“The way to stop discrimination on the basis of race is to stop discriminating on the basis of race.” – Chief Justice John Roberts

For the moment forget my snark two years ago when I riffed on the US Supreme Court and Obamacare. In that post, I parenthetically mentioned how I often confuse two prominent legal ‘talking heads,’ Jeffrey Toobin and Jonathan Turley — a couple of guys I keep inexplicably mixing up about as much as I do Javier Bardem and Jeffrey Dean Morgan.

But unlike my categorical preference for Bardem over Morgan, on any given day I might prefer one legal beagle over the other. Today, having managed to keep them apart in my head, there’s good reason for me to like Toobin. It’s because of his timely post at the New Yorker, “Chief Justice Roberts, Meet Bundy and Sterling.”

“It is a sentiment out of touch with reality . . . .” – Associate Justice Sotomayor

It was a post I wish I’d written because it resonated so completely with my views on the state of race in America today. As recently as last January, for example, I’d related my thoughts on how race still matters. That was prompted by the outing of racist ex-judge Richard Cebull and “One more add on a marinated post-racial America.”

Toobin was first to the door, though, masterfully dovetailing ever so neatly Los Angeles Clippers owner Donald Sterling and Nevada rancher Cliven Bundy and their respective racist viewpoints with the stirring stand-up-and-cheer 58-page dissent by Associate Justice Sonia Sotomayor last week in Schuette v. Coalition to Defend Affirmative Action. That case involved a 2006 Michigan ballot initiative imposing a state constitutional ban on “all sex and race-based preferences in public education, public employment, and public contracting.” By a plurality, the nation’s high court ruled 6-2 that voters could ban such considerations of race and sex through the ballot box. See Schuette v. BAMN – Supreme Court of the United States.

Justice Sotomayor wrote, in part, “While our Constitution does not guarantee minority groups victory in the political process, it does guarantee them meaningful and equal access to that process. It guarantees that the majority may not win by stacking the political process against minority groups permanently, forcing the minority alone to surmount unique obstacles in pursuit of its goals—here, educational diversity that cannot reasonably be accomplished through race-neutral measures.”

And quoting from the dissent and referencing Chief Justice Roberts’ simplistic recipe for ending racial discrimination, Toobin opined: “Justice Sonia Sotomayor wrote about a country where the Bundys and Sterlings still hold considerable sway. Indeed, she went beyond the simple bigotry of the Bundys and Sterlings and found that more subtle wounds of racism still exist in this country. “Race matters,” she wrote, “because of the slights, the snickers, the silent judgments that reinforce that most crippling of thoughts: ‘I do not belong here.’” Indeed, Sotomayor threw Roberts’s famous line back at him. She quoted him—“The way to stop discrimination on the basis of race is to stop discriminating on the basis of race”—and then wrote, “It is a sentiment out of touch with reality, one not required by our Constitution, and one that has properly been rejected as not sufficient to resolve cases of this nature. While the enduring hope is that race should not matter, the reality is that too often it does. Racial discrimination … is not ancient history.”

I’d planned to blog about the decision and particularly Justice Sotomayor’s dissent. But no matter. As John Lennon presciently warned, “Life is what happens to you while you are busy making other plans.” So as it turns out, Toobin has instead captured it all so concisely and incisively that woulda-coulda-shoulda doesn’t matter. I refer you instead to his excellent post.

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Last Sunday night I skipped Mad Men and Game of Thrones and didn’t finish reading Radley Balko’s Rise of the Warrior Cop. Instead I stayed up late posting a new blog.

Another blog? It’s not like I’ve been keeping up with this one like before.

But I’ve got my hackles up. Again, you might say or it’s just a chronic condition. It is, after all, why I use so much hair gel.

This new project has one specific short-term purpose: to help elect a slate of candidates to Arizona’s Bar Board of Governors. Voting starts May 7th and runs until 5:00 pm, May 21, 2014.

The idea is that new people may finally bring about real change. You know, conceptual novelties like improved fairness, accountability, cost-consciousness and transparency. See “Transform the Bar: 2014 ARIZONA BAR BOARD OF GOVERNORS ELECTION.”

O.K., so staying up late and getting up early may not be the best thing for health. There’s another pair of studies warning against burning the candle at both ends. Insufficient sleep causes daytime drowsiness and insomnia heightens stroke and heart attack risks. Still there’s truth sometimes in the inanity that sleep is overrated.

But trying to reform and transform your friendly state bar may be worth losing some sleep — even if I’m ultimately tilting at windmills.

During the last board election three years ago, turnout was underwhelming. And lawyers didn’t even have to leave the office since it was all done online. Fewer than 25 percent voted, which means over 75 percent of Arizona’s lawyers didn’t cast a ballot.

Admittedly, most times nobody pays attention to what the bar does. Contrary to the healthy egos down there, no one much cares how the wienerschnitzels are made or who the sausage-makers are or how many times they slap each others casings. By and large, state bars are among the worst instances of bureaucratic infirmity. See “Time for real change. Groucho for State Bar Board of Governors.”

But look what happened when most of us weren’t watching, an abortive stealth vote to hike bar dues in December followed by a successful vote in February that not only increased already high annual lawyer licensing fees but also hiked a bundle of other practice fees. So much for ignoring the kielbasa makers.

This is why I’m hoping this time it’s different. Members are paying attention. And thanks to their political reawakening, perhaps this election will mean the start of a long overdue reexamination of the bar’s structure, its processes, its stale-dated thinking and “shelf life-expired status quo.”

Members are paying more attention. For instance, why did so many lawyers run for the board in Maricopa County this time? Thirty-three are competing for nine seats.

Some even think this means there’ll be more ballots cast, split votes, and a good chance to unseat the incumbents who got us choking on the sausages. We’ll see. Overrated sleep or not, at best, I’ll do my part.

Talk about timing. No sooner did I say something nice about a state bar president when the following month he’s in hot water. Call it the burden of irreverence. I’m referring to Nevada State Bar President Alan J. Lefebvre. He’d been on a tear of late in the Nevada Bar’s normally boring monthly lawyer magazine.

As bar president, Lefebvre gets his own column, the “President’s Message.” And I’d given him an atta-boy for his unprecedented criticisms of the state of legal education and especially, for his remarks about the unauthorized practice of law. More recently, he’d decried the state’s medical marijuana law calling it reefer madness.

Nevada Attorney General Catherine Cortez Masto

But what was he thinking when he decided to go editorially commando with his latest “President’s Message: Dereliction of Duty … Or is it Rule by the Guardians?”

Unhappy with Nevada Attorney General Catherine Cortez Masto’s decision not to defend Article 1 Section 21 of the Nevada Constitution, Lefebvre offered up his ten cents’ worth of opinion and earned himself back $100 dollars worth of grief. Section 21 is known as the “Limitation on recognition of marriage.” It was passed 14 years ago and states, “Only a marriage between a male and female person shall be recognized and given effect in this state.”

Lefebvre’s arguments, however, were mostly legalistic and reminiscent of the 2011 brouhaha when King and Spaulding backed out of defending the federal Defense of Marriage Act.

For the record, I disagree with him on the merits. And until the US Supreme Court steps in, so do the courts. As of last week, with state officials in Oregon and Pennsylvania opting like Cortez Masto not to challenge court decisions overturning bans on gay marriage, there are now 19 states where same-sex couples can be granted legal recognition. See “Same-Sex Marriage Supporters Keep Up Their Winning Streak.”

Speaking his mind.

But no matter the substance — damn him for his “tone” or so we’re supposed to believe from those “powerful, vengeful people among the elite” Lefebvre ‘disrespectfully’ opined about. So much for candor, for speaking your mind — and for hanging yourself with the PC police.

At least Nevada’s soon-to-be-gone bar el presidente belatedly learned albeit at the end of his term why state bar presidents confine their bar magazine epistles to insipid interjections, inoffensive insights and doggerel defenses of the self-satisfied status quo.

Coincidentally, about the same time Lefebvre was stepping on himself in Nevada, his counterpart in Arizona was innocuously blathering about diversity in his own presidential column. Doubtless he was prompted by the loony Arizona Legislature’s attempted passage of SB 1062, a bill that allowed businesses to assert their religious beliefs to deny service to gay and lesbian customers.

But unlike the non-wishy-washy Lefebvre, the Arizona honcho didn’t say anything about the legislation let alone anything overtly or substantively controversial. Instead it was the standard mealy-mouthed bar presidential schtick — the usual cheerleading self-congratulation about how great the state bar is in Arizona.

Leastwise the sycophantically impressed Arizona bar magazine editor gushed and saluted his president for not writing about a controversial topic in a member magazine. Like playing it safe takes courage.

Perhaps the bar prez was mindful of running afoul of Keller v State Bar of California, which is ‘supposed’ to keep mandatory bars from engaging in ideological political activities with member’s compulsory dues.

Objecting over style but really mad about substance.

So back in Nevada, faculty and staff members at Nevada’s Boyd School of Law were via open letter galvanizing against“the tone” of Lefebvre’s commentary. And with their own immoderation, criticized him for his purported ‘incivility’ over Cortez Masto’s unwillingness to defend the state constitution. Imagine that, lawyers condemning lawyer incivility.

But I don’t for a second believe their objections were merely about style or lapsed social graces. No — bar presidents aren’t supposed to weigh in on controversial topics — at least not those the legal establishment disagrees with. Moreover, methinks some faculty members were already miffed at Lefebvre for his prior Op-ed criticisms of law schools generally and of “the law student debt scandal.”

And not like he’d singled out Boyd for any opprobrium. Indeed, as I recall, he rolled over and offered not a smidgen’s worth of reproach of the Silver State’s only law school. In fact, he contorted backwards and complimented the law school dean. File this under “no good deed goes unpunished.”

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“RESPONSE BY MEMBERS OF THE BOYD SCHOOL OF LAW FACULTY AND
STAFF TO ALAN LEFEBVRE’S “MESSAGE FROM THE PRESIDENT”

“As members of the faculty and staff of UNLV’s William S. Boyd School of Law, we were dismayed to read the May 2014 Nevada Lawyer column by Alan J. Lefebvre, written in his capacity as President of the State Bar of Nevada. We fear that the tone of Mr. Lefebvre’s undignified column brings disrespect on the Bar and undermines principles of professionalism that we endeavor to instill in our students.

“Mr. Lefebvre’s ostensible subject was Nevada’s prohibition on same-sex marriage. He disparaged the conclusion by Attorney General Catherine Cortez Masto and endorsed by Governor Brian Sandoval that the ban cannot be defended in federal court. There are reasonable debates to be had about how our state’s officials should respond to a rapidly shifting legal landscape. But such debates require a climate of mutual respect. The mission of the State Bar of Nevada is, in part, to “elevate the standard of honor, integrity, and courtesy in the legal profession” and “to promote a spirit of cordiality” among lawyers. In our roles as faculty and staff at Nevada’s only law school, we want to pass these values on to our graduates. It is thus regrettable that Mr. Lefebvre’s essay consists largely of insults, ad hominem attacks, sarcasm, and sectarian references that are simply inappropriate for the leader of an important institution in a vibrant and diverse state.

“We recognize that issues like marriage equality naturally inspire passionate responses. But in the legal profession passion must be expressed with dignity and thoughtful analysis. Mr. Lefebvre’s column was lacking in the civility that should guide the behavior of every Nevada attorney. It is a serious disappointment for such indignity to emanate from the leader of the state bar.”

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Blogger, Boyd faculty member and letter signatory Professor Nancy Rapoport also posted exceptions to the strident solitary defense Lefebvre garnered from Ed Whelan at National Review Online entitled “Nevada Law Profs (and Others) vs. Rule of Law—Part 1 ….“

Besides objecting to Lefebvre’s “tone,” Professor Rapoport also called Whalen out on his ‘disrespect.’ Oxymoronically, she advocated passionate politeness or was it polite passion? The professor even offered to debate Whalen — privately or publicly.

Rather incongruously, the Nevada Bar’s Board of Governors was compelled to pile on notwithstanding there already exist boilerplate disclaimers in the magazine that “Appearance of an article, editorial, feature, column, advertisement or photograph in Nevada Lawyer does not constitute an endorsement by Nevada Lawyer or the State Bar of Nevada unless specifically identified as the policy of the State Bar” and that “the views expressed are those of the authors.”

I guess Keller, the faculty letter, and complaints from interest groups forced the Board to back the PC bus tire over their president. Thursday afternoon, they sent the following blast email to their members.

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“State Bar of Nevada
Statement from the Board of Governors

“To all members of the State Bar of Nevada:

 “The views expressed in the President’s Column in the May 2014 issue of the Nevada Lawyer do not represent those of the Board of Governors, its individual members, or the State Bar of Nevada as a whole.

“The State Bar of Nevada and the Board of Governors embrace and welcome viewpoints of every kind and the Board assures all of our members that diversity and tolerance are valued and respected by the State Bar.

“The Board of Governors assures all members of the Bar and the public that the State Bar of Nevada does not support any use of the President’s Column for political statements. The Board has a policy that requires the State Bar President to refrain from using the Nevada Lawyer to advance personal political viewpoints.

“The Board of Governors assures all members that we will be diligent in representing you in an unbiased manner.”

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Oh the ironies.

Most lawyers I know don’t bother reading the presidential pabulum published in bar magazines. So ironically, but for the outsized attention generated by law school faculty and staff, very few would’ve noticed Lefebvre’s commentary.

The even greater irony, however, is that as it is, lawyers don’t have the Free Speech rights everybody else has. Lawyer free speech is limited by ethical rule –  a topic I’ve often posted on, e.g., here and here and here. So it’s sad that when lawyers dare to state their opinions in such public ways, they need to also remember to duck before the first shoe gets thrown.

And finally, these days the term civility gets bandied about a lot. And yet civility is no longer an abstract principle but has come to mean what’s subjectively polite in the eye of the beholder. But unfortunately, the extension of aspirational courtesies and respectful considerations has become increasingly dependent upon who’s the one being gored.

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How’s that for an arresting quote? Haven’t heard such talk since my barrio East Los Angeles high school days. But as an instance of failed judicial temperament? Who’d of believed it?

I must need a recollection refresher as it’s been awhile since I last posted on judicial temperament and how justice gets choked out. But having just finished reading Kenosha, Wisconsin criminal defense lawyer Michael Cicchini’s excellent Tried and Convicted: How Police, Prosecutors, and Judges Destroy Our Constitutional Rights and with overnight news that a judge allegedly opened up a can of whoop-ass on a public defender — well, I’m compelled to post today.

The incident caught on courtroom camera, except for the off-camera hallway fracas, took place in Brevard County, Florida. In one corner was Judge John C. Murphy, a Dayton Law School grad admitted to the bar in 1983 and an elected and reelected county judge the past 8 years. And in the other corner and on the receiving end of the judicial ire and supposed fisticuffs was Public Defender Andrew Weinstock. From the raw video, it’s reasonable to surmise some preexisting tension between the two purported combatants.

Tale of the tape.

But what’s also clear, at least from the tape, is that the strained relations went beyond a loss of judicial patience with a public defender. No, it’s my opinion the judge was likely ‘pissed off’ by Weinstock’s unwillingness to plea out his client; and to succumb to court pressure; and to waive his client’s right to a speedy trial. “You know I’m the public defender. I have a right to be here and I have a right to stand and represent my client,” Weinstock is heard saying in response to Judge Murphy’s “You know, if I had a rock I would throw it at you right now.” 

Sixth Amendment Right to Speedy Trial.

But what about an accused’s right to a speedy trial? Read Chapter 8 in Cicchini’s illuminating book to learn how that works in the real world. Cicchini calls it another one of our “soft” constitutional rights. Consequently, it’s not so speedy and it’s honored more in the breach than observance. And then there are the consequences visited upon both defense lawyer and accused for presuming to insist on their rights.

Given Cicchini’s other recitations in his concise 163-page book about how government agents (police, prosecutors and judges) routinely circumvent our constitutional protections, I think that rather than an angry jurist, it’s the public that ought to be royally pissed. But we’re not. With civics hardly taught in school; with our fount of knowledge reduced to movies and television dramas; and with our tendencies toward holier-than-thou self-righteousness when someone else’s accused of a crime — our blissful ignorance keeps us pacified.

As for the Sixth Amendment right to a speedy trial, as Cicchini tells it, speedy-trial demands are discouraged. And judges will “not-so-subtly punish defense lawyers who make them.”  That said, I don’t think that when Cicchini wrote those words, even he envisioned what’s supposed to have occurred in Brevard County court yesterday.

But then again, my esteemed brethren and sistren of the criminal defense bar are NOT going to be shocked by such tales told in or out-of-school. Indeed, I bet most of them could add their own chapters and real-life examples to Cicchini’s book. They know all too well about what passes for the preservation of individual rights in criminal court. See for a recent example, Arizona criminal defense lawyer Matt Brown’s latest post, “Real Monsters,” about an octogenarian cancer patient and alleged victim caught up in a dilemma worthy of Franz Kafka. Or take this other instance of what passes for impartiality between a judge and his BFF prosecutor just posted by Pro Publica at “Startling Sidebar: Brooklyn Judge Gave Political Advice.”

As for the rest of us still walking around with our eyes closed about the purported sanctity, inviolability and indomitability of our individual constitutional rights — save for the clueless knuckleheads applauding in Judge Murphy’s court — most of us are taken aback by such unseemly conduct and the report of a “Judge accused of hitting attorney.” But most won’t read pass the titillating headlines to understand it was because of the lawyer’s defense of his client’s Sixth Amendment right in all criminal prosecutions to a speedy and public trial. And too bad our attention will be fleeting. Soon our self-assurance and complacency returns.

A teachable moment.

Still it was no surprise the story made the newswires and even the morning news shows. Or by necessity that I had to parenthetically refer to Cicchini’s timely and topical take-down of “the world of criminal justice” and about the sorry state of our “soft” and “malleable” constitutional rights.

At the risk of invoking the banality of the ‘teachable moment,’ the stuff he writes about needs to be taught in our schools and not so as to, perish the thought, undermine our rose-colored faith in the system. No, it has to be taught to wake us up “about what really happens to ordinary people on a daily basis” when they’re caught in the maws of the criminal justice machine. Forewarned is forearmed. I urge every person reading this post to get a copy of Tried and Convicted.

And as a final add on the Brawl in Brevard, according to the Statement from Chief Justice John Harris, Judge Murphy will be taking a temporary leave of absence and has agreed to seek anger management counseling. Public Defender Weinstock took some time off. After the din dies down, I don’t expect much to happen to Judge Murphy (and hopefully nothing to lawyer Weinstock) although Florida’s ever tireless lords of discipline will almost certainly be poking proboscis into the matter.

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Photo Credits: Randy Orton chokehold, by Sean Refer, at Wikipedia Commons, Creative Commons Attribution-Share Alike 2.0 Generic license; can of whoopass, via photobucket, http://i735.photobucket.com/albums/ww355/btothemo86/CanofWhoopAss375.gif.

I’d meant to post about Arizona escaping the list of this year’s “Top 10 Dumbest States in America,” especially since my former home state of Nevada is an ignominious recidivist on the list.

 1) West Virginia

 2) Arkansas

 3) Mississippi

 4) Kentucky

5) Louisiana

6) Nevada

7) Alabama

8) Indiana

9) Oklahoma

10) Tennessee

Then again, dumb state or not some of you will think me cerebrally well-placed to live here since I was out golfing this past Saturday and Sunday when it was 100-plus outside. For some of you, this qualifies as dumb if not insane. And no matter those were days 7 and 8 on our consecutive day hit parade of triple-digit temperatures here with no relief in sight.

But this is par for June. Usually the hottest month in Satan’s nether region, it’s also just the start of our summertime ‘comfort zone’ in Arizona. You either go out into the inferno or you stay home, sort your sock drawer, and gaze at your navel.

And while I’m still planning on giving the local state bar another well-earned $3 hair cut, that post can keep. Instead, for all my friendly procrastinators waiting once again with under three weeks to spare before their annual June 30th fiscal year CLE deadline, here again is my now traditional fiscal year FREE CLE public service.

With the usual disclaimers about content quality, continued availability and jurisdictional credit-worthiness, find the following FREE CLE:

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 ASU LAW CLE – PAY WHAT YOU WANT CLE

On demand Pay What You Want CLE | ASU Law Continuing Legal Education

http://cle.asucollegeoflaw.com/voters-choice-cle-survey/#sthash.hrGrQ6KL.dpbs

I have little doubt the Continuing Legal Education Program at Arizona State University’s Sandra Day O’Connor College of Law is hoping very few, if anyone, takes them up on the “$0″ option, which is part of their current offer of CLE based on a “pay what you want option.” You choose from their list of OnDemand recorded seminars and register for the program. You then “enter the amount you would like to pay. The amount you pay is unlimited and you can enter as little as $0. Once registered, you’ll receive the video access information and can follow the instructions to receive interactive CLE credit!”

Of course, these are the same folks who lawyer-glut and back-breaking student school debts or not — have nonetheless shamelessly decided to move into a $120 million law school Taj Mahal in downtown Phoenix. According to the Arizona Republic, “in documents being presented to regents, ASU said the goal is to increase law-school enrollment and degrees by 50 percent.“

Meantime, the straight-faced ASU law school dean says of the Pay What You Want CLE: “Of course, we hope that most will still contribute something for the CLE credits they will earn. All proceeds will go to scholarships that will help us recruit high quality students, attract students that might otherwise not be able to afford law school, and have our new graduates enter the workforce with less debt burden.” 

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“Overall, how satisfied are you with your State Bar membership?”

That’s the first of 40 questions asked by the State Bar of Arizona in the 2014 version of its triennial Member Survey. A week ago Wednesday, the Bar sent a blast email asking“its members to evaluate our member services and your opinions on key issues facing the Arizona legal profession.” If ‘what’s past is prologue,’ Bar executives and their collaborators will again use the results to spin member satisfaction like they did in 2011.

In fact, as recently as February 2013, the Bar’s CEO was citing supposed member satisfaction to stymie a half-baked Arizona legislative effort to make Bar membership voluntary.¹

Poppycock.

The Bar’s email went on to state “Your participation in this survey will help the State Bar to better provide the services and information that meet your needs and interests.” Well as Tricky Dicky used to say, “that’s just plain poppycock.”

Damning case in point, of the 40 questions posed — not a single one pertained to member interests in either the cost of bar membership or the Bar’s lack of transparency. These were two of the biggest criticisms lodged against the dues-raising Arizona bar this year. And they were hot-button concerns raised by candidates during the just concluded Bar board of governors elections. So much for professing to sincerely inquire about members’ “needs and interests.”

Indeed, contrary to the specious claim that the Bar will use the survey “to better provide the services and information that meet your needs,” the real intent is pretextual. As it has before, the Arizona Bar will use the data as cover — as both sword and shield to fend off critics who contend the association is bloated, out-of-touch, and high-cost.

Happy Campers.

Thomas Holding, Wikipedia/public domain

Three years ago, 51% of all respondents reported only being “Somewhat Satisfied” with the Bar. Somewhat satisfied? As in 2011, that’s again one of the preselected choices. But what does it mean? Try telling your kid he’s “somewhat” smart or your girlfriend she’s “somewhat” pretty or your spouse you’re “somewhat satisfied” with your relationship. Let me know how well that works.

And an additional 23% said they were either “Somewhat Dissatisfied” or “Very Dissatisfied” with the Bar. But forget all that. The Bar’s spinmeister magazine, “Arizona Attorney,” nonetheless headlined the 2011 survey results with the misleadingly titled, “High Satisfaction, Room for Growth” and bragged about what supposed ‘happy campers’ Arizona lawyers were. And never mind that fully 80% of the Bar’s members were too indifferent or too busy to respond to the survey or that the Bar failed to follow-up with those 17,165 nonrespondents.²

N.Q.R.  Factor.

Now I don’t pretend to be an expert on surveys.³ But I do know this. Surveys should be concise. Questions are supposed to be clearly worded. And while it matters who’s paying for the survey, they’re also supposed to be neutral. What’s more, there’s as much art as science involved.

So I have my doubts about the Bar’s Member Survey. Besides the survey having too many questions requiring way too much work to fill out, there’s an N.Q.R.⁴ factor again emanating off this year’s survey.

Several questions appeared biased either by the implicit assumptions they make or by forcing respondents to make choices when they’d rather not. No wonder it feels like the deck is stacked.

When you ask, for example, “how satisfied” you are with your membership or “how valuable to you” bar services are, you know there’s something not quite right. Both questions are biased because of the implicit assumptions concerning satisfaction and valuable they make.⁵ The“words you use in the questions can affect respondents’ reaction and choices.”

Or take the leading question about whether or not there’s a preference for “a printed Member Directory or a more robust online member search tool?” [emphasis added]

Or how about the barely hidden Bar-agenda questions? For instance, there’s the forced choice made by Question 6, which in order to continue with the rest of the survey, requires respondents to pick at least one of 17 preselected positive choices under, “Which of the following are the features or uses for the [printed Membership] directory that you find to be the most valuable?” For those of us who think printed directories are a waste of money and of no value in a digital age, too bad. You can’t skip the question or choose ‘no opinion.’

And talk about agenda-driven responses like those in the survey category, “Professional Barriers.” Question 9 asks, “What do you believe are the three most serious problems faced by the legal profession today?” and Question 10 queries, “Please list the three most important issues that you would like to see the State Bar concentrate its efforts on in the next few years.”

For multiple-choice answers, the Bar provides its predetermined long list of alleged lawyer concerns like “lawyer advertising,” “diversity,” “lack of appropriate judicial system funding” and “threat to judicial independence” [even in a merit selection state where for the past 40 years 99.9% of Arizona judges are retained]. Who came up with those personal agenda-driven responses? But don’t look for choices about improving fiscal stewardship or treating members like clients or cutting costs or increasing bar transparency or heightening member due process.

And conveniently disingenuous about lawyer apprehension if not their outright paranoia when dealing with the almighty keeper of their meal-ticket-license — the survey asks intrusive demographic questions under the category, “About You and Your Work.” Like lawyers are going to trust privacy and confidentiality assurances about respondent anonymity when questions specifically ask for county of primary practice; year of admission generally, and in Arizona; age; gender; areas of practice; number of firm lawyers; and optionally, race and ethnicity. Why not just ask for names?

SurveyMonkey.

Computer Monkeys by Chris Lott/Flickr

Not that respondents shouldn’t be concerned about survey integrity and anonymity. Where surveys contain “sensitive or potentially identifying information,” the U.S. Navy, for example, strongly recommends against commercial providers like SurveyMonkey that do not conform to its security regulations. “Since the data will be stored on commercial servers there is increased risk of harm or embarrassment if the data are somehow compromised.” As it happens, SurveyMonkey is the commercial survey provider used by the Bar.

On its website, SurveyMonkey explains that anonymity is up to the survey creator and not its job. While the survey creator has options to collect responses anonymously, SurveyMonkey explains, “All collection methods permit the tracking of respondent IP addresses. Anyone using the Email Invitation collector could potentially track an email address on the response.”

And according to a SurveyMonkey Review posted on the business software review site, TrustRadius, email links to its surveys allegedly allow individuals to “complete the survey more than once if they access the link through 2 different computers.” I don’t know about all that.

But I do know that after completing my survey, I could still access the same email link and begin completing another survey — not that I had any interest in wasting my time twice.

So is it one anonymous survey per ‘customer’? Or is that just more poppycock? In truth, I don’t care.

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[1] See Arizona House Judiciary Committee videotaped hearing “Arizona Supreme Court’s control over state bar debated, contested . . .” at http://www.youtube.com/watch?v=xotdkMf61Ic, February 14, 2013 and remarks by Arizona Bar CEO John Phelps at 27:14 conveniently omitting the faint praise qualifier “somewhat” and asserting instead that “75% of the lawyers polled. . . were satisfied and 25% were not satisfied.”

[2] See Ten Reasons Why Surveys Fail by Dr. David Futrell, Quality Progress Magazine, April 1994, noting, “Failure to follow up with the nonrespondents can yield grossly misleading data. In general, people who respond to a survey will be more extreme in terms of what is being measured than the nonrespondents.”

[3] To be fair, the Bar hired an expert, noted local researcher Bruce Merrill, Ph.D., to assist its 2011 survey. Dr. Merrill once ran a golf hole Ad-in-the-Hole Research Study to evaluate “Name/Brand Awareness,” “Ad Recall” and whether golf hole ads are “Bothersome to golfers.” Golf hole advertising’s a dumb idea — but no worse than urinal advertising.

[4] NQR  means Not Quite Right. I was first introduced to the acronym by a friend and former F-18 fighter pilot.

[5] Compare the Bar’s “how satisfied” question with the example borrowed from Sterngold, Warland and Herrmann (1994) by Professors Hershey Friedman, Ph.D. and Taiwo Amoo, Ph.D. in Ranking the Rating Scales, published in the Journal of Marketing Management, Vol. 9:3, Winter 1999, 114-123. Referring to an earlier study, the professors write “that a question like “How concerned are you about…?” causes a bias in the direction of concern because it assumes that subjects should be concerned about an issue. Using a filter question first asking respondents whether or not they were concerned with an issue and then asking those that were concerned to rate their degree of concern resulted in significantly fewer people showing concern than the former approach.” Similarly, I posit that asking how satisfied members are with the Bar “causes a bias in the direction of [satisfaction] because it assumes that subjects should be [satisfied]“ with the Bar.

A quick post on Continuing Legal Education (CLE). In the past, I’ve posted about CLEonline.com, which when you’re in a hurry; up against a deadline; and can’t find Free CLE — then almost free CLE is the next best thing. Better yet, in MCLE states such as Texas, California, Colorado and others, lawyers get full participatory CLE credits not merely self-study credit for CLEonline.com seminars.

For those that don’t always pay attention, this is an important distinction. Many jurisdictions like Arizona’s will restrict the number of self-study hours their lawyers can log toward the mandatory annual requirement. In Arizona, the limit is 5 hours of self-study out of the mandatory 15 hour requirement.

Now, I’m not a paid shill for this company or any other for that matter. And I know there are other cost-effective CLE providers out there, e.g., the low-cost bundles from outfits like, Attorney Credits. But when I’m not getting my CLE gratis, I admit to having paid for courses through CLEonline.com. But only when a particular program drew my interest and of course, when the price was right.

A few days ago, for example, I took advantage of their current Last Chance’ (50% Off) promotion and benefited from a terrific program for the non-immigration lawyer, “Immigration Basics: The Crazy World of Foreign Nationals in (and Wanting to Come to) the United States.” The 1.5 hour course was enthusiastically, wittily and informatively taught by a young immigration attorney out of Houston, TX, Anuj A. Shah. My total cost was $19.

FREE CLE.

But no post on Free CLE would be complete without providing lawyers 11 days before the fiscal year CLE deadline with at least one more FREE CLE option. This one comes courtesy of MCLE Online – Fidelity National Title.

Registration is required to access “hour long modules . . . broken up into four 15 minutes sections and certificates can be printed upon completing each hour.” The site goes on to mention “topics such as: Surveying, Title Examination, Bankruptcy and many more. Best of all, these courses are offered free of charge to any attorney that is interested.”

Once you’re registered and accessed their desktop feature, Fidelity National Title’s site also provides access to free ARDC Seminars.

As always, all my usual CLE disclaimers apply about continued availability, content quality and acceptability by your jurisdiction.

Last October, I reblogged a post by Indiana lawyer Paul Ogden who was then facing a one-year suspension for a private email criticizing a judge.

Wikimedia Commons/Public Domain

Ogden’s troubles, however, were bigger than just the possibility that as a politically active lawyer with an unblemished 27-year legal career, he might suffer potentially career-destroying sanctions. No, Ogden’s case was really about another attempt by attorney disciplinary authorities to further muzzle attorney free speech.

It was about how much more an ethical rule can be broadened to spank lawyers for their opinions about judges under Ethical Rule 8.2, which says, in part, “A lawyer shall not make a statement that the lawyer knows to be false or with reckless disregard as to its truth or falsity concerning the qualifications or integrity of a judge.”

Wikimedia Commons/Public Domain

And it was also about a lawyer disciplinary commission with the unbridled temerity to hammer and tong a lawyer with the nerve to persistently criticize it.

The Court decides.

This past Monday the Indiana Supreme Court handed down its decision In the Matter of Paul K. Ogden. And while the vocal Hoosier gadfly ended up getting disciplined, it was still a good outcome for Ogden.

The case against him was originally brought in March 2013 because of comments he made in private correspondence about Judge David H. Coleman, a special judge appointed in an unsupervised estate case where Ogden was representing one of the interested parties.

As to the First Count of the Charge, in the words of the Court, Ogden’s “repeated and virulent accusations that Judge Coleman committed malfeasance in the initial stages of the administration of the Estate were not just false; they were impossible because Judge Coleman was not even presiding over the Estate at this time—a fact Respondent could easily have determined. Because Respondent lacked any objectively reasonable basis for (these) statements, we conclude that Respondent made these statements in reckless disregard of their truth or falsity, thus violating Rule 8.2(a)in Count 1, the aggravating facts convince us that a mere reprimand is insufficient discipline in this case.”

As to the remaining Second Count concerning alleged ex-parte communications to Marion County judges to follow recently outlined forfeiture law, the Court ruled the disciplinary commission had not met its burden that Ogden’s letters to the judges were “prejudicial to the administration of justice.”

The Court instead found professional misconduct only with respect to Ogden’s statements about Judge Coleman. And so it ordered a 30-day suspension starting August 5, 2014 and assuming he keeps his nose clean, at its conclusion, the Court approved automatic reinstatement.

Speaking objectively — despite the sanction, I think it’s a win for Ogden. The Court unanimously found misconduct only concerning the First Count. It imposed only a 30-day suspension with automatic reinstatement — instead of the one-year suspension without automatic readmission that the Commission wanted.

Wikimedia Commons/Luis Ricardo/GNU Free Documentation License.

Vulnerable attorneys.

A few days after, at Disbarring the Critics, Ogden also understandably cast the outcome in a positive light. The perils he’d faced had been daunting.

But all the same, Ogden was disappointed “the Court failed to distinguish between public and private communications, thereby leaving attorneys vulnerable to having their private emails and conversations scoured for Rule 8.2 violations for judicial criticism.”

On a more hopeful note in his post, “The Indiana Supreme Court Hands Down Decision,” he added: “Attorneys from across the country are wanting an attorney free speech case to go before the United States Supreme Court to curtail states use of disciplinary rules to target attorney speech critical of judges. I think it’s inevitable that’s going to happen as the U.S. Supreme Court seems to have a keen interest in free speech cases and there seems to be no support among conservatives or liberals on the Court for the types of professional sanctions states are imposing on attorneys for judicial criticism.”

Obstreperous meets obdurate.

Ogden also remains convinced the Indiana Disciplinary Commission overcharged and overprosecuted him for no other reason than his unrelenting criticism of its doings. Optimistically, then, he hopes his case will be “a catalyst” for investigating the Commission’s conduct “and for much-needed reform to the attorney disciplinary process.”

While I wish him well, I don’t know whether such optimism is realistic. The forces arrayed against him are formidable. The Commission is an agency and arm of the Indiana Supreme Court.

Case in point, despite his well-founded longstanding complaints about the Commission’s conduct, the Court adopted its agency’s view that Ogden had been “obstreperous.” Obstreperous is a $10 word meaning stubbornly resistant to control as in “unmanageable.”

Using my own $9.99 word, if Ogden’s unruly then I think the Commission has been obdurate meaning stubbornly resistant to change. But operating apparently without meaningful oversight or transparency, why should it conduct itself any differently?

“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.

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.

_____________________________________________________________

“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.”

__________________________________________________________________________________

Dollars to donuts.

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.

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.”

Sure 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.

Open 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.

Not 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.

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?

Like Cher, Article III federal judges answer only to themselves and to God — assuming, that is, they aren’t atheists — otherwise they’re not answering to the Almighty either.

Which leads me to question why given how untouchable they are, some folks, granted mostly lawyers are nonetheless so exercised over Federal Judge Richard Kopf having told the U.S. Supreme Court it should ‘STFU.” One nose-out-of-joint conservative law school professor was so peeved at Judge Kopf he even went for the cheap ad hominem and called him “dummKopf.” I hope Steve Bainbridge doesn’t really think he’s the clever first one to think up that pun when he ranted it was the judge who should STFU.

The 68-year old Judge Kopf is retired but on senior status since December 1, 2011. This means he’s working at-large as a judge but assigned to any inferior federal court while receiving his retirement salary.

Hercules and the umpire.

But besides working as a senior justice, he also has a personal blog called “Hercules and the umpire” where he waxes either eloquent or inappropriate depending on your sociopolitical point of view.

Following the U.S. Supreme Court’s latest controversial decision involving a closely-held corporation’s personhood and its attendant religious beliefs concerning Obamacare-mandated contraceptives in Burwell v. Hobby Lobby Stores, Inc., the very opinionated Judge Kopf invoked the acronym, STFU, to argue the nation’s high court is “causing more harm (division) to our democracy than good by deciding hot button cases that the Court has the power to avoid.” But it was that acronym that got people’s underwear in an uncomfortable bunch.

For the uninitiated, STFU is simply short-hand for shut the F-bomb up. Oh, my, that a judge would deign to use such language? At least it wasn’t in any judicial opinion.

Cebull didn’t blog.

Maybe if the now retired 70-year old Federal Judge Richard Cebull had blogged instead of emailing on his office computer, he might’ve kept his racist robes and his own senior status another day? Just kidding.

You’ll recall an investigation by the 9th Circuit Court of Appeals Judicial Council revealed Judge Cebull had sent hundreds of “racist, sexist and politically inflammatory” e-mail messages over four years while serving as a federal judge in Montana. Parenthetically, Native American advocacy groups are still petitioning to see all the ex-judge’s racist emails but the 9th Circuit keeps saying ‘No.’ They’re supposedly confidential. Oh well, at least they’re just ‘secret’ and not ‘lost’ like Lois Lerner’s missing IRS emails.

“Dirty old man.”

It’s not like Judge Kopf hasn’t been here before. A self-described “dirty old man ever since I was a very young man,” he got people worked up just a few months ago when he posted “On being a dirty old man and how young women lawyers dress.”

In that post, he wrote “I have three rules that young women lawyers should follow when considering how to dress for court: 1. You can’t win. Men are both pigs and prudes. Get over it. 2. It is not about you. That goes double when you are appearing in front of a jury. 3. Think about the female law clerks. If they are likely to label you, like Jane Curtin, an ignorant slut behind your back, tone it down.”

Filters? What filters?

Let me first inoculate myself against accusations of ageist stereotyping. I’m well past my middle-earlies. That said, perhaps age should at least, be discussed here.

Besides our own anecdotal evidence about crazy uncles ruining holidays “with outlandish behavior and boorish opinions,” studies support what some of us have long suspected, aging brains not only drive forgetfulness but blunt behavior.

In one study, “Aging, Executive Functioning, and Social Control,” researcher William von Hippel found that physiological changes such as aging-related atrophy of the brain’s frontal lobes, which he calls “the seat of executive functions” are associated with “age-related inhibitory losses.” This can lead to unvarnished prejudice, “off-target verbosity” and “socially inappropriate remarks.” For an unscholarly, inelegant take on the same topic, also see “Old People Saying Shit They Should Not.“

Any wonder that 75-year old Federal Judge Richard Posner recommends judges after 70 be required to take “a test of mental acuity every five years.”

Judge Robert Malcolm Kerr of whom it was said, “He administers a kind of rough and ready justice that irritates many and pleases few.”

But when it comes to the berobed, the combination of age-related inhibitory deficits with hubristic-minded ‘black robe disease’ also called “Judge-Itis” — why that’s downright pyrotechnic. In some quarters, judge-itis has morphed into Judge Judy-fication. For examples, remember King County, Washington’s real-life Judge Judy Eiler or the very recent Brevard County Florida Brawling Judge John Murphy. As historian Barbara Tuchman said, “A greater inducement to folly is an excess of power.”

So if media-celebrated ‘no nonsense’ ‘tough-talkers’ on the bench can gloss over Model Code of Judicial Conduct Canon 2′s sub paragraphs on courtroom decorum and demeanor, why can’t judges with personal blogs?

“Everyone was thinking it, I just said it.”

Not to say that 60-somethings and older have cornered inhibitory deficits. Take San Diego California’s Judge DeAnn Salcido, a member of Generation X who was reprimanded for using her courtroom to create audition tapes for a Judge Judy-style television show.

Unabashed, she said, “I have a big mouth. I don’t know when to be quiet. I’m telling you everything I know. That’s just the way it’s going to be. I don’t know how to change that. It’s a defect in my personality.” Methinks she needs a blog, too.

And then over the weekend, I finally had enough. I’d been following an anonymous Millenial and once-upon-a-time wanna-be lawyer turned author/blogger. I once thought his blog was refreshingly funny even with all the profligate F-bombs. But then his profane posts kept crossing the line from witty real-world impertinence to nasty hyperbolic meanness. And after reading his last post describing what he’d be willing to do if someone paid off all his student debt, I finally said “No mas” and unfollowed.

No filters.

So when it comes to blurting out whatever pops in your head regardless of the consequences, I’m now inclined to think age is irrelevant. As a society, thanks to social media, online anonymity and no-longer-taught etiquette, we have no filters.

Which gets me back to Judge Kopf. In his latest post, “Please stop,” the blogging judge says he’s reconsidering his blog after all the fallout from his STFU post. In his post, he reprints a communication received from a Nebraska lawyer who he says has his “highest respect.” In his missive, the lawyer appeals idealistically to Judge Kopf’s ‘better angels of our nature’ and asks him to stop blogging — lest it bring discredit on the public’s understanding of the judicial system.

But from my quick unscientific review of the comments to this post, it seems most readers favor his continued blogging. So as Judge Kopf contemplates what he’s going to do, not to worry. It’s not like public confidence in the Supreme Court isn’t already at a historic low or that judicial irreverence means the public will think as Dickens’ Mr. Bumble did that “the law is an ass.” I think he should keep blogging.

_________________________________________________________________

Photo Credits: Laughing Fool, source http://www.wellesley.edu/DavisMuseum/collections/provenance_research.htm at Wikipedia Commons, public domain;American magazine ad for the film Hercules (1959), HerculesMagazine.jpg, Wikimedia Commons, public domain;Hans Conried as Uncle Tonoose, Wikimedia Commons, public domain;Robert Malcolm Kerr, Vanity Fair, 1900-11-22m Wikimedia Commons,Public Domain; The Wounded Angel,Hugo Simberg, Wikimedia Commons, public domain.

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.’”

All 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?

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 the consulting firm, Software Advice:

“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.

What 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.

To 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.

Reviews 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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John Lennon was right. “Life is what happens when you’re busy making other plans.” Not long after I ate a couple of yellow nectarines yesterday afternoon, I got a robocall. It was from the big box store where I’d purchased the fruit. 

The automated voice told me to return the nectarines I’d just eaten. There was a voluntary recall over potential Listeria monocytogenes contamination. Regurgitation no longer an option, timing is everything. But what the . . . . ?

So knock on wood. And thankfully, no symptoms. Yet it’s come to this. Time to nix the nectarines and the burritos around here.

Happy news.

But forget the bad news for now. Let’s make happy talk instead. Out of New York City and London, I read about a new confidence builder. It’s the ‘shiney-hiney,’ also known as the “butt facial.” And according to the news report in The Week, it’s offered this summer by enterprising dermatologists in both cities.

The fanny facial is “a combination of exfoliating peels, lasers, and moisturizers to smooth the skin on the buttocks and minimize dark spots, zits, and cellulite.” One client quoted for the news story said, “before I tried the booty facial, I wasn’t as confident as I am now.”

So no kidding, a confidence builder! Could it be the next self-assurance tool before heading to court? Also see “A new take on glowing ‘cheeks’”

Unhappily, I don’t know of any dermatologists offering keister cleansing spa treatments in Arizona’s nether regions. Then again, except for those supposed confidence-building properties, around here all 4 cheeks get plenty pink without dermatological exfoliation thanks to Arizona’s hot and sweaty six-month summer.

Confident construction.

Besides, who needs confidence building here? Not, for instance, ASU’s law school leadership. Why those folks are just dripping with confidence. Despite reports of “shrinking law schools facing financial devastation,” Monday’s Arizona Republic newspaper puff-pieced ‘happy news’ about the start of construction of ASU’s ballyhooed new $129 million downtown law school. The story read like an ASU press release.

Don’t blame the nectarines but after reading, I didn’t know whether to gag or spit. Despite continuing historic lows in the number of law school admissions test-takers – “a record low going back to June 2000″ as reported this week by The Law School Tuition Bubble, “it’s damn the torpedoes, full speed ahead.” While other law schools are “paring back,”  ASU’s law school cognoscenti must be eating not reading their tea leaves. And the local paper appears to be riding shotgun in the same clown car with the law school’s dean. Good thing there’s plenty of room.

In a 2012 interview about the state of legal education, law school dean Doug Sylvester happy-talked, “I don’t think we’re in crisis.”  So why not keep betting on the come? See “Law schools imperiled but insiders keep ignoring the changing tide.” Also see “Law school applications down 37 percent since 2010; first-year class could be smallest in 40 years.”

But it’s nice he’s putting the OPM — other people’s money — where his mouth is and blithely proceeding apace. Per the paper, “The law school’s dean, Douglas Sylvester, is so enthused, several times a day he pulls up a webcam on his computer that shows an aerial view of construction.”

Lawyer glut? Too much law school capacity? No worries. Sylvester thinks all that extra space at his expanded new digs — at least for now won’t mean adding more students onto a glutted legal marketplace. He’s keeping enrollments the same.

But it’ll be just dandy for adding two think-tanks; housing a law school sponsored law firm for otherwise out-of-work alumni; for offering more continuing legal education; and of course, for expanding “the degree referred to by critics as a “cash cow”, the LLM, the Master of Laws degree.

The LLM is the graduate degree popularly derided as “Lawyers Losing Money.” Writes Bryce Wilson Stucki at The American Prospect, “To critics, the degree is little more than a scam making extra cash from attorneys desperate to burnish their credentials in a brutal legal job market.” Also see “Inside the Law School Scam: LLM programs” and for a much more acerbic take, see “LLM Programs are “Popular” Due to Desperation Among Recent Unemployed J.D.s”

Of that Master of Laws Degree, George Leef at Forbes‘ Law Schools Peer Into The Abyss But The American Bar Association Blocks Serious Change,” also echoes the critics who think it’s the “Next scam: Law schools start “nonprofit” law firms that hire their own graduates, thus boosting their U.S. News rankings by ensuring their grads have jobs while letting their students get out from under debt in half the time. Plus, faculty can have high-paying side jobs managing things at the “nonprofit.””

So while another law school cuts faculty and staff jobs and halts first year classes to belatedly confront plunging law school enrollments, another expands and leverages its profit centers.

Growth for growth’s sake.

But then Maricopa County, Arizona has always been about happy talk about growth. So why not law school expansionism?

After all, this place helped put the bubble in real estate.

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As he said he’d do, disbarred former Maricopa County Attorney Andrew Thomas is running for Governor of Arizona — along with the usual Arizona collection of migrant-demonizing far right extremists — each battling to outdo the other on talking tough about the border.

Nothing plays so well in Arizona than bashing ‘dem illegals’ and scaring seniors with tales about border-crossing brown-skinned border brothers.

But thanks to Arizona’s semi-closed primary system; customary low voter turnout and a reliably apathetic electorate unwilling to “DeKook the State Capitol,” it won’t matter who wins. One of the extremists will be elected and it’ll be more of the same for Arizona.

Payback.

‘Candy Andy,’ though, is back. Not that he really ever went away. In the words of the late not-so-great former Arizona Governor Evan Meacham, “I’ll tell you what, if a band of homosexuals and a few dissident Democrats can get me out of office, why heavens, the state deserves what else they can get.”  

And now that he wants to be governor, Thomas is probably hoping for the ‘Big Payback.’ Maybe he even thinks he’ll get the chance to pull a ‘California Governor Pete Wilson’ and give the State Bar of Arizona as much heartburn as Wilson gave the California Bar in 1997.

As for his chances — I wouldn’t rule him out. After all, this is a state with “asinus aspirations aplenty” and with an electorate that made Jan Brewer governor twice and Joe Arpaio Maricopa County Sheriff six times. So anything’s possible when you set the bar that low.

A week ago Tuesday, Thomas began running his first 30-second campaign ad. And he hit the controversy superfecta hammering on “illegal immigration;” condemning “liberal judges;” opposing “the gay lobby;” and aggravating trading-partner Mexico by crossing out the Mexican flag. Clearly he’s not lost his touch for serving red meat to his base or for making ‘amigos’ across the border.

Schadenfreude: Happiness at the Misfortune of Others.

After his 2012 disbarment, Thomas told the press he’d been the victim of “a political witchhunt” for having “brought corruption cases in good faith involving powerful people, and the political and legal establishment blatantly covered up and retaliated by targeting my law license.” None of that got him anywhere with the judge but it might sell in Peoria — Arizona. For more background, see The ABA Journal’s “The Maricopa Courthouse War.”

But for all those who crowed Thomas’ comeuppance, the fact he’s running for governor has to grate — and with $754,000 in public financing funds, to boot.

And speaking of dishes best served cold, I have little doubt Thomas was elated when this past April, there occurred one more instance of schadenfreude cutting both ways. Or said more familiarly, another testament to ‘what goes around, comes around.’ John Gleason, the lead prosecutor, brought in at the behest of the Arizona bar and the state supreme court to bring Thomas to heel lost his job in Oregon.

Gleason had been Colorado’s Attorney Regulation Honcho when he took the temporary gig in Arizona to prosecute Thomas for abusing his county attorney powers. In a 33-page complaint, Thomas and his cohorts were accused of misusing the office’s broad prosecutorial power to go after political enemies.

After wrapping up the Thomas et al. prosecution and then retiring from his post as head of Colorado’s Office of Attorney Regulation Counsel, Gleason turned up in Oregon in March 2013 to take the job as Oregon State Bar disciplinary counsel and director of regulatory services.

It didn’t turn out to be a long stint — only about a year. According to a news account, it was “a short stormy run that antagonized lawyers around the state and divided the Oregon State Bar.”

Besides asking for an ABA task force to review Oregon’s disciplinary system, Gleason had riled up lawyers by proposing sweeping changes to the way Oregon lawyers are disciplined for ethical violations. He proposed creating something he’s especially fond of, the office of Presiding Disciplinary Judge. He also recommended rewriting completely the Bar’s Rules of Procedure. Finally, he proposed reducing substantially the oversight and authority of the bar’s volunteer State Professional Responsibility Board in favor of centralized authority under his own office of disciplinary counsel.

Too bad he couldn’t leave well enough alone and just sit on his laurels for defrocking Thomas. For stories that lionize and crown him in those laurels see “All Kinds of Horrible Things Happened’: Investigating the Biggest Ethical Misconduct Case in the Nation” and “Prosecutor on Trial: Ex-Maricopa County Attorney.” With such plaudits and press clippings, he just couldn’t resist bringing his bumptious beneficent benefactions to the Beaver State.

For balance and other perspectives on Gleason, read “Scott McInnis plagiarism scandal no big deal to attorney discipline czar” and “Why Colorado Attorneys Don‘t Have Spines” and particularly, “A Travesty of Justice in Colorado: Lawyer Suspended for A Year and A Day for WINNING His Client’s Case.”

As for where Gleason turns up next, who knows? Consigned to Colorado, he may just stay retired and look for a regular golf partner. Although as far as wanna-be Governor Thomas’s concerned, at least he’s not back in Arizona. But if he does return to the desert kookracy, guess who’s hoping will have the last laugh?

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Photo Credits: Jan Brewer – the Guard, by DonkeyHotey at Flickr via Creative Commons-license requiring attribution;Mr Schadenfreude, by Duncan Hull at Flickr via Creative Commons-license requiring attribution.

Some time ago, I posted about client and case selection and how important that was, particularly during an economic downturn. Well now that things have supposedly picked up and are coming up rose petals, client selection remains as important as ever. It’s always the threshold consideration.

About 7 years ago, I became acquainted with the precepts of litigator and writer Dan Hull. I hadn’t thought of Hull in a long time. Nor had I given much thought to his “12 Rules of Client Service” or his first rule until the other day after I’d met with a new client for the first time.

I spent more time than initially anticipated with this client. And it was a good thing. I truly enjoyed our preliminary meeting and getting to know the client first — well before getting into details and diagnosis.

You have to like your client.

On the way back to my office, I thought of Hull’s blog “What About Clients?” It’s been around a long time. Last time I checked, the blog was still among the most popular on the Web.

Granted, he has a corporate client orientation. But all the same I strongly believed then and now that his client service rules are essential reading for lawyers young and old. They’re as timely today as when he posted them in 2005.

The first rule.

But of all Hull’s rules, the one that’s always resonated is his first one: “Represent only clients you like.” Probably it’s because long before I ever heard of Hull, it was the goal I’d written in my business plan — the one I wanted guiding my practice.

Was it a pipe dream? Is such representation even doable? The answer is yes — but it’s not easy. Sure under attorney ethics rules, there’s a helpful albeit qualified comment that says under Rule 6.2. “A lawyer ordinarily is not obliged to accept a client whose character or cause the lawyer regards as repugnant.”  See also Scott Laufenberg’s excellent essay, “Representing Repugnant Clients Every Lawyer’s Choice?”

So when I came across Hull’s blog in 2007, I got what he was saying. Years before, matters had also crystallized further after I’d attended a bankruptcy for the non-bankruptcy lawyer continuing education program. That program was supposedly for non-bankruptcy practitioners but almost all the attendees in the room were bankruptcy lawyers. It seemed everybody knew everybody else — like old home week. But what struck me that day wasn’t the course content.

It was that some of the lawyers in that room didn’t like their clients. These lawyers spent their break time loudly commiserating about their clients.

Lest anyone think I was casting aspersions on my colleagues in the bankruptcy bar, the answer is no. Regardless of practice area, we face the same challenges. I could’ve just as easily heard the same gripes at an employment lawyers conference or a criminal defense or family law program.

And it wasn’t like I’d been trying to overhear any conversations. Quite the opposite. I felt like the schoolboy in the confessional who covers his ears to not overhear a fellow sinner’s too loud admissions of sin in the confessional booth.

It didn’t matter if I was standing out of normal earshot or sitting several rows away. These lawyers spoke loud enough about their unlikable clients to have been overheard by the occupants in the next room. Then and there, I resolved all the more to do my best to avoid representing clients I didn’t like.

Ethics.

What I especially liked about Hull’s client service rules was that he placed them in an ethical and quality service-oriented framework. Lawyers owe their clients “some of the highest personal, professional and business duties imaginable,” he wrote. If you don’t like your client — fire him or her “as soon as you ethically and practically can.” And then there was the money quote, “You will not do good work very long for a client or customer you do not like.”

He sets a high bar. But always, there’s the reality check. When I meet new lawyers, many forced into solo practice — not by choice but by circumstance, I repeatedly find a disconcerting urgency to take on all comers. Facing crushing school loan debts and personal needs, there’s a sense of no boundaries. If a client’s paying, no legal work can be turned down. No matter the ethical duty of competence.

And as for wanting to like your clients, are you kidding? So long as a client has funds to pay for representation — what’s there not to like? Surely in hard-pressed economic situations, Hull’s first rule has to be out-of-step? I like to think not.

Admittedly, turning down a paying client even one that comes across like an acre of garlic isn’t easy when ‘baby needs new shoes.’ The cold truth is that faced with life necessities or payroll or rent, the first rule is often the first to go.

In those circumstances, doing what’s right is not only not easy but becomes a question of discretionary aspiration. It’s more longing than loftiness; more hunger than high-mindedness.

But perhaps a work-in-progress goal is still better than the alternative. The harder truth about lawyering is that our choices always catch up with us anyway. In the end, as the late Maya Angelou said, “Success is liking yourself, liking what you do, and liking how you do it.”

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Photo Credits: Dreamers by piotr at Flickr via Creative Commons-license requiring attribution;Day 26, by Luciano Belviso at Flickr via Creative Commons-license requiring attribution.

Suspending for a heartbeat my natural skepticism when it comes to Arizona’s legal establishment, especially its ‘friendly state bar,’ the following announcement might be good news. But I’m not holding my breath.

By administrative order of Arizona’s highest court, a “Task Force on the Review and Governance of the State Bar of Arizona” Review the State Bar’s Role and Governance” was created July 29, 2014.

The purpose of the Task Force is to “examine the Rules of the Supreme Court on the mission and governance structure” and to recommend changes — albeit “if needed,” including but not limited to the following:

“a) Does the mission of the State Bar need to be clarified or modified?

b) Is the governance structure adequate to efficiently and effectively govern and carry out the duties of the Board?

c) Are Supreme Court Rules in the following areas related to Board structure and governance duties adequate to best serve the Board’s primary mission of protecting the public?

i. Qualifications for membership on the Board of Governors;

ii. Appointment, election and removal of members of the Board of Governors;

iii. Term limits for members of the Board of Governors;

iv. Election process;

v. Board of Governors size and composition; and

vi. State Bar leadership structure and composition.”

I’ll be monitoring the Task Force’s work, particularly whether the court does anything to arrest the serial reelection of governors (some, for example, have been on the Board for almost 20 years), see “Elvis never leaves the building without term limits;” or to rein in the unwieldy size and structure of the 30-member Board, e.g. see “Inside the tent: state bars and management by rugby scrum;” or to rethink the Bar’s exclusive consumer-protection mission, see “That time of year again . . . rendering to Caesar his annual bar dues.”

I have zero expectations on the latter as the court’s order makes abundantly clear the mission and governance review means “to ensure that they continue to best serve the public interest.” After all, the court adds: “The integrated State Bar is intended to regulate the legal profession to protect the public” [presumptively -- from its lawyers].

But don’t misunderstand. Serving the public interest is critically important. Problem is, there are hordes of Arizona lawyers still clinging to the long discarded but quaint notion that like a trade association, the Arizona Bar also expressly serves members’ interests.

So perhaps a salutary outcome of the Task Force’s work will be to finally disabuse them of that delusion. For more about “the tension inherent between the two incompatible roles of our integrated bar, the governmental regulation role and the trade association role,” see David Cameron Carr’s insightful discussion of the California State Bar’s recent governance changes at “The Great Public Protection Perpetual Motion Machine.”

So thanks to its public protection marching orders, deliberations won’t start with a blank slate. Findings and recommendations are due September 1, 2015.

Everything’s dandy.

The court’s order may have also caught some of the true believing kool-aid drinkers on the Board of Governors by surprise, particularly if it was sprung on them during the Board’s just-concluded annual retreat boondoggle.

Many governors, after all, like a bloated bureaucratic “full service, first class” bar. They savor their perquisite-filled status quo and gubernatorial privileges, including Bar-provided free continuing legal education. So despite the increasing restiveness of members, they think everything’s dandy the way it is.

But dandy or not, the court wants the review because of changes to the “legal services environment” along with growth of Bar membership and “demands placed on the State Bar.” I can only imagine what the last one means — but it sounds tailor-made to justify more fee increases.

And coincidentally, there’s also another Arizona Supreme Court 13-member committee looking at “whether Arizona ethical and other regulatory rules should be amended because of the changing nature of legal practice in a technologically enabled and connected workplace and the growing trend toward multistate and international law practice.”

You’d almost think there’s something in the firewater hereabout, given the spate of rule reviews underway. But I think this other arose due to changes proposed by the American Bar Association’s Commission on Ethics 20/20. Indeed, other state bars have begun similar reviews. A copy of the June 17, 2014 administrative order is available here. And of course, I’ll be posting about that committee, too.

The bad news.

But as for that task force on mission and governance, don’t expect meaningful reforms. Thirty-six percent of the task force is composed of former members of the Bar’s board of governors. Indeed, four of these five former governors are also past state bar presidents, including the immediate past president. He was instrumental in ramrodding through an unnecessary 13% dues increase to preserve business as usual. Moreover, the “consultant” to the Task Force is the Bar’s current CEO. A mission and governance review with such guiding lights is like hunting with the game warden.

Still, I guess it’s not quite as bad as the composition of the committee reviewing the Michigan State Bar’s purported use of dues for ideological activities. In Michigan, as one critic pointed out in February, “the task force is stacked with current and former state bar officials.”

At least this Task Force has more diversity. It includes a former state university president, a presiding judge, a libertarian from the Institute for Justice and even a former public utility lobbyist. And with the Bar’s prosecutorial mindset, no surprise it also includes a former state attorney general and a couple of former cops.

But while the Task Force appears to have seemingly covered the politically correct diversity dimensions, e.g., race, ethnicity, gender, sexual orientation, age, etc., it’s missed a big one: there are no dissidents. Who will voice the saeva indignatio?

Yet understandably, in light of the Bar’s disposition toward group-think, why invite oppositionists? No matter, then, what Christopher Hitchens brilliantly wrote in Letters to a Young Contrarian that “. . . in life we make progress by conflict and in mental life by argument and disputation.” Of all people, you’d think lawyers would know that.

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Photo Credits: Day 121, at Flickr Creative Commons attribution share and share alike license by Bastian; The Good Shepherd, by Waiting For The Word at Flickr Creative Commons-license requiring attribution; Henri Brispot Gourmand.jpg at Wikipedia Commons, public domain; Gamekeeper by Richard Ansdell at Wikimedia Commons, public domain.

I was thinking of incivility again. Maybe, it was prompted by reading Kathleen Geier’s out-of-both sides of her mouth musings about Joan Rivers. On the one hand, Geier thought Rivers “was pretty great” but on the other, called her “a monster.”

Or perhaps it was reading Sady Doyle‘s back-handed homage “Joan Rivers Should’ve Always Punched Up” where Doyle reflected, “Joan Rivers worked very hard to seem like an asshole — which is the highest compliment I can offer her.” 

Sure Rivers often crossed lines of etiquette, taste and civility. Sure she was politically incorrect. But oh the rich irony of critiquing someone for incivility — uncivilly.

And leave it to lawyers. Following Rivers’ death, one lawyer was pretzeling out supposed “Life Lessons for Lawyers” from her life.

What is it about lawyer self-absorption? I doubt dentists, dog catchers or podiatrists waste time divining occupational lessons from pop culture phenomena. Just a couple of years ago, navel-gazing lawyers were conjuring up faux analogies to find ‘lessons’ from “The Hunger Games.”

Lawyer incivility . . . again.

Or perhaps my latest reveries on incivility might have stemmed from a recently reported he-said, she-said case where the U.S. magistrate’s memorandum and order started with the following admonition: “‘You’re an asshole, Dan'” is not how an attorney should address her adversary.” 

Another day and another court order documenting what trial lawyer William B. Smith terms “The downward spiral of incivility.”

Let there be rules.

Comedians like Joan Rivers, though, don’t have to comport themselves according to professional rules of conduct. Lawyers, on the other hand, are required to comply with baseline legal ethics and professional responsibility standards. Those rules set forth their obligations and prohibitions. But that doesn’t mean lawyers always follow them.

In point of fact, lawyers aren’t usually successful at playing nice. After all, wasn’t it Horace in early B.C. who said “Lawyers are men who hire out their words and anger”? So I’ve posted often about lawyer incivility. And notwithstanding the fatuous notion of ivory tower professors who assert “The Obligation of Lawyers to Heal Civic Culture,” that parade’s long passed . . . along with the rest of society’s punctured civility.

Not to say that window-dressed efforts don’t occasionally arise to futilely tamp down on incivility. This past May, for instance, the California Supreme Court adopted a “Civility” Oath Rule. It now requires that the oath taken by every newly-minted California lawyer conclude with: “As an officer of the court, I will strive to conduct myself at all times with dignity, courtesy, and integrity.”  Yeah, that’ll do it.

Far better is the 7-point practical approach promoted by the above-mentioned lawyer Smith in his excellent ‘how-to’ on avoiding incivility. Smith’s “prevention formula” is terrific. It includes such sensible prescriptions as calling opposing counsel as a get-acquainted first step to establish goodwill and create “the tone of respect.” He also recommends having more face time with the other side, touching on something most of us learned a long time ago — it’s easier to be a jerk in writing than in person. Don’t just count to ten — but wait 24 hours to “avoid writing nasty emails and letters.” For the rest of Smith’s formula, see “How to Avoid the Downward Spiral of Incivility.”

Grappling golfers.

Then again, my latest introspection may have stemmed from last month’s  news about another golf course fight. As most of you know, I make an effort to play something that approximates golf.

But just as civility among lawyers can’t be legislated, cantankerousness can’t be stamped out on the golf links. It’s part of the DNA of the so-called ‘gentleman’s game’ as much as it’s a part of the so-called ‘noble profession.’

Consequently, the mere promulgation of rules of golf with a prefatory “the spirit of the game,” hardly means golfers abide religiously with the precept that “All players should conduct themselves in a disciplined manner, demonstrating courtesy and sportsmanship at all times, irrespective of how competitive they may be.”

Yeah, that’ll do it.

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Photo Credits: The Thinker, Rodin, at Wikimedia Commons, AndrewHorne at the wikipedia project, public domain; Joan Rivers Benefit Concert, by Bob Jagendorf at Flickr via Creative Commons license requiring attribution; Two Award Winning Flickr Photographers Duke it Out by Okinawa Soba at Flickr Creative Commons via Attribution-NonCommercial-ShareAlike 2.0 Generic license; Bad golf cart driver (after 2 days of rain) by Julia Rubinic at Flickr via Creative commons license requiring attribution.

“When somebody says it’s not about the money — it’s about the money.” - H.L. Mencken

This Friday, the State Bar of Arizona considers whether or not to ask the state supreme court to approve a precertification system for organizations offering continuing legal education (CLE) in Arizona.

Those favoring a first-ever pay-to-play arrangement wherein CLE providers have to pay a fee to be Bar-accredited to sell credit-eligible courses in Arizona are making like it’s all good. They’re saying it’s about insuring program quality and attorney competency; enhancing member services; and advancing the Bar’s mission to protect the public — from its lawyers.

But recalling Mencken and as every lawyer who’s ever heard clients say ‘it’s not about the money’ knows — the proposed change is about the money. And we’re talking about a lot — well into the 7 figures of gross revenue, at least here in Arizona. For mandatory and voluntary bars across the country, continuing legal education is a cash cow business.

► Generating more money via another CLE revenue stream and by;

► Protecting its $2M+ annual CLE revenue turf from increased competition from third-party CLE providers.

How high the annual or course-by-course certification fees will be is anybody’s guess. However, the Bar subcommittee recommending the changes noted that other state bars have annual fees ranging “from $100-$500.”  Unfortunately, the subcommittee neglected to similarly emphasize that the mandatory continuing legal education jurisdictions of Nevada, Wisconsin, Missouri, Arkansas, Indiana, and New York have CLE certification guidelines but without fee generating mechanisms. See http://www.barancle.com/mcle/course-application-requirements/

Those aforementioned states, which include both mandatory and voluntary bars, only require lawyers to comply with MCLE — but do not impose accreditation fees on providers. See https://www.reqwiredlegal.com/reqwired/resources/ and http://www.barancle.com/mcle/mcle-requirement/ And why not mention that the jurisdictions of Michigan, South Dakota, District of Columbia, Maryland, and Massachusetts have no MCLE requirements at all?

To be fair, there’s talk here of possible exemptions for non-profits and local organizations that do not charge dues and seminar registration fees, which must mean that unlike the non-profit Arizona Bar — such organizations have to undertake CLE strictly as a labor of love.

Sarcasm aside, it presumably means law firms with free in-house employee CLE would get a pass. Yet undetermined, though, is whether state agencies or state-funded organizations would be charged fees or reduced fees and whether or not Arizona lawyers would be charged to get credit approval for non-Bar accredited third-party CLE.

Another under-publicized Bar vote.

But for a belated blast email asking for member comments 9 days before the vote, Arizona’s lawyers might not have heard of the significant changes planned. That said, since lawyers are often too busy to pay attention to every email in a glutted inbox, I suspect very few of Arizona’s 17,300 active members will have heard of the proposal. They’ll find out only after the proverbial die’s been cast.

Seems the Bar learned nothing from the brouhaha it stirred when it tried last December 2013 to pass a 22% lawyer licensing fee increase when they thought no one was looking. Because of lawyer objections concerning insufficient due process and lack of transparency, the Bar had to table that vote. Unfortunately, despite subsequent revelations of bureaucratic bloat and budgetary waste, the Bar eventually eked out a 12-11 vote to hike Arizona lawyer dues albeit by ‘only’ 13% instead of 22%.

So no surprise to jaded Bar members about this latest under-publicized move by the ‘friendly state bar.’ Stoically resigned Arizona lawyers already know that despite an almost $15M annual budget; a just-passed dues increase; and a projected nearly $4M surplus by 2019, Bar leadership has sufficient brass to ask members to sustain one more financial burden on their practices. The imposition of new cost-of-business fees on third-party CLE providers will be passed on to participants.

The emperor has no clothes.

And for additional perspectives concerning the absence of studies that mandatory CLE verifiably improves the quality of legal services or ensures the competency of lawyers, also see, e.g., “The MCLE Question No One Wants to Ask” at http://www.law21.ca/2013/04/the-mcle-question-no-one-wants-to-ask/ and “Colossal Cave-in: Why Reform of MCLE Was DOA” at https://www.myazbar.org/AZAttorney/PDF_Articles/AZAT0201-MCLE.pdf  and “Revisiting MCLE: Is Compulsory Passive Learning Building Better Lawyers?” at http://bit.ly/1uRNLDq R

Irksomely, however, mandatory CLE will continue to exist because state bars make a lot of money from it.

“You will never understand bureaucracies until you understand that for bureaucrats procedure is everything and outcomes are nothing.” – Thomas Sowell

The creation of yet another bureaucratic department at the Bar staffed with either more clerical or legal staff to vet CLE programs is a fiscal step in the wrong direction.

Among similarly-sized state bars, the Arizona Bar already has the dubious distinction of having one of the highest lawyer licensing fees; one of the largest annual budgets; and one of the biggest administrative staffs and exceptionally well-paid executive cadre in the country.

Instead of looking at fiscal discipline and cost-controls, this latest initiative virtually assures more member dues increases to satisfy the ongoing demands of the new bureaucracy created to qualify, certify, track and audit CLE providers in the future.

Whether there’s enough fiscal good sense left among the Bar’s Board of Governors to stop the proposal remains to be seen.

But when you’re talking Bar bovine bankrolling protection — don’t bet on it.

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Photo Credits: Deadly sins, Avarice, by Jesus Solana at Flickr Creative Commons-requiring attribution http://www.flickr.com/photos/pasotraspaso/6953271968/; The Emperor’s Clothes by Vilhelm Pedersen at Wikipedia Commons, public domain; Revenue by Simon Cunningham at Flickr via Creative Commons license requiring attribution; Limbo Dancer by Mariegriffiths at Wikipedia Commons under the GNU Free Documentation License; Imag0361, by Bruce Biles at Flickr via Creative Commons license requiring attribution; Money, by Philip Taylor at Flickr via Creative Commons license requiring attribution; Bureaucrats, by Raafael at Wikimedia Commons via Creative Commons Attribution-Share Alike 3.0 Unported license; Cash cow, adopted from watchingfrogsboil at Flickr, Creative Commons, Attribution-NonCommercial-ShareAlike 2.0 Generic license.

“What the falafel?” I rhetorically asked after two colleagues separately emailed me the past day about the State Bar of Arizona’s new CLE Institute Training Program.

Ahead of the Arizona Bar’s likely imminent approval of a new CLE provider precertification system that passes on more costs on lawyers, comes the same “friendly state bar’s” new “voluntary faculty development program.” Participants sign up for $50 apiece to attend a CLE Institute to become a “State Bar Certified CLE Presenter.” Wow!

Apparently someone had a brain infarction that Arizona lawyers were clamoring for such a credential! If I’d only known. Just tell me, though, when “voluntary” becomes “mandatory.” Meantime, my right-hand wearies from one-handed clapping.

According to the Bar’s promotional flyer, attendees take part in a day-long “training session” in full business professional dress. They view pre-recorded video lectures and create a 10-minute video presentation for analytical discussion. On completion, they’re required to chair or take part in a SBA CLE program within 12 months of graduation.

On second thought, skip the falafel and pass me a hushpuppy! In truth, I never acquired a taste for either although I have friends who’ll drive miles for a good falafel sandwich. Don’t know about the hushpuppy. As for me — hand me a gyro.

But enough about food, frivolity and the foolhardy. So just before the Arizona Bar makes it more difficult for third-party providers to market and sell CLE, here’s more FREE CLE.

PLEASE NOTE: The in-person Phoenix, AZ CLE program worth “up to 7.0 CLE hours, including 1.0 Ethics and 1.5 Domestic Violence Plus BONUS .5 credit during lunch hour” is not technically FREE — but requires a $65 payment for materials, lunch, snacks and refreshments. All the same, quite the deal!

The usual disclaimers about content quality, jurisdictional acceptability and continued availability apply.

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LexisNexis® presents a Complimentary CLE-eligible* Webinar: Finding Shelter After the Storm: Survival Following Hurricanes, Earthquakes, Floods and Fires

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Is Your Legal Hold Process “Reasonable” Under the Updated FRCP?

Presented by Exterro as part of its E-Discovery Masters Series

Webcast: October 1, 2014 at 1:00 p.m. Eastern (10:00 a.m. Pacific)
Space is limited. Register Now!
CLE-Accredited Webcast but separate registration is required on www.nacle.com/exterro to receive CLE credit.

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Keeping Legal Minds Intact: Mitigating Compassion Fatigue Among Legal Professionals

American Bar Association

Wednesday, October 22nd at 12:00pm-1:30pm CST

http://shop.americanbar.org/ebus/ABAEventsCalendar/EventDetails.aspx?productId=135023765

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How the Separation of Powers Informs the Executive Duty to Defend the Law  

Case Western University Law School

OCT 2, 2014
4:30 P.M. – 5:30 P.M.

1 hour of in-person CLE credit available, pending approval

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Volunteer Atty & Child Advocacy seminar

Defenders of Children and Arizona Summit Law School

LIVE IN-PERSON CLE PROGRAM

‘KEEPING IT REAL’ Educational Seminar
Seating is Limited.
RESERVATIONS ARE A MUST!

FRIDAY, OCTOBER 31, 2014
8:15 a.m. to 5:00 p.m.

AZ SUMMIT LAW SCHOOL
1 N.Central Ave. (at Washington)
PHOENIX, AZ 85004

$65 Early Bird received during September ensures the full day’s amenities, materials and lunch.

Educational credits available for lawyers and mental health providers with an interest in Family and Juvenile Court.

REGISTER AT:
https://events.r20.constantcontact.com/register/eventReg?oeidk=a07e9tab5l6c4f4fe81&oseq=&c=&ch=
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Photo Credits: Falafel, at Wikimedia Commons by Jerem at fr.wikipedia under the GNU Free Documentation License; Hushpuppies 5 stack, Uploaded by CrazyLegsKC, Wikimedia Commons under Attribution-ShareAlike 3.0 Unported license.

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