Articles

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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ADA applies to bar applications also

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.


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Licensing of tax preparers

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.


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New rules for IRS 1099

New rules relating to the issuance of 1099 forms are in place that impact even funds in one’s IOLTA account. If you have oversight and management of the funds such as selecting the expert witnesses or investigators in a personal injury matter, you may have sufficient dominance to be required to issue a 1099.

See Priv. Ltr. Rul 97-44-02 (1997) and 91-02-013. See also Rev Rul 93-70, 1993-2 CD 294.

The threshold amount if $600. Beyond that, consider the consequences of filing/not filing. And if you’re a co-recipient of a settlement draft with your client where a portion of the draft is for attorney’s fees, you will still have to report and/or attach an explanation to your tax return.

Moral of the story:  These laws are complex. Consult your tax adviser.


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Law of supply & demand in the legal profession

According to the ABA, only 56 percent of nearly 46,000 law school graduates had a job in 2012 requiring bar passage nine months after graduation. And less than 1 in 5 of the legal problems experienced by low-income people are addressed by a private attorney or a legal aid lawyer.

The president of the ABA told the House of Delegates that “‘There are so many examples of real, monumental life issues that could be alleviated with the help of a lawyer…And there is a pool of newly minted lawyers waiting for the chance to help.’”

This is the same problem or challenge that faced the legal profession in 1965 when I became a member. Bar leaders were wringing their hands, then, saying "oh my, oh my, what should we do?" One would think that the brilliance of lawyers, both before and since, could have found a solution to this challenge posed by the laws of economics, supply and demand. Well, the answer is they have.

The ABA president suggested that we should look at programs on the national, state and local levels, citing as examples New York’s legal incubator program aimed at helping new practitioners and South Dakota’s rural practice project, which provides financial incentives to lawyers willing to practice in rural areas. These are not new; examples exist from Coast to Coast. And no new regulations and no involuntary service is required to face and meet the challenges.

But there is no political will to embrace them and expand these options. Perhaps the established Bar is fearful of the results and the impact on the economics of those who have "made it."


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