And so I found myself pondering the quote, “I listen to what you say, but I hear what you mean.” It was attributed to Agatha Christie’s famed Belgian detective Hercule Poirot, as played by actor David Suchet.

But it wasn’t until late last night that I came across the thought-provoker. Monday had caught up with me before I was ready to let go of Sunday.

That’s why I hadn’t yet finished reading Sunday’s NY Times Magazine and particularly Hope Reeves’ interview with Suchet, ‘Part of Me Died With Him‘ containing the quote. Suchet, who played Poirot in the BBC show, says Poirot made him “a better listener.”

Were it only so that we listened with Poirot’s discernment. More often’s the case that people don’t listen to what you say — and hear only what they mean. Or as the late Steven Covey perceptively proclaimed, “Most people do not listen with the intent to understand; they listen with the intent to reply.”  

And so also true in the same interview was Suchet’s later declaration, “most people actually enjoy talking about themselves more than sharing with another person.”

On that note, here’s one more free continuing legal education link, which I missed last week. It comes with the usual disclaimers.

FREE CLE

ESI, Ethics and Social Media: What Attorneys Should and Should Not Be Doing

• Understand how social media may appropriately be used to advertise.

• Learn how legal advice may be given through social media.

• Understand how social media can be used to gather and review evidence.

• Discover how social media can be used to communicate with clients.

• Find out how juror research may be conducted through social media.

http://www.bna.com/esi-ethics-social-w17179891704/?id=17179891704

Last week, the State Bar of Arizona launched an odd campaign. It’s a social media contest using the photo sharing, video streaming site Instagram.

Called Finish the Ballot!, the contest is supposed to promote voter information about judicial retention elections. Yeah, there’s a challenge — ginning up excitement for a dull but important topic.

Dangling all of a $250 Visa gift card as the sole prize, contestants vie by creating a 15-second Instagram video that must include the phrase, “Finish the ballot. Vote for the judges!”

Bar employees will pick the winner based on “creativity and originality as they reflect the contest’s theme.” Instead of “Just Say No!” think “Just Say Vote!” 

Undervoting worries.

The goal is to increase voter participation — at least on that really long part of the ballot with all the judicial names expecting virtually guaranteed retention.

Problem is that voters in Arizona and in other judicial retention states continue choosing not to complete their ballots. The phenomenon has a name. It’s called “undervoting” or “roll off.”

The worry is that for merit selection and judicial retention election proponents, all those non-votes undermine the argument that retention elections are supposedly great at ensuring judicial accountability.

And with ever longer ballots and so many judges listed, it’s not getting any better. In one recent Maricopa County election, for example, there were 65 judges on the ballot.

Indeed, according to a June 2014 Arizona Law Review article, “Judicial Performance Review in Arizona: A Critical Assessment,” authors former Arizona Supreme Court Chief Justice Rebecca White Berch and her former law clerk now attorney Erin Norris Bass, reference Professor Larry Aspin’s studies revealing that between 1964 and 2010, Arizona judges up for retention averaged an undervote of 42.9%.

In his report, “Judicial retention election trends,” Aspin highlighted the undervoting increase in the state’s largest county, Maricopa, where it ran “an average 48.8% in the 1996-2006 period, peaking at 54.5% in 2004.”  And citing 2012 Maricopa County Election Results, Justice Berch and Ms. Bass noted more recently that “In the 2012 retention election, Maricopa County Superior Court judges on the ballot had an average 50.7% undervote.”

But besides undervoting, there’s another concern troubling the legal establishment. Justice Berch and Ms. Bass’ law review article, also cited findings that “approximately 30% of the electorate routinely votes ‘no’ in judicial retention elections no matter who the judge happens to be.” 

In Maricopa County, among those taking the time to vote for all the judges, the median affirmative vote in the 2012 county election was 69%. Anecdotally at least, one can speculate this may be a form of protest by restive voters dissatisfied with the present system.

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Photo Credits: 214/365, at Flickr by Morgan via Creative Commons attribution; Making Faces, at Flickr by a2gemma via Creative Commons-attribution license;My Kitty Boys Doing the Big Eye Stare, by joanna8555 at Flickr Creative Commons attribution license;Instagram-logo, uploaded by José Moutinho at Flickr Creative Commons attribution;DeMoulin’s Patented Hoodwink, at Flickr Creative Commons-attribution license uploaded by Arallyn!

On Sunday, the local paper ran an editorial long on conceit but short on illumination. “Kick these judges off the bench” proclaimed the Arizona Republic’s Editorial Board. The Op-ed was a day ahead of its own news story declaring, “Arizona commission deems 2 judges unfit for bench.”

I reckon the paper’s commentators couldn’t wait to join the “Amen” choir hallelujahing two non-retention recommendations by Arizona’s Commission on Judicial Performance Review (JPR).

According to its website, “The JPR Commission is responsible for developing performance standards and thresholds, and conducting performance reviews of justices and judges who are merit selected and subject to retention elections.”

So with early voting in full swing, the Commission’s judicial evaluations are supposed to help voters wade through a morass of some 50+ judicial unknowns on their ballots.

But what made news was that the Commission actually found two judges worthy of non-retention recommendations. They were Maricopa County Superior Court Judge Benjamin Norris and Pima County Superior Court Judge Catherine Woods — both deemed well below the Judicial Performance Review Standards used to evaluate judges.

Sure the newspaper editorial quoted the Commission’s Chairperson who called the two non-retention votes “historic.” But too bad the paper didn’t adequately explain how truly historic — as in rarer than a Phoenix snowball.

“Everyone’s special . . . .”

For all its self-congratulated value during its 22 year existence, the JPR Commission has generally functioned as an election cycle rubber-stamp consistently grading judges with mean evaluation scores well above 98%. Everybody’s not just special — but really special.

And since like most of Arizona’s legal establishment, the Commission’s hardly a paragon of transparency¹, it’s tough to nail down precisely how rarefied these two non-retention recommendations were. Depending on the source, it’s either been once or twice before that Commission members have found pluck enough to recommend a judicial non-retention. According to one source, it’s happened only once before — in 1998. Yet another source claims it also happened in 2008.

No matter, though, as in each case the public didn’t pay any mind. Regardless of the recommendations, voters retained the judges anyway!

Since Arizona merely requires “a majority of those voting” to retain a judge, newspaper Op-ed and Commission votes notwithstanding — I won’t be surprised if it happens again this year. So much for achieving its intended purpose with all the efficacy of a hamster on a broken wheel.

Nothing succeeds like self-congratulation.

In September, in a laudatory Op-ed to commemorate this year’s 40th anniversary of Arizona’s judicial merit selection system, Arizona’s State Supreme Court Chief Justice self-interestedly explained “Why Arizona has some of America’s best judges.”

While passing praise all around, at least Chief Justice Bales parenthetically conceded that “Some have observed that Arizona’s voters do not often reject judges who are up for retention.” Talk about understatement.

In 40 years, the scorecard is 99% get retained. Since 1974, only two judges have lost a retention election in Maricopa County. Also see research cited at “Job security means working for the feds or sitting for judicial retention elections”

Additionally, a law review article recently noted that “A few have argued that the JPR program does not work to “weed out” bad judges, because the Commission rarely votes that a judge “Does Not Meet” standards, and when the Commission does issue such a vote, the voters nonetheless retain the judge.

“Although that is one way to evaluate the data,” the authors explained, “an alternative assessment is that the data demonstrate the merit-selection system’s success in appointing high-quality judicial applicants. That is, the data may instead show that the merit-selection system is attracting and retaining highly competent judges who are performing well and do not deserve “does not meet standards” votes or to be voted out of office.”2

Frankly, this “alternative assessment” is probably a stretch. The problem with drawing such conclusions is best summed up by the aphorism, “the absence of evidence is not evidence of absence.”  Or in other words, we’re expected to accept the fallacious logic that X is true because there’s no proof X is false.

That the Commission almost always fails to muster “Does Not Meet” standards votes — or that it rarely votes to non-retain — or that an overwhelmed electorate has to play “Eeny, meeny, miny, moe” on scores of judicial unknowns — hardly amounts to proof positive that merit selection cornered the market on the high performing and highly competent.

What it does mean, however, is that after 40 years, merit selection is tantamount to lifetime appointment.

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(1) Try searching for meeting minutes or judicial performance report data older than 4 years on the Commission’s website at http://www.azcourts.gov/jpr/NewsandMeetings.aspx?nt=4

(2) See Judicial Performance Review in Arizona: A Critical Assessment.
Berch, Rebecca White; Bass, Erin Norris // Arizona Law Review; 2014, Vol. 56 Issue 2, p353

Photo Credits: Rubber Stamp Stand, by Thamizhpparithi Maari at Wikimedia Commons;Robo Dwarf Hamster, by Sarah , Flickr Creative Commons Attribution; Stick figure – choosing, by Obsidian Soul by at Wikimedia Commons.

Preposterously penurious pay.

As for the advertisement Cicchini received, the County Circuit Court in Racine, Wisconsin is looking for an “advocate counsel” and the pay is an unbelievable $25,000 per year. Don’t expect expense reimbursement or job security. It’s terminable at-will.

The ad then goes on to state that “attorneys may be assigned any type of felony [including homicide], misdemeanor, juvenile, criminal traffic, and probate cases and any other action as the court orders . . . It is estimated that there will be about 70 – 80 assignments in 2015 per attorney.” Read the rest of Cicchini’s post here.

The quality of unfairness.

As an experienced criminal defense lawyer, Cicchini properly points out that this kind of caseload is “nearly impossible” for any lawyer — let alone a newbie hoping to do thorough, ethically unimpeachable legal work for clients.

Admittedly, there was more than enough in the court’s advertisement to annoy any lawyer — not the least being the overt professional discourtesy of lawyers trying to screw over other lawyers, i.e., those desperate enough to apply for such a demanding job at such penurious pay.

And who were the one’s being so discourteous? Cicchini speculates “this proposal was presumably authored with input from the Racine County judges themselves.”

But beyond exploiting economically hard-pressed young lawyers, there’s another even more disturbing consideration. What does this job say about exacerbating the continuing disparities of justice meted out to indigent defendants by overburdened, under-resourced public defenders? Studies have amply demonstrated that “public defenders do not have enough time to conduct thorough investigations, or meet with and provide quality representation for their clients – many of whom are low-income earners and people of color.” See, for instance, “System Overload: The Costs of Under-Resourcing Public Defense.”

Ethical hazards.

But beyond the above-mentioned concerns, it was the potential ethical minefields created by the job that also got my dander up. As one commentator observed, “the deck is stacked” against solos as it is. Writing at “Ethical Hazards of Solo and Small Firm Practice,” Benjamin Cowgill axiomatically notes that nationwide, solos and small firms bear the brunt of most bar complaints. One reason, among many, arises from their chosen areas of practice, criminal defense being one of the riskier.

So what does this lousy job in Racine with its heavy caseload at rock-bottom pay say about how far ethical concerns are discounted in Cheesehead Land?

Just a few years ago the Milwaukee Journal-Sentinel ran an excellent comprehensive investigative report about the sorry state of Wisconsin’s attorney discipline system. The newspaper reviewed almost 24,000 Wisconsin lawyers against state and federal court records and “found that lawyers who are convicted of crimes are then subjected to a slow-moving disciplinary system that operates largely behind closed doors.” It went on to underscore the patently obvious that “Wisconsin appears to be comparatively lenient in dealing with lawbreaking lawyers.

“Unlike many other states, where the licenses of lawyers convicted of serious crimes such as fraud are immediately suspended to give regulators time to determine the proper sanction, Wisconsin sometimes allows criminals to keep their law licenses even while they are behind bars.”

Hilariously hubristic hypocrisy.

So front and center comes this challenging low-paying job in Racine that just reeks of potential ethical hazard for the unwary and overburdened.

And yet, maybe I’m overstating the hazard? After all, it appears not much has changed since 2011, at least when it comes to lawyer discipline in Wisconsin. Indeed, earlier this summer there was a lawyer discipline case reported by “The Legal Profession Blog” ironically highlighting “Calls to Reform Wisconsin Attorney Discipline” made by none other than Chief Justice Shirley Abrahamsom and Justice David Prosser. Given the facts of that case, both expressed agreement on the need to study and reform the Wisconsin attorney discipline system.

But here was the irony and the not insignificant brass. Along with Justice Ann Walsh Bradley, the Wisconsin high court has hardly been an exemplar of professional comportment.

But after all the he-said/she-said, no criminal charges were ever filed although Justice Prosser did get charged with ethics violations. However, lo and behold and consistent with how things apparently roll in Wisconsin, multiple recusals led to no quorum, which meant no determination of discipline could be made against Justice Prosser. So, the charges were dropped. Later the same year, he eked out a 7,006 reelection win over Joanne Kloppenburg.

And so he sits on the high bench in 2014 opining along with his chief justice who he previously disrespected about how Wisconsin’s attorney discipline system needs reform.

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Photo Credits: Talking with Hands, Wikimedia Commons; Half the pay, twice the work by Truthout.org at Flickr via Attribution-NonCommercial-NoDerivs 2.0 Generic License; Defense Counsel by Matt Freedman at Flickr, Attribution; bad jpg file in encrypted folder by Mike at Flickr via Attribution-NonCommercial-NoDerivs 2.0 Generic License.

Lawyers get a bad rap even when sometimes it’s deserved. But in the case of Alabama lawyers Wendy Brooks Crew, Alyson Hood Rains and Cameron Hogan, I’m not so sure. The three lawyers have been catching flak ever since it was reported they’d be getting 99.8% of the settlement authorized by the City of Birmingham, Alabama for their client, Anthony Warren. The money settles Warren’s federal suit over police excessive force. But what’s had tongues wagging is that his lawyers will get $100,000 for expenses and $359,000 in fees — while Warren will net $1,000.

Warren’s suit arose after a January 23, 2008 high-speed police chase — where he ran over a police officer, hit a school bus, a police car and ultimately lost control of his van when it rolled into a ditch. He was ejected from the driver’s side window and landed unconscious in the ditch. He plead guilty to charges from the incident, which included attempted murder, and is currently serving a 20-year sentence.

According to court documents, Warren had no recollection after his ejection. Per the court memorandum’s statement of facts, “the police officers “descended on [him] and started to brutally beat him with excessive force. At no time did Plaintiff move or offer any threat of harm to [them]. One of the police officers repeatedly struck Plaintiff’s body with a billy club. Another police officer “pummeled” Plaintiff’s head and upper body with his fist. Three other police officers kicked Plaintiff “numerous times about his body.””

A dashboard police vehicle video camera caught it on tape. In the statement of facts, Warren also maintained“the portion of tape where the [police officers] brutally beat . . . Plaintiff was suppressed by the City of Birmingham and deleted from evidence provided to Plaintiff’s defense counsel.” It was almost one year before Warren and his lawyers obtained the complete unaltered videotape.

Alleging he was the victim of police excessive force when he was beaten as he lay face down and unconscious in the ditch, he sued under federal civil rights statute 42 U.S.C. 1983, which permits “any citizen of the United States or other person within the jurisdiction thereof” to bring a private action against another person or entity “who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia” deprives them of any rights, privileges, or immunities secured by the Constitution or federal law.

But why did Warren only get $1,000? According to a lawyer for the defendants, he only got “nominal damages” because the City proved his injuries resulted from the vehicle crash not the officers’ actions. Warren’s lawyers dispute this. But without an adjudication, we’ll never know.

Second-guessing the settlement.

Fast forward five and a half years to 2014 and as Warren’s lawyers maintain — “thousands of hours” and it’s easy to second-guess their out-of-court settlement absent more facts.

But lawyers steeped in such civil rights claims acknowledge police brutality suits are long, hard-fought and difficult to win. Warren’s lawyers say as much in a public statement they felt compelled to make after all the negative post-settlement fallout. It mentions “very difficult burdens of proof,” police officer qualified immunity, and juror biases “against awarding money to a person convicted of a crime.”

Moreover, police departments aren’t quick to settle these cases. One scholar goes as far as declaring so-called ‘1983’ suits are not only “ineffective in deterring police brutality” but“are difficult and expensive to pursue” since most victims are minorities with few financial resources to hire lawyers for protracted litigation.

42 USC § 1988 enables a court to award reasonable attorney’s fees to the prevailing party in civil rights cases. But Warren’s case settled without a verdict.

Moreover, I haven’t a clue about the fee agreement between Warren and his lawyers, for example, whether it was a contingent-fee contract where his lawyers received a gross recovery percentage, which would be offset by any court-awarded attorney’s fee — or whether or not his lawyers left money on the negotiation table — or how they handled the inherent conflicts of interest between them and their client. But no matter, all the disputants approved the settlement.

Sure I know lawyers personally and by reputation who advertise they “never earn more money than the client” or that they “NEVER charge more in Attorney fees than our client puts in pocket.” But those firms handle personal injury contingency-fee claims not civil rights actions like the one here.

So without more facts and better media explanations about the obstacles faced by civil rights plaintiffs, it’s hardly surprising Warren’s lawyers have been criticized.

Indeed, more than just criticism, the lawyers characterized some of it as harassment, noting in their statement, “Over the past 48 hours, my co-counsel and I have been harassed, called names and threatened by countless people via telephone calls, emails, and internet messages because of the settlement agreement that was disclosed this week. We have been called criminals, thugs, crooks, thieves, liars, cheats, and many other names.”

They conclude, “We represented Anthony Warren, absolutely. Just as important, though, we were extremely proud to represent the Constitutional rights of every person in this great country. We did this knowing that there was a very good chance that none of us would ever be compensated a dime for any of the hard work we put into the case because freedom and liberty are not just words to us, but they are instead actual rights that we are willing to fight for. Because we did so successfully, we are being demonized instead of thanked. That is fine. Attorneys have long been the butt of jokes, and I would expect nothing less from those with little knowledge of the actual terms and circumstances. Regardless, Mr. Warren and his family know the terms of the agreement, and they were very pleased with the outcome. We are all extremely proud to have represented Anthony Warren and the U.S. Constitution in this case.”

But unfortunately for Warren’s protesting lawyers, given the usual tide of Internet meanness and anything anonymously goes, the tiny violins will unsympathetically play on.

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Photo Credits: No Name #4, by David Mican at Flickr Attribution; world’s smallest violin, blingee.com.

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A guy is driving around the back woods of Montana and he sees a sign in front of a broken down shanty-style house: “Talking Dog For Sale.” He rings the bell and the owner appears and tells him the dog is in the backyard.

The guy goes into the backyard and sees a nice looking Labrador Retriever sitting there.

“You talk?” he asks.

“Yep,” the Lab replies.

The Lab looks up and says, “Well, I discovered that I could talk when I was pretty young. I wanted to help the government, so . . . I told the CIA.

“In no time at all they had me jetting from country to country, sitting in rooms with spies and world leaders, because no one figured a dog would be eavesdropping.

“I was one of their most valuable spies for eight years running.

“But the jetting around really tired me out, and I knew I wasn’t getting any younger so I decided to settle down. I signed up for a job at the airport to do some undercover security, wandering near suspicious characters and listening in. I uncovered some incredible dealings and was awarded a batch of medals.

“I got married, had a mess of puppies, and now I’m just retired.”

The guy is amazed. He goes back in and asks the owner what he wants for the dog.

‘Ten dollars,” the guy says.

“Ten dollars? This dog is amazing! Why on earth are you selling him so cheap?

“Because he’s a Bullshitter.

He’s never been out of the yard.”

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Some thoughts about listening and lie-detection.

Years ago, a Hank Ketcham Dennis the Menace cartoon graced the wallboard next to my office coffee station. Dennis was in the foreground in the usual trouble as he explained his latest mischief. His peeved mother, arms crossed, stood to his left with his perplexed dad home from work on his right. The caption read, “Do you wanna hear my version, mom’s version or the truth?”

I kept that cartoon to remind me that as the poet observed, people sometimes “tell all the truth but tell it slant.” Listening effectively means understanding that gradations of truth occur in fact-gathering. So when evaluating a client representation, lawyers must cultivate a practiced ear and listen carefully to grasp the factual versus the fictitious — the nuanced truth versus the cunning adulteration.

It’s more art than science. As an essayist once noted, “each of us tells little lies to make it through the day, and an indistinct line divides fair from foul.”

So when a long-time lawyer and friend exaggeratedly quips, “All clients lie,” I know that, in spite of his hyperbole, he’s channeling Dennis the Menace. He means there’s more than one side to every story. This is especially true when a legal representation concerns intra-family conflicts, workplace controversies or business disputes.

To get to those ‘versions’ requires good listening. This is why legal writing professor Jennifer Romig is absolutely right when she says,“good listening makes good lawyering.” Fortunately, effective listening skills can be learned.

As for lie detection — not so much. Sure there are books, studies and articles claiming to help determine when someone is lying. I’m not sure I believe them. In my experience, finely-tuned bullshit detection comes mostly through hard-knock ‘fool me once’ life experience.

That said, last month lawyer Mark Wilson posted his “5 Ways to Tell When a Client Is Lying to You.” Momentarily putting aside what a lawyer must ethically do when a client plans to lie-to-acquittal or otherwise thinks perjury is play-doh pliable, Wilson focused instead on clients who 1) speak vaguely; 2) have dilated pupils; 3) use body language to physically distance; 4) make inconsistent statement; and 5) are verbose.

Save for spotting narrative inconsistencies, those may or may not be helpful cues to uncover a lie. Still it’s a popular exercise. Other psycho-pop theories, for example, suggest that too much or too little eye contact; nose touching; hand-waving; fidgeting and just general uneasiness are also sure-fire lie-catchers.

However, none of these so-called clues are infallible or fool-proof. They won’t, for instance, expose a tall tale wagging canine.

Like the yarn-spinning yard-bound Labrador, in my experience, the more creative people are the better liars.

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Photo Credits: IMG_33151 by Elisa at Flickr via Creative Commons Attribution-NoDerivs 2.0 Generic License; Stylin’ by Marvin Kuo at Flickr via Creative Commons Attribution; smiling labrador and yellow flowers, by nox-AM-ruit at Flickr Creative Commons via Attribution-NonCommercial-NoDerivs 2.0 Generic license;more faces, by Stephanie Sicore at Flickr via Creative Commons Attribution; Alex 1 by Ted at Flickr via Attribution-NonCommercial-ShareAlike 2.0 Generic license.

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This Wednesday, it’ll be two months since the State Bar of Arizona considered a proposal to protect its two-million dollar revenue laying Golden Goose known as Bar-sponsored continuing legal education (CLE).

On September 19th, the Bar weighed a recommendation to seek state supreme court approval for a ‘pay-to-play’ regimen requiring third-party CLE providers to pay a precertification fee for Bar-accreditation to sell credit-eligible courses in Arizona.

Following a universal outcry from members who criticized the proposal as an unnecessary added cost, the vote was apparently tabled. But who knows for sure? Since the board of governors meeting minutes have yet to see the light of day, the lawyer hoi polloi in Arizona are left to wonder whether or not the Bar’s goose will lay another golden egg.

But fortunately, there’s no need to wonder about the continued availability of FREE CLE — from third-party providers, naturally. Along with the usual disclaimers about content, continued availability and jurisdictional approval, here are the latest updates.

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Rimon Law

Nov 21, 2014 11:00 AM to 12:00 PM EST

One hour CLE; approved in California and credit-eligible in NY.

CPE/CLE Webinar – State and Local Taxation: Headline News and Trends.

http://rimonlaw.com/events/cpe-cle-webinar-state-and-local-taxation-headline-news-and-trends

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Lewis Brisbois 

http://www.lewisbrisbois.com/webinars

November 20, 2014

Managing and Mitigating Damages in the Wrongful Death Case

REGISTER

December 18, 2014

Encore Performance: Affordable Care Act – Part I: The Impact of The Affordable Care Act on Personal Injury Litigation. A Plan to Defend Against Claims for Future Medical Costs, Loss of Health Insurance, and Life Care Plans.

Time: 9:00 am – 10:00 am PST

Fee: Complimentary

REGISTER

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West Legal Ed

Content Partner: Robert Half Legal

Client Dynamics Driving Change in the Legal Profession

http://westlegaledcenter.com/program_guide/course_detail.jsf?courseId=100031914

One hour, Video On Demand, Complimentary

Approved in multiple jurisdictions.

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American Society of Law, Medicine and Ethics, ASLME

Alcohol Law and Policy: Lessons Learned from the Field

Thursday, November 20th
1:00pm – 2:30pm (ET)

Free

http://www.aslme.org/webinar-alcohol-law-and-policy-lessons-learned-from-the-field

Presented in Partnership by: American Society of Law Medicine and Ethics (ASLME); Network for Public Health Law; and Public Health Law Research

(Hat tip: 4FreeCLE: Free Continuing Legal Education)

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Photo Credits: Simpleton_takes_The_Golden_Goose_to_the_inn_-_Project_Gutenberg_eText_15661.jpg, Wikimedia Commons, public domain.

Starting in law school, continuing till the final hour’s billed, and doubtless, just before the toe tag’s attached, there’ll be a marketer trying to wrest a lawyer’s last discretionary death’s door dollar. This was true back when conventional wisdom held lawyers were dependably fertile targets thanks to all that money they supposedly made.

But even now after the economy’s shown lawyers aren’t recession-proof or that the glut of tuition-indebted law school graduates has consigned many to work for peanuts, the trolling’s only become worse.

There’s pay-per-click; online lawyer directories; SEO and social media; lead referrers and lawyer rating advertisers. And not to mention uber-expensive practice and case management software, electronic legal research tools, and court rule books by annual subscription. You’d think prudence if not parsimony would dictate careful cost-benefit analyses.

Paid praise.

In an era of selfies and self-promoting portly posteriors, who even knew such anachronisms still existed? Like phone directories and cockroaches, apparently who’s who will survive who cares at the Apocalypse.

And then last week, I was emailed with news I’d been selected for a top 100 list! Who can stand the ‘adulation’? But like ‘winning’ sweepstakes notices and attorney email collection appeals, they’re not unique.

Just last year, Matt Brown at Tempe Criminal Defense Blog took down similar “parasitical” marketing efforts meant to burnish ‘fragile’ lawyer egos — of course, for a price.

But as for those “Who’s Who” directories, they’re simply a form of vanity publication since one way or another, ‘honorees’ pay for the ‘honor.’ Most follow the same model, too, which is that inclusion is ‘free’ while the publishers overeagerly hustle expensive copies along with other overpriced distinctions of a dubious honorific.

When you’ve gotta pay for such faint praise in what one pundit calls, “The Hall of Lame,” then “Don’t feel too special if you’re invited to be in a “Who’s Who” directory” as blogger Sheryl Harris posted at “‘Who’s Who’ invite aims at your ego — and your wallet.”

Fortunately for me, however, about the same time I was being pestered for paid ‘triumphant achievement’ honors, I unexpectedly received something more valuable — a “VIP gift” from a Vietnamese Pho restaurant I frequent.

The owner and her wait-staff appreciatively presented me with a flashlight pen imprinted with the restaurant’s admittedly homophonically-challenged business name, “Pho King Eggroll.” They said it was given “only to VIP customers.”

Just think, I’m a “Pho King” VIP and all it cost me were some bowls of noodle soup.

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Photo Credits: ”Toe Tag,” by Dep. Garcia at Wikipedia Commons under the Creative Commons Attribution-ShareAlike 3.0 License; Vanity by A. T., 1890 (source: Wikipaintings), public domain; Children with paper crowns, by phlubdr at Flickr via Creative Commons attribution license;Untitled, by The Integer Club at Flickr via Creative Commons attribution license.

Two months ago, the State Bar of Arizona ran a lame contest via Instagram to encourage voters to “Finish the Ballot!”

Voters here aren’t particularly fond of playing “eeny, meeny, miny, moe” to figure out who to vote for among scores of judges up for judicial retention elections. The numbers can run upwards of 50 to 60 — even 70. Unfortunately, most of the populace has never heard of the candidates. And for Red State Arizonans, it’s even tougher since judicial elections aren’t partisan.

So in lieu of throwing darts at a list or visiting the judicial performance review website, which 99% of the time rubber-stamps its approval anyway — many voters take a pass. They either vote “No” on everyone or they don’t vote altogether for the judges.

Just the same this wasn’t the contest to do it, not by any stretch. Assuming anyone paid attention, the contest was purely a sop for those crying out for something — anything to stem the tide of persistent problematic ballot roll-off.

The sole prize for the winning video entry was supposed to have been a $250 Visa gift card. But since the November election, it’s been a minor mystery on whether or not the Bar received any contest video entries or whether anybody actually won. I’ve seen no pronouncements from our friendly state bar, which is highly unusual since this stands in stark contrast to all the email announcements ballyhooing the start of the contest. Odd, too, as the local Bar is quite fond of filling up lawyer inboxes with unsolicited email newsletters, redundant CLE advertisements and just today, an especially unwelcome “time to pay your State Bar of Arizona’s annual dues” email.

At least for now, it appears mum’s the word on “Finish the Ballot,” which naturally prompts the question whether or not the Bar ever plans to “Finish the Contest.”

To be clear, I don’t actually care a rat’s hindquarters about the contest. This is merely my snarky segue into posting more FREE CLE offerings for lawyers still trying to “Finish the CLE” by year-end. The usual disclaimers on content; continued availability; and jurisdictional approval apply.

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FREE CLE

First American Exchange Company

http://firstexchange.com/webinars

1031 Exchanges and
Commercial Real Estate

Thursday, December 4th, 2014

11 AM Pacific / 2 PM Eastern
50 minutes
Topics will include:

• Current Trends
• Allowable Closing Costs
• Recapture of Depreciation
• How Reverse Exchanges Can Save a Transaction
• Exchange Deposit Accounts
• State Regs for QIs

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Wolters Kluwer

Alternative Entities — Navigating New Choices for Business Formations Webinar

December 9, 2014 – 1:00PM(ET)

http://www.cvent.com/events/alternative-entities-navigating-new-choices-for-business-formations-webinar-december-9-2014-1-00p-et/event-summary-ec6cf48dac2244db92fd51c114fd0e2d.aspx?elq_mid=3977&elq_cid=41694

1.0 CLE credit hours in California, Illinois, Missouri, NALA, New York, Pennsylvania and Texas and other jurisdictions under reciprocity.

Topics:

• Series LLC
• Benefit Corporations
• Low-Profit LLC
• Unincorporated nonprofit associations
• Limited cooperative associations
• Master Limited Partnership

Attendees will learn:

• What new entities are now available
• How they are different from and similar to traditional entities such as the corporation or LLC
• Where they can be formed
• How they are formed, maintained and terminated

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LexisNexis® Presents a Complimentary CLE-eligible Webinar: Ethical Concerns Conducting Research via the open Web

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Photo Credits: 214/365, at Flickr by Morgan via Creative Commons attribution.

Having felt trapped more than once in a corporation or public utility’s fifth circle of customer service hell, I empathize with the public’s anger and frustration. Nothing elevates the blood pressure like getting placed in interminable telephone waiting queues or otherwise being forced to engage in futile debates with unresponsive call center drones when trying to fix a customer problem.

No wonder the epic customer service meltdown that circulated last year resonated with so many. Talk about a teachable but unlearned moment.

And also see Aaron Spain’s viral video, “Comcast put me on hold until they closed,” about his sitting on hold for 3 hours trying to cancel Comcast service last August.

So when I heard about a new web-based service purporting to “fight the faceless corporations causing your customer service nightmares,” I was intrigued — in spite of the website’s indelicate name, “Assholes On Demand.” Their motto is “Non sibi, sed suis” or “Not for oneself but for one’s own.” Of course, it could all be for laughs, too.

The “project” is headed by principals Erin Scottberg and Erik Martin who list a Manhattan area phone number on their website and offer the following somewhat ambiguous explanation about their deliverables:

“Assholes on Demand helps people get what they rightfully deserve. We’re caring and resourceful assholes* who will fight the faceless corporations causing your customer service nightmares. You’re not alone and you aren’t going crazy. 

“Assholes on Demand currently only accepts Pro Bono cases. We specialize in helping senior citizens, active duty military, and non-English speakers.

“If you or a loved one have no where else to turn, contact us maybe we can help. If you’re an asshole, volunteer with us and put your powers to good use. 

We’re like the X-Men, but for assholes!”

Giving them the benefit of the doubt, however, I salute the undertaking. Hopefully it does turn out to be altruistic and honest of intentions.

Last, I don’t know if the folks providing “Assholes on Demand” are lawyers. I doubt it, even if it sounds like this ought to be a lawyer’s bailiwick. It prompts, too, my recollections of a salty old lawyer friend who analogously sasses his explanation when asked why people hire lawyers, he answers “Why send an amateur, when you can hire a professional asshole?”

And of course, it also prompts some Mel Brooks.

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Photo Credits: “Angry Crazy Man,” by Catherine Helzerman, chelzerman, at Flickr via Creative Commons-licensed content requiring attribution and share alike distribution.

Image, Wikimedia Common

So here it’s almost year-end with so much to update and so little time, including that the Arizona State Bar’s ‘pay to play’ CLE precertification scheme was unexpectedly voted down by an otherwise management-submissive board of governors.

Conveniently overlooking that it started the commotion in the first place but acting now as though members suddenly mattered, here’s the Bar’s self-serving announcement, “After hearing comments from members and CLE providers, the Board of Governors has voted unanimously not to create a process for precertifying CLE providers.”

“Fanciful benefits” of CLE

But in place of other updates and since there’s a few more days before the last day of the year, let me instead here applaud colleague James C. Mitchell’s boldly trenchant move to petition to amend Arizona Supreme Court Rule 45. This is the rule that sets out the Court’s mandatory continuing legal education (CLE) requirements.

Arizona lawyer Mitchell petitioned the state supreme court last month to require an acknowledgement on all continuing legal education advertising, to wit,“that the value of mandatory continuing legal education (MCLE) is unproven and that the State Bar of Arizona has a financial interest in CLE marketing.” The acknowledgement would read as follows:

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Rule 45. Mandatory Continuing Legal Education
(a) through (k) [No changes]

“(l) Advertising. Any advertisement for a continuing legal education program, product or service offered by or in conjunction with the State Bar of Arizona shall contain the following disclaimer:

“The State Bar of Arizona makes no representation that this program, product or service will improve any attorney’s competence or protect the public. No evidence proves that mandatory continuing legal education provides such benefits. The State Bar seeks revenue from CLE programs, products and services.

“The disclaimer shall appear conspicuously in capital letters in black type at least half the point size of the largest type in the advertisement, but in no event smaller than 12-point type.”

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As he writes in his petition, “The statement would align claims for mandated CLE with available evidence of its value, acknowledging that CLE as practiced has little or no verifiable impact on attorney competence or public protection.

“This amendment is needed to create transparency in a significant program of law practice regulation. It would protect the public and lawyers themselves from deception by unproven claims of value in a mandated scheme of so-called continuing legal education, and protect the State Bar from potentially making or embracing false claims of value in products and services that it provides for money.”

Asking for “honest disclosure.”

Of course, the Court will never approve this petition and will most likely deny it without explanation. Still, kudos to Mr. Mitchell for daring so eloquently and so wittily to expose what most of us already knew, MCLE is bare of verifiable, substantiated argument.

Calling for truth-in-advertising and referring to the Bar’s claims about CLE content quality as “hyperbole,” he adds, “. . . until that joyous day when MCLE joins Smell-O-Vision films and Michael Dukasis’s tank in Terrible Idea Heaven, Petitioner simply urges this Court to order a policy of honest disclosure in advertising.

“None of the Bar’s hyperbole likely violates the prohibitions on false and misleading commercial speech in ARIZ. REV. STAT. § 44-1481(A)(1) (fraud-in advertising statute bars omission of material facts) or our own ER 7.1 (material omission prohibited in communication concerning a lawyer’s services). But should our State Bar really slither through the same loopholes that permit overselling automotive clunkers? Should our State Bar, when advertising, omit material facts in a way that no ethical advertising lawyer may? Should the State Bar claim a right to withhold essential information about CLE’s worth, namely the fact that none has been proven? Petitioner respectfully suggests that it should not. We’re lawyers. We should do better. We should get out front with the truth.”

To which I cheer, “Bravo, bravo, bravo!”

Read the entire petition here.

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Photos: From The Æsop for Children, by Æsop, illustrated by Milo Winter at Wikimedia Commons, public domain;La publicite en France par Emile Mermet, advertising poster, ca. 1880 by trialsanderrors at Flickr Creative Commons attribution;hands clapping, Wikimedia Commons.

 

Since it’s pretty much routine anymore for the State Bar of Arizona to survey its lawyers every three years to put together its Economics of Law Practice Report, I don’t dwell on it anymore. I also don’t participate in the survey, which inquires: “How much money do attorneys in Arizona make? What is the average billing rate? Are attorneys in Arizona satisfied with their choice of profession?

“We need your help to find the answers,” the Bar asks. “These are just a few of the questions that will be answered in the State Bar’s 2013 Economics of Law Practice Survey Report. It doesn’t matter whether you’re a sole practitioner, a big firm partner, public defender or in-house counsel; please help us by taking 20 minutes to complete this questionnaire.” See “Welcome to the 2013 Economics of Law Practice Survey.”

It’s offensive the Bar deigns to impose on an Arizona lawyer’s time by asking them to complete a 20-minute survey and then has the brass to sell the survey data it collects to those very same data points.

Besides, the whole thing is so much spin anyway — not to mention you need a modicum of allowance for the informal rule holding that the integrity of output is dependent on the integrity of input.

But since state bars are pretty much copy-cats of one another, particularly when it comes to getting lathered up over new revenue streams, it’s no surprise that Cheesehead lawyers in Wisconsin are being similarly surveyed and then asked to purchase the fruits of their labors, “Economics of Law Practice in Wisconsin 2013 Survey Report.”

When last I mentioned the Arizona Bar’s law practice economics survey in 2010, “State bar says ‘take our survey so we can sell you the results,” Wisconsin may not have been marketing and selling its economic survey. But then times change and the bureaucratic maw always needs feeding.

And so the Wisconsin Bar has of late been aggressively hustling its own law practice economics report. They’ve been emailing members and have even featured the videotaped ministrations of a marketing maven and encouraged the use of their survey so lawyers can assess their markets. (Hat tip to Wisconsin buddy, The Legal Watchdog).

But at least in Wisconsin, the state bar gives its lawyers a wee break by charging $99 for their report versus $125, which is what Arizona Bar members are asked to pay for their complete results. In both jurisdictions, though, the public pays well north of $200 for a copy.

Frankly, I think the only reason a lawyer might be interested in the results is to learn the net income attorneys in their jurisdiction purportedly claim to be earning. And while the first liar rule is always in effect, the Costanza rule also applies, “It’s not a lie … if you believe it.”

Anti-trust doesn’t apply.

The data is also the only lawful means to uncover what other lawyers are charging without running afoul of posted minimum fee schedules. That stratagem was banned almost 40 years ago by Goldfarb v. Virginia State Bar, 421 U.S. 773 (1975). And more importantly, lawyer fee surveys are also relied upon in support of counsel applications to a court for fee awards.

Thanks to guidelines from the U.S. Department of Justice and the Federal Trade Commission albeit concerning health-care fee surveys, state bars conducting economics of law practice surveys nonetheless depend on that guidance to ‘safely’ gather member fee survey data.

This allows competitors to provide information on prices and to review the resulting survey data without violating antitrust prohibitions. To qualify, “the data collection must be managed by a third party, not a competitor; the information provided must be at least three months old; the information must be aggregated based on information from at least five participants; and no individual participant can be identified. Conducting information exchanges in this manner would not be likely to raise an inference that prices or fees were set collusively.” And coincidentally this explanation happens to come courtesy of Wisconsin Lawyer: “Shhhh! The Antitrust Risks of Discussing Legal Fees.”

Photo Credits: Blogging fatigue, by Jonas Löwgren at Flickr via Creative Commons attribution; Cheesehead Pat, by Patrick Haney Patrick Hat Flickr via Creative Commons Attribution-NoDerivs 2.0 Generic License; Hippopotame (Zoo de Berlin), Wikimedia Commons, Creative Commons Attribution; Cheesehead, Wikimedia Commons, public domain; twenty-dollar bills.by public domain by its author, Merzperson at the wikipedia project; I Cut the Cheese by Erik Ogan at Wikimedia Commons.

About a year ago, I again posted about how far, in the minds of some, the ‘noble profession of law’ has slipped its ‘surly bonds‘ — but not ‘to touch the face of God’ — thanks in part to lawyer advertisers.

Ah, thank the lawyer hordes relentlessly pursuing virtually unrestrained inventively immoderate ways to differentiate themselves in a glutted legal market.

One of my ‘favorite’ examples of the inventive immoderation remains 2011’s “Chasing ambulances? Some say lawyer’s latest ad crosses taste boundaries.” ¹

No cheer here. Benjamin M. Palmer (1818-1902)

Meanwhile, those subscribing to the more prosaic view of lawyers as members of Benjamin M. Palmer’s long ago “solemn priesthood”² remain shocked, aghast and dismayed.

But get a grip — of whatever, including all four cheeks if you have to. After all, those who take a business-minded view of the law will instead deem such off-the-wall efforts as merely needfully aggressive stratagems to project a requisite brand and market differentiation.

Consumer attention-spans are short; shock-value diluted; social media cheap and available; and reality-television the exemplar. Therefore, the law-as-business types while possibly conceding without much lamentation that the boundaries of good taste are stretched, will nonetheless pronounce those boundaries incalculably elastic in a crowded marketplace. See, for instance, “Super bowl, super-sized and Jamie Casino’s super advertisement.”

Tsk-tsking the ignobility and calling instead for higher purpose are the likes of former Michigan Governor Jennifer Granholm who writing for the Michigan Bar magazine stated,“The practice of law is a noble profession. We lawyers are called to be so much more than narrow technicians, implementing the great, mediocre, or ignoble designs of our particular clients.”

So she says. For yet another, see Anthony T. Kronman’s now 20-year old tribulation, Lost Lawyer: Failing Ideals of the Legal Profession.

But meantime, there’s this from a member of the California bar:

And a Happy Belated New Year.

[1] For a different take on an ambulance-chasing lawyer, see Wallace T. Figg from John Grisham’s hilariously delightful novel, The Litigators.

[2] Decrying “selfish utilitarianism” and “materialism,” the good Rev. Palmer high-mindedly wrote, “It is filling the noble profession of the law with mendicant attorneys, prostituting the solemn priesthood of their office by opening the subterfuges of legal chicanery to villainy and fraud.” – Johnson, Thomas Cary, The Life and Letters of Benjamin Morgan Palmer, Presbyterian committee of publication, 1906

Photo Credits: Benjamin M. Palmer (1818-1902), Wikimedia Commons, public domain.

It’s been a few years since I last made reference to bacon. And that’s despite my knowing full well that a lot of people think bacon ought to go with just about everything, perhaps even “The Irreverent Lawyer.” Sir Francis Bacon, after all, was a lawyer. I can hardly aspire to better. “Judges must be aware of hard constructions and strained inferences, for there is no worse torture than the torture of laws,“ Bacon famously opined.

But intentional puns aside, have you ever tried a bacon sundae? Or a bacon mint?

My last porkbelly post.

In 2011 when I last made a rasher reference, it was about how prosecutorial bacon was saved in the U.S. Supreme Court case of Thompson v Connick. My post this time, though, is scarcely as indignantly infuriating.

So rather than rant again about the prevalent prosecutorial flouting of the rule in Brady v. Maryland, I’ve instead chosen to post about bacon and how medical science has supposedly found beneficial uses for the artery-clogging comestible. We’re now told there are purportedly “3 ways to use bacon as medical treatment.”

According to scientific literature, bacon’s high salt content induces swelling and blood vessel constriction so that it promotes clotting, ergo, it’s good to stop nosebleeds as a nasal tampon made out of bacon. And then there’s the use of bacon fat as bait to entice dermis-damaging infectious larvae to the skin surface for facile, quick tweezer removal. The larvae are left behind by a particularly nasty insect. And last, there’s the medical use of bacon fat again but this time as an ingredient in a topical itch cream for scabies. (Hat tip to the magazine, Mother Jones at http://www.motherjones.com/blue-marble/2015/01/3-real-medical-conditions-bacon-can-cure )

With apologies to the physicians I hold in the highest esteem, I nevertheless remain skeptical about newfangled claims from our cutting-edge medical practitioners. Take for instance the advice, which I’ve dutifully followed about taking daily low dose aspirin. As it now it turns out, there’s news that 1 in 10 patients have been inappropriately prescribed aspirin.

As a friend recently pointed out to me hearing again my frustrated reflections on how often doctors come up with errant diagnoses, “There’s a reason they’re called practicing physicians” he quipped sardonically.

No matter, though, for those not believing in the wonders of smeared bacon fat salvation. Methinks there’s something to the notion that bacon does go with everything — so why not FREE CLE for equally practicing attorneys? The latest Free CLE roundup follows along with the usual disclaimers about content, continued availability, and acceptance for credit by your jurisdiction.

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FREE CLE

Stafford Publishing

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Compensation Series Webinar: What’s Next for Director Compensation

A number of years ago when lawyering was not even a twinkle in my eye, I traveled to Flagstaff, Arizona on overnight business. For dinner that evening, my employee suggested of all things — that we have sushi. Ever dubious, I asked, “Sushi in the desert?” Well, he found a restaurant and we tried it. And let’s just say it wasn’t good.

Fast forward to 2015 and little has changed fine dining-wise in the desert. In particular, going out for sushi is a bad idea. Save for those folks who think ‘good sushi’ is oxymoronic, you still won’t find good — much less excellent sushi among the saguaro, scorpions, sand and sidewinders.

Phoenix sushi establishments can of course, buy overnight flash-frozen ‘fresh’ sushi-grade fish for a price. But the thing is — the farther from the coast — the more problematic a dependable palatability. At age 19, I learned that good sushi is not only about freshness, texture, and quality but about firm, dense, aromatic rice. I was fortunate to learn this from an Issei Japanese cuisine gastronomer who was my guide.

Last night with no thanks to Yelp, once more I stepped into the breach of my better judgment and tried a well-established local sushi eatery that was new to me. Like virtually all sushi establishments in the desert, it was another one of those prolific nondescript strip-mall restaurants. Not cute on the outside or the inside.

For not the first time, I was again burned in the desert. I’d forgotten the six essential things I’d come up with long ago to avoid wasting good money on bad sushi. Hope springs eternal in the human belly — “but man never is, always to be blessed.”

First, as any casino buffet employee can tell you, ‘all-you-can-eat’ is the triumph of quantity over quality. Steer clear of all-you-can-eat sushi.

Second, when the sushi chefs only speak Spanish, the odds are good they weren’t classically trained in Japan. Third, if the crab served is the pulverized, shaped, colored and cured fish variety, so much for authenticity.

Fourth, in the way you should bypass Mexican restaurants without any Mexican customers or for that matter, any ethnic restaurant sans its share of knowing native connoisseurs, avoid a sushi restaurant bereft of Asian diners. Fifth, if they don’t have uni on the menu, question their bona fides. And sixth, if the people recommending a sushi establishment to you think mayonnaise and cream cheese smothered cooked fish is sushi, your prospects are dimmed considerably.

In sum, if Portland, Oregon where I spent time last summer is Foodie Heaven, Phoenix and Maricopa County remain Foodie Hell. Forget my “Pho King VIP” credentials or the local paper’s smarmy boosters, you won’t find this town listed anytime soon on any credible top-rated restaurants list whether for sushi or anything else, not for instance, either here or here or certainly not here.

In the place that supposedly invented the abominable chimichanga thereby proving that anything can be deep-fried — when it comes to food, Phoenix remains a bad dining town.

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Photo Credits: Many types of sushi ready to eat, by Nesnad at Wikimedia Commons, under the Creative Commons Attribution-Share Alike 3.0 Unported license; half_fish.jpg By matthew_hull at MorgueFile free photos;Crab Sticks, by Natto at ja.wikipedia at Wikimedia Commons, released under the GNU Free Documentation License; Waiting for Ramen, by Travis Wise at Flickr via Creative Commons Attribution License.

I don’t have a team to root for in this Sunday’s Super Bowl XLIX. The Packers choked like Luca Brasi and the 49’ers were never in the hunt.

That said, I still plan to watch the game although not out of parochial loyalty because it’s hometown-hosted in Satan’s crotch.

Red carpet moment.

Thanks to the NFL’s marquee event, Arizona’s all over social media; the blogosphere; the traditional newscasts; and of course, all the sports channels.

Local chamber of commerce types have overstated their Op-eds and overcooked their media interviews with tongues and tails wagging like nervous Cocker Spaniels who piddle when guests ring the doorbell. Can’t fault them, though. This is Arizona’s red carpet moment.

“The Super Bowl of Sex.”

But the fact is, despite all the media hype and hoopla, I find myself agreeing with Matt Brown, one of my Arizona lawyer blogging amigos, who a few days ago was justifiably in high dudgeon not over the game but over crackdowns by “sociopathic authority figures” in the lead-up to the big game. Mix predatory cops, lazy prosecutors, broadly-worded criminal statutes and onerous mandatory sentences and you have a prescription for easy guilty plea deals for “Super Bowl Johns,” he opines in his post, “The Superbowl . . . Of Sex?,” which was not only aptly argued and titillatingly titled but amusingly angry.

Hookers not haboobs in Super Bowl forecast.

Matt’s a criminal defense lawyer and so he’s allowed to get deflate-gated over the “sleazy” and “desperate” entrapment tactics that make life so easy for local law enforcement feeding the “criminal-justice conveyor belt.”

According to local and national news media, the Phoenix forecast calls not for ‘haboobs’ — but hookers since allegedly, “hordes of sex-crazed Superbowl attendees are currently descending on our fair state with an unquenchable desire” for paid sex.

And while Arizona’s tourism boosters and business types want very much for the Super Bowl to give Arizona a chance to change its tarnished image, I tend to agree more with Matt Brown’s concluding paragraph, “If the powers that be in this state wanted to teach the rest of the country a lesson for thinking Arizona maybe wasn’t the cruel, backwards place it seems to be based on our government’s perpetual quest to out-stupid the rest of the country, mission accomplished. If the rest of the country is lucky, they’ll learn to not acknowledge us anymore. They’ll certainly not want to visit again, and I can’t blame them.”

But what about ‘dem Cardinals?

I had bats on my mind yesterday. First there was the report Thursday about bats causing pandemonium sending people screaming from an Arkansas courtroom. I’ve been in really old courthouses and know that rodents live there but this was a first concerning bats. Then also last night, I read not about bats but brickbats thrown by the Ninth Circuit over another case of prosecutorial malfeasance. Railing as I have over time, “tiny fists in the air,” about the persistence of prosecutorial misconduct, for instance, here, here, here, here, here and here, all those posts have started to seem “like the [impotent] vaporings of the fellow with a large flock of bats in his belfry.”

Prosecutor punishment rare.

So here I am back in the same belfry. The problem is that state judges rarely punish the misconduct by at the very least, referring the wrongdoing prosecutors to state disciplinary authorities or at best, by sanctioning the transgressors by reversing the convictions. Furthermore, state bars hardly ever bring disciplinary complaints on their own against prosecutors. Consequently, state supreme courts almost never disbar prosecutors for dereliction, lying, or for failing to disclose evidence to the defense that deprives defendants of a fair trial. Baca v Adams. The Los Angeles Times’ always insightful Legal Affairs Reporter Maura Dolan reported last night about a January 8, 2015 Ninth Circuit hearing and the stern admonishment from the 3-judge panel about prosecutorial lying and the heedlessness of watchdogs in bringing misconduct to heel. See “U.S. Judges see ‘epidemic’ of prosecutorial misconduct in state.” Citing Napue v. Illinois, 360 US 264 (1959), which held that “the failure of the prosecutor to correct the testimony of the witness which he knew to be false denied petitioner due process of law in violation of the Fourteenth Amendment,“ the three judges were not amused in the unheralded case of Johnny Baca v Derral Adams, which was the subject of the hearing. Per Napue, prosecutors cannot suborn perjury — or lie as happened in the Baca case. And questioning why bad things don’t happen to people doing bad Judge Alex Kozinski declared, “You know it’s a little disconcerting when the state puts on evidence, the evidence turns out to be fabricated and nothing happens to the lawyer and nothing happens to the witness. So I have to doubt the sincerity of the State when it says it was a big mistake.” It was hardly a surprise, then, that given the findings of the state appeals court that the prosecutor lied and their own readings of the Baca file, that the judges wanted the State to back off. Judge Kozinski additionally noted that though the state appellate court found the prosecutor lied — since no discipline had been meted, then he opined that prosecutors “got caught this time but they are going to keep doing it because they have state judges who are willing to look the other way.” Watch the videotaped hearing below at about the 28:30 minute mark for equally biting criticisms, including Judge Kozinski questioning the absence of any inquiry or discipline by the state attorney general into the misconduct.

Calif Attorney General Kamala Harris

However, given the keen political shrewdness of California State Attorney General Kamala Harris who now aspires to succeed Barbara Boxer in the US Senate, she spared her office further embarrassment by timely accommodating the strong judicial intimations to stand down. Last Thursday when the bats were flying in De Queen, Arkansas, she and the new Riverside County D.A. filed the following motion: “After oral argument, this matter was discussed with the Attorney General and the new Riverside County District Attorney. In the interest of justice, the People have concluded that the conviction should be set aside. Therefore, in behalf of the State, the Attorney General asks this Court for summary reversal. Counsel for Mr. Baca agrees with this resolution. Thus, more specifically, the Parties ask the Court to reverse the judgment of the district court and remand, with directions to issue a conditional grant of the writ, requiring that Appellant Baca be released or, in the alternative, retried within a reasonable time.” As for myself, unlike one optimistic commentator, who opined after the hearing, “Prosecutors who suborn perjury may finally have to pay the piper,” here in my belfry, I’m still skeptical.

The Eastern Seaboard may still be buried in ice and snow. But Spring beckons all the same. And come March — like swallows that supposedly always return to Mission San Juan Capistrano, U.S. lawyers receive their yearly state bar propaganda promoting that vestigial anachronism known as the annual state bar convention.

Last month I received the Arizona Bar’s annual sponsorship solicitation letter ‘inviting’ members to underwrite the convention as “Convention Patrons.” Suggested donations range from $200 plus to $4000 plus. The Nevada Bar, where I also belong, likewise looks for convention sponsors. But not nearly as enthusiastically as Arizona’s Bar, which spends thousands of dollars in member dues to solicit each member by direct mail.

To pry open lawyer billfolds, the cover letter from Arizona Bar leadership that accompanies the patron contribution form extols (without corroboration) the convention as “consistently recognized as one of the finest in the nation” and asks members’ “help to maintain this position of prominence by returning the attached sheet with your contribution.”

Given such tireless entreaties, mandatory state bars never ever leave a lawyer’s consciousness. So notwithstanding that creaky old song about swallows coming back to Capistrano — likewise the truth is that swallows never ever leave Capistrano. They’re always around.

In the good ole’ summertime.

State bar conferences are usually held in summer preferably at climatically pleasant locales like, for instance, Seattle, Washington where the State Bar of Nevada’s Annual Meeting is set for July 9-11, 2015. Or lovely Sun Valley, Idaho on July 29th when the Utah State Bar’s Summer Convention features keynote speaker Citizens United author U.S. Supreme Court Justice Anthony Kennedy.

All well and good — except locally. The Arizona State Bar holds its annual meetings in June and in Arizona — hardly a climatically pleasant locale that time of year. Summer around here means hot enough to fry an egg on the sidewalk.

And alternating the venues between Phoenix and Tucson is of little use. The average June temperatures in each city easily surpasses 100 degrees°F. And in Phoenix, site of this year’s Butt-Numb-A-Thon, the June thermometer averages 104 degrees°F. The good news for the Bar is that by keeping the air conditioning cranked up, bored conferees don’t wander far from the all-you-can-eat CLE buffet or from the shameless self-congratulation ceremonies.

Getting cheeky.

Another way to keep ‘cheeks in seats’ — at least per the State Bar of Wisconsin, is to headline the event with the likes of humorist, actor, and author Mo Rocca. Wisconsin holds its 2015 Annual Meeting in June at Lake Geneva, Wisconsin and a Kenosha lawyer apprised me about this year’s speaker.

But Mo Rocca? In 2010, the Wisconsin Bar featured retired U.S. Supreme Court Justice Sandra Day O’Connor delivering the keynote address. But in 2015, it’s the sobriquet sharing “Mo” whose fame comes via CBS Sunday Morning and frequent stinting as a panelist on NPR’s weekly quiz show, “Wait, Wait . . . Don’t Tell Me.”

The other NPR quiz show panelists Tom Bodett and Paula Poundstone were probably busy. At any rate, they didn’t invite Dick Cheney who stirred up Wyoming lawyers when he was keynote speaker at last year’s Wyoming State Bar Convention.

So no matter years of lackluster attendance and past pronouncements about the demise of the annual cheesehead lawyer convention, it appears its death was “greatly exaggerated.” Instead, the Wisconsin Bar has come roaring back — with Mo Rocca.

Ready. Fire. Aim.

But in Arizona, no worries. Keynote speaker? Who knows? Last year, according to the bar’s website, the principal address was also by a humorist but leastways, that fellow was also a lawyer even though nobody I know had ever heard of him. Of course, the same may later be said of Mo Rocca.

If the Arizona Bar hasn’t thought of it, NBC News Anchor Brian Williams is probably available now that he has six months of extra time on his hands. Or maybe that’s not such a good idea since his honorarium would most likely top Mo Rocca’s.

But for now, those waiting with ‘bated breath and whispering humbleness‘ will simply have to wait longer for the identity of the keynote speaker. The schedule hasn’t been fully announced for Arizona’s 2015 feast of self-congratulation, even though there’s a theme. Reminiscent of “Ready, Fire, Aim” — it’s “Ready, Set, Practice.”

In the end, however, it makes scant difference. Like some 90 percent of my colleagues, I won’t be showing face at the convention — so all those marketing appeals will go for naught.

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Photo Credits: 010 022.jpg by butkovicdub at Morguefile; IMG_4895copy.jpg By carmemlucia at Morguefile; Mo Rocca by Infrogmation (talk) at Wikimedia Commons via Creative Commons Attribution 3.0 Unported license; Dick Cheney by DonkeyHotey at Flickr Creative Commons Attribution; Brian Williams by DonkeyHotey at Flickr Creative Commons Attribution.

In August, I reported the Arizona Supreme Court had directed the creation of a state bar task force to review “The Role and Governance Structure of the State Bar of Arizona.” But knowing how things roll around here, I had no expectations of meaningful reforms. In the words of Laurence J. Peter, “Bureaucracy defends the status quo long past the time when the quo has lost its status.”

Groupthinking task force.

Arizona Bar leadership is notorious for group-think; tone-deafness; and smug self-congratulation. Far as Bar leadership’s concerned, ‘Everything Is AWESOME!!!‘

Business as usual.

The task force has met five times and even started prepping its “initial, and very rough, draft report.”  But ‘fugetaboutit,’ there’s nothing to clap about.

Zero-based inquiry? Dissenting opinions? After reading five meeting minutes, save for cosmetic changes consisting of renaming the Bar’s board; seating fewer board members; and imposing overdue term limits — it’s clear without dissenters on the task force, it was preordained business as usual.

When thirty-six percent of the task force is composed of past members of the Bar’s board of governors, four of them also past presidents, including the immediate past president — expect no surprises.

Then there’s this, the appointed task force “consultant” ‘splainin‘ things to underinformed task force public members is the Bar’s well-paid CEO. Or as former Italian prime minister Silvio Berlusconi once said, “If I, taking care of everyone’s interests, also take care of my own, you can’t talk about a conflict of interest.” A mission and governance review with such guiding lights is like hunting with the game warden.

The recommendations so far:

“#1: The Task Force recommends amendments to Supreme Court Rule 32(a) to clarify that the mission of the State Bar of Arizona is primarily to protect and to serve the public, and secondarily, to serve its members.

“#2: The Task Force recommends “restyling” Rule 32(a) for clarity and for easier comprehension.

“#3: The name of the board of governors should be changed to the board of trustees. This change acknowledges the fiduciary responsibility of board members . . . .

“#4: The size of the board should be reduced to 15 to 18 voting members. The Task Force recommends a board of 15 members.

“#5: Some members of the board should be selected through an electoral process, and other members should be appointed.

“#6: A significant portion of the board should be public members who have no financial interest in the practice of law . . . .

“#7: To assure that appointed members have the skills and experience necessary for service on the board, a process should be created for recruitment, vetting, and nomination of appointees . . . .

“#8: Board members should serve staggered terms to preserve continuity of leadership and institutional knowledge.

“#9: Board members should have term limits. The number of terms depends on the length of terms, but generally, board members should serve no more than 8-12 years.

“#10: Attorney members of the board, whether elected or appointed, should have no less than 5 years’ experience as lawyers, and a clean disciplinary record for the 5 years preceding service on the board.

“#11: Court rules should include a process for removing board members for good cause. The Task Force did not define “good cause,” but it might include commission of serious crimes, commencement of or sanction for formal discipline, etc. The Task Force proposes removal of a board member on a two-thirds vote of the board, conditioned on the Court’s ratification.

“#12: Ex officio members bring value to the board. The immediate past president of the bar, and an associate Supreme Court justice, should serve on the board as ex officio, non-voting members. The Court should appoint one law school dean as an ex officio member, with the appointment rotating annually or bi-annually among the deans of Arizona’s law schools.

“#13: The leadership track of the board of trustees should consist of three officers: a president, a president-elect, and a secretary-treasurer, who should serve one-year terms of office.”

Having the cake and eating it, too.

The task force glanced at the 148-page report submitted by the Task Force on the Role of the State Bar of Michigan — but like the guy that licks the frosting but leaves the cake, the task force only liked Michigan’s affirmation of mandatory membership. The rest was irrelevant.

Creative Commons Attribution ShareAlike 2.0 Germany License.

To the surprise of possibly only a squirrel with a backpack, Arizona’s task force recommended “that Arizona continue to have a mandatory (integrated) bar.”  See Mission & Governance Draft Minutes

As for the Arizona Bar’s posture concerning the reason the Michigan State Bar Task Force was created, i.e., whether as a mandatory bar, the Michigan Bar could fulfill “its core mission of service to the public and our members within the constitutional boundaries defined by Keller v. State Bar of California” — well, that was given short shrift.

Not like it mattered that the genesis of the Michigan Task Force was a state bar letter to the Michigan Supreme Court opposing a Michigan Bill to make bar membership voluntary. Noting that the bill raised “questions about the operation of the State Bar as a mandatory organization that are most appropriately addressed within the judicial branch pursuant to the Supreme Court’s exclusive constitutional authority . . . For that reason, we write to request that the Supreme Court initiate a review of how the State Bar operates within the framework of Keller v. State Bar of California, 496 US 1 (1990).”

But since the State Bar of Arizona back-pats itself “Keller-pure” – the task force opted not to go there. ‘We’re good.’ Ditto on the Bar’s programs, services and activities — its amazingness is everywhere!

To review all meeting minutes and related documents go to AZCourts.gov

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Photo Credits: cartoon source “group think or team win” by brandtao;chart based on Irving Janis groupthink model by HaleyB3, Wikimedia Commons, Creative Commons attribution;11326426096.jpg and 113264261341.jpg by sideshowmom at Morguefile.com; Nom cake! by Sirenz Lorraine at Flickr via Creative Commons Attribution-NoDerivs License.

Long time readers know I’m continually inspired by ‘seize-the-day’ true believers of any age and persuasion, but especially by those still sucking the marrow out of life — even as the sun ebbs.

Last July, I was enthused by Oliver Sacks’ testimony to “aging fearlessly with joy.” Sacks, a neuroscientist by profession, offered his life reflections about old age in a New York Times essay on the eve of turning 80. Besides being a time of leisure and freedom, Sacks observed that with old age, those remaining sands of the hourglass also provide a time “to bind the thoughts and feelings of a lifetime together.”

A terminal condition.

But recently, I learned Sacks had returned again to the pages of the ‘Gray old lady,’ but this time to reflect anew not only about life — but also about “his luck” running out on learning that at 81, he has terminal cancer.

Writing last month, Sacks described how “a few weeks ago I learned that I have multiple metastases in the liver.” The news, he declared, gave him “a sudden clear focus and perspective” with no room left for the “inessential.”

Not to be unsympathetic, his was hardly the uncommon reaction. It was Samuel Johnson, after all, who long ago observed, “When a man knows he is to be hanged in a fortnight, it concentrates his mind wonderfully.”

All the same, Sacks resolved, “It is up to me now to choose how to live out the months that remain to me. I have to live in the richest, deepest, most productive way I can.”

And ever introspective, dwelling on the abruptions felt with the passing of his generation’s contemporaries, he poetically reflected, “There will be no one like us when we are gone, but then there is no one like anyone else, ever. When people die, they cannot be replaced. They leave holes that cannot be filled, for it is the fate — the genetic and neural fate — of every human being to be a unique individual, to find his own path, to live his own life, to die his own death.”

With his concluding thoughtful ruminations, I have to admit how much I gained from what Sacks said so evocatively. He was moving and meaningful. He again inspired those paying attention to live more deeply felt, more fully awake lives. “I cannot pretend I am without fear,” he wrote. “But my predominant feeling is one of gratitude. I have loved and been loved; I have been given much and I have given something in return; I have read and traveled and thought and written. I have had an intercourse with the world, the special intercourse of writers and readers.

“Above all, I have been a sentient being, a thinking animal, on this beautiful planet, and that in itself has been an enormous privilege and adventure.”

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Photo Credits: Hourglass, by AliHanlon at Flickr via Creative Commons attribution license; Bridge into fog by SPC Lasha Harden, U.S. Army at Flickr via Creative Commons attribution license; Flaming From Behind, by AliHanlon at Flickr via Creative Commons attribution license.