Category: Personal Thoughts
As mentioned in a previous post, my wife and I traveled to Costa Rica over the New Year holiday. It was quite an experience, one we’ll obviously remember for a long time. Attached is a photograph taken of us just before we boarded the craft to take us down river into the Rain Forest, a unique place. We were lucky; it rained hard during the evening, “rain drops dropping on my head” as the song says, but only mildly during the days when we could see the birds and other animals in full color.
View page
Back from a great adventure to Central America, Costa Rica to be specific! It was a great time. Joined by my cousin, we spent 10 days traveling from one side of the country to the other, experiencing a variety of different environments. Our trip was like tasting various appetizers rather than eating one entry.
Following are several of my impressions:
This is a country of beauty and contrasts. Poverty and crime is apparent in the cities while there is exquisite beauty and serenity in the countryside. "Pura vida" is the country’s motto, meaning "life is good." There are major resorts (such as J.W. Marriott) on the Pacific Coast, taking advantage of the scenery and water for surfing and other water sports. The Coast area has been in constant development over the last 20 years, attracting many Americans for vacation and retirement.
The Rain Forest on the other side of the country is a rich eco-system and nationalization of much of these areas are designed to protect the country’s and world’s future. The power and influence of Google was demonstrated recently. In the northeast part of the country, part of the Rain Forest area, Google’s map drew the boundary between Nicaragua and Costa Rica south of the line that has been deemed to be the boundary between the two countries. (According to our guide.) Nicaragua moved its army to claim, and has continued to claim, a significant segment of this territory. Despite Google later admitting its error, Nicaragua still refuses to withdraw.
Costa Rica dissolved its army in 1948. Several countries offered to send military forces to help Costa Rica, but the country has rejected this … preferring instead to seek a peaceful solution. Let’s hope they succeed.
The country’s literacy rate is among the highest in the world. With this, there is a focus on the country’s people and their well-being. Their health system is available to all. The challenges for the future of Costa Rica are the same as those of all developed countries including an aging population, economics of social security, etc.
View page
View page
Recently, several states and the ABA have been reviewing and discussing the limits to which lawyers may use social media … LinkedIn, Facebook, et al … without violating the restrictions on advertising.
Now, there seems to be a similar but more mild review and reaction to judges using social media. I’m somewhat surprised that lawyers are being restricted but judges are not in their use of social media. For example, Ohio, Kentucky, New York and South Carolina similarly answered the friend question … Judges can befriend attorneys and others. The warning, if one were to call it that, is that judges need to tread carefully…Not to befriend lawyers and others who are to appear in their court.
But, how do you know that someone you "friend" today won’t be a party or lawyer in your court tomorrow? While I normally do not concur with the Florida restrictions on lawyer advertising, I am more inclined to support their somewhat more stringent approach in this area. In 2009, the Judicial Ethics Advisory Committee for the Florida Supreme Court decided that judges could not add lawyers who appear before them as friends online. Personally, I don’t think this restriction goes far enough.
As I’ve noted in a previous post, judges must "not only be chaste, they must also appear to be chaste." (With due apologies to the Bard.) Appearances of appropriate judicial conduct is essential. And judges’ participation in social media networks violates the appearance of impartiality.
View page
Just saw this movie … There are many levels to this film. First, Anne Hathaway, the female lead, is drop-dead gorgeous. It is impossible to take your eyes off of her (if you’re male. <g>). The guy’s o.k., too, but not my type. <g>
I thought this was going to be another "chick-flick," o.k. by me. But, it’s far more. It’s a condemnation of the drug industry on the one hand, and a very serious commentary about Parkinson’s disease and those suffering from it.
I went to see the film without knowing it’s subject. Just thought it would be a feel-good film without violence, a requirement of my wife to see a film together.
Frankly, it hit far closer to home than I expected or wanted. It’s a film very much worth seeing … and I don’t say that lightly.
View page
The turkey is on … he is now marinating in wine, stuffed with fruits and veggies. Two and a half days from now, my family and I will enjoy a very tender bird.
This is the one day of the year that I expect my kids to come to my home, with my grandchildren, and enjoy the turkey that I cook. It’s a great day.
This time of year is when all the stress of the season begins, the retailers seek your attention with great offers and on-line spam/scam seems to increase geometrically. It takes a great deal of meditation, yoga or just good ol’ fortitude to keep oneself calm. Today, the first day of the holiday week, our household seems to be controlling the angst better than usual. Yes, there is still hope.
My wish for you is that you have a peaceful, happy and fruitful holiday season.
View page
In August 2009, the California legislature enacted a law requiring the State Bar to examine how it governs itself. I don’t think any other state in the Union has a legislature overseeing the bar. This is usually a function for the State Supreme Court. However, in California, since the 1920s, the Bar must get permission for it to send out dues bills to members; thus, the legislature has the power to impact the legal system through the back door.
Does this remind you of law firms whose compensation structures govern what its lawyers find to be important? If the firm emphasizes and rewards new client acquisition more than work performed, that is what lawyers will spend their energy doing ("eat what you kill"). If, on the other hand, the firm compensates more for hours expended, then focus on new client generation will go down and billable hours will go up.
The same is true in the relationship between the bar and the legislature. Today, with less than 30% of the members in the legislature having a law school degree, there surfaces an animosity between lawyers (the bar) and those (the legislature) who approve the dues to be paid by lawyers to retain their license. Oh, did I forget to say? California is a mandatory license state, meaning that you must be a member of the State Bar in order to practice law. Voluntary bars exist at the county and local levels, not at the state level. The state is mandatory. Voluntary bars exist, but only at the local (county and city) levels.
So, what’s the big deal? The fear by legislators is that a self-regulating body (more than half of the Board of Governors are elected by lawyers; others are appointed by the Governor and others) will serve the interests of their constituencies, not the public interests. I thought that was the whole point of public members being part of the Board; they are, they participate and they have a significant influence from the Board. The legislature wants the Bar to "protect the public" only; the well-being of lawyers is unimportant.
More than 50% of lawyers earn less than $100,000, a relatively paltry sum when considering the number of years of education required and the good that lawyers provide. (Yes, I know there are a few bad apples, but that is true in every profession … hmmmm, even with law makers.
If lawyers were helped by the bar and did earn more money, there would be far less temptation to invade clients’ trust accounts. This would be real public protection.
I have yet to find a set of rules of professional conduct that favor lawyers over the public. And what the rules of professional conduct does not "catch," the penal code does. And sometimes rules are made that hurt the public. For example, in the loan modification fracas, the legislature enacted a new penal code provision that made it a felony to take money from clients for loan mod work before the work is done … can’t even take money for the clients’ trust account! The rules of professional conduct were similarly altered. But, no intelligent, business savvy, lawyer would now represent such clients unless pro bono. If the client has insufficient funds to keep the mortgage current, what makes legislators believe such clients will pay their lawyers after the modification is completed? The clients didn’t suddenly get flush with money! So, lawyers will not now help the people who need help the most, those about to be kicked out of their homes …
A new wrinkle to this, however, is that the law seems not to apply when a lawsuit is filed. So, the lawyer might take the client into bankruptcy or sue the lender on some pretense, all with the ultimate objective of merely getting a loan modification. This is more costly and adversarial than needs to be … if the law makers kept their hands off! There were already rules on the books sufficient to punish the "bad apples" in the profession who were guilty of fraud on the clients.
Back to the main point: If the legislature removes governance from lawyers, the resulting agency will be merely a licensing and disciplinary agency … and lawyers who volunteered their time and expertise to the bar for the benefit of many in the public and produced much good work will go elsewhere. That would be a grave loss that will hurt the public.
The Bar should push back and fight the legislature … All the more reason for the separation of powers! Let the legislature do its job … and this does not include determining how lawyers govern themselves.
View page
When I was in Washington, D.C., I saw two views of the White House, one of which was normal and one of which exhibited a far different personality. If we have to live behind wire, if we have to be strip searched everytime we go into court houses, public buildings and transportation centers, and if we have to watch one civil liberty after another disappear, then we’ve already “lost the war” with only one transgression. September 11th has changed our lives more because of the politicians than because of the actual dangers we face.
I find the same mentality being exhibited by state bar associations who see danger in almost every new idea expressed by lawyers in their effort to communicate with clients and prospective clients. There are already enough rules on the books to protect the public. We have penal codes that make stealing from clients (theft) illegal and we have rules of professional conduct that prevent lawyers from doing “bad” (however you want to define lawyers’ conduct) things (moral turpitude. So why do we need new rules that effectively prevent lawyers from helping economically fatigued clients in their effort to renegotiate their home mortgages? And why is it that using technology (social media) to communicate with prospective clients is subject to rules that are different from the existing rules on advertising and client communications? Why is it that truth in advertising is no longer sufficient despite a new mode of delivering the communication? Oh, and I guess a more basic question: Why is it that the single goal of bar associations is to “protect” the public? Why is this not just one of two goals, the other to protect and promote the interests of its members, lawyers?
This seems to br a novel concept. When the president of the State Bar of California said the Bar had two co-equal goals, to protect the public and advance the interests of its lawyer-members, people (staff) almost went into convulsions. Well, that novel idea didn’t last very long … and with new presidents, has gone right out the window.
No different in other states … except the latter goal never even made it onto the table. Tell me if you see this differently.
View page
In today’s WSJ, a lead article talks about the courts in New York requiring the lenders in foreclosure suits to be honest in the filing of their documents. This follows the Florida cases with "robo signers." Affidavits claiming full knowledge of the facts of each matter were signed by employees of the lenders and the mortgage servicing companies as well as improperly notarized. Lawyers are being blamed for filing defective documents.
Lenders made the loans, their servicing agents prepared the information and signed the affidavits under penalty of perjury. Yet, the focus of attention seems to be falling on the attorneys. Somehow, attorneys are expected to verify that their clients are telling the truth. I thought that was the function of the trier of fact, either the jury or the judge. What am I missing here? Or, is this just one more case of seeking to toss the blame anywhere but where it belongs.
Lawyers in our system of justice are the messenger. Lawyers present the evidence in the light best suited to tell the client’s story … but it is the client’s story … and the only obligation on the part of the attorney is not to allow known perjury to be placed before the trier of fact. How and why is that now being altered?
The mortgage companies are now saying that the cost of foreclosures and loan modifications will increase, hurting consumers! Wow, it is an affront to human intelligence to suggest that the cleanup of their corruption (filing false documents with the court) will cause consumers to pay more!
View page
Here are additional photographs from the Balloon Festival. It was a spectacular event.
View page
