Category: In The News
Perhaps, if we want to stay safe, we should listen to the advice of a police officer who said “… just do what I tell you to do.”
In a recent OpEd piece, Erwin Chemerinsky, noted legal scholar and Dean of the University of California, Irvine Law School, suggests that the police are, with rare exception, never held responsible for shooting a civilian, even if death results. The Court has said, “…a government officer can be held liable only if ‘every reasonable official’ would have known that his conduct was unlawful…” Likewise, the local government which employs the police is not liable for prosecutorial misconduct
In a different opinion, Chemerinsky suggests that civilian oversight is important. In fact, since the Court seemingly will not protect our citizens, we need to change the culture and attitude of the police on the street and reduce the potential for wayward or negligent actions on their part. This can be done, but only if there is civilian oversight setting the rules, following the rules and enforcing the rules before any issue gets to the court.
In another type of matter, a well-known entertainment lawyer, Milton Everett Olin Jr., was riding his bike and hit by a Los Angeles County Sheriff’s car. The cyclist died. In California, it is illegal to drive and text at the same time. It seems, however, as noted above, that law enforcement personnel are governed by different standards. The officer was using his work computer rather than a personal electronic device, the Los Angeles County district attorney’s office has decided. Because he was using a work computer and was otherwise acting lawfully at the time, the District Attorney says he could not prove even the lesser charge of criminal negligence.
Full disclosure: I am a cyclist. The police motto, “to protect and serve,” has some holes in it when the enforcers can commit acts with impunity that, if committed by others, would result in harsh punishment. This is a civil event. What must the citizens of Ferguson think who know, that even if charged and convicted of a criminal offense, the officer involved will never be punished based on the Court’s rulings.
“The state bar is overcharging its cases.” Thus started the commentary by Carol M Langford, in the newspaper, The Recorder, in San Francisco. Langford is a defense counsel and former chair of the State Bar’s Law Practice Management and Technology Section. She quotes the California Supreme Court to the effect that “bar matters are ‘quasi criminal’ in nature.” She asserts that respondents before the State Bar Court have none of the usual constitutional safeguards in a normal criminal proceeding.
She further asserts that the Chief Trial Counsel (Jayne Kim) commented that the bar had to be “tougher” as evidenced by the Supreme Court’s rejection of 24 stipulations in 2012. Ms. Kim responded to Langford’s August 28th Viewpoint column, claiming she was misquoted.
This sounds a bit like the classic prosecutor/defense counsel “difference” of opinion. Ms. Langford would obviously prefer more stipulations that favor respondent attorneys; Ms. Kim would obviously prefer that those attorneys being “charged” be locked in jail and the key thrown away. The bottom line is that the general fund of the State Bar of California is $64 million, 75 to 80% of which goes to fund the bar’s disciplinary system. That is a whopping $48 million, give or take, that is expended to discipline attorneys who allegedly violate the rules of professional conduct.
I have watched this scenario for more than 40 years. In that time, there is only one State Bar president who indicated that the goal of the State Bar was twofold, one to protect the public and two to educate lawyers in more effectively running their law practice. By doing the latter, we do achieve the former as well. But for Jim Heiting, the president who suggested this, the State Bar is now in an adversarial position with its members, lawyers.
Langford suggests that the State Bar should make “real offers to respondents to settle matters…” A lawyer signs a stipulation still receives punishment. In none of the comments made by Langford did she suggest that the respondent lawyer not receive discipline. The focus is whether there be a stipulation without a trial (and the concomitant additional cost to both the State Bar and to the respondent) or whether all matters need to go to trial. Why does the State Bar trial department not focus its energies against lawyers who turned down good offers reflective of the misconduct at issue.
This is a good question and one that is not answered merely by suggesting that the current legislation in California mandates that the public be protected. “Cleaning out a backlog” by offering reasonable stipulations, educating lawyers (members of the bar) on client relations and economics of the practice of law and developing a mutually respectful relationship between the Bar and its members will go a long way toward reducing the cost of attorney discipline and (Heaven help us) reducing the cost of membership in the State Bar.
In a recent Indiana trial court proceeding, the judge held the attorney in contempt of court because he failed to follow a local court rule: where socks. While most of us have heard the mantra of dressing for success, one has to wonder how deep can the client see? Does a client know whether you are wearing a T-shirt, underpants or as in this case, socks? Apparently, the judge saw bare skin next to shoe leather, and was offended. One has to wonder about the sensibilities of the court…
As we begin to look at how the profession will change in 2015 and beyond, we must look at the Australian market. Here, large accounting firms are adding major law practice components to their stable of professionals. In at least two instances, more than 100 lawyers were engaged by accounting firms. Multi-disciplinary connections are back on the table. While this will not happen overnight in the U.S., it’s clear that we cannot ignore these changes outside of our borders. This is especially true for the larger law firms that want to compete in the Asia-Pacific market; I’m sure there will also be a ripple impact here.
One Federal judge takes the highest court to task.
Most prosecutors will negotiate with accused offenders. Obviously, this is done to move the trial court calendar along, eliminate the need to tie up resources that could be used elsewhere, truly not needed when the defendant is willing to change a plea. Even in civil matters, parties negotiate settlements in order to achieve reasonable business outcomes and reduce the cost of litigation.
In at least one civil instance, an insurance company said they will not settle any case, large or small, that everything had to go to trial. This clearly delays the outcomes … and enables the insurance carrier to withhold payment for some time. I’ve not seen any studies about the merits of such activities from the carrier’s perspective. It does, however, frustrate plaintiffs. Frustration without economic benefit is hardly a good business outcome. And the carrier has since reversed this policy.
Now, we have a new version. The State Bar of California has announced that it will refuse to accept “no contest” pleas from lawyers accused of ethics violations. The issue here is not one of criminal liability, but rather of retaining one’s license to practice law. One has to ask what more can be given to the Bar once the lawyer-accused has agreed to take his/her punishment?
The Office of Trial Counsel maintains that accused lawyers are not accepting responsibility for their actions unless they are tried and convicted or accept a guilty plea. That is why they will not accept a nolo contendere plea. Other than civil damages, the effect of a nolo plea is the same … and punishment is no less. Criminal prosecutors understand this. But, the Bar wants its “pound of flesh.” It is questionable whether this is a question of morality.
This is just one more example of the California State Bar’s new adversarial attitude toward its members … Although the legislative directive to the State Bar is that its primary, if not sole, function is to protect the public (not help its members who pay all the expenses of the Bar), one has to wonder how the public is being better helped by this new approach.
The conduct of lawyers, not just litigators, continues to go “south.” Why is this? Have the teachings of our mothers and fathers gone unheeded? Or, in this more litigious world, and the greater incidence of divorce (most of which is with great conflict), do manners, good taste and just plain “niceness” go out the window?
For many years, bar associations have been wringing their hands over how to improve the reputation of the legal community. Clearly, the lack of civil behavior does nothing to enhance our profession’s reputation or regard from among the lay public.
Recently, the State Bar of California modified the lawyer’s oath of office. It is a court rule (9.4), not a rule of professional conduct. And, there does not seem to be any consequences to a violation of the new oath that does not already exist with the judge in a given matter. The language, specifically, includes the words “dignity, courtesy and integrity.” As it stands now, this seems to be a subjective standard and does not increase the power of the court to impose sanctions on any lawyer activity.
When California Chrome did not win the Belmont Stakes this last weekend, its owner went berserk and complained that the race was not fair. He suggested that all horses run under the same rules. In other words, any horse eligible for the Triple Crown should be run in all three races, the Kentucky Derby, the the Preakness and the Belmont Stakes. Taken in the abstract, his criticism might be correct. The point, however, is where and how he said it. In other words, he didn’t play by the “rules” of genteel civility.
There may be other reasons why California Chrome did not win at Belmont. One such reason is that he appears to have stumbled coming out of the gate, injuring himself; another, his post position was not to the liking of his team. Whatever other reasons there may be, the ultimate conclusion is that California Chrome ran three races to the single race of the winner of Belmont. The words of the owner will be an asterisk or afterthought to the history of this horse. And, if the rules of horse racing are modified in the future, perhaps his outburst was appropriate.
When lawyers are uncivil, or lack civility, in dealing with one another, no one receives a benefit. Lack of civility is not seen as a strength, but merely as an annoyance. Civility does not make one weak. Nor, in most instances, do our clients appreciate the added expense that oftentimes results from having to overcome one’s adversaries’ lack of civility. Yes, there is a difference between horse racing and the practice of law. But, in both scenarios, as my mother used to say, “one can get more with honey than with vinegar.” Equally important for lawyers, our clients do not believe this is better lawyering. On the contrary, they tend to disrespect us for not being civil and causing them increased expense.
In today’s newspaper, Don J. DeBenedictis, staff writer for the Journal, discusses law schools’ new approach to help law school graduates find jobs. This idea is one of several being discussed to match the supply and demand of legal services. It is clear that there is a greater demand for legal services than is now being fulfilled. However, many contend there is an oversupply of lawyers. Some writers suggest, I believe correctly, that there is not an oversupply, but rather a mismatch between the two.
One reason for the mismatch is that most lawyers seek to work for the smaller percentage of affluent clients. Working for the less affluent client requires a reduced level of compensation. Sometimes it is difficult to match the reduced remuneration working from low to modest means clients with the debt level resulting from educational expenses.
The staff writer discusses law schools in California that are now providing funds to graduates who are willing to work for government or public interest employers. The amount of money received by the graduates is not grand. We’re talking about, perhaps, $15 per hour. However, the graduates are earning enough money to pay expenses and gain valuable experience preparatory for their next job. This program reminds me of one Southern law school that provided sufficient funds to open a new law practice if the graduate located in a rural or other geographic community that needed legal services. Provided the graduate remained in that location for five years, the “loan” would be forgiven.
It seems that any suggestion brings out adversaries. The positive side of seeking to match supply and demand is countered by those who say that law schools are merely disguising their percentage of graduates employed. While this may be true, it is also true that these graduates are employed, just not at a high level of income written about by the sensationalist media. It is also true that American Bar Association statistics separate between traditional jobs and “funded” jobs, thus disclosing the truth of the employment claims made by law schools.
One could also look at this as a postgraduate fellowship. This is an incredibly positive effort on the part of law schools and their funding sources for this program. My congratulations.
The Department of Justice has accused more than one bar association of violating the Americans With Disabilities Act.Louisiana and Vermont licensure systems inquired as to the mental health of applicants. Apparently, some of the same questions of which the complaint by DOJ is registered are asked in a standard national Conference of Bar Examiners questionnaire.
The Bar is not qualified to conduct a mental health diagnosis or treatment, according to the DOJ. Past behavior … conduct … can be reviewed, but not one’s state of mind or status.
I wonder how this analysis will resonate with those who complain that one’s competency to act as an attorney can be judged by one’s age. Shouldn’t conduct be the standard? Aren’t you presumed innocent (i.e., competent) until proven otherwise? That would be ageism … a status I think that is also protected by law.
The IRS lost its appeal to institute competency exams for as many as 700,000 paid tax preparers. The federal court said the IRS lacked the authority to impose the new rules without congressional authorization. While this argument would not likely hold water as concerns additional licensing requirements for lawyers, the arguments used rang a bell.
For example, i) the proposed regulations were onerous; ii) the proposed regulations would have put thousands of mom-and-pop tax preparers out of business. On the other side of the coin, the IRS needed to weed out ill-trained and incompetent tax preparers.
Paid tax preparers fill out 60% of all U.S. tax returns and the government has found significant problems over the years by the work done by this group.
The arguments are all to familiar and can be super-imposed on the legal profession where more than 60% of the practitioners are solo.
The question always is "how good does good have to be?" What would these people do if they couldn’t find a tax preparer (substitute attorney) at a price they could afford to pay for work that was substantially correct,even if not perfect?
I would like perfection … but even the best lawyers from major law schools (in my experience) are not perfect … are always at a price that most of us can’t afford to pay. As one of my mentors has said, don’t shoot for perfection; when you’re 80% good, go!
Related to this, though by a stretch, I listened to an NPR program in the last couple of days that talked about teenage suicide, a growing epidemic. The psychologists maintain that the stress caused by our current generation seeking perfection, and then realizing they can’t reach that goal, is the catalyst for many suicide attempts.
To the IRS and to the Bar: Define "competence" so our professionals can attain the standard and the average American citizen can afford to engage professional assistance.