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Tuesday, April 30, 2013
Heller Ehrman, Greenberg Traurig Settle Malpractice Suit
Greenberg Traurig LLP has agreed to pay Heller Ehrman LLP $4.9 million to settle a multimillion-dollar malpractice lawsuit connected to Heller's 2008 dissolution.
Pardon Our 100th Interruption
The Kennedy Mighell Report has reached a milestone: Episode 100! As part of the celebration your hosts will bring you today’s legal technology issues in the format of one of their favorite shows: ESPN’s Pardon the Interruption. Hear how technology can make your business more efficient, highlights from the ABA Tech Show, the future of technology for lawyers, and more
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When You've Only Got 100 Years To Live
Adam Liptak, in his New York Times Sidebar column, raises what at first blush seems like a ridiculous question: If life without parole is unconstitutional for juveniles, is it permissible to sentence a child to 100 years in prison? Isn't the point that children should not be sentenced to die in prison?
Except they never quite said so, and have since taken a pass on the opportunity to clear up the confusion they invariably leave behind.
While it seems to obvious for argument that a sentencing court can't do one way what would be unconstitutional another, so that if life without parole violates the 8th Amendment's prohibition on cruel and unusual punishment, so too would a 100 year sentence. To suggest otherwise is sophistry of the Alito sort.
And yet the Supremes weren't sufficiently concerned with Bunch's homecoming at age 95 to take the case and refine their message, leaving circuit courts hanging as to whether Graham means what it says or says what it means.
The reason seems most like to be Judge Griffins question: if a term of years that serves as a de facto life sentence is no good, then what is acceptable? How many years is acceptable under the 8th and when does a sentence cross the line? If a defendant is younger than 18, can you add the difference in years to the end of the sentence since his life expectancy will be longer? Okay, that last one seems a bit too trial, but still it's part of the equation, and it's one of many smaller question that have and will arise:
If it were up to me, the answer would be that any sentence imposed on a juvenile that's long than it takes for a police officer's pension to vest would be unconstitutional. But then, I've yet to get a call from my senator informing me that my name has been put in the mix for the next Supreme Court opening. For me, 100 years is a lot of life to lose. Too much.
© 2012 Simple Justice NY LLC. This feed is for personal, non-commercial & Newstex use only. The use of this feed on any other website is a copyright violation. If this feed is not via RSS reader or Newstex, it infringes the copyright.
That sounds straightforward enough. But there are two ways to understand the decision, Graham v. Florida.Alito said it was fine in his dissent, but that's Alito and it was only said in dissent, so who cares?One is formal. The court may have meant only to bar sentences labeled “life without parole.” On that understanding, judges remained free to impose very long sentences — 100 years, say — as long as they were for a fixed term rather than for life.
The other way to understand the decision is practical. If the Eighth Amendment’s prohibition of cruel and unusual punishment requires that young offenders be left with a glimmer of hope that they may someday be released, it should not matter whether they were sentenced to life in so many words or as a matter of rudimentary actuarial math.Whether it's called "life" or a term of years in excess of any remote chance of ever getting out is form over substance. Sure, everyone thought the Supreme Court's Graham decision meant something for juveniles, reflecting its rejection of the overly harsh "child predator" myth and a recognition that children haven't developed the maturity and responsibility sufficient to be held so accountable, and punished so severely, that their life was over. That's what we thought.
Except they never quite said so, and have since taken a pass on the opportunity to clear up the confusion they invariably leave behind.
“Some courts have held that such a sentence is a de facto life without parole sentence and therefore violates the spirit, if not the letter, of Graham,” Judge John M. Rogers wrote for a unanimous three-judge panel. “Other courts, however, have rejected the de facto life sentence argument, holding that Graham only applies to juvenile non-homicide offenders expressly sentenced to ‘life without parole.’ ”The Supremes denied cert to Chaz Bunch, who was 16 when convicted and sentenced to 89 years in prison, making him eligible for parole at 95, after the 6th Circuit affirmed his sentence.
Applying the reasoning of the Graham decision to long fixed sentences, Judge Rogers added, “would lead to a lot of questions.” An appeals court in Florida last year listed some of them in upholding a 76-year sentence meted out to Leighdon Henry, who was 16 when he committed rape.“At what number of years would the Eighth Amendment become implicated in the sentencing of a juvenile: 20, 30, 40, 50, some lesser or greater number?” Judge Jacqueline R. Griffin wrote for the court.
While it seems to obvious for argument that a sentencing court can't do one way what would be unconstitutional another, so that if life without parole violates the 8th Amendment's prohibition on cruel and unusual punishment, so too would a 100 year sentence. To suggest otherwise is sophistry of the Alito sort.
And yet the Supremes weren't sufficiently concerned with Bunch's homecoming at age 95 to take the case and refine their message, leaving circuit courts hanging as to whether Graham means what it says or says what it means.
The reason seems most like to be Judge Griffins question: if a term of years that serves as a de facto life sentence is no good, then what is acceptable? How many years is acceptable under the 8th and when does a sentence cross the line? If a defendant is younger than 18, can you add the difference in years to the end of the sentence since his life expectancy will be longer? Okay, that last one seems a bit too trial, but still it's part of the equation, and it's one of many smaller question that have and will arise:
Could the number vary from offender to offender based on race, gender, socioeconomic class or other criteria?” Judge Griffin asked.While the words "sporting chance" may be a bit flip, the point remains. These are children, and there should be some hope of redemption and return to society, if only for the last few years of a life in being. But putting that concept into action is hard work, and it appears the Supremes, having opened the door to the question, have no answer. So rather than finish the job they've started, they will spend their time ironing their robes while Chaz Bunch's 89 year sentence goes unreviewed.That is a reasonable question. But Bryan Stevenson, the executive director of the Equal Justice Initiative in Montgomery, Ala., said it was the wrong one. “The idea isn’t to get the person as close to death as possible before you deal with the possibility of their release,” he said. It is, rather, to give juvenile offenders a sporting chance, perhaps after decades in prison, to make the case that they deserve to get out, he said.
If it were up to me, the answer would be that any sentence imposed on a juvenile that's long than it takes for a police officer's pension to vest would be unconstitutional. But then, I've yet to get a call from my senator informing me that my name has been put in the mix for the next Supreme Court opening. For me, 100 years is a lot of life to lose. Too much.
© 2012 Simple Justice NY LLC. This feed is for personal, non-commercial & Newstex use only. The use of this feed on any other website is a copyright violation. If this feed is not via RSS reader or Newstex, it infringes the copyright.
Source: http://blog.simplejustice.us/2013/04/30/when-youve-only-got-100-years-to-live.aspx?ref=rss
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Ricin Suspect Dutschke Makes A Quick Visit To Federal Court
J. Everett Dutschke, 41, is accused of sending tainted letters to President Obama and other government officials. Dutschke was arrested Saturday, several days after another Mississippi man, former suspect Paul Kevin Curtis, was released.
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Predictive Policing and the Law
Some law enforcement agencies, like the Los Angeles Police Department, are turning to crime prediction software to aid in decreasing the rising crime rate, better known as predictive policing. Weighing the advantages of these programs to reduce crime raises questions about racial profiling within specific neighborhoods and our civil liberties. Lawyer2Lawyer hosts Bob Ambrogi and Craig Williams join Dr. Jeff Brantingham, co-founder of the company, PredPol and Professor Andrew G. Ferguson from the University of the District of Columbia David A. Clarke School of Law, as they look at the legal issues surrounding predictive policing.
Source: http://legaltalknetwork.com/podcasts/lawyer-2-lawyer/2012/09/predictive-policing-and-the-law/
Prison Nation: Assume Nothing
At PrawfsBlawg, John Pfaff posts a graph that sucks the air out of the room.
We tend to address the explosion in prison population as a direct result of the War on Drugs, and it's a foundational argument to end the war. Pfaff raises some issues:
While the stats don't make all the distinctions that one might want, and may well leave open the question of whether drugs, and the War on Drugs, plays a larger role than the statistics show, the point remains that our outrageous prison population cannot be explained, not by a long shot, as a by-product of drugs.
The other explanation, of course, is that it is a by-product of our embrace of "tough on crime" politics, where no sentence is long enough, no crime punished harshly enough, so satisfy the public or quell politicians cries for more crimes and longer sentences.
But then, until it touches our lives, the Aaron Swartz phenomenon to use a recent example, people neither know nor care. And even when someone we know and care about falls into the clutches of the monster we've created, myopia prevents us from recognizing that it's not a fluke, attributable to one especially over-zealous prosecutor or one particularly vague law.
While the Swartz case, and his suicide, might have served to enlighten a generation of geeks as to a legal system that has been locking people away for absurdly long periods, it instead devolved to a misguided fantasy where the system was generally fine, but in that one instance went bad. Instead of enlightening, the efforts of well-intended by ignorant people diverted attention from the real problems.
It was a terrible shame that the opportunity to make a substantial segment of the population more knowledgeable was lost. And make no mistake, it was lost. The discussion surrounding the Swartz suicide was grossly misguided and clearly wrong, and yet those who cared about Swartz suffered a devastating bout of Dunning-Kruger Syndrome.
For the most part, the only instances of crime-related information that is widely disseminated is the stuff that makes our blood boil, that makes us want to increase sentences, impose life plus cancer, hate the criminal and demand that more be done. Every dead child breeds a call for a new crime. Every tragedy turns into a marketing opportunity to fill prison cells, because the prisons aren't full enough.
And as much as those of us concerned with, and knowledgeable about, the system know how misguided this is, we must stop denying that majority of Americans don't applaud these measures. How many more politicians will glide to office on promises of life in prison for jaywalkers?
As marijuana laws change, and they clearly appear to be changing, this graph suggests that it won't change America from being the world's foremost jailor. Sure, ending the War on Drugs matters and will help, but it won't solve the problem. Until we stop sentencing people to 10 years where one will do, it won't stop. And until people stop calling for blood every time a new story of crime or tragedy appears in the media, it won't stop. And because no one else see it, or gives a damn, it's left to use to keep pounding this message home.
It may not work? Very true. But giving up and watching silently as Prison Nation persists is not an option.
© 2012 Simple Justice NY LLC. This feed is for personal, non-commercial & Newstex use only. The use of this feed on any other website is a copyright violation. If this feed is not via RSS reader or Newstex, it infringes the copyright.
We tend to address the explosion in prison population as a direct result of the War on Drugs, and it's a foundational argument to end the war. Pfaff raises some issues:
Today, the US is home to about 5% of the world’s prisoners population, but nearly 25% of its prisoners. Our prison-and-jail incarceration rate* of 756 (in 2011) is the highest in the world. The countries filling out the top ten (in descending order) are Russia, Cuba, Belarus, Belize, Georgia (the country—the state has a higher rate), Kazakhstan, Suriname, South Africa, Botswana, Israel, Ukraine, and Chile; Russia’s rate of 629** putting it in the number 2 slot.There are some gaps in the reasoning, such as the contention that drug addicts, in order to feed their habits, engage in property crime to get the money for drugs. There are drug dealers fighting over turf, which produces violent crime. In other words, drug crime isn't limited to the possession or sale of narcotics, but all the ancillary conduct that flows from it, and a million drug addicts can do an awful lot of damage.
Like all zombie ideas, the claim linking the War on Drugs to this explosion has some facial plausibility. The surge in incarceration and the War on Drugs started around the same time (if you use the Reagan Administration, not the Nixon one, as the starting point for the War on Drugs). And between 1980 and 2009, the number of prisoners incarcerated on drug offenses rose by approximately 1,175%!But like with all zombies, cracks in the argument become quickly apparent. Take the 1,175% number. In 1980, there were 19,000 drug inmates in state prison, a number which soared to 242,200 in 2009. And yes, that means there are more people in prison today for drug crimes than were in prison in 1972 for all crimes (around 200,000).
But in 2009, there were over 1.36 million people in state prison. And 242,200 is only 17.7% of 1.36M. So a lot of non-drug offenders were added to prison during those years, too—a lot more, in fact, than drug offenders.
While the stats don't make all the distinctions that one might want, and may well leave open the question of whether drugs, and the War on Drugs, plays a larger role than the statistics show, the point remains that our outrageous prison population cannot be explained, not by a long shot, as a by-product of drugs.
The other explanation, of course, is that it is a by-product of our embrace of "tough on crime" politics, where no sentence is long enough, no crime punished harshly enough, so satisfy the public or quell politicians cries for more crimes and longer sentences.
Consider the following thought experiment. What would US prison populations in 2009 look like if in 1980 we released all 23,900 prisoners serving time for drug offenses (the 19,000 state prisoners plus 4,900 federal drug inmates) and proceeded to admit no prisoners for drug crimes in the subsequent years? Instead of rising 3.8-fold, it would have risen 3-fold. A difference, but not an enormous one.My pal Gideon has been doing yeoman's work pounding home the point that there, in a prison cell, but for the grace of God, go each of us. We are them. We are one bad turn, one mistake, one falsely accused mistake, away from becoming one of these statistics.
But then, until it touches our lives, the Aaron Swartz phenomenon to use a recent example, people neither know nor care. And even when someone we know and care about falls into the clutches of the monster we've created, myopia prevents us from recognizing that it's not a fluke, attributable to one especially over-zealous prosecutor or one particularly vague law.
While the Swartz case, and his suicide, might have served to enlighten a generation of geeks as to a legal system that has been locking people away for absurdly long periods, it instead devolved to a misguided fantasy where the system was generally fine, but in that one instance went bad. Instead of enlightening, the efforts of well-intended by ignorant people diverted attention from the real problems.
It was a terrible shame that the opportunity to make a substantial segment of the population more knowledgeable was lost. And make no mistake, it was lost. The discussion surrounding the Swartz suicide was grossly misguided and clearly wrong, and yet those who cared about Swartz suffered a devastating bout of Dunning-Kruger Syndrome.
For the most part, the only instances of crime-related information that is widely disseminated is the stuff that makes our blood boil, that makes us want to increase sentences, impose life plus cancer, hate the criminal and demand that more be done. Every dead child breeds a call for a new crime. Every tragedy turns into a marketing opportunity to fill prison cells, because the prisons aren't full enough.
And as much as those of us concerned with, and knowledgeable about, the system know how misguided this is, we must stop denying that majority of Americans don't applaud these measures. How many more politicians will glide to office on promises of life in prison for jaywalkers?
As marijuana laws change, and they clearly appear to be changing, this graph suggests that it won't change America from being the world's foremost jailor. Sure, ending the War on Drugs matters and will help, but it won't solve the problem. Until we stop sentencing people to 10 years where one will do, it won't stop. And until people stop calling for blood every time a new story of crime or tragedy appears in the media, it won't stop. And because no one else see it, or gives a damn, it's left to use to keep pounding this message home.
It may not work? Very true. But giving up and watching silently as Prison Nation persists is not an option.
© 2012 Simple Justice NY LLC. This feed is for personal, non-commercial & Newstex use only. The use of this feed on any other website is a copyright violation. If this feed is not via RSS reader or Newstex, it infringes the copyright.
Source: http://blog.simplejustice.us/2013/04/25/prison-nation-assume-nothing.aspx?ref=rss
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LawBiz® Legal Pad: Ethical Considerations in Collecting Your Fee
Ed discusses managing a client's fee expectations.
Source: http://feeds.lexblog.com/~r/LawBizBlog/~3/fvCZB2A7364/
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Monday, April 29, 2013
20 Legal Technology Tips in 20 minutes
If you’re looking for the hottest tech tips for lawyers, we’ll make sure your vision is 20/20. The Legal ToolKit host and Senior Law Practice Advisor with Mass. LOMAP, Jared Correia, talks technology with Attorney Ernest Svenson from the Svenson Law Firm in New Orleans, Louisiana. Ernie has catalogued a number of useful tools for lawyers and relays them in rapid succession through word association with Jared. Listen in, and find out why Dropbox and Dilbert can both have a place in your law firm!
Source: http://legaltalknetwork.com/podcasts/legal-toolkit/2012/05/20-legal-technology-tips-in-20-minutes/
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Obama petitions Supreme Court on recess appointments
[JURIST] The Obama administration on Thursday petitioned [text, PDF] the US Supreme Court [official website] to uphold the president's ability to make executive appointments while the Senate is in recess. The recess appointment is a constitutional power that permits the president fill vacancies in the executive branch without the typical consent of the Senate. In its petition, the National Labor Relations Board (NLRB) [official website] presented two questions: Whether the President's recess-appointment power may be exercised during a recess that...
Source: http://jurist.org/paperchase/2013/04/obama-petitions-supreme-court-on-recess-appointments.php
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Judge And Lawyer Argue Over "Tie." Who Wins?
In almost every jurisdiction, male lawyers must wear a jacket and tie when they appear in court. The idea is to appear dignified and professional – we are, after all, officers of the court. Most attorneys would probably agree that the courtroom is not the place to make a fashion statement.
Tom Cherryhomes, a New Mexico family lawyer, felt otherwise. Per the court,
On September 13, 1991, Cherryhomes appeared in Judge Shuler's courtroom to represent a client in a child abuse/neglect proceeding. Cherryhomes was wearing a short-sleeved, conventional dress shirt with the neck unbuttoned. He had a light blue piece of cloth or bandanna tied around his neck, above his collar, and he was not wearing a jacket.Judge Schuler reminded Mr. Cherryhomes that ties were required attire in his courtroom. Per the court:
[Cherryhomes] said he was wearing a tie, even if Judge Shuler did not like his choice, and referred to a book on nineteenth century western wear and a dictionary definition of “tie,” which he had brought with him. Judge Shuler disagreed with Cherryhomes's interpretation of the meaning of the local rules requirement of a tie, and found Cherryhomes in contempt, fining him $50.Cherryhomes requested a hearing, and an opportunity to explain himself. The Judge agreed. Shockingly, the Judge agreed with himself! Based on what you know of this lawyer so far, do you think he appealed? He did. And who do you think won?
You didn't really think the lawyer would win this, did you? The Judge's decision was affirmed. The court disagreed with Cherryhomes' arguments that (1) the "tie" rule violated his First Amendment right to free expression, and (2) his choice of neckwear caused no disruption to the decorum of the court. ("Bandana tie sparks revolution; New Mexico secedes from the Union!")
The case is State v. Cherryhomes, 840 P.2d 1261 (N.M.App. 1992).
Source: http://rss.justia.com/~r/LegalJuiceCom/~3/Y_ibwjQBAAQ/post_649.html
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Medicare Set Aside Arrangements and Mass Torts
On Ringler Radio, host Larry Cohen is talking about Medicare Set Asides with colleague and co-host, Lynn DeMauro Clark and guest, Attorney John "Jay" F. Kearns III from the firm Kearns & Kearns. They take a look at mass torts and the facts surrounding the US v. James J. Stricker case. In addition, Jay explores the Medicare Medicaid SCHIP Extension Act of 2007 (MMSEA) and how it has created an uproar among insurers and personal injury lawyers and talks about Stricker’s overall significance to plaintiff attorneys.
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Bringing Out The Worst In Us
These are the times that test us. Will we prove ourselves worthy?
No one can dismiss that efforts of law enforcement in the capture of alleged Boston Marathon Bomber, murderer of 26-year-old MIT campus police officer Sean Collier, Dzhokhar Tsarnaev. They resisted the opportunity of killing him in a hail of return gunfire and took him alive. Such patience is unfortunately rare, and to be recognized.
What becomes of him now? There are angry people who want him to hang high now, while others want to try him first and then hang him high. But just as the media, and even bloggers who claim to be the savior of the poor and downtrodden, in a rush to be the first to play the fool in the ether, were busy spreading insanely baseless accusations and misinformation without the shame to concern themselves with who they hurt, explanations of the process to come will feed the public's ignorance and leave them less knowledgeable than they were when they knew nothing.
Within the past 24 hours, a few legal issues arose for public discussion. The first was the authority of the police to conduct warrantless and unconsented house searches to look for Tsarnaev. Orin Kerr began an analysis of the legality:
This seems fine as far as it goes; it provides a stark reminder of the inadequacies of the remedies for Fourth Amendment violations. People believe that they are safe from the police performing a "dynamic entry" into their homes. "You can't just burst in here! It's against the law." And indeed, it is, except so what? There is truly little to be done about it. Forget about Tsarnaev, who would have no standing to suppress in any event, but what of the homeowner?
The chants of "sue them" from the tin foil hat crowd perpetuate the silliness. Sue them for what? Even under §1983, recovery is based on damages. There are no damages. So a right without a remedy, a right ignored, is no right. The police understand this, that there is nothing to be done about it.
The harder question is what would happen if the police, entering a home with neither warrant nor consent in search of Tsarnaev, shot the family dog, found cocaine on the kitchen table, pumped a dozen bullets through the bathroom door when grandma couldn't get off the throne to open it quickly enough? The rules we make for a search for Tsarnaev that everyone appreciate so very much, would still apply unchanged. It may have seemed perfectly reasonable to allow the police to have their way in order to find this baby terrorist, but the rules don't change when grandma is lying dead on the cold, hard tile floor.
The second issue that arose is the decision to interrogate Tsarnaev without providing Miranda warnings. Granted, Tsarnaev was likely aware of the warnings, but the law doesn't rely on a legal advice from television. Explanations of the lawfulness of this are coming from a variety of sources, most focusing on the public safety exception of New York v. Quarles, which I've previously discussed. After all, Tsarnaev is being questioned by the "High Value Interrogation Group," which suggests that there is no price they won't pay for whatever information they can extract from this teen.
The public safety exception is very reminiscent of that wonderful TV show "24," where Jack Bauer would cut off body parts of detainees to learn the whereabouts of a nuclear bomb about to destroy Los Angeles. That's a pretty imminent threat. The argument for its application to Tsarnaev is whether he is part of a larger, as yet unknown, group about to pose similar harm. There is no reason to think so, and ignorance has always proven the broadest justification for enjoying an exception to constitutional protections.
But the missing link is that if they don't need Tsarneav's statements to convict him, then Quarles doesn't matter anyway. The only point to Quarles it that it excepts the omission of Miranda warnings for public safety. The only remedy for failure to give Miranda warnings is suppression of statements. If they aren't needed, interrogate away. No big deal.
Of course, there is the broader concern about whether the most hated person in America, at least this week, is afforded constitutional rights, but we're an outcome oriented people and are happy to blink when Mr. Korematsu is imprisoned just to be safe. The tacit sense that permeates Americans' psyche is that some vague war is back, turning our streets into the battlefield, which changes everything.
We were moving beyond the remnants of 9/11 fear, returning to the normalcy of a constitutional democracy where irrational fear was inadequate to push us to embrace overriding our rights for our own good, and now carnage on Boyleston Street has given fear new life. And there is little the law can or will do to stop it. The remedies it offers are of little consequence, even if granted occasionally, and nothing drives this home better than a person who committed an atrocity.
Do not think that the people of America will concern themselves with all this legal noise. They can't hear the discussion of constitutional rights over all the applause for the excellent work of law enforcement keeping us safe from the terrorists. Even if they could, it's just gibberish in a nation whose motto is the ends justify the means.
© 2012 Simple Justice NY LLC. This feed is for personal, non-commercial & Newstex use only. The use of this feed on any other website is a copyright violation. If this feed is not via RSS reader or Newstex, it infringes the copyright.
No one can dismiss that efforts of law enforcement in the capture of alleged Boston Marathon Bomber, murderer of 26-year-old MIT campus police officer Sean Collier, Dzhokhar Tsarnaev. They resisted the opportunity of killing him in a hail of return gunfire and took him alive. Such patience is unfortunately rare, and to be recognized.
What becomes of him now? There are angry people who want him to hang high now, while others want to try him first and then hang him high. But just as the media, and even bloggers who claim to be the savior of the poor and downtrodden, in a rush to be the first to play the fool in the ether, were busy spreading insanely baseless accusations and misinformation without the shame to concern themselves with who they hurt, explanations of the process to come will feed the public's ignorance and leave them less knowledgeable than they were when they knew nothing.
Within the past 24 hours, a few legal issues arose for public discussion. The first was the authority of the police to conduct warrantless and unconsented house searches to look for Tsarnaev. Orin Kerr began an analysis of the legality:
Current events in Boston raise the question of whether the Fourth Amendment allows the government to conduct house-to-house searches for an armed and dangerous suspect on the loose. Assume the police enter a home without consent searching for Dzhokhar Tsarnaev; does the entry violate the Fourth Amendment? The answer depends on whether such home entries are “reasonable” under the Fourth Amendment, which requires a case-by-case balancing of the government’s interest in making the searches and the scope of the privacy invasion. The constitutional question would seem to depend on whether the searches are reasonably limited in scope (such as limited to a specific geographic area), the dangerousness of the suspect (here, very high), and the strength of the government’s case that the suspect may be in the area and cannot be caught another way.
Note that caselaw on these sorts of facts are particularly unlikely for reasons beyond the fortunate rarity of their occurrence. The suspect won’t have Fourth Amendment standing to bring a suit or a motion to suppress to challenge a search of someone else’s house in which he was hiding. See Rakas v. Illinois, 439 U.S. 128 (1978). As a result, only the legitimate residents could bring such actions in a civil case. And if they did bring such suits, qualified immunity would bar recovery unless the violation was clearly established — which is unlikely here given the novelty of the facts.
This seems fine as far as it goes; it provides a stark reminder of the inadequacies of the remedies for Fourth Amendment violations. People believe that they are safe from the police performing a "dynamic entry" into their homes. "You can't just burst in here! It's against the law." And indeed, it is, except so what? There is truly little to be done about it. Forget about Tsarnaev, who would have no standing to suppress in any event, but what of the homeowner?
The chants of "sue them" from the tin foil hat crowd perpetuate the silliness. Sue them for what? Even under §1983, recovery is based on damages. There are no damages. So a right without a remedy, a right ignored, is no right. The police understand this, that there is nothing to be done about it.
The harder question is what would happen if the police, entering a home with neither warrant nor consent in search of Tsarnaev, shot the family dog, found cocaine on the kitchen table, pumped a dozen bullets through the bathroom door when grandma couldn't get off the throne to open it quickly enough? The rules we make for a search for Tsarnaev that everyone appreciate so very much, would still apply unchanged. It may have seemed perfectly reasonable to allow the police to have their way in order to find this baby terrorist, but the rules don't change when grandma is lying dead on the cold, hard tile floor.
The second issue that arose is the decision to interrogate Tsarnaev without providing Miranda warnings. Granted, Tsarnaev was likely aware of the warnings, but the law doesn't rely on a legal advice from television. Explanations of the lawfulness of this are coming from a variety of sources, most focusing on the public safety exception of New York v. Quarles, which I've previously discussed. After all, Tsarnaev is being questioned by the "High Value Interrogation Group," which suggests that there is no price they won't pay for whatever information they can extract from this teen.
The public safety exception is very reminiscent of that wonderful TV show "24," where Jack Bauer would cut off body parts of detainees to learn the whereabouts of a nuclear bomb about to destroy Los Angeles. That's a pretty imminent threat. The argument for its application to Tsarnaev is whether he is part of a larger, as yet unknown, group about to pose similar harm. There is no reason to think so, and ignorance has always proven the broadest justification for enjoying an exception to constitutional protections.
But the missing link is that if they don't need Tsarneav's statements to convict him, then Quarles doesn't matter anyway. The only point to Quarles it that it excepts the omission of Miranda warnings for public safety. The only remedy for failure to give Miranda warnings is suppression of statements. If they aren't needed, interrogate away. No big deal.
Of course, there is the broader concern about whether the most hated person in America, at least this week, is afforded constitutional rights, but we're an outcome oriented people and are happy to blink when Mr. Korematsu is imprisoned just to be safe. The tacit sense that permeates Americans' psyche is that some vague war is back, turning our streets into the battlefield, which changes everything.
We were moving beyond the remnants of 9/11 fear, returning to the normalcy of a constitutional democracy where irrational fear was inadequate to push us to embrace overriding our rights for our own good, and now carnage on Boyleston Street has given fear new life. And there is little the law can or will do to stop it. The remedies it offers are of little consequence, even if granted occasionally, and nothing drives this home better than a person who committed an atrocity.
Do not think that the people of America will concern themselves with all this legal noise. They can't hear the discussion of constitutional rights over all the applause for the excellent work of law enforcement keeping us safe from the terrorists. Even if they could, it's just gibberish in a nation whose motto is the ends justify the means.
© 2012 Simple Justice NY LLC. This feed is for personal, non-commercial & Newstex use only. The use of this feed on any other website is a copyright violation. If this feed is not via RSS reader or Newstex, it infringes the copyright.
Source: http://blog.simplejustice.us/2013/04/20/bringing-out-the-worst-in-us.aspx?ref=rss
Sam's Club at #Lawyernomics (Awesome Video Update!!!)
Heads were exploding. It's always fun to watch heads explode. Carefully crafted business plans were dropping like flies, as desperate twits trying to spin the words were typed furiously. Avvo's Lawyernomics conference was in full force, and somebody let Sam Glover onto the stage. There will be hell to pay. A lot of lawyers have blogs. A lot of those blogs suck. I suppose I am partly to blame for this. For years, I told every lawyer who would listen that he or she ought to start a blog. I explained that a blog was a great way to get clients in the door, as if that would magically happen if you started posting something on your blog every few days. I neglected to explain how to write a blog that doesn’t suck.
Before you rip me a new one, yes, that's the same Sam Glover who owns the Puddle. Yes, the same Puddle that offers insipid, superficial advice from lawyers who have yet to need a shave about how to be a fabulous lawyer, not necessarily wrong but invariably inadequate. But then, remember that Puddle readers tend to prefer small words, ideas that require no chewing and numbered lists so they can check them off. It's not the same crowd as here, so don't judge them harshly. That's my job, anyway.
Even though my Lawyernomics closing keynote address is fully written, somebody at Avvo forgot to send me a first class ticket to Vegas, so I have to count on others at the conference to provide a counterpoint to the facile nonsense they're giving the sad mopes who paid to attend. Like this:
Then Sam gave his presentation, gracefully entitled "Why your blog sucks (and what to do about it)." He begins with an apology for his role in making our world a little worse.
You suppose? Yes, it's not entirely Sam's fault, but only because he doesn't have that kind of clout (with a "c", not a "K"), but he did everything he could to help fit lawyers into hotpants. Before you start screaming, "baby lawyer, heal thyself," don't blame him too harshly.
Bear in mind that he sought an audience of new lawyers with exceptionally limited understanding of either the law or the business of practicing law. They desired not only validation, but bits of advice in very small, easily digestible bites. And there was no way they could stand being told they weren't special. They may not have been the best and the brightest, but they were special little snowflakes.
Ah, how times change. Sam has posted his presentation and you can read it in its entirety at the Puddle. Taking a page from Sam's playbook, here is the one sentence summary:
That's when the heads began to explode. Sam Glover, friend and confidant of the Slackoisie and marketers everywhere, speaking truth to his tribe?Write good stuff because you want to that other people will want to read.
This comes as no surprise to me. I've watched Sam develop for a while now, having been occasionally critical of his ugly baby, even if in a way that made him feel somewhat less than fully appreciated. They don't like tough love at the Puddle, but its merit becomes undeniable over time. And I attribute time and natural maturation to Sam's epiphany. Reading what Sam writes, I have seen him recognize how the notions he promoted a few years ago were, how can I say this nicely, bone-headedly wrong.
The point is that the baby lawyers who thought they knew it all grow up. They gain experience, suffer the indignities of reality over time, and come to realize that neither life nor the practice of law is nearly as easy and simple as they once believed with all their heart and soul. If they have half a brain, and by no means is Sam not a bright fellow, their eyes eventually open and they see that the stuff the mean curmudgeons talk about has been happening all around them the whole time, and they were just too busy believing their own nonsense and validating their own choices to see it.
Sam Glover is coming into his own. And I, for one, am proud of him.
He's got a ways to go still, as is apparent from his Lawyernomics talk. The business he got from the name recognition he developed as a baby blogger might have been pretty good for a n00b, but will be the stuff he doesn't want as his practice matures. He will come to realize that things that work in local niche practices don't scale or work for lawyers in other practice areas. His tolerance for the hundreds of phone calls from free answers will wane. But all this takes time.
A glaring omission is that not everyone can have a viable blawg. For some, the love of writing isn't enough to make their output sufficiently interesting to anyone else. For some, there will be the painful lesson that their best ideas are deemed by others to be, well, dumber than dirt. Not every lawyer's thoughts are brilliant. But the overarching reason is that even if they're good, there isn't enough room for ten thousand blawgs. Nobody has that much time to read.
Still, watching this change happen to Sam has been enormously gratifying to me. Contrary to those who think curmudgeons hate the babies, we are very much interested in helping them to move beyond their infancy and become productive members of the profession. We are here to help, and willing to give of our time and energy to aid in their success. We want nothing from them, no business, no money, no adoration, and see our role as an obligation of one generation of lawyers to those that follow to move them from crawling to walking to running.
But it is fun to watch Sam make other people's heads explode. Mea culpa. And it's good to know that there will be lawyers in the generations that follow the grey-beards who aren't satisfied with wallowing in the gutter.
Special Added Attraction: And if you think I'm dead wrong here and just a complete and total douche, Bruce Godfrey offers you a blogging form to facilitate your path to awesome wealth and prestige.
Update: Colin O'Keefe, Kevin's kid, interviews Sam Glover for LXBN:
© 2012 Simple Justice NY LLC. This feed is for personal, non-commercial & Newstex use only. The use of this feed on any other website is a copyright violation. If this feed is not via RSS reader or Newstex, it infringes the copyright.
Source: http://blog.simplejustice.us/2013/04/27/sams-club-at-lawyernomics.aspx?ref=rss
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Salvage Company Presses Second Suit Over Treasure
The salvage company that has been locked in a lengthy court battle with the Republic of Colombia over billions of dollars worth of sunken treasure has filed another suit in Washington, D.C., federal district court. The suit is the latest legal maneuvering by the Bellevue, Wash., company to assert its ownership interest in the undersea bounty.
Sunday, April 28, 2013
Sidley Austin Looks to Riverbed to Build a Broader Network
Sidley Austin had a legacy network connecting its 17 offices in the U.S., Asia and Europe, resulting in slow data transfers and limiting the firm's ability to centralize IT resources. To create better connectivity between offices, the firm upgraded its network with Riverbed appliances.
Source: http://www.law.com/jsp/legaltechnology/pubArticleLT.jsp?id=1202473966828&rss=rss_ltn
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Rhode Island Senate approves same-sex marriage bill
[JURIST] The Rhode Island Senate voted 26 to 12 [press release] Wednesday in favor of a bill [S 0038, PDF] that would legalize same-sex marriage [JURIST backgrounder]. The House passed its own version of the bill [JURIST report] in January, but must now vote on Senate amendments. A vote is expected [CNN report] as early as next week. Governor Lincoln Chafee, who last year signed an executive order granting recognition to same-sex marriages [JURIST report] performed outside of Rhode Island,...
Source: http://jurist.org/paperchase/2013/04/rhode-island-senate-approves-same-sex-marriage-bill.php
D.C. Circuit Won't Hear Challenge to SEC Resource Rule -- Yet
The U.S. Court of Appeals for the D.C. Circuit has put off -- at least for now -- reviewing a controversial rule by the U.S. Securities and Exchange Commission that would require oil and gas companies to disclose government payments. The appeals court concluded that the petitioners, led by the American Petroleum Institute, first had to litigate their case in district court.
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Israel AG: border guards can access e-mail accounts
[JURIST] Israel's Attorney General Yehuda Weinstein confirmed Wednesday that security personnel can ask visitors to the country to open their e-mail accounts if they are perceived as suspicious. The attorney general's approval [Al Arabiya report] comes in response to an inquiry by the Association for Civil Rights in Israel (ACRI) [advocacy website] which has criticized [report] such security measures. Under the law, if entrants refuse to allow their e-mails to be checked, they can be denied admission to the country....
Source: http://jurist.org/paperchase/2013/04/israel-ag-border-guards-can-access-e-mail-accounts.php
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Boldfacing Around Tsarnaev (Update)
My pal, Tamar Birckhead, successfully defended shoe bomber Richard Reid. By successfully, I mean that she kept him alive. When it comes to defending accused terrorists, even ones as ridiculously incompetent at their mission as Reid, success is defined differently.
When the media needed meat to grind out its media sausage, Tamar was an obvious choice. She knew what she went through, what the experience of defending someone under the microscope of terrorism was like. And having gone from federal defender to UNC clinical lawprof, she had the opportunity and curriculum vitae to do the job.
In the Boston Herald's initial salvo of handicapping the defense, Tamar led the quote parade with some thoughtful words:
Following Tamar is Stephen Jones, who defended Timothy McVeigh. His defense was less successful, as reflected in McVeigh's execution. Still, he offered a realistic assessment.
But the Boston Herald piece then devolves to where the angry and cynical expect it to go, and where the media is at its worst. The next two bold face names used to flesh out the piece come from the handful of lawyers always available for comment, no matter what the subject, no matter what they have to offer. And it shows.
First comes Geoffrey Fieger, who can never be sure which chair to sit in when he enters the well, and whose justification for offering his half cent is that his "clients have included assisted-suicide advocate Dr. Jack Kevorkian." And Kevorkian has what to do with terrorism or this case?
Whenever there is a big criminal case that captures the public's imagination, there is a chance to be in the limelight. There will be some lawyers, like Tamar and Stephen, who are knowledgeable about what the defense is about to go through, and can help enlighten the public.
And then there are those who desperately want to see their names in print despite the utter lack of anything to contribute. They say outrageous things. They say stupid things. They only care if their name is spelled correctly, and don't give a hoot about the silliness they contribute to the story.
At this point, there may very well be a worthwhile trial ahead, where this kid's defense will be that he was a vulnerable youth, manipulated into serving as an acolyte to his adored older, but hateful brother. It may be the truth, despite the havoc he caused. I don't know what drove him to do this. You don't know. Clearly, neither does Feiger or Dershowitz, but that won't stop them from spewing nonsense. And if a reporter calls them for comment, they will answer.
And they won't be the only lawyers or lawprof with nothing to offer who will be readily available for a quote or TV appearance. Not by a long shot.
Update: While there's little doubt that other newspapers, other new reports, will bring out a wealth of media sluts to promote their brand, the damage being done by a couple of scholars by reducing anything remotely resembling thought to its most base instinct may be the nadir.
Via Gideon at A Public Defender, this post has to be read to be believed.
© 2012 Simple Justice NY LLC. This feed is for personal, non-commercial & Newstex use only. The use of this feed on any other website is a copyright violation. If this feed is not via RSS reader or Newstex, it infringes the copyright.
When the media needed meat to grind out its media sausage, Tamar was an obvious choice. She knew what she went through, what the experience of defending someone under the microscope of terrorism was like. And having gone from federal defender to UNC clinical lawprof, she had the opportunity and curriculum vitae to do the job.
In the Boston Herald's initial salvo of handicapping the defense, Tamar led the quote parade with some thoughtful words:
“We know he’s 19 years old, we don’t think he has a criminal record or been in trouble before. There are a lot of people out there that seem to have warm, positive things about him,” said Tamar Birckhead, whose client, Richard Reed, tried to blow an airliner out of the sky but got life by copping a plea. “To predict he’ll get a life sentence is not unreasonable.”Bereft of hyperbole, the worst that will come of it is the blind hatred of those who can't bear any word, any thought, about Tsarnaev that isn't a cry for blood. Ironically, that's largely the message, that the defense of the most hated man in America, at least this week, will spend an awful lot of time fending off the rage that comes with the job.
Following Tamar is Stephen Jones, who defended Timothy McVeigh. His defense was less successful, as reflected in McVeigh's execution. Still, he offered a realistic assessment.
... the baby-faced Tsarnaev can pin the Boston Marathon and last week’s deadly final rampage on his slain big brother and seek mercy as a kid who was easily swayed.While the public will read these words as manipulative, lawyers will read them as pragmatic. This is the job we do, the life we've chosen. We make the best of the worst situation, and as McVeigh's execution shows, it doesn't always work, so don't get too worked up about it.
“If the younger brother can shed any light on the circumstances of the older brother’s alleged involvement,” said Jones, “that’s valuable information that the government would want.”
But the Boston Herald piece then devolves to where the angry and cynical expect it to go, and where the media is at its worst. The next two bold face names used to flesh out the piece come from the handful of lawyers always available for comment, no matter what the subject, no matter what they have to offer. And it shows.
First comes Geoffrey Fieger, who can never be sure which chair to sit in when he enters the well, and whose justification for offering his half cent is that his "clients have included assisted-suicide advocate Dr. Jack Kevorkian." And Kevorkian has what to do with terrorism or this case?
“Nothing about the outcome is assured.”Cool story, bro.
“This case is ripe for somebody who’s got the courage to stand up and talk about the system and the railroading of criminal defendants,” Fieger said. “He’s been denied the right to a fair trial. And America’s ...cheering like it was some kind of sporting event. That wasn’t a very flattering image to the rest of the world. Cheering like they won the World Series.”Huh? What the heck is he talking about. Did anybody tell him the interview was about Tsarnaev? Does he know who this kid is, what this case is about? The railroading of criminal defendants? Lest we get too down on Feiger, then comes the Big Kahuna of perpetual availability when it comes to a quick and easy quote. none other than the Harvard Lawprof with a home on Sutton Place and a finger in the latest misbegotten lawyer start-up vulture biz, Viewabill:
Harvard Law professor Alan Dershowitz, a member of OJ Simpson’s “dream team,” said, “The case will go down one of two ways. Either plea bargain ... or he’ll want to become a martyr and he’ll admit everything, boast about the crime, seek to justify it and demand the death penalty.”Two ways, Dersh? Really? Not three or seven? So it's impossible that he will follow the sound advice of his counsel and assist in his vigorous defense? It's impossible that the government will not offer a plea to life imprisonment and he will be forced to trial? It's impossible that he won't want to become a martyr?" Because you know stuff from being the weak link on the OJ team?
Whenever there is a big criminal case that captures the public's imagination, there is a chance to be in the limelight. There will be some lawyers, like Tamar and Stephen, who are knowledgeable about what the defense is about to go through, and can help enlighten the public.
And then there are those who desperately want to see their names in print despite the utter lack of anything to contribute. They say outrageous things. They say stupid things. They only care if their name is spelled correctly, and don't give a hoot about the silliness they contribute to the story.
At this point, there may very well be a worthwhile trial ahead, where this kid's defense will be that he was a vulnerable youth, manipulated into serving as an acolyte to his adored older, but hateful brother. It may be the truth, despite the havoc he caused. I don't know what drove him to do this. You don't know. Clearly, neither does Feiger or Dershowitz, but that won't stop them from spewing nonsense. And if a reporter calls them for comment, they will answer.
And they won't be the only lawyers or lawprof with nothing to offer who will be readily available for a quote or TV appearance. Not by a long shot.
Update: While there's little doubt that other newspapers, other new reports, will bring out a wealth of media sluts to promote their brand, the damage being done by a couple of scholars by reducing anything remotely resembling thought to its most base instinct may be the nadir.
Via Gideon at A Public Defender, this post has to be read to be believed.
© 2012 Simple Justice NY LLC. This feed is for personal, non-commercial & Newstex use only. The use of this feed on any other website is a copyright violation. If this feed is not via RSS reader or Newstex, it infringes the copyright.
Source: http://blog.simplejustice.us/2013/04/23/boldfacing-around-tsarnaev.aspx?ref=rss
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Search Plus Your Legal World
Google's new "Search Plus Your World" represents a new direction in Internet search where social elements become part of our search results. Bringing our social media world into search results indicates both the growing importance of social media and the need to find new ways to get relevant results. Can we make use of what our friends and connections find on the web to get us better search results? In this episode, Dennis Kennedy and Tom Mighell take a look at Search Plus Your World, whether bringing social into search might help us, and whether this approach might work for you. After you listen, be sure to check out Tom & Dennis’ co-blog and book by the same name, The Lawyers Guide to Collaboration Tools and Technologies.
Source: http://legaltalknetwork.com/podcasts/kennedy-mighell-report/2012/02/search-plus-your-legal-world/
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Ringler's Top Ten on Structured Settlements
Even though structured settlements have been around a long time, false impressions about products and services still remain. There are a lot of moving parts involved in a claim’s settlement, and lots of financial and legal information swirling around the process. In this podcast, Ringler Radio host Larry Cohen joins colleagues, Jim Early and Bill Wakelee, to debunk the misconceptions sometimes seen in the structured settlement industry, and clarify through their top ten on structured settlements.
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AIG, A.G. in Duel Over Impact of U.S. Settlement on State Case
The long-lingering civil fraud case against American International Group and its former CEO, Maurice "Hank" Greenberg, has taken an unusual twist, with New York's attorney general and the AIG camp dueling over the impact of a federal court settlement in a parallel case, and whether it may affect an appeal slated for argument next month in New York state's high court.
Saturday, April 27, 2013
Barred or Barred?
In the Empire State, we refer to lawyers who are authorized to practice law as "admitted." Whenever someone used the word "barred," my mind immediately envisions an iron gate making it impossible to get through. As in, the lawyer was barred from any public place where pleasant people congregate.
In other locales, the word "barred" means that a person is admitted to the bar. Weird locales to a New York lawyer's ear.
But what makes it even weirder is when the lawyer refers to those locales as the places where they find and represent clients, even though they are neither admitted nor barred. That's because lawyers, whether you like it or not, are only authorized to be lawyers in places where they have been barred. Or admitted, if you come from a place where people don't talk funny.
This is a fairly fundamental aspect to being a lawyer. Just as a cop is only a cop in the geographical area of his employment, authorized by law to make split-second decisions that elsewhere would assure him a murder charge, a lawyer can only practice law where the sanctioning authority says he can. Practicing law in places where a lawyer is unauthorized is a pretty clear wrong, much like raiding an escrow account because that new car is calling your name. Even the ABA, in rule 5.5, admits as much, and they are certainly the last carry the torch of arcane ethical rules.
One would think that the disciplinary authority of jurisdictions where a person engaged in the unauthorized practice of law would take something so obvious pretty seriously. After all, if they don't keep a lid on who gets to hang around their jurisdiction claiming to be a lawyer, then what's to stop anybody from doing so? And if anybody can do so, then the public would be deceived and led to seek legal advice from people of dubious competence and devoid of ethics, and the bar associations wouldn't get their dues paid. It would be a disaster all around.
Which led me to ponder the significance of this description of a law practice.
The notion of authorization to practice law being limited by geography is very old school to new lawyers. Even the Cato Institute thinks it's time to scrap it, if only to reduce lawyers fees by making lawyers compete nationwide. I'm disinclined to go with the convenient flow on this one, until someone comes up with a way to make lawyers sufficiently competent in the law and procedure of 51 jurisdictions to safeguard clients. Of course, if the lawyer is sufficiently superficial, then the differences between jurisdictions don't really matter that much; they are relatively incompetent in all jurisdictions, making the unauthorized practice of law the least of the problems.
The rationale for eschewing such archaic rules as this is two-fold. First, that the internet has changed everything, by making it easy for anyone to promote themselves online to people anywhere and everywhere, and shouldn't a person be entitled to take money from anyone willing to give it?
The second is that old lawyers, the ones who think there is some merit in ethical rules for lawyers, tend to hate anything new and anyone who has found a better way. We fear the new, as the young will steal our business by being smarter, cuter, cooler and more cutting edge. Ethics rules exist to keep them down, to oppress them and prevent them from seizing upon new ideas, new technologies that take away our edge of experience and shift the mojo. We must hate them for ruining our perfect lawyer world.
It strikes me that while their rationale is silly, as what the post describes as a "successful practice" wouldn't be sufficient to support my addiction to three regular meals, there is a point to their cutting edge efforts. If it's cool with the disciplinary authorities in New York, New Jersey, South Dakota, California, Florida and Costa Rica (assuming they have anything remotely similar to what we have), then why shouldn't this lawyer be able to engage in the unauthorized practice of law?
Either it's a good rule, in which case the sanctioning bodies need to enforce it, or it's not, in which case they ought to cross it off the books. But as long as it remains a basic rule of being a lawyer, some of us will adhere to it because we feel compelled to honor our ethical requirements.
So which is it, guys? Am I barred from representing folks any damn place I want or not? If things like the unauthorized practice of law are too old school to bother with, let's clear this up and quell the commotion. Either way, get off your tired old butts and deal with this.
© 2012 Simple Justice NY LLC. This feed is for personal, non-commercial & Newstex use only. The use of this feed on any other website is a copyright violation. If this feed is not via RSS reader or Newstex, it infringes the copyright.
In other locales, the word "barred" means that a person is admitted to the bar. Weird locales to a New York lawyer's ear.
But what makes it even weirder is when the lawyer refers to those locales as the places where they find and represent clients, even though they are neither admitted nor barred. That's because lawyers, whether you like it or not, are only authorized to be lawyers in places where they have been barred. Or admitted, if you come from a place where people don't talk funny.
This is a fairly fundamental aspect to being a lawyer. Just as a cop is only a cop in the geographical area of his employment, authorized by law to make split-second decisions that elsewhere would assure him a murder charge, a lawyer can only practice law where the sanctioning authority says he can. Practicing law in places where a lawyer is unauthorized is a pretty clear wrong, much like raiding an escrow account because that new car is calling your name. Even the ABA, in rule 5.5, admits as much, and they are certainly the last carry the torch of arcane ethical rules.
One would think that the disciplinary authority of jurisdictions where a person engaged in the unauthorized practice of law would take something so obvious pretty seriously. After all, if they don't keep a lid on who gets to hang around their jurisdiction claiming to be a lawyer, then what's to stop anybody from doing so? And if anybody can do so, then the public would be deceived and led to seek legal advice from people of dubious competence and devoid of ethics, and the bar associations wouldn't get their dues paid. It would be a disaster all around.
Which led me to ponder the significance of this description of a law practice.
She is barred to practice law in New York and New Jersey--but she lives in South Dakota with her husband and one year-old daughter. She services clients living everywhere from Bangladesh and Costa Rica to California and Florida.Nobody is "barred" in New York and New Jersey, where local custom is to call it "admitted," the first give-away that something is amiss. The rules of admission, the lawfulness of practicing law if you will, do not seem to strike home here. To add to the issue, New Jersey has rather stringent physical office requirements. A quick click on the New Jersey lawyer registration records puts this lawyer in Phoenix, Arizona, which isn't too often confused with Fargo.
The notion of authorization to practice law being limited by geography is very old school to new lawyers. Even the Cato Institute thinks it's time to scrap it, if only to reduce lawyers fees by making lawyers compete nationwide. I'm disinclined to go with the convenient flow on this one, until someone comes up with a way to make lawyers sufficiently competent in the law and procedure of 51 jurisdictions to safeguard clients. Of course, if the lawyer is sufficiently superficial, then the differences between jurisdictions don't really matter that much; they are relatively incompetent in all jurisdictions, making the unauthorized practice of law the least of the problems.
The rationale for eschewing such archaic rules as this is two-fold. First, that the internet has changed everything, by making it easy for anyone to promote themselves online to people anywhere and everywhere, and shouldn't a person be entitled to take money from anyone willing to give it?
The second is that old lawyers, the ones who think there is some merit in ethical rules for lawyers, tend to hate anything new and anyone who has found a better way. We fear the new, as the young will steal our business by being smarter, cuter, cooler and more cutting edge. Ethics rules exist to keep them down, to oppress them and prevent them from seizing upon new ideas, new technologies that take away our edge of experience and shift the mojo. We must hate them for ruining our perfect lawyer world.
It strikes me that while their rationale is silly, as what the post describes as a "successful practice" wouldn't be sufficient to support my addiction to three regular meals, there is a point to their cutting edge efforts. If it's cool with the disciplinary authorities in New York, New Jersey, South Dakota, California, Florida and Costa Rica (assuming they have anything remotely similar to what we have), then why shouldn't this lawyer be able to engage in the unauthorized practice of law?
Either it's a good rule, in which case the sanctioning bodies need to enforce it, or it's not, in which case they ought to cross it off the books. But as long as it remains a basic rule of being a lawyer, some of us will adhere to it because we feel compelled to honor our ethical requirements.
So which is it, guys? Am I barred from representing folks any damn place I want or not? If things like the unauthorized practice of law are too old school to bother with, let's clear this up and quell the commotion. Either way, get off your tired old butts and deal with this.
© 2012 Simple Justice NY LLC. This feed is for personal, non-commercial & Newstex use only. The use of this feed on any other website is a copyright violation. If this feed is not via RSS reader or Newstex, it infringes the copyright.
Source: http://blog.simplejustice.us/2013/04/24/barred-or-barred.aspx?ref=rss
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The Presidential Race and the Judiciary
On November 6, 2012, people across the States will cast their vote for President. Whatever the outcome, it will influence our justice system. Lawyer2Lawyer hosts Bob Ambrogi and Craig Williams join Kenneth L. Manning, a professor of political science at the University of Massachusetts at Dartmouth and Professor Carl Tobias from the University of Richmond School of Law, to discuss everything from diversity in the courts, Supreme Court vacancies and obstruction and the impact on the justice system.
Gone Clio with Attorney Joe Bahgat
Listen as Clio co-founder Jack Newton talks with special guest, Attorney Joe Bahgat of Bahgat Law LLC. Jack and Joe talk about cost savings through Clio, hiring a virtual assistant, tools to help you stay organized and the capabilities of Clio’s document management and Clio Connect features.
Source: http://legaltalknetwork.com/podcasts/gone-clio/2012/05/gone-clio-with-attorney-joe-bahgat/
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Surviving the Workplace Transition – Tips from NALA
On this edition of The Paralegal Voice, co-host Vicki Voisin welcomes Elizabeth H. Nellis, ACP and Beverly A. Pace, ACP from NALA to discuss tips for transitioning into the legal workplace and how to survive once you are there. Is what you are wearing working against your chance at a job? Listen in as they go over common first-day mistakes and pitfalls you can avoid.
Source: http://legaltalknetwork.com/podcasts/paralegal-voice/2013/02/school-workplace-transition-nala/
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Helpful Tips for Women Solo Practitioners
New Solo host, Attorney Kyle R. Guelcher, a solo practitioner and the most recent Chair of the Young Lawyers Division of the Massachusetts Bar Association is joined by Attorney Melissa Conner, from the Conner Law Offices out of Boston, Massachusetts, to spotlight women solos. Melissa shares her recommendations on everything from which organizations female attorneys can join when first starting their office, to the benefits of a women’s bar association to how to find a mentor.
Source: http://legaltalknetwork.com/podcasts/new-solo/2012/02/helpful-tips-for-women-solo-practitioners/
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Google Sued Over Underwear Hanging Outside Apartment
Google probably gets sued everyday for some wacky reason. Add this one to the list - in the "Google satellite - underwear" category. As reported by The Mainichi Daily News:
A woman [in Fukuoka] is suing search-engine giant Google Inc., saying her psychological condition worsened after discovering that a search for her address brought up a photo of her underwear hanging out on her veranda.
The woman, who is in her 20s, filed suit against Google at the Fukuoka District Court for 600,000 yen [$7,162 US] in consolation money and other payments.
Opening arguments were held on Dec. 15. The woman said, "I was overwhelmed with anxiety that I might be the target of a sex crime. It caused me to lose my job, and I moved my residence." Google said that it is hurrying to confirm the facts of the case.
According to the suit and other sources, the woman discovered the photograph in spring of this year when she used Google to do a search for the address of her Fukuoka apartment, where she lived alone.
The suit says the woman already had a form of obsessive compulsive disorder before seeing the photograph, and after seeing it her symptoms worsened. She began worrying that her activities were being secretly photographed throughout the day. She was fired from the hospital where she worked, and moved to a new residence.
After the court session, the woman told the Mainichi that around October, the month in which she filed the lawsuit, the image no longer came up when searching for the address in Google.
"I could understand if it was just a picture of the outside of the apartment, but showing a person's underwear hanging outside is absolutely wrong," said the woman.So, if you have a clothes line up, you might want to ... uh ... gotta run!
Source: http://rss.justia.com/~r/LegalJuiceCom/~3/VuKp28WmhAc/post_651.html
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Robert Owen on E-Discovery Rules Changes
Robert Owen, partner at Sutherland Asbill & Brennan, discusses proposed changes to the Federal Rules of Civil Procedure that affect sanctions for failure to preserve electronically stored information and narrow the scope of relevant ESI.
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Friday, April 26, 2013
D.C. Circuit Won't Hear Challenge to SEC Resource Rule -- Yet
The U.S. Court of Appeals for the D.C. Circuit put off -- at least for now -- reviewing a controversial rule by the U.S. Securities and Exchange Commission that would require oil and gas companies to disclose government payments. The appeals court concluded that the petitioners, led by the American Petroleum Institute, first had to litigate their case in district court.
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SEC Sheds Light on Cyber Threat Disclosure
Edward Mikolinski JD '12 discusses his recent blog post, "SEC Sheds Light on Cyber Threat Disclosure" in the Journal of High Technology Law. Read the post at http://bit.ly/zuradT.
Source: http://legaltalknetwork.com/podcasts/suffolk-law/2012/03/sec-sheds-light-on-cyber-threat-disclosure/
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Super Bowl edition: Vince Lombardi, Civil Rights Pioneer
Professor David Yamada, Director of the New Workplace Institute at Suffolk Law, talks about legendary NFL coach Vince Lombardi as an early pioneer for civil rights. Read Professor Yamada’s blog at http://newworkplace.wordpress.com.
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OMG! Lawyers Are Texting?
Twenty years ago, lawyers were debating whether to use email in their practices. It's now impossible to imagine lawyers practicing without using email. Studies indicate that eight trillion text messages were sent in 2011. Will we see texts and IMs becoming as integral to law practice as email has become? In this episode, Dennis Kennedy and Tom Mighell discuss the growing use of texts and IMs by everyone, how these technologies are starting to play a role in the everyday practice of law, and how lawyers should prepare for the use of these technologies in the future. After you listen, be sure to check out Tom & Dennis’ co-blog and book by the same name, The Lawyers Guide to Collaboration Tools and Technologies.
Source: http://legaltalknetwork.com/podcasts/kennedy-mighell-report/2012/04/omg-lawyers-are-texting/
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Future OS: Windows 8, Apple Mountain Lion and Beyond
Has it really been three years since the introduction of Windows 7? Surveys indicate that Windows XP users still outnumber Windows 7 users. Recent announcements indicate that we'll be seeing both Windows 8 and a new Mac OSX update called Mountain Lion in 2012. In this episode, Dennis Kennedy and Tom Mighell take a look at what we have now learned about operating system updates, the current state of operating systems, and what our future operating systems might look like. After you listen, be sure to check out Tom & Dennis’ co-blog and book by the same name, The Lawyers Guide to Collaboration Tools and Technologies.
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'Supreme Law'--for Medicaid Patients or Just Business?
At stake, in practical terms, is whether the supremacy clause empowers individual beneficiaries to get into court to redress state violations of Medicaid or other federal spending clause-based statutory requirements.
Source: http://www.law.com/jsp/nlj/PubArticleNLJ.jsp?id=1202597613795&rss=rss_nlj
Obligations to Clients in Settlement Negotiations
After a settlement has been reached in a lawsuit, often claimants have questions about how to handle or manage their settlement money. On this Ringler Radio podcast, host Larry Cohen and co-host, Ann Marie VonBank get some real world perspective from expert guest, Attorney James Heuer, Jr., to discuss the attorney obligations to the client during settlement negotiations and after the settlement has been reached.
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Thursday, April 25, 2013
The Legal Trade Show Survival Guide
Learn how to make the most of your next legal trade show experience when The Legal ToolKit host and Senior Law Practice Advisor with Mass. LOMAP, Jared Correia, chats with Andrea Cannavina, the Founder and CEO of LegalTypist, Inc. Andrea and Jared explain how to decide which events to attend, how to network, the benefits of getting involved in conference planning, and much more.
Source: http://legaltalknetwork.com/podcasts/legal-toolkit/2012/07/the-legal-trade-show-survival-guide/
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The Legal Toolkit is Back
Wondering where The Legal Toolkit has been for the past six months? Never fear, Jared Correia, your host and a Senior Law Practice Advisor with Massachusetts Law Office Management Assistance Program ( Mass. LOMAP), is back. In this month’s episode meet the new co-host Heidi Alexander, also a Law Practice Advisor with Mass. LOMAP, who will be the newest addition to The Legal Toolkit team. Before joining LOMAP, Alexander ran a solo law practice and a web consulting business. She has practiced employment law and litigation, clerked for a justice on the highest court of New Jersey, and worked helping entrepreneurs launch and grow their businesses at a nonprofit women’s business assistance center. She is currently serving on the board of directors of a community arts nonprofit, as a special needs mentor, and as a coordinator and facilitator for girls in underserved communities. This episode will introduce Alexander and give her a chance to further outline her background, expertise, side projects, volunteer positions, and finally, her strong loyalty to her home state of Minnesota.
Source: http://legaltalknetwork.com/podcasts/2013/03/the-legal-toolkit-is-back/
Defense Attorneys Turning to Social Media
Lead counsel for accused murderer George Zimmerman calls social media an unavoidable component of high profile cases. So, should blogging, posting and tweeting become standard practices in defense strategies? Lawyer2Lawyer co-hosts and attorneys, Craig Williams and Bob Ambrogi, debate the pros and cons, as well as the legal and ethical issues of social media with Dr. Amy Singer, founder of Trial Consultants Inc., and Attorney Scott Greenfield, Of Counsel at Hull McGuire, PC.
It’s a Blog Eat Blog World: Legal Blogs and the Solo Practitioner
Are you looking to start your own blog but don’t know where to begin? New Solo host, Attorney Kyle R. Guelcher, a solo practitioner and the most recent Chair of the Young Lawyers Division of the Massachusetts Bar Association joins legal blogger, legal technology guru and co-host of Legal Talk Network’s Lawyer2Lawyer, Attorney Bob Ambrogi, to offer tips to solos on starting your own blog. Bob talks about everything from which platform is best, to what type of information you should contribute as a blogger, to how to promote your blog and stand out from the others.
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Wednesday, April 24, 2013
Revisiting Voter ID Laws
Since our program spotlighting Voter ID Laws and Voter Purges across the country, there have been big developments in Arizona, Tennessee and key battleground state, Ohio. Lawyer2Lawyer hosts Bob Ambrogi and Craig Williams chat with Daniel Tokaji, Professor of Law at The Ohio State University’s Moritz College of Law and Lawrence Norden, Deputy Director of the Brennan Center's Democracy Program, about this how the upcoming election might be impacted.
Source: http://legaltalknetwork.com/podcasts/lawyer-2-lawyer/2012/10/revisiting-voter-id-laws/
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EEOC briefs on line
This is pretty cool.
EEOC briefs are now on line. [Here]
They cover briefs filed in the US Circuit Courts of Appeals in which the EEOC was a party, plus amicus briefs filed in the US Circuit Courts of Appeals, District Courts, and state courts.
And there is a user-friendly search function.
Briefs filed in the US Supreme Court are not in this collection, and can be found through the US Solicitor General's collection [here].
Source: http://www.lawmemo.com/blog/2012/06/eeoc_briefs_on.html
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The Law and the Liability of Eugenics
For decades, a program called Eugenics gave state boards the right to deem someone "unfit to procreate." The outcome of this was 66,000 Americans were selectively sterilized between the late 1920’s and the 1980’s. Lawyer2Lawyer co-host and attorney J. Craig Williams welcomes Professor Alfred Brophy, from the University of North Carolina School of Law and Attorney James Bowden from Waller Lansden, to discuss this controversial practice, the US Supreme Court’s shocking decision on eugenics and why forced sterilization "is" technically constitutional.
Source: http://legaltalknetwork.com/podcasts/lawyer-2-lawyer/2012/02/the-law-and-the-liability-of-eugenics/
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