyone can open a business. And since participants don’t usually sign up voluntarily, trainers say it’s possible to complete a program without changing one’s behavior.” Also see NPR’s “The Anger Management Industry – Calming Courses on the Rise, But Do They Work?”

Now really, is there such a thing as curing a propensity to be an angry jerk? Or can counseling graft a nice personality on an overbearing putz? Or can it fix what one blogger hilariously calls HUAD – Head Up Ass Disorder?

Take, for example, that serial biting soccer footballer Luis Suarez who after two previous biting incidents during a game was recommended anger management treatment. Suarez’s now up to three bites with the latest administered on an Italian Player at the current World Cup. He’s been fined and banned for 4 months. Still the psychologists keep recommending anger management instead of bicuspid restraints.

https://i0.wp.com/media-cache-ec0.pinimg.com/736x/5f/e6/84/5fe684ecb7261693a426fe41022db7c1.jpg

Fortunately, even if anger management doesn’t work, there’s always Dr. Seuss. How about carrying around “Did I Ever Tell You How Lucky You Are?” in your pocket?

Truthfully, when it comes down to it, some people just don’t have the requisite people skills, civility and infinite patience to handle life stresses.

I’m all for reinvention — but as Clint said, “A Man’s Got to Know his Limitations.” If you can’t handle on-the-job anger, find another line of work.

Which to conclude, of course, reminds me of another ‘Old Skool’ golden oldie ditty.

It’s from my East Los Angeles Barrio days: “Are you angry?” So when all else fails — there’s always a song.

 


Photo Credits: James Brown Live Hamburg 1973 by Heinrich Klaffs Heinrich Klaffs – at Wikipedia Commons, originally posted to Flickr as James Brown Live 1702730029; Pin by Debbi Kassin on Anger Management & Conflict Resolution Dr. Seuss, Did I Ever Tell You How Lucky You Are?

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“Are you a member or happy?”

Paraphrasing that other “Mo” — the one with an “e,” the State of Bar of Arizona is still asking. How happy are members with the Bar’s programs and services?

Although I already took the meaningless member survey, Monday morning I got another email reminding me to complete it. This is the third reminder — but who’s counting? The survey period ends this Friday.

 

achievements,business,flags,waving,metaphors,mountaintops,peaks,people,success,concepts

Doubtless the Bar’s trying to gin up something close to a representative response rate so its leaders can afterward claim victory just like they did three years ago.

Never mind the biased questions with their implicit assumptions or the forced choices from preselected answers. The results are preordained. But then I already I discussed all this last week at “Another ‘poppycock’ survey from the State Bar of Arizona.” At least the Bar’s not planning to survey us so they can later sell us the results.

Defensively speaking.

After last week’s post, I got an email from State Bar of Arizona Chief Communications Officer Rick DeBruhl. Understandably defensive, he wanted to explain a few things. With his consent, I’m posting his clarifications verbatim below.

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“A couple thoughts on your blog:

“Our survey was designed with input by Bruce Merrill. Formerly with ASU, he is one of the premiere survey experts in the country. Surveys are inherently imperfect. Experts like Merrill design them in such a way as to work around our human idiosyncrasies. I’ve never taken a survey that I considered perfect, and I wouldn’t put ours in that category. Using consultants such as Merrill simply allow us to step beyond the amateur ranks to get reasonably valid information.

“You mentioned the fact that 80% of the bar’s membership did not respond in 2011. Survey experts will tell you that a 20% response rate is phenomenal. In addition, we made sure to check that the final numbers were demographically similar to our membership. That gives our survey validity.

 “Questions such as the “printed directory or a more robust online member search tool” were designed to give us guidance. We know from previous surveys that members overwhelmingly use and value the directory. We’ve heard that the current online search tool doesn’t go far enough. Would people be satisfied if we dumped the print directory for our existing search tool? Possibly not. What we’re ultimately trying to determine is whether they like the printed version because they want a book, or because they don’t have a better option.

“As for the answers on the “most serious problems” question, we actually got them from another state’s survey. We’re trying to build not just Arizona data but national trends as well. We looked them over carefully before deciding to include them. Any time you create a list, it has the potential to create bias to those answers. And yet survey experts say that respondents need lists to be reminded of the options.

“As for why we use SurveyMonkey, the answer is simple. It is the highest quality for the lowest cost. Of course there are other ways to survey members with greater anonymity. However, they cost significantly more money. Merrill feels we can achieve the same results with lower cost using this method. One other option would be a random sampling. Experts say we could get statistically valid results with just hundreds of responses. Perhaps, but we felt that if we were going to talk about the results of the member survey that all members should have the ability to give answers.

“Incidentally, we had a technical problem on the first day of the survey that prevented some people from submitting. As a result, our consultant decided that our best option was to remove the block that prevents a second survey from the same computer. The consultant feels that the number of people submitting two will be significantly small so that it won’t likely affect overall trends. We do have the ability to run a check on the number of repeat IP addresses which will let us know whether that number was significant. I’m sure if we had unlimited resources, we could no doubt determine the identity of each IP address, but that’s simply not in our realm. Incidentally, we don’t use the SurveyMonkey invitation system.

“We’d love it to be shorter, but we’ve done our best to chop it down. Because of the skip logic built into the survey, no one actually answers every question.

“The bottom line is that we understand that surveys are imperfect. We look for trends and directions and feel that gives us guidance as an organization.

“As always, let me know if you have questions or thoughts.”

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Dollars to donuts.

Cartoon Characters 57 I said last week I wasn’t a survey expert. But dollars to donuts, it’s like asking 10 lawyers about anything. If you get 10 survey experts in one room — you’ll get 10 different opinions.

Survey design is as much art as science. So what’s a good response rate? Depends who’s asking. And it depends on how they ask the question. Also see AAPOR | Response Rate – An Overview.

But I’m glad at least that Rick DeBruhl conceded more than once that the Bar survey was “imperfect” — because it is. That was the crux of my post.

There’s a reason some 80% of lawyers don’t bother answering these surveys. They’ve figured out what a medical historian once said about something else, “The experience of the ignorant has routed the wisdom of the learned.”

Too bad my point about the Bar’s expensive printed directory got lost. The survey’s either/or question about the directory was a leading question. It was biased toward a choice preference for a more robust online member search tool.”

Not long ago, the Arizona Bar spent well over six figures supposedly improving and updating its website and its online member search tool. And now it appears some Bar executive is itching to spend even more money on what’s become a bloated website and online member search tool. Meantime regardless of the Bar’s claims at being eco-friendly — it’s just not yet because the Bar continues to print member directories and kill trees.

As for the survey having been designed “with input by Bruce Merrill” — well, that was a point I already footnoted last week. Still with an expert “like Merrill” on board, you have to ask why the Bar needed to crib stuff from other state bar surveys?

Satisfied?

Finally, as a learned colleague pointed out to me when I showed her Rick DeBruhl’s response, his email didn’t address the matter of his boss’s oversimplification of the Bar’s percentage of so-called ‘satisfied customers.’ This was last February 2013 when AZ Bar CEO John Phelps who’s also a lawyer addressed the state legislature’s house judiciary committee.

At about 27:33 on the tape and transcript, he omits the qualifier “somewhat” and asserts instead that “75% of the lawyers polled. . . were satisfied and 25% were not satisfied.”

Does such shorthand, she opined, potentially rise to an ethical rules violation under ER 7.1, i.e., that “a lawyer shall not make or knowingly permit to be made on the lawyer’s behalf a false or misleading communication”? Or as she also speculated, was it a possible violation of ER 8.4 (c) concerning “misleading” statements? The Bar’s communications chief doesn’t explain.

 

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Former Maricopa County Attorney Andrew Thomas lost his law license. He had the proverbial book thrown at him — all 74,350 words of a 247-page Disciplinary Order replete with virtually an endless stream of quotable notables from Proverbs to Aristotle to Dwight Eisenhower to Shakespeare to Ben Franklin to Gandhi and even others too numerous or obscure to mention. Suffice it to say that there were so many quotations, I half expected a pearl of wisdom citing Thomas’ supposed infractions of the Marquess of Queensberry Rules. And I still think it’s a shame no one quoted ‘The Godfather of Soul.”

Thomas was disbarred because a 3-member ethics panel found among other things that he’d improperly and unethically used his office to lay siege to his political enemies by filing unfounded criminal charges against county supervisors and members of the local judiciary.

No repentance.

File:Flagellants.pngSo Thomas was taken to the woodshed. But some might’ve preferred flattening the shed with a bulldozer with him in it now that Thomas has shamelessly chosen not to hide in ignominious seclusion. Since his disbarment, he’s instead been running around town playing the martyr-card. Never mind his public humiliation. The defrocked lawyer is no chastened flagellant penitentially scourging himself before donning his button-down hair shirt.

But no matter. Thomas has been making speeches, doing interviews and trying his best to appear relevant as a self-described crusading reformer against a government he claims is rife with corruption. And by his way of thinking, what’s he got to lose?

While waiting for an appointment on Wednesday, I caught the butt-end of his latest interview on the local Phoenix NPR affiliate, KJZZ 91.5 FM. Thomas told interviewer Steve Goldstein of his intentions to continue targeting what he termed, Maricopa County corruption.

But ironically, part of Thomas’ message during the 27 minutes or so of his radio interview was to lend support to Proposition 115, a voter referendum on the November ballot that supposedly reforms Arizona’s judicial merit selection and retention election system. The irony stems from the fact that the clueless caped crusading Thomas is supporting an initiative also endorsed by the Arizona State Bar and the Arizona Judges Association. And according to reports, Thomas was surprised to learn that. Sounds like more of the same blundering absence of due diligence that got him into trouble in the first place.

Small ball.

Last year, I referred to the then-proposed ‘reforms’ as little more than playing “small ball” on judicial merit selection and retention. I am still of the same opinion and frankly believe that Proposition 115 is so far removed from reform that the status quo might be preferable. I explained as much when I responded to a local Merit Selection “Fan” who I opined was shooting blanks.

Much is made by the wing-nuts on the Right and the Left about the proposition’s so-called ‘reform’ component that requires the judicial nominating commissions to submit 8 not 3 judicial candidates to the governor. How absurd. The selection process which presents the governor with those choices is largely the same. The only change is that the bar no longer automatically has 3 slots on the judicial nominating commission for 3 of its board of governors members.

Except that the bar still vets who gets to park their butts on the nominating commissions. The bar remains the gatekeeper screening the applicants who’ll be nominated to the governor for appointment to the nominating commissions. Plus, the bar’s president still keeps a seat on the nominating commission.

No, what the legal establishment really likes about the referendum is that the ‘beat goes on.’ There are no substantive changes. Instead, what’s really been overlooked is how the establishment pulled a fast one on the intellectual dwarves at the statehouse.

The referendum actually entrenches the current system. It extends the judicial retirement age from 70 to 75 and pushes back the judicial retention election cycles for appellate judges and supreme court justices from 6 years to 8 years and from 4 years to 8 for county superior court judges.

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Credits: “Flagellants. From a fifteenth century woodcut.” Public Domain via Wikipedia Commons; “Boy with a ball,” by Kathy, kthypryn, at Flickr via Creative Commons-licensed content requiring attribution; “TV Shows We Used to Watch – 1970’s – Wrestling,” by brizzle born and bred, Paul Townsend, at Flickr via Creative Commons-licensed content for noncommercial use requiring attribution.

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The face of Gandhi in old age—smiling, wearing glasses, and with a white sash over his right shoulderMuch is being made of now disbarred former Maricopa County Attorney Andrew Thomas having compared himself to Mathama Gandhi and Martin Luther King at his ill-advised press conference this past Wednesday in downtown Phoenix.

But what’s there left to wonder about Thomas’s press conference?

It was just another exercise in the indefatigability of hubristic stupidity. Such thoughts occurred to me yesterday while working on more profitably productive matters.

record player

And as I often do outside the presence of clients, I had music playing in the background as I worked. Depending on my mood, I enjoy many musical genres: from Barry to BubleCelia to Carrie, Ennio to Etta, Jackson to José or Puccini to Prince. But I remain particularly partial to funky “Old Skool R & B and of late, to Soul Brother No. 1, James Brown.

The Concise Wisdom of “The Hardest Working Man in Show Business.”

https://i1.wp.com/upload.wikimedia.org/wikipedia/commons/thumb/7/74/James-Brown_1973.jpg/320px-James-Brown_1973.jpgSo as I listened to James Brown’s “In a Cold Sweat” from his “20 All-Time Greatest Hits!” collection, I momentarily wondered about Thomas’s defiance in playing the ‘victim card’ after his defrocking. And right about then, by a serendipitous confluence of coincidence came the unmistakable head-boppin’ beat of James Brown’s “The Big Payback.” And of course, how apropos, especially as I heard the hardworking “Godfather of Soul” sing one of my all-time favorite lines, “I don’t know Karate but I know Kah-Rae-Zee.”

Now as for Thomas having invoked the martyred Indian independence leader – – – maybe he borrowed the idea from the 74,350 word, 247-page Disciplinary Order?

Replete with a prodigious amount of quotations as to have done John Bartlett proud, there was even one by Mahatma and how he “reminds us, “A ‘No’ uttered from the deepest conviction is better than a ‘Yes’ merely uttered to please, or worse, to avoid trouble.”

I’m assuming, of course, that Thomas took the time necessary to read all 247 pages and every one of the 74,350 words.

The Virtues of Concision.

And this occasions yet another rumination for those who vouchsafe comments about all those words. It concerns “Legal Writer” Judge Gerald Lebovits’s admonition that judicial brevity is no virtue – – – when too little is decided.

And yet, Judge Lebovits is an advocate of shorter judicial opinions, writing that, “Concision is a virtue.” In his excellent article, “Short Judicial Opinions, The Weight of Authority,” [1] he stoutly explains his argument, even noting Judge Vann’s famous reproach of a New York Appellate Opinion, “The discussion outran the decision.” See Wells v. Garbutt, 30 N.E. 978, 979 (N.Y. 1892). And also see Judge Ruggero J. Aldisee’s “Opinion Writing and Opinion Readers.

NunBut well before I became a fan of concise legal writing guru Judge Mark Painter, I hadn’t forgotten my hard won parochial school reminders: those ear-boxing nuns at St. Mary’s who inveighed against the malady they called “diarrhea of the pen.”

So I’ve tried and admittedly not always successfully to plug up my own turista-trotting tendencies so that my writing is less in the breach and more in the observance of those hoary sisterly remonstrations.

Which finally brings me back to where I started: Andy Thomas and James Brown and “Mr. Dynamite’s” most telling tune of all that encapsulates what really happens when you run afoul of the rules: Papa Don’t Take No Mess.”

So forget all the $50 dollar quotations.

Sometimes, it’s a simple as Brown singing:

“Papa didn’t cuss.

He didn’t raise a whole lotta fuss.

But when we did wrong.

Papa beat the hell out of us.”

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[1] Short Judicial Opinions: The Weight of Authority, 76 N.Y. St. B.J. 64 (Sept. 2004

Photo Credit: From Wikimedia Commons, Mohatma K. Gandhi. This work is in the public domain in India and in the public domain in the United States; James Brown by Heinrich Klaffs at Wikimedia Commons and licensed under the Creative Commons Attribution-Share Alike 2.0 Generic license.

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