Category: Personal Thoughts

The police are never wrong!

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.

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Is the Bar Prosecutor Alleging Murder When Only Manslaughter Is Appropriate?

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.

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Kill Switch – A Threat to Democracy?

Gov. Jerry Brown signed a bill last month that requires all smartphones sold in California to include a  “kill switch.” The purpose of this bill is to enable an owner who loses  his/her smart phone to, remotely, make a smartphone worthless to a thief.  By flipping a switch remotely, the owner of the phone can “kill” all the data that is on the phone. As one has put it, the phone will become a “brick” and nothing more.

However, the bill also contains a provision that allows the government to flip the kill switch as well.  One can only imagine the irony of this technology. As we have become  more democratic,, more of an open society, more easily  able to communicate with the far reaches of the world,, we now have a provision  that will enable our government to shut us down. Can you imagine what would have happened in the Soviet Union had Gorbachev  not been able to communicate with the outside world  in the  1990s? Can you imagine what would have happened in Ferguson,  Missouri had the local citizenry not been able to use their phones, iPads,, twitter accounts and other social media to describe what was happening there?  Now, all of a sudden, the state of California is able to close down smartphones that might protest against a given activity.

Although  theft of smartphones  is a serious issue, curtailing  Democratic action is far more serious.. Public protest is an old form of activism.  Technology has made such activism more widespread and more easily dispersed. Technology can, should not,  be used to curtail active public input.

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Happy Labor Day

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During the Labor Day holiday, we spent some time traveling to several “food spots” in Los Angeles that were highlighted by the food editor of the Los Angeles Times.  One of them was Bulgarini Gelato, maker of one of the best gelato delights we have had; another was The Oinkster, serving pulled pork as good as can be found in Kansas City.  Hope you had a relaxing and regenerating holiday.

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A global market reacts

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.

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The Future of the Legal Profession: Change/Evolution or Disintegration/Elimination

Richard Susskind said:  “What I often say is that the future of law is not Rumpole of the Bailey, and it’s not John Grisham.  It’s not a version of what we have today slightly tweaked.  It will be people working in the legal sector but offering legal services and legal help in new ways.”  It may be the end of the profession as immortalised (sic) in courtroom dramas, but as software eats the old jobs it will have to create new ones too.

Yes, I agree that technology will cause the delivery of legal services to altered, that legal services will be delivered more effectively and more efficiently … and perhaps even less expensively.
But, the real gravamen of the lawyer’s work is the analysis of the issues at hand, understanding the real needs and wants (not necessarily the same things) of the client and achieving the desired result.  The desired result is hardly ever the result of technology … it still requires the mental acumen of the lawyer!

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In yesterday’s news, the Oakland A’s (the best team at this point of the season) announced trades that brought them 2 outstanding pitchers. Why did they do this? After reading Moneyball, you will know why. Teams’ trade activities highlight the two seasons of baseball, the first that will end in a few days and the second that begins after the “trade deadline” date.

I just finished reading “Moneyball: The Art of Winning an Unfair Game.” Great expose by Michael Lewis about the 2002 A’s and their general manager, Billy Beane who changed the way the game is played. How could a team with the lowest payroll in baseball win more games than any other team?

Beane used new data to understand baseball talent, data that was ignored by traditionalists and older scouts. Because of his non-traditional perspective, he was successful in attaining the talent he needed at bargain prices … He won “the game” while being strategic and cost conscious.  I suspect that was what prompted yesterday’s trades.We’ll know by the end of the season.  🙂

Are you doing that in your law firm as well?

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Are you a lawyer or a manager?

In a recent case, the lawyer was successful in growing his practice. So much so that he engaged 30 staff; they met with clients and even provided legal advice in loan modification matters. The net result is that the attorney did not provide adequate supervision for his staff and allowed them to five legal advice. This was the unlawful practice of law. The attorney was guilty of violating the Rules of Professional Conduct and was suspended for two years. Punishment could have been more, but the lawyer made financial restitution to aggrieved clients and agreed to community service during his suspension.

Moral to the story: Grow your practice with appropriate supervision of unlicensed staff and technological support. Don’t allow unlicensed staff to provide legal advice. Coaching helps both with growing your practice and with operating your practice efficiently and within professional guidelines.

The larger one’s firm gets, the more management issues arise. Running a law practice is equivalent to running a professional service business and management principles are as important as being legally competent.

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Are you still practicing law?

In years gone by, many people attended law school because a legal education enhanced their skills. In today’s world, entry into law school  is first evaluated based on ROI, return on investment. And, in some instances, the comparison is coming up short. After the Great Recession, getting a job after law school was not guaranteed. Law school graduates, in addition to being uncertain about their job market, faced extraordinary debt burden.

A 2012 survey indicates that at least 24% of law school graduates are not practicing law. Rather, they were finding their way into nonprofit and education sectors and the federal government. This compares with9% in a similar 2003  survey. One factor pushing this statistic is the need to reduce or pay some of that student debt.

And when considering whether lawyers are satisfied in their chosen career, measured against whether they would go to law school again if given the opportunity, almost 2 out of seven said “no.” This latter statistic seems to be consistent with similar statistics of earlier years. In the 1970s, in response to a survey that I commissioned with the State Bar of California, almost 1/3 of the respondents indicated they were not satisfied with the practice. But they didn’t have the huge amount of debt that today’s graduates are carrying.  I suspect that what keeps people enrolling in law school is another statistic:  those graduates with the highest grade point averages have median pay levels that exceed $121,500, more than those who achieve the lowest grades. This is a significant difference, and the reason for the continued attraction of law schools.

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