Eric Turkewitz at New York Personal Injury Law Blog answers the age old question, just how low must one go before a lawyer loses his ticket.

In a decision released today, a sharply divided panel of the Appellate Division, First Department determined that an admitted sex offender will keep his New York law license. A majority of three justices suspended the license of the admitted offender for three years. Two dissenters insisted he should have been disbarred. The case is Matter of Lever.

While others debate the hot button issue of SORA, when the miscreant happens to hold a law license, the courts suddenly get a bit mushy about the whole problem.

It seems that Steven J Lever likes little girls.  As in 13 year old girls.

“he engaged in sexually explicit conversations over an internet chat room with an undercover police officer posing as a 13-year old girl, followed by his attempted meeting with the presumed minor for purposes of sexual contact.” The then 30-year old patent lawyer, formerly at Kirkland and Ellis, had logged on to a chat room targeting older men and younger women. In six separate conversations over a period of three months he engaged in discussions with “significant sexual content” and then arranged to meet the girl at the Ronkonkoma train station in Suffolk County for the purpose of oral sex.

In most posts about people who engaged in conduct like this, we would be considering the propriety of his return to society after a reasonable prison stay, and the issue would be whether he is entitled to return to the community without others burning his effigy on his front lawn.  Not here. 

The only question before the Appellate Division, First Department, is whether he gets to keep his license, and the answer of the majority is . . . you betcha.

But the majority voted not to disbar since they saw a distinction between an attempt to have sex with the minor and actually doing it. The court wrote:

Given that most State’s penal statutes treat sexual contact with a minor as a higher-grade crime than an attempt to commit such a crime (as would be the case in a sting operation), there is no basis for us to ignore that distinction in attorney disciplinary proceedings. Respondent’s sanction should be premised on what he was convicted of doing, not what he might have done if circumstances were different.

The distinction is fine, and fully appropriate in determining the extent of penal sanction.  But admission to the bar, the ability to practice law, is not an aspect of sanction, but a privilege.  One of the foundational aspects of admission to the bar is to be of good moral character.  Lever isn’t.  Not even close.

Per the New York Law Journal, dissenting Justice James Catterson wrote, “I do not believe that we can reconcile the status of registered sex offender with that of a member of the bar in good standing.”  I really don’t think this requires a lot more explanation than this.  The bar isn’t a refuge for sex offenders, and the practice of law is not a right. 

When one assumes the responsibility of being a lawyer, one undertakes the responsibility of trustworthiness above and beyond others.  We aren’t close to being as trustworthy as we should (right Marc Dreier?) and should put our effort into being worthy of the license we hold, not trying to get 13 year old girls to engage in sex.  Lever’s conduct was sick, but the Appellate Division’s decision was simply wrong and disgraceful. 

So we now have our answer.  Lawyers will be summarily disbarred for messing with escrow funds, but 13 year old girls, not so much.  It’s good to know where the line of moral turpitude is located, just in case some lawyer with an urge to sexually molest young women needs to know.

Colin Samuels twitted about this New York Times story that Consumer Reports has bought the Consumerist.  Colin’s thought was “very cool.”  I wasn’t so sure, which earned me a “why so skeptical” twit.  Here’s why.

The blogosphere, despite all the marketers who would prefer to homogenize it and make it warm, fuzzy and profitable, remains the wild west.  It can get rough in here.  It can be crude.  We give punches, and take punches.  Many can’t take the heat and leave when they find out that it’s not so easy to get your brains bashed in on a regular basis.

But what will happen if the blawgosphere goes legit?  Will corporate owners really be willing, able, to throw a good punch?  What about the nasty language and nastier attacks.  Corporate wonks don’t want that stuff dirtying up their brand. 

The Consumerist is a great blog.  I happen to be a strong supporter of people taking a stand against getting screwed in the purchase of goods and services, and holding sellers accountable.  Ben Popkin, the guy charged with herding feral cats over at the Consumerist, has done a great job of keeping the place rough and effective, while keeping the loonies in line.  Can Consumer Reports allow this to go on?

The blog offers consumer tips, like how to return products and how to confound a telemarketer, and covers shopper complaints, like excessive retail markups.

It will become part of a new division of Consumers Union, and the current editors will remain. No plans are under way to change the coverage or to begin charging for the site. “We don’t want to acquire the Consumerist and then squelch it in some way,” said Kevin McKean, vice president and editorial director of Consumers Union.

Well yeah, the Consumerist does that, but what it does best if rip the heart out of businesses that screw the consumer, that treat the consumer like fungible dirt and take money and deliver crap in exchange.  I love it.  Without blogs like the Consumerist, places where ordinary people can fight back, rage against the machine, we are individually lone voices competing with the massive marketing campaigns designed to make us believe that these corporate sellers actually love us and respect our concerns. 

Consumer Reports, on the other hand, presents a positive view on goods and services.  It’s very helpful, and a long time favorite of Mrs. Simple Justice, who carefully and obsessively reviews the ratings before buying anything.  But what it does not do is rip the lungs out of thief’s, liars and cheats.

It’s good to know that the blogosphere is being taken seriously, and treated with a legitimacy that is usually reserved for butt kissers.  But if it takes the edge off the wild west, then we will have traded respectability for purpose.  If so, that would be a lousy trade.

That’s why I’m skeptical.  I’ve seen the nasty outsiders get co-opted into the mainstream before.  It’s never pretty.

Via the New York Lawyer, Acting Supreme Court Justice Charles Tejada died on December 24th.  He was one of the good ones.

I had the honor of trying a few cases before Justice Tejada.  He not only gave me a good trial, but he was a pleasure to work with.  A judge of utmost integrity and intelligence, and a pleasant and respectful man as well.  When I called him “your honor,” I meant it.

Justice Tejada was 64, but looked 50.  Thin and fit, I would have never expected him to die so young.  I didn’t know him well enough to have any personal knowledge of his health, but I knew him well enough to know that when a case was sent before him for hearing and trial, it was your lucky day.  You were assured that he would give you a fair shake and if you made your case, would suppress, dismiss, whatever was right.  This is a rare attribute.

Justice Charles Tejada will be missed.

Austin criminal defense lawyer Jamie Spencer asks a question that has always bothered me as well.  Why do solo practitioners answer the phones, put on signs and letterhead, that they are “law offices?”  If you are one person, with one office, does it make you feel bigger and better to pretend that there are more of you?

I remember a post by Bennett (of the Houston Bennetts) about some lawyer down in the Republic of Texas who pretended to have a dozen offices (link to be added when Bennett finds it for me) as if he was some major player.  Instead, he just looked goofy and disreputable.  Why exaggerate?  Granted, this guy’s attempt to feign importance was borderline pathologic, but perfectly fine lawyers who have solid reputations and provide excellent services also play the game, albeit to a lesser extent.

I’m a solo.  I have an office.  I do not have offices, although at the moment I am operating out of my Palm Springs office (but for the fact that I’m not admitted to practice here), and yet I will not pretend that this is anything more than a transitory stop in my career.  When I leave, I will still have but one office.  And that’s good enough for me.  No, not good enough, but perfect.  It is what I am.  I am a lawyer with one office, and damn proud of it.

So why do my brethren feel diminished by having only one office.  Why do they feel that presenting the appearance of being bigger and grander than they are makes them bigger and grander.  As Jamie points out, clients want your services, not the services of some unknown, unseen elf in the backroom.  Tell them that you will be performing all work on their behalf and they’re happy.  That’s what they want from you.  So it does you no harm to admit the truth.

When asked for the name of my law firm, I give my name.  When the quizzical look comes over people’s faces, wondering what happened to the 5 other names they expect to have strung on the end, I explain that it’s just me.  I do not do so with shame or guilt.  I do not justify why I practice alone.  And I never try to give the appearance that there are more of me than there are.  I’m a solo.  And I’m good with that.

So why do others claim to have “law offices” and they don’t?

Eugene Volokh posts about Michael Newdow’s latest effort to separate church and state.  Newdow last sought to eliminate “under God” from the pledge of allegiance.  He now seeks to preclude Chief Justice Roberts from telling President-elect Obama to repeat the words, “so help me God.”  Not that Obama shouldn’t say the words, but that Roberts should ask him to say them.  Newdow also seeks to stop the prayers offered during the inauguration, the invocation and benediction. Details of the lawsuit can be found at Religion Clause.

Eugene dismissed the argument against prayers during the inauguration quickly.

The lawsuit’s Establishment Clause argument about the inaugural prayers is foreclosed by Marsh v. Chambers (1983), which held that legislative prayers are generally constitutionally permissible, even to the extent they may endorse religion, because of the long tradition of such prayers dating back to the same Congress that proposed the Establishment Clause.

This sets forth two of the worst reasons for perpetuating the inclusion of prayer in government, which causes such general confusion and renders the otherwise sound arguments Newdow offers silly.  Why bother to fight this issue when any victory does nothing to provide for a rational separation all the way down the line.

The two nasty reasons are tradition and precedent.  Tradition isn’t a reason, but a historical fact connected to sentiment.  While there is no doubt that our founding fathers invoked God, the nature of religious observance was different then, and their notion of a pluralistic society was letting Catholics close to the campfire.  But they did it, and now we’re stuck with it forever.

Why?  Precedent.  One court said that separate is equal tradition  trumps reason, and that’s the whole ball of wax.  The intertwining of religion and government has perplexed many of us, who regularly ask the question of how one can rationally uphold the establishment clause while sentimentally ignoring it whenever there is some long-standing but irrational tradition of invoking religion.  We aren’t that persuaded by precedent that irrational connections are the equal of sound logic.

But Newdow’s other point about the oath of office is a very powerful one.  There is no reason why Obama, as a human being elected to public office, should not bring with him his personal belief in God.  He just shouldn’t be told to say so, and if the words come out of his mouth, they will do so because he chooses to say them.

Except, of course, tradition.

I awoke this morning in a lovely home in Rancho Mirage, with breathtaking views of snow-capped peaks in the distance, framed by waving palm trees and cacti.  As it was still a bit early in the morning for left-coasters, I decided to brew a cup of joe so I could sit outside in the early morning dew just like they do on TV commercials for girlie coffees.

But this wasn’t an ordinary house.  I was here as a guest of my former CEO of a telecom, who was here as a guest of a former CEO of a defense contractor, who was staying at one of his other homes on some other coast somewhere.  So needless to say, there was no Mr. Coffee in the kitchen.  There was a magnificent, sophisticated, complex machine designed to brew the most wonderful, perfect, aromatic coffee ever.  I was screwed.

While I’m hardly technophobic, I admit to being somewhat less engaged by gizmos than others in the blawgosphere.  But I can press a button with the best of them.  Unfortunately, this skill does me little good when there are many buttons available for pressing.  This coffee maker could have made NASA proud.  But I was stymied.  Worse still, if I pressed the wrong button and it exploded, I would have waken everyone else up.  They would have not only witnessed my error, but been predisposed to being miffed with me.  A bad combination.

The house in the stretch of desert between the snow-capped peaks had many such gizmos.  It had a refrigerator that could inform one of the instant that peak crispness in celery was about to elapse.  There were buttons and lights and grids along the wall where a light switch should have been.  It was very impressive.  I prefer to sit in the dark anyway.

From this, I realized that the best job in the world is to be a former CEO.  Not just a CEO of anything, but of a big corporation.  After all, you can’t give yourself a golden umbrella.  And that’s what makes this the best job ever.  You get paid entirely up front (much like criminal defense lawyer, but with many more zeros).  And then, you discuss all the people you know and the companies they used to run.  You have to go through the “run the company” stage in order to get to the really good stage, the former stage.  It’s paying one’s dues. 

Once you achieve success as a former CEO, you get to play for keeps on the gizmo scale.  Your days are filled with accumulating gizmos and learning how to use them.  Some take a few days to learn while others take months, even years.  There are gizmos here that no one knows how to use, but look spectacular.  I don’t know what they do, but I want them. 

I cannot get them, of course, as I am not a former CEO.  I have no paid my dues.  I have never run a company, and wouldn’t even begin to know how to properly fulfill the position of former CEO.  Seriously, I wouldn’t even know where to go to buy some of the things they take for granted.  They don’t sell them in the stores I frequent.  They are never on sale either, but even if they were, they wouldn’t buy them.  A former CEO knows that if you can go to two stores, one where a gizmo is available for less and one for more, it’s crucial to go to the one where it’s sold at a higher price.  If you have to ask why, you are not a likely candidate for former CEO.

I’m very happy to be friends with some former CEOs, and bask in the reflected glory of their gizmos.  Did I mention the $6000 shower curtain?  It is so worth it.

Being a criminal defense lawyer, my business model is relatively simple.  A fee is determined and paid to retain my services.  Sure, there are expenses along the way, and sometimes fees vary based upon how the case progresses (such as a fee for trial), but in essence the business model remains straightforward.  The one thing that the business model does include is financing the client. 

This means that some clients will not be able to retain me, no matter how much they might want to.  For a variety of reasons, that have been explained elsewhere in this blawg, I avoid creating conflicts with clients that will damage the relationship.  I avoid charging a fee and not getting paid.  There are time when problems arise no matter what, but they are rare, and when they do, the impact on my business model is minimal.  I keep it simple.

But as I learned from the Securities Law Blog, via Tannebaum’s twit, Biglaw has a different business model.  Ever wonder how Biglaw can pay its first year associates about $200,000 a year (which, I learn, is billed out at $495,000 a year)?

You see, BigLaw finances all of this. BigLaw borrows money from BigBank to meet monthly expenses, salaries and partners’ draw. Silly business model, but apparently a necessary one. Heaven forbid one should pay expenses out of cash flow. No, you borrow money from the bank to pay the rent, and the salaries and the overhead. You then repay the bank with your receivables, and start all over again.

Sorta sounds like a ponzi scheme, doesn’t it? Not really, and it all works; until a recession comes along.

BigLoans meet Uncollectible Receivables. Add a dash of credit crunch, and its bye bye BigLaw.

So Biglaw has been paying all these fine young lawyers on borrowed money, waiting for their corporate clients, their well-heeled CEOs, to mail the check.   But when very large corporations become very large rocks, there’s no blood to be had.  When the bank shuts off the faucet, there’s no loan.  That big sucking sound is Biglaw going down the drain.

Many lawyers think that solo practitioners who practice criminal defense are archaic in their expectation that legal fees be paid in advance.  They laughed at us.  Hah!

But my practice remains financially viable and sound.  Not bad for a dinosaur.  And I have no plans to hire any first year associates for anything close to market rate.  It’s not the money (though I wouldn’t pay that even if I could).  It’s that they don’t know how to practice law.

According to this study of emergency room physicians, 99.8% believe that police use excessive force in effecting arrests. 

OBJECTIVE: To determine the clinical experience, management and training of emergency physicians in the suspected use of excessive force by law enforcement officers.

METHODS: Surveys were mailed to a random sample of academic emergency physicians in the USA.

RESULTS: Of 393 emergency physicians surveyed, 315 (80.2%) responded. Of the respondents, 99.8% (95% CI 98.2% to 100.0%) believed excessive use of force actually occurs and 97.8% (95% CI 95.5% to 99.1%) replied that they had managed patients with suspected excessive use of force. These incidents were not reported by 71.2% (95% CI 65.6% to 76.4%) of respondents, 96.5% (95% CI 93.8% to 98.2%) had no departmental policies and 93.7% (95% CI 90.4% to 96.1%) had not received training in the management of these cases.

CONCLUSIONS: Suspected excessive use of force is encountered by academic emergency physicians in the USA. There is only limited training or policies for the management of these cases.

A random sampling of criminal defense lawyers would have given similar numbers, but no one would believe us. 

What’s surprising about this is that docs are not particularly big supporters of criminal defendants, particularly compared to cops.  This comes across loud and clear in the comments at this ER doc blog.  Clearer still is this blog from a paramedic, Rogue Medic, who isn’t buying into this at all.

I have to deal with some of the same abuse that the police deal with on a regular basis, just much less frequently than they do. The police do a great job of not overreacting to the conditions of the job. That does not excuse excessive force, but it does mitigate excessive force to some extent.

We all have bad days, even the police.

The cuffs too tight? They are supposed to be tight. Otherwise they do not do what they are supposed to do, which is keep the suspect from being able to escape, or hurt others (such as the ED doctor). It is rare that I do not hear, from someone in custody, that the cuffs are too tight.

I know, the empathy is overwhelming.  But this is expected, particularly given the close working relationship between paramedics and cops.  What curious about this guy, however, is that he has apparently enjoyed a little police love in the past.

I have been on the receiving end of handcuffs and I have been hit while in custody. After I was hit, the rest of the police in the room were just trying to restrain me. They were not trying to hurt me. I do not know what they did about the bad cop. I don’t know if they reported this, but they were not participating.

Amazing how the mind works, compartmentalizing the good guys and bad guys to avoid needless cognitive dissonance.

While the ER docs apparently know that the police tend to use excessive force, don’t expect them to be particularly worried about it.  While almost all responded that it was happening, few every reported it.  But then, it’s not like it was happening to them, and, as our friendly paramedic reminds, it’s only the bad apples.

H/T Walter Olson

The very word “rehabilitation” brings a smile to everyone’s face.  We want addicted people to be rehabilitated.  We want them clean.  If only we had more rehab, we could eradicate the horrors of drug addiction.  It’s that simple.  So I’ve decided to start a new drug rehab program.  You click your heels three times, say “I’m not addicted,” and we I give you a diploma and send you on your way. 

What?  You don’t think it will work.  So what, it makes as much sense as many of the rehab programs that receive the $20 billion spent on it each year, according to the New York Times.  As a lawyer or judge, we really have no clue whether these programs offer any empirically proven help to a very serious problem, but we do know that we would much prefer to help addicts.  Someone asks, “is there a program” and when a spot comes open, we all clap.  Hooray!  We’ve cured another one.  We mumble about how they have to “want” to be helped.  We give a stern lecture.  Then we send them on their way with our best wishes.

What no one ever asks is how they do that voodoo that we hope they do so well.  We don’t care all that much about which program it is, as long as it’s a “program”.  That’s the magic word.  He went into a “program”, and we all expect that he will magically come out the other side cured of whatever ails him.

Every year, state and federal governments spend more than $15 billion, and insurers at least $5 billion more, on substance-abuse treatment services for some four million people.

Yet very few rehabilitation programs have the evidence to show that they are effective. The resort-and-spa private clinics generally do not allow outside researchers to verify their published success rates. The publicly supported programs spend their scarce resources on patient care, not costly studies.

The truth is, any program that serves as an alternative to incarceration is a good program.  Sure, we hope that addicted clients are cured, but that’s not in our hands.  That’s up to the program, for better or worse.  We don’t dabble in the therapy, just getting our guy into a bed.  That’s where out involvement stops.  We’re really not qualified to judge whether the program is evidence based or total crap.  Certainly the official women at intake think they doing something important, and we’re nice to them as long as they agree to take our guy in.

But I’ve long had doubts that most of these programs are self-promoting money machines that don’t actually do much of anything other than provide an alternative to prison.  I remember one client calling me from his program and telling me that there were more drugs there than on the street.  I asked him if he would rather be in prison, and he decided that the program wasn’t all that bad.  It was the lesser of two evils.

Like so many of the silver bullet solutions to society’s problems, the word “rehabilitation” has come to capture our uncritical belief that it actually works.  There are always anecdotal stories about people whose lives were turned around by rehab, and we extrapolate that into the belief that all rehab is good rehab, and that any failure is attributable to the “patient” not really wanting to be cured badly enough. 

It would be nice if rehab served a purpose beyond simply keeping a client out of prison.  Most of us really want to see drug addicts change their lives.  But whether these programs actually do anything useful is beyond our knowledge.  It’s just another leap of faith. 

10.  Enough towels for every registered guest.

9.  The ability to control room temperature.

8.  Room in the refrigerator for a bottle of water.

7.  Free parking.

6.  A clean bathroom.  I mean, really clean, not just kinda clean.

5.  Soap that is not scientifically altered to smell like a fruit.

4.  Shampoo that is not intended for dry and unmanageable hair.

3.  WiFi

2.  Free WiFi

1.  Coffee, anytime, anywhere.

This is premised on the Motel 6 theory, that being that if Motel 6 can do it for $49.95, the friggin Hyatt Regency Century Plaza can do it for $479.95.  I’m shocked they don’t charge a nickel for every piece of toilet paper, given how they nickel and dime everything else in this joint.  And then still screw it all up.  My personal favorite is the ball of someone else’s used dental floss in the corner of the bathroom under the sink.  Gag me.

The correct answer to “is there anything else I can do for you, Sir,” is “you would have to do a first thing for me before you can do ‘anything else’.”