Feeds:
Posts
Comments

Posts Tagged ‘State Bar of Nevada’

The mandatory-membership State Bar of Nevada has been on a troll. Petal by petal, Nevada lawyers are finding the Daisy Oracle’s divining just one answer. When it comes to their bar’s affections — she loves them not.

15simplependulum.gifNot too long ago Nevada’s bar was rightly criticized for indifferent handling of bar complaints. Inattention caused a backlog of attorney complaints. In response, the bar hired a new prosecutor to head Nevada’s Office of Bar Counsel. But in the minds of some lawyers, the result was an overreaction — an excessively prosecutorial pendulum swinging way past the other side.

Alongside this perceived heightened hostility, the Nevada bar’s tone-deaf governing board started amping up a series of alarmingly adverse initiatives — each a solution in search of a problem. Fortunately, thanks to member uproar some of what the board spewed out was dispersed away — like a speech code petition that would have unconstitutionally restricted lawyer free speech, free exercise of religion, and freedom of association.

Likewise, another ill-conceived, under-studied board initiative to impose trust account random audits was also denied by a dubious state supreme court concerned about the untold costs on lawyers forced to pay for audits — whether they were warranted or not.

But other board schemes did not go by the wayside. These include a needless increase in mandatory continuing education hours via a new mental health and addiction credit requirement and a freshly implemented $100 bar tax on lawyer advertising. In addition, Nevada lawyers with the temerity to take continuing legal education courses from non-bar accredited providers are now subject to what amount to penalty fees.

But that’s not all. Already one of the top five highest cost to practice states, things will get exponentially more expensive for Nevada’s lawyers if a pending petition to require legal malpractice insurance gets approved. Like the board’s other harebrained ideas, it’s also evoked strong member dissent.

The malpractice insurance proposal — a boon to insurers — is the governing board’s lame response to recent news stories about lawyer theft and exploitation of the vulnerable.

But it’s especially galling since it won’t protect victims. Malpractice insurance won’t pay any claims to those injured by a lawyer’s criminal acts. Everyone except apparently a grandstanding board knows that legal malpractice policies exclude claims arising out of dishonest, fraudulent, criminal, malicious, or deliberately wrongful acts, errors or omissions.

These days, it’s hard to keep up with all the meddling. As with all mandatory bars, those in power prefer to operate below-the-radar with as little notice as possible. Remarkably, some lawyers in Nevada have started to pay attention at the wave of noxious Nanny-state runoff flowing from the board.

When will it end? It’s hard to say. The past several bar presidents have been cookie-cutter activists self-anointed with their own overweening meddlesome mandates each seemingly trying to outdo their immediate predecessor.

It’s been said legacy is just another name for ego. And do these folks have egos. In April, the Nevada Bar unveiled a Past Presidents Wall of Fame and feted these erstwhile ‘luminaries’ at a reception held at bar headquarters.

The easiest money to spend is always somebody else’s — such as the mandatory monies of Nevada lawyers forced to join and fund the State Bar of Nevada in order to practice law.

At long last some lawyers are waking up. They’re getting restless, rebellious and restive. Three of the four incumbent board members in Clark County, for instance, were just voted out of office following board elections this past June. They were replaced by three reform-minded governors. Unfortunately, the three reformers will be outnumbered on the 15-member board. But it’s a start. Kudos to Nevada’s Clark County lawyers for administering an overdue reality-check. By contrast there’s nary a reformer in sight on the Arizona bar’s board.

Regulator or Trade Association?

Mandatory bar associations can’t figure out whether they’re regulators fretfully charged with disciplining lawyers to protect the public or fun-loving trade associations looking out for lawyers.

It gets confusing even for bar governing boards let alone bar members. All mandatory bars suffer from the same regulator/trade association confusion. A lawyer recently running for bar president in Texas, for example, brought a refreshing take on his presidential vision. On his campaign website, he declared, “the State Bar should be in the customer service business with Texas lawyers being the customers.”

More often, particularly in Nevada, the vision is anything but customer-friendly. Just the same on its website, the Nevada Bar says its “Mission is to govern the legal profession, to serve our members, and to protect the public interest.”

First do no harm.

In Arizona, governing board members are required to take the pledge. Unfortunately, it’s the wrong pledge. Having imposed a “Code of Conduct” on board members, the Arizona Bar requires their loyalty and “respect” for “the validity of the Board’s decisions and their value to the organization, even if not in the voting majority.” The Code further obligates board members to “uphold and enhance the reputation and public image of the Bar.”

More preferable in my opinion is an oath modeled on the physicians’ Hippocratic Oath. Before taking office, mandatory bar board members everywhere should be forced to swear to “primum non nocere,” – first, do no harm. Help if you can but at least do no harm.

This new pledge, though, is merely a stopgap. The true remedy is to uncouple the regulatory and the trade association functions performed by mandatory bars. Eliminate the confusion and the inherent conflict of interest of trying to serve two masters — the public and lawyers. It can’t be done. Recent board history in Nevada amply bears this out.

______________________________________

Credit: 15simplependulum by Lookang at Wikimedia Commons Creative Commons Attribution-Share Alike 3.0 Unported

Advertisements

Read Full Post »

In deciding Janus v. AFSCME for Mark Janus today, the U.S. Supreme Court by a vote of 5 to 4 overturned Abood v. Detroit Bd. of Educ., 431 U.S. 209 (1977). The ruling was widely expected.

In overruling Abood, the nation’s high court said that Illinois’ extraction of agency fees from nonconsenting public-sector employees like Mark Janus violated the First Amendment. In other words, the Court said that the First Amendment protects public employees from being required to support a private group whose views may differ from theirs. Abood, the Court said, “has proved unworkable.”

For lawyers forced to join and to fund a state’s mandatory bar association this is wonderful news. Abood was the linchpin case upon which mandatory membership bars comprehensively ordered their activities. Today’s Janus ruling breaks one leg off the stool mandatory bars plop down on to straddle lawyer First Amendment rights.

Abood and Keller.

In Abood, the Court ruled unanimously that union shop clauses in public sector collective bargaining agreements could not be used to compel nonunion employees to fund the union’s political or ideological activities to which they objected. The Court, however, also held that nonunion public sector employees could be required to fund union activities related to “collective bargaining, contract administration, and grievance adjustment purposes.”

Abood was subsequently used to underpin Keller v. State Bar of California, the U.S. Supreme Court case that said mandatory membership bar associations could use compulsory members’ dues only for regulating the legal profession or improving the quality of legal services — not for political or ideological activities.

Nonetheless, ever since Keller was decided, lawyers have objected to the inherent conflict of interest that exists when mandatory bars — in line with the ruling in Abood — are the sole arbiters deciding which of their activities are “germane” to the permissible purposes of lawyer regulation or improving the quality of legal services (chargeable expenditures) and which activities are political or ideological and therefore not germane (non-chargeable expenditures).

In highlighting Abood‘s infirmities, the Court declared “its line between chargeable and nonchargeable expenditures has proved to be impossible to draw with precision.”

But since member non-transparency is their stock in trade, mandatory bars have historically never bothered with such ‘trifles’ — ignoring altogether the line between chargeable and nonchargeable expenses. ‘Germaneness’ analysis? What’s that?

This is why a good case can be made for the inability and the unwillingness of mandatory bars to determine what are chargeable or nonchargeable expenditures. Lawyers, like public sector employees, have similarly faced what the Court termed “a daunting and expensive task if they wish to challenge union chargeability determinations.”

No more opt-out — affirmative consent required.

Prior case-law required notices with “sufficient information to gauge the propriety of the union’s fee.” The reality, however, has been different. The unions, including AFSCME, have failed to provide sufficient information to permit such a determination. Indeed, the Court Opinion included “some examples regarding the Union respondent’s expenditures.” The Court listed “categories of expenses’ and the amount in each category “said to be attributable to chargeable and nonchargeable expenses.”

“How could any nonmember determine whether these numbers are even close to the mark without launching a legal challenge and retaining the services of attorneys and accountants? Indeed, even with such services, it would be a laborious and difficult task to check these figures.” at 41.

Interestingly, these vague, imprecise expenditure declarations frankly bear a strong resemblance to the unhelpful high-level expenditure disclosures provided by mandatory bars such as Nevada and Arizona.

Forget for now the fox assigning herself to count the chickens in the hen-house. Mandatory bars do like hanging their capes on what they say is their members’ ability to object and to request a refund– albeit after-the-fact — of any expenditures objectors believe are political or ideological. If the objection is successful, objecting members can expect at best a nickel ninety-eight refund for their trouble.

And in even in those jurisdictions where lawyers can opt out of a bar’s self-serving penny-ante lobbying expenditure calculation, it still requires lawyers to affirmatively check a box on the dues invoice to get the measly deduction.

Happily for mandatory bar members everywhere, the Court today, also ruled that taking money from nonconsenting employees for a public-sector union is a First Amendment violation. Employees must choose, the Court said, to support the union before anything is taken from them. “Accordingly, neither an agency fee nor any other form of payment to a public-sector union may be deducted from an employee, nor may any other attempt be made to collect such a payment, unless the employee affirmatively consents to pay.”

And while lawyers and their trade associations are not exactly identical to public employees and their unions, there’s nonetheless a long line of cases, including Keller, that have consistently analogized bar associations to union shops. For this reason, mandatory bars were apprehensive about the demise of Abood. Little wonder that 21 former Presidents of the District of Columbia Bar signed an amicus brief asking the Court to leave Abood “undisturbed.”

The ex-bar presidents claimed, “The Abood/Keller line of cases represents a firmly rooted body of law upon which not only states and unions but also integrated bars, File:Aimee Semple McPherson-AngelusTemple Sermon 1923 01.jpgincluding the D.C. Bar, have long relied in structuring their activities. Overruling Abood would have a profoundly destabilizing impact on bars all over the country.”

So expect reverberations at the nation’s mandatory bar associations — whether engendered voluntarily or mandated by external forces.

All that aside, I can scarcely wait for the reaction of mandatory bars across the nation to Janus, especially in jurisdictions with particularly restive members such as Arizona, Nevada, Washington and Wisconsin.

But expect mandatory bar leaders not to go along quietly or quickly to restructure operations in accord with today’s decision.

Instead, they will pretend it’s business as usual. Abood or not, still others may piously prattle and parse that “Keller-purity” means “Janus-purity,” too.

___________________________________________________-

Credits: Thumbs up for PYPS, by Alex Luyckx at Flickr Creative Commons Attribution; Paul gives the thumbs up, by Mikey at Flickr Creative Commons Attribution; normal, happy, sad, by David Pacey, Flickr Creative Commons Attribution; Aimee Semple McPherson. Wikimedia Commons, public domain.

Read Full Post »

https://cdn.morguefile.com/imageData/public/files/h/hyperlux/preview/fldr_2005_05_29/file000516740961.jpgAfter reading about the death of 42-year old prominent, “outspoken” Las Vegas lawyer Jacob Hafter this past week, I thought again of how tough and even unforgiving the legal establishment can be. According to news reports, the Clark County, Nevada coroner’s office ruled Hafter’s death a suicide. See “Suspended Las Vegas lawyer Jacob Hafter dies at age 42.”

Last November, the Nevada Supreme Court handed down a six-month suspension order of Hafter “partly for Facebook comments accusing a judge of religious bias.” For more details concerning his disciplinary case see “Nevada Supreme Court suspends Las Vegas attorney Jacob Hafter.”

Hafter’s sudden unexpected and tragic death has roiled members of the Las Vegas legal community, some going as far as faulting the Nevada Bar for allegedly doing little to help the lawyers it disciplines.

Ironically, in May 2017 the Nevada Supreme Court approved a state bar petition mandating an additional annual hour of continuing legal education in substance abuse, addictive disorders and/or mental health. Also see “Overwrought and over exaggerated but no matter. Over prescribed CLE is always the regulators’ fix.”

Adding to the disquietude caused by Hafter’s death was unrelated news tonight about how Broward County, Florida Circuit Court Judge Merrillee Ehrlich “brutally berate a woman in a wheelchair. The woman died. The judge has quit.” The video is unpleasant to watch, underscoring again how hard the system can be, especially on non-lawyers, too. The Miami Herald story can be found here.

Read Full Post »

Except for the part about giving a no-strings $1,000 per month to anyone amorphously defined “low-income” or “middle-income,” I mostly agreed with the sobering look at the Millenial Generation I read on Sunday. (Christmas Grinch or not, for a lot of reasons a $1,000 handout is a bad idea. For one, who’s going to pay for it? Don’t count on noblesse oblige.)

Just the same, I urge you to read the dire financial deconstruction in the cleverly conceptualized Highline story by Michael Hobbes, “Millenials Are Screwed,” subtitled, “Why millenials are facing the scariest financial future of any generation since the Great Depression.”

Their “touchstone experience” is “uncertainty” Hobbes explains. He runs through factors like salary stagnation, job and housing insecurity, and other cratered economic sectors to project that his will be “the first generation in modern history to be poorer than our parents.”

As it is, one in five currently live in poverty. And they have at least 300 percent more debt than their parents — more about that after. Plan for retirement? Buy a home? Not even.

And as for all that free money, here’s the other problem. The definition of “middle-income” or “middle class” is increasingly in the eye of the bean-holder. Uncle Joe Biden once ridiculously asserted, for example, that an annual salary of $379,000 was middle class.

Putting Biden’s neuron misfire into perspective, per the latest U.S. Census data, “In 2016, the median household income for all counties ranged between $22,045 and $134,609, with a median county-level value of $47,589.” A more learned economist than Uncle Joe says based on that data,“middle class ought to be defined as households making 50 percent higher and lower than the median.”

File:Soirée WikiCheese le 23 janvier 2015 - 57.jpgThat, of course, is not to dismiss with a straight face folks insisting through a mouthful of ripe ‘cru’ Beaujolais and Brie de Meaux that $300,000 to $400,000 annually is middle class.

Which brings me to something equally troubling, which is that millennials who are lawyers are smack in the throes of the same structural disadvantages Hobbes describes. Millenials earning a J.D. degree the past ten years have assured themselves of only one thing — astronomical student debt.

On average, borrowers in the law school class of 2014 took on $111,899 in debt according to US News & World Report. And the average indebtedness of 2016 law school graduates who incurred law school debt is worse still — in one word — appalling. Also see Stat Of The Week: Law School Graduate Debt Soars.”

https://upload.wikimedia.org/wikipedia/commons/thumb/3/37/Bury_your_head_in_the_sand.jpg/160px-Bury_your_head_in_the_sand.jpgMeantime, head-in-the-sand mandatory bar associations like the one in Nevada keep coming up with new ways to tighten the economic screws on their members, especially hard-pressed millenials. Last week the Nevada Bar sent a blast email survey asking members to weigh in on mandatory malpractice insurance. Also see “Join the Discussion: Whether Malpractice Insurance Should be Mandatory in Nevada.”

The survey was laughably replete with leading questions and agenda-driven outcome-bias. Knowing how these things work, the survey’s real purpose was to offer the tone-deaf governing board a fig leaf of cover for what they’re going to do anyway — no matter objections of the lawyer hoi polloi.

Happy then, the carriers with captive customers. Also for carriers — hallowed be the Nevada Bar since this insurance can easily run a few thousand dollars per year. But unhappy those who like Blanche Dubois will look to the kindness of carriers to resist the temptation to increase the cost of insurance across the board.

For Nevada’s millenial lawyers, it’s just one more structural disadvantage like all the ones faced by millenials generally. And as for the rest of us, time for a reassessment. Millenials aren’t entitled. And they aren’t slackers — they’re just screwed.

___________________________________________________________________

Photo Credit: Soiree Wikicheese, by Lionel Allorge at Wikimedia Commons under GNU Free Documentation License ;Bury your head in the sand, by Sander van der Wel at Wikimedia Commons Creative Commons Attribution-Share Alike 2.0 Generic license.

Read Full Post »

In June I wondered whether the Nevada Bar would be first to impose an unconstitutional speech code on their members. In May, that Bar’s governing board had filed a petition asking the state supreme court to amend a lawyer professional conduct rule, specifically ABA Model Rule 8.4(g).

Purporting to prohibit lawyers from engaging in harassing or discriminatory conduct, the new, vague, and over broad ABA Model Rule 8.4(g) would have chilled free speech; weaponized lawyer discipline; and infringed on lawyers’ free exercise rights.

Surprise, surprise, surprise!

As it happens, though, another state beat Nevada to the punch. In August, Vermont surprised a lot of people — not the least being Vermont lawyers — to become the first and so far, the only jurisdiction to adopt the ABA’s suggested model rule.

Noting how there were “zero public comments submitted,” law professor Josh Blackman wrote on his blog, “The bar counsel for the state’s professional responsibility program boasted, “So as you can see, this rule obviously had a lot of support.” 

Opposition in Nevada

As for Nevada, acknowledging that “many comments were filed in opposition . . . that caused the Board to pause,” the Nevada Bar backed off its rule change petition in a letter to the state high court declaring “it prudent to retract.” Just the same, in what seems little more than face-saving, the Board also expressed its “reservation to refile” if and when supposed inconsistent language in other jurisdictions is sorted out. That all this so-called inconsistency in other jurisdictions was already well-known is, of course, unmentioned. Every jurisdiction, after all, is free to adopt its own professional conduct rules.

It’s also worthy of note that though the court twice extended the public comment period, no comments were ever filed in favor of the Bar’s petition. All comments filed were opposed. The Board’s request was granted September 25, 2017.

So Vermont notwithstanding, the proposal has to date continued facing strong opposition not just in Nevada but elsewhere. The key is lawyers being adequately informed about it. What has to be overcome are the preferences of mandatory bar majordomos inclined toward the enactment of onerous initiatives as fait accompli with little preceding notice, detection or commotion. But when lawyers are told and widely noticed the opportunity to comment, legal elites have problems flying their officious meddling under-the-radar.

So far the proposed ABA Model Rule 8.4(g) has been turned back in other states, including Illinois, South Carolina and Louisiana. It has been roundly criticized in Texas and failed to find traction in Montana. See “Montana legislature says ABA model rule on discrimination and harassment violates First Amendment.”

The rule is currently under review in Utah but has encountered powerful headwinds there, too. It is opposed in Idaho. And in Arizona, opponents are galvanized to fight an ABA Model Rule 8.4(g) petition queued up for January 2018.

Yet despite all this, this month the ABA Journal took artistic license to soft pedal the reality of this mounting widespread antagonism to the lawyer speech code, writing, “States split on new ABA Model Rule limiting harassing or discriminatory conduct.”

Vermont, apparently, wasn’t an outlier. “States split,” they say.

And I’m a superhero.

Alternative facts, alas, remain in vogue.

 

____________________________________________________________________

Credits: “Oral Exam,” by Ben Sutherland at Flickr Creative Commons Attribution; “What,” by Alexander John, Flickr Creative Commons Attribution; “40+112 Superhero Fail,” by Bark at Flickr Creative Commons Attribution.

.

 

Read Full Post »

Recent news out of Ohio concerning debt-ridden new lawyers underscores the difference between a mandatory membership bar association and a voluntary one. Ohio is one of 18 states where lawyers can practice without being forced to join their trade association.

https://upload.wikimedia.org/wikipedia/commons/thumb/3/37/Bury_your_head_in_the_sand.jpg/160px-Bury_your_head_in_the_sand.jpg

In states where lawyers are forced to join a mandatory membership bar association as a precondition to practice, there are bar leaders with heads in the sand who act as though the crashing tides of debt drenching young lawyers were nonexistent.

But in voluntary states like Ohio, bar leaders have at last started examining the “unprecedented burdens faced by new lawyers.” Ten years past the “law school tuition bubble,” they may be a tad late — but in contrast to mandatory bars in Nevada and Arizona — at least they’re now considering potential solutions to the astronomical six-figure debt service new lawyers get along with their diplomas.

Futures Commission.

Tasked with researching and developing long-term solutions and “first action steps,” the Ohio State Bar Association established a 29-member Futures Commission more than one year ago to look at new lawyer burdens and “the need for acquisition of knowledge and the skills necessary to develop and carry on a successful practice; the lack of regulation for new legal service delivery options; and the widening access to justice gap.” In July, the Commission released its preliminary report.

Unlike mandatory bars that too often act below-the-radar through top-down mandates, the Ohio Bar sought input from members through town hall style meetings held in each of its 18 districts and supplemented these with input from its 2017 Leadership Academy class of new lawyers.

In Ohio, bar leaders believe “member satisfaction” is one of their association’s “core values” driving the stated goal of making “membership in the Ohio State Bar Association indispensable to Ohio lawyers.” 

It’s one thing to force lawyers to join an organization in order to earn a living in their chosen profession. But it’s another matter entirely when lawyers choose membership because the value proposition is so strong that membership is “indispensable.”

 

So much debt.

https://upload.wikimedia.org/wikipedia/commons/thumb/f/f9/Tin_Woodman.png/105px-Tin_Woodman.pngIt’s not like mandatory bars haven’t heard about the unprecedented tuition debt incurred by today’s young lawyers. More likely, they can’t relate to it. Many graduated from law school when women had big hair to the skies and fashion meant shoulder pads, parachute pants and Members Only jackets. Tuition then was a fraction of today’s troubles. Unsurprisingly, these bar leaders are tin-eared about the problem.

According to Law School Transparency (LST)  “legal education inflation far exceeds the inflation rate.

“In 1985, the average private school tuition was $7,526 (1985 dollars), which would now cost a student $16,294 (2013 dollars). Instead, the average tuition is $41,985 (2013 dollars). In other words, private law school is now 2.6 times as expensive as it was in 1985 after adjusting for inflation. Public school (for residents) is now about 5.5 times as expensive.”

As reported by the Cleveland Plain Dealer in July, “Ohio law school grads face debt of nearly $100,000 and few job prospects, report says,” the Commission’s report finds that the average 2015 Ohio law school graduate has approximately $98,475 in law school debt. Worse yet, “Only approximately 58 percent of 2015 Ohio law school graduates are employed in jobs requiring bar passage.”

And it’s only getting worse. For entering 2017 students, Ohio’s Law School Transparency (LST) numbers are even higher — well north of $150,000 on average.

In Arizona, LST projects even more sobering statistics for wanna-be lawyers starting law school in the Grand Canyon State this year. They should expect a “full price projected debt” for their J.D. degree of $175,084 if they are state residents graduating from Arizona State University. If they’re residents and start and finish at the University of Arizona, the number is $173,280.

At Arizona Summit Law School, one of the nation’s most expensive law schools, the “full price projected debt” is an astounding $252,571. This averages out to $200,978 among the three Arizona schools. It breaks out to an average debt service headache over 10 years of $2290 per month.

In Nevada, LST reports that students matriculating in 2017 at the University of Nevada, Las Vegas, the state’s only law school, can anticipate a “full price projected debt” of $175,310 and a $2000 per month nut over 10 years.

‘What me worry?’

https://upload.wikimedia.org/wikipedia/commons/thumb/3/36/Happiness.gif/209px-Happiness.gifThe root problem is that mandatory bars like those in Nevada and Arizona aspire to serve competing interests — those of the legal profession and those of the public. But it can’t be done because these interests often conflict.

Instead of alleviating practice burdens, for instance, mandatory bars constantly tinker with their bureaucratic spigots to open ever increasing cost, time and stress pressures on members. This is because they’re not necessarily looking out for the interests of lawyers.

In mandatory bar Nevada, for example, there’s a bar study group looking at the supposed merits of forcing all the state’s lawyers to buy professional liability insurance. If the model is mandatory bar Oregon, currently the only jurisdiction mandating professional liability insurance, expect only one blessed provider.

Moreover, the cost will be substantial. In 2017, Oregon lawyers ponied up a whopping $3,500 apiece for bare minimum coverage of $300,000 per incident and $300,000 aggregate. And Oregon has almost twice as many lawyers as Nevada.

Voluntary bars look out for the interests of members.

In closing, here’s what the Ohio Bar’s Futures Commission looked at:

•  How to ensure new lawyers enter the profession practice ready and without the crushing burden of student debt;
•  How busy lawyers at all stages of their careers can get the most out of their required continuing legal education credits;
•  The appropriate role of online legal service providers, limited multidisciplinary practice, fee-splitting and other emerging new business models in the delivery of legal services and if they can they help lawyers better serve clients and stay true to the values of the profession;
•  And with the real and perceived expense of legal services, how to ensure access to justice for all, regardless of income.

Besides supporting cost reducing law school initiatives, the Commission also took a departure from the latest gambit being promoted by mandatory bars: the licensing of non-lawyers to practice law. “Believing firmly that any provision of legal services should be done under the direction of a licensed attorney,” the Commission pronounced its opposition to “any effort to establish new categories of non-lawyer legal service providers (NLP) in Ohio and instead, support the development of programs or actions that would connect the unrepresented with available attorneys.”

So before state bars go all in and eliminate unauthorized practice of law rules to allow non-lawyers to directly compete with lawyers, something ought to be done to level the field. Stem the tide of unconscionable tuition debt from overpriced law schools.

But as they bang away on their Access to Justice drums, don’t expect a pronouncement like Ohio’s from mandatory bars in Washington, Utah and Arizona to name just three where non-lawyers already compete for business with lawyers.

Unfortunately, mandatory bar leaders aren’t listening. When they’re not holding expensive annual convention boondoggles like the Nevada Bar in Hawaii (2016), Texas (2017) and Illinois (2018), they’re busy finding new ways to make it harder for lawyers to earn a living. 

The Futures Commission Report is available here

_____________________________

Credits: Bury your head in the sand, by Sander van der Wel at Wikimedia Commons;Tin Woodman, by William Wallace Denslow at Wikimedia Commons, public domain; Life user Manual, by Unuplusunu at Wikimedia Commons, public domain; Smug by IburiedPaul at Flickr Creative Commons Attribution;3D Shackled Debt by Chris Potter  at Flickr Creative Commons Attribution; Second Band Drummer 5 Mono, by Dave Shaver, at Flickr Creative Commons Attribution.

Read Full Post »

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.

_____________________________________________________________________________________________________

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.

Read Full Post »

Older Posts »