Category: Personal Thoughts

Change of Plea Out the Window!

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.

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The seller doesn’t even know …

This evening my wife and I went to dinner.  It was a pleasant Southern California evening with the sun still shining.  The wind was blowing but the gusts were significantly less than yesterday.  We walked from our home.  We decided to go to a sushi restaurant near our house.  We were about 10 minutes early and waited outside for the door to be unlocked.  The owner came to the door and was washing the door window from the inside; he then opened the door and washed the window from the outside.  He said it would be a few minutes more.  He then returned to the inside and locked the door.  In the meantime, we were getting colder from the wind gusts.  The noise of the door being locked clicked something in me.  I looked at my wife and said, “How would you like Italian food?  The other restaurant is just down the street.”  That’s where we went and had a very nice dinner.  The sushi restaurant owner could have let us inside, away from the wind gusts, even if the chef was not ready to serve.  But, he didn’t; he thought only of himself, not of his customers.  He could have said “hello, come inside.”  But, he didn’t.  I suspect he didn’t know or care that he lost business that night, and perhaps for the future.  There are more sushi restaurants in the area.

What are you doing in your law firm that favors your wishes, your desires, your idiosyncrasies at the expense of your clients and prospective clients?  As in the case of the sushi restaurant, most often you can accommodate the needs and wishes of the customer and yours at the same time.  It certainly would not have caused any problem to let us into the restaurant to sit inside rather than outside.  It certainly would not create a great burden to return clients’ phone calls promptly or educate the client about the process he is about to embark on … How much time would it take to ask about the client’s expectations or to tell the client about your expectations (like getting paid timely)?  There are other lawyers who do understand their clients’ desires and expectations.

Take care to think about your client and what he expects and whether you fulfill those expectations.

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Defense counsel protest Congressional cut in funds

Can you imagine criminal defense lawyers going on strike because Congress decreased the money available for Legal Aid? Justice delayed is justice denied! 

Our brethren in England have done just that! And just before the 800th anniversary of the signing of the Magna Carta, the basis of our entire legal system!

England leads the way once again.

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Safety first

I’m pleased to note that California’s AB 1371, known as the Three Feet for Safety Act, becomes law in 2014. California is the 23rd state to establish a minimum buffer zone around bicycles that ride on public roads. It’s about time! Motorists passing a bike must allow at least three feet of space between the car and the bike, or slow to a safe and reasonable speed. As a cyclist myself,

I know how dangerous the roads can be; in 2011, I was hit by a car making a left turn, failing to yield the right of way to me. The driver just didn’t “see” me.  This literally changed my life and I still feel the impact of that accident. Drivers passing too close is one more problem behavior on the roads, especially with new hybrids that make little or no sound of warning as they approach.

Be careful out there on the roads this holiday season, and always. Selfishly, I want you back as a reader and commentator.  Happy holiday.

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Ageism on the rise

With the Baby Boomers advancing to the ranks of retirees, those who don’t want to retire are striking back in larger numbers. Rutgers, the largest public university in New Jersey, was sued for age discrimination early in 2012. The suit was joined by 3 others who were fired. Such claims are on the rise. In 2012, 22,857 such claims were filed with the EEOC, Equal Employment Opportunity Commission, compared with 16,548 in 2006.

Lest you think the legal community is exempt from such claims, look back at the Sidley Austin settlement of $27 million not all that long ago. A number of “partners” were terminated by the firm, claiming they were partners.  The EEOC claimed they were employees, irrespective of the title the firm gave them. If you look like a duck and act like a duck, you must be a duck, according to the EEOC. In the terms of the Internal Revenue Service, if the substance of the transaction is taxable, its form is irrelevant. The legal profession, and others, feared that Sidley would fight this in court, lose and thereby set precedent. Since they settled, no such precedent has been set. But, the bell has rung; the legal profession is being watched by the EEOC as are others.

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Lincoln’s religion

Abraham Lincoln, born in February, said:  "When I do good, I feel good; when I do bad, I feel bad. And that is my religion."  How simple and eloquent.

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Can an illegal alien legally practice law?

The California Supreme Court heard arguments this week in the matter of Mr. Garcia, an illegal alien, though with proper credentials, not to be deported. His request: Grant him a license to practice law now that he has passed the bar.

Like a model prisoner, he has been a model citizen.  But, does a model prisoner walk out of prison early?  On occasion, yes.  Can a model citizen attain a professional license?  Though Mr. Garcia can stay in the U.S., can he be licensed where it’s required to uphold all the laws of the country, including immigration laws of which he is clearly in violation?   While, he had no say in coming to the country (only his parents did) and while he knows only the U.S. way of life, the answer to the question is not so clear.

In part, this issue is not about Mr. Garcia, but about states’ rights.  What is your opinion?  Should an immigrant, staying here legally but not yet a citizen, be allowed to represent others as a lawyer?

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Building a bike, made in America‏

"Made in America," a new slogan started by ABC television some time ago is represented by Bike Friday. They are one of the few bike manufacturers left in this country, having been started more than 20 years ago.  Not only do they have a unique product, they also have a unique service creed. See the accompanying photos we took of their operation.
Of course, one cannot photograph service; it’s an intangible. But, it’s the service that creates the goodwill for an organization, it’s the service that builds loyalty, and it’s the service that creates advocates for what you’re selling.  Law practice is no different. I’ve seen "poor" lawyers get return business because their service exceeded expectations; I’ve seen great lawyers lose business because they failed to understand their clients’ wants and failed to provide outstanding (let alone just good) service.  Interestingly enough, clients cannot differentiate among the quality levels of legal capability; but they instantly can recognize levels of service provided.
What are you doing? Share with us what you do with and for your clients to provide outstanding service to them.

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State Bar: Friend or Foe?

Jim Heiting, former president of the State Bar of California, commented on my article in LawBiz® Tips last week. He said, "I fully agree with your article about bar associations … and the new push to create more unemployment and less opportunity for the solo and small practitioner. Why not develop a [Bar] program that assists solos and small practitioners to represent people for reduced fees to get experience, make money, provide services otherwise unavailable at that rate, etc. We have many, many who would like to make a modest living but can’t/don’t seem to do it. This would assist the needy in both arenas: client and attorney."

For my money, Jim Heiting has been the only California Bar leader who truly had members’ (lawyers) AND the public’s interests in mind. Others before and since Jim have seen the Bar as a regulatory agency for the public with little or no concern for members. Unfortunately, this is likewise the case across the country.

There are way too few leaders in the legal community, whether in the Bar or the law school, who understand The Business of Law® and are willing to focus on members’ (lawyers) needs. Instead, they focus on creating new licensure opportunities that will not truly help the intended market and will both weaken the value of the law degree and the economic well-being of members.

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