Gideon at A Public Defender posted a very funny list entitled “10 things I didn’t learn in law school.”  I thought it was very funny.  How funny was it?  Funny enough that it made it onto Feminist Law Professors, and we all know that Ann Bartow lost her sense of humor in a tragic kiln explosion years ago.  It was funny enough that Jessica Slavin, Marquette lawprof posted it on the school’s faculty blog.

That’s when the true nature of Marquette law school reared its old, ugly, stodgy and humorless head.  Along comes David Papke to find misery under every rock:

With the exception of item #10, I thought the list was cynical to a fault. Too many lawyers have a sad bitterness and mean anti-intellectualism about them. Maybe living in debt and working in the context of hierarchy and bureaucracy produces those attitudes. I wish somehow that lawyers could remember law school as a demanding but enriching academic experience.

Let’s add up the adjectives:  cynical, bitterness, mean anti-intellectualism (does that count for one or two?).  Since Papke came of age in the 60s while attending Hahvad College, when a guy named Andrew Weil was busily promoting altered states of consciousness and Timothy Leary was enjoying the benefits of psilocybin, maybe there’s an organic explanation for his need to see the dark cloud in front of every silver lining.  Some people can just suck the fun out of anything.

The comments devolved after Papke’s shower of venom rained down.  Andrew Golden, a student contributor, wrote:

Also, to respond to Professor Papke:

“Maybe living in debt and working in the context of hierarchy and bureaucracy produces those attitudes.”

I couldn’t disagree with you more vehemently. I think the problem is that the happy ones don’t waste their time making silly lists; they do their jobs well and enjoy their lives. It’s just the few vocal malcontents that seem to grab the spotlight.

Gideon a malcontent?  Few are more dedicated to their cause than Gideon.  What would possibly give this law student the sense of self-righteousness to reach such a bizarre conclusion?

And if these 6 months at the Public Defender’s office internship have taught me anything, it’s that A LOT of clients hate me because I’m white, because I’m Jewish, because they perceive me as looking through them, or just because I’m not cuffed and they are.

I can only speak to my personal experiences, but the people I work for at the PD’s Office are FAR less cynical than I am, and I’ve been called overly idealistic by many people at MU Law.

Six months interning with the PD.  I wonder if Gideon’s years of practice can possibly hold a candle to that.  But it’s harder to fault this law student after some grumpy old professor has already spun the post into a condemnation of misery, leaving the kid to spout his one-dimensional understanding of what lawyers do, as if they hold ice cream parties at the close of business every day.

If I had to come up with some rational explanation for this purveyor of misery, it’s the product of his spending his life in the academy where he was never challenged to actually represent a human being, deal with judges or wallow in the trenches with real lawyers.  Such defensiveness might be derived from his own deep-seated recognition that he can’t enjoy the joke, because he’s never experienced what lawyers do.  Wrapped up in his pompous self-righteousness, no one can make fun of law school and, by so doing, make him the butt of the joke.  There is bitterness here, but it has nothing to do with Gideon. 

Thankfully, this isn’t the way most lawprofs I know react.  First, they can enjoy a funny list.  Second, they realize that law school falls a tad shy of perfection.  Third, they aren’t miserable jerks.  Some, particularly those who have actually practiced law, are well aware of the fact that law school falls far short of preparing kids to practice law, as has been discussed ad naseum by just about everyone who isn’t a pompous, self-righteous law school sycophant.

Am I being too harsh on Papke?  Probably, but no more harsh than he was on Gideon.  If those who can, do, and those who can’t, teach, then Papke is the poster boy for Law Professors.  So if you need a lesson in how to be a miserable, pompous, disagreeable jerk, there’s a special seat for you in David Papke’s class at Marquette Law School.  Otherwise, here’s 10 reasons to avoid Marquette Law School, and they’re all Papke.

Post Script:  I have great respect for a number of the other lawprofs at Marquette, and offer my sympathies for having to hang out with this miserable jerk at faculty parties.

Miami criminal defense lawyer Brian Tannebaum has had enough of dissatisfied clients demanding a refund of their legal fee.

I have decided, today, that I will no longer simply include the word “nonrefundable” in my retainer agreements with a detailed explanation of the word “nonrefundable and how it affects the retainer agreement, i.e. you’re not getting your money back if you choose to hire another lawyer, have a dispute with this lawyer, or otherwise wish to cancel the agreement.

What I am going to do from now on is provide the client with a separate document solely discussing the word “nonrefundable.”

I am doing this because I am tired of explaining it to clients, having them nod in agreement, some acting like they are listening to me re-state the obvious, and then at some point, asking for money back.

Ah, the good old days of nonrefundable retainers.  Not since Edward Cooperman got beaten up by Cardozo Lawprof Lester Brickman before the New York Court of Appeals have New York lawyers been permitted to use nonrefundable retainers.  Brickman, who’s never met a practicing lawyer he didn’t hate, championed the notion that nonrefundable retainers were amongst the most despicable things lawyers could do. 

It wasn’t his problem that criminal defendants either paid up front or didn’t pay at all, leaving the lawyer dangling in the wind, stuck on a case where he won’t be relieved, without a fee.  Fees are dirty, Lester pronounced, and make people hate lawyers.  People must be free to discharge their lawyers at will, and a nonrefundable retainer prevents them from doing so.  So sayeth the court in Matter of Cooperman :

Because the attorney-client relationship is recognized as so special and so sensitive in our society, its effectiveness, actually and perceptually, may be irreparably impaired by conduct which undermines the confidence of the particular client or the public in general. In recognition of this indispensable desideratum and as a precaution against the corrosive potentiality from failing to foster trust, public policy recognizes a client’s right to terminate the attorney-client relationship at any time with or without cause.

Lawyers, because of our special relationship of trust, are the only group whose freedom of contract is so limited.  In fairness, Brickman had a point.  When a substantial retainer was paid up front as nonrefundable, and the defendant figured out a little later that he had made a bad choice (perhaps his second in a row), his ability to discharge the lawyer and obtain new counsel was seriously impaired.  First, he likely lacked the funds to retain a new lawyer without a refund of the monies previously paid, and second, even if he had more money available, was reluctant to walk away from the first legal fee.  Hey, it’s money.

This created quite a problem for criminal defense lawyers, particularly those who did state court, street crime work.  While they may love their clients dearly, the time to collect a legal fee was at the inception of representation.  Once the attorney is in the case, or once the case is over, the likelihood of payment diminished greatly.  There is something about the lack of pressure of prison that reduces a defendant’s desire to make his lawyer happy.  Go figure.

Unlike Florida, New York lawyers had to learn to adjust.  And so we did.  Certainly, there were the defendants who were dissatisfied because they didn’t receive the outcome they desired, or it didn’t happen quickly enough to satisfy them.  That can’t be helped, since every case doesn’t result in acquittal or dismissal.  But through communication, effort and attention, lawyers learned to keep their legal fees another way; by keeping their clients.

There are still lawyers who try to hold onto unearned legal fees as if the old nonrefundable retainer was available to them, and defendants who will try to get back fees fully earned through false complaint of incompetence or worse.  Some criminal defendants turn out to be unsavory characters, and are not entirely trustworthy.  Then again, some criminal defense lawyers are unsavory characters too.

Brian has decided to take a firm stand on this subject:

As a young criminal defense lawyer I used to shudder when a client requested a “refund” of fees. Now, I just get annoyed, but write no checks, ever.

See, the reason we criminal defense lawyers are known for “getting the fee up front” is because we sometimes don’t get the entire fee if things don’t go well. The definition of “things not going well” vary, but usually entail anything less than what the client expected.

Because we cannot be in the “satisfaction” business, we have to protect ourselves, like other professionals and businesses. We have to protect ourselves from those clients who believe they can agree to something, and then break that agreement and think that the lawyer will cower or not pursue payment because we are afraid of our state bar association.

I’m not afraid.

Unsavory defendants, or their family’s, think that lawyers will succumb to threats of grievances, and return fees to avoid the threat.   Some will.  Most won’t.  None should.  Giving in to a threat encourages this sort of conduct, and when a lawyer collapses in the face of an unwarranted threat, word spreads on the street like wildfire.  Even when the client loves and appreciates his lawyer, babymama may appreciate cash in her purse more, should the defendant be a guest of the state for any significant period of time. 

Unlike Brian, however, I will happily refund any unearned portion of the legal fee to any client who requests it.  I agree with Brickman that any client who is dissatisfied with my representation should be free to change lawyers, find someone with whom he’s more comfortable.  I take no umbrage.  It’s the defendant’s life, and he is absolutely entitled to sit next to his lawyer of choice. 

Does this present a burden?  Sure.  In taking a case, lawyers will set aside time and reject other cases (or other clients within the same case to avoid conflicts).  Opportunity costs are real, and don’t quantify well in an hourly bill.  But the Court of Appeals tells us that this is the price of being a lawyer in the State of New York, and so we live with it.

Fortunately, the secret to avoiding the angst inherent in Brian’s rant has blunted the impact of the Cooperman decision.  Serve your client exceptionally well, and most will prefer to pay the fee and have you beside them rather than play the switcheroo game and seek a refund.  I’ve returned a couple of fees over the years.  I’ve kept almost all of them, with my clients’ blessing. 

I’ve even been the recipient of post-representation gifts, reflecting my clients’ appreciation.  They aren’t required to do this, which makes such a gesture very special.  It’s much nicer than arguing about nonrefundable retainers.

Problem solved.

This is a dirty little secret, so don’t tell anybody.  Lawyers are not fungible.  One isn’t the same as another.  No, this isn’t going to be an expose about incompetent or dishonest lawyers.  Rather, I’m talking about good lawyers all.  Just not good at everything.  Even within a discrete practice area like criminal defense.

Lawyers tend to be a little possessive about clients.  We want to keep them close, lest they find another lawyer with a brighter smile.  But the fact is that most lawyers, even great lawyers, are not great at everything.  It’s impossible to be on top of your game in every minute aspect of the law, and have the skillset to handle every facet of representation.  But when is the last time you heard a lawyer say, “Well, it’s not something I do well, so why not have Joe the Lawyer (less wealthy brother of Joe the Plumber) take care of that aspect of the case?”

A while back, I received an email from an upstate lawyer asking me if I wanted to handle a DWI case in New York City.  I said thanks but no thanks.  I haven’t done a DWI case in 20+ years, and consequently don’t stay on top of the law, the technology or the procedure.  I could probably figure it out well enough to provide passable representation, but the truth is that there are other lawyers who would do a far better job than me, and likely at a much lower cost because of their experience.

Even within my niche, there are things that I don’t do well.  I do not, for example, provide anything remotely resembling great representation when it comes to federal cooperation.  I know, there isn’t a whole lot to do when it comes to cooperation, but there’s a bone in my head that makes it exceptionally difficult for me to help the government put other people in prison.  So should a client wish to cooperate, I refer them to another lawyer more appropriate for the job.  It’s just not my thing.

Criminal defense lawyers like to think of themselves as trial lawyers.  Some are; most really aren’t.  Many haven’t tried a case in years.  Some have never tried a case.  And some are extremely proficient at taking a plea.  But they won’t tell you that.

Criminal defense lawyers pride themselves on their work inside the courtroom.  But to do this job properly, there’s a substantial portion of the job that requires research and writing of motions, memoranda and appeals.  The best trial lawyer in the world may not be a very good writer.  The most persuasive lawyer before a jury may not keep up with the law. 

As a delivery system of services to clients, the law has some issues.  It would be best if we could work to our strength rather than hold onto the client at all cost.  Share the client with other lawyers who are better or more experienced at a specific function.  But as law has become a business, and businesses need to generate revenues to survive, handing clients off to other lawyers is fiscal suicide. 

Even if lawyers could put ego aside, trust one another and work together, it would be prohibitively expensive for the client.  It’s like buying a car, one part at a time.  Whatever economies of scale one enjoys by having a single lawyer represent a client start to finish would be lost, and without this continuity, the practice would prove unduly burdensome and undesirable to lawyers who were given only a little piece of a case.  The time, trouble and cost for lawyers to relearn a case, agree on strategy and work in cooperation makes this a pipedream.

Sure, there could be a synergy if groups of lawyers with different strengths put themselves together and offer the best talents of each, but it doesn’t work that way.  First, the varying needs of a case make it impossible to either cover, or equate, the varying skillsets required, meaning that some lawyers would have too much relative work while others played Nintendo all day long.  

There are some criminal defense lawyers who specialize in discrete aspects of the work, such as appellate lawyers or DWI lawyers.  But for the most part, criminal defense lawyers take cases indiscriminately.  There’s nothing funnier than a state practitioner in a federal case, clueless about the significant differences in procedure.  Unless you happen to be the client, in which case it isn’t funny at all. 

Second, rarely do practitioners in criminal defense agree with one another about anything, no less how to approach a defense.  The attempt to divvy up work within a group like this will likely result in open warfare, with lawyer blood spilled across the floor.  Some might not have a problem with this, but it ends up with disjointed strategy, loose ends and conflicting approaches.

And then there’s the client, who doesn’t want anything to do with this.  In criminal defense, the relationship between lawyer and client is one of personal trust.  The client doesn’t want his trusted lawyer to farm out pieces of the case to other, unknown and untrusted, lawyers.  He wants you.  He knows you.  He doesn’t want to hear about anything else. 

Almost everyone remembers the first O.J. trial, with the Dream Team.  Ah, they all want the Dream Team, all the lawyers working together like a clock, with the top skills in their subniche.  Johnny Cochran and Bob Shapiro didn’t stay best friends, and Flea Bailey has seen better days, but O.J. walked.  If you can afford to pay for four lawyers under comparable circumstances, this might work.

But most defendants can’t and don’t.  And most lawyers really don’t want any part of it either.  The critical question is whether the lawyer has sufficient skills to handle the particular representation he’s undertaken, or whether he’s taken on a case that he’s not competent to handle. And the defendant is rarely in a position to know.  Does the criminal defense lawyer have the guts to turn down a case, refer it to a lawyer better suited to handle it, and lose a fee?

And if you think it’s a problem within the criminal defense bar, think about what happens when your friendly, neighborhood real estate lawyer tells you, “Oh sure, I can handle a criminal case.”  Don’t mistake the small town lawyer who is forced to do everything as lacking the ability to try a case.  Some of these small town guys are brilliant trial lawyers, and it’s just a matter of not having a sufficient calling for their skillset to specialize, plus a desire to feed their kids every day.  But that’s a different story.

Now remember, this is just between us, so don’t tell anybody.

When someone is alleged to have stolen $50 billion, it’s the birth of an industry.  Previous financial felons like Jeffrey Skilling of Enron fame, $1 billion and 24 years, or Bernie Ebbers of Worldcom, $2.2 billion and 25 years, look like pikers in comparison.  So what do we do with him?

The first issue is bail.  Ken at Popehat provides a great discussion of the law pertaining to release from federal custody in contrast to this stroke of genius from The Corner at the  National Review.

A Despicable Decision   [ Larry Kudlow]

It was Federal District Judge Gabriel Gorenstein who released big-time, $50 billion scam-artist/fraud/crook Bernard Madoff. He is the one who did it. This ruling allows Madoff to stay out of jail, even though he couldn’t meet the original bail conditions that he provide four co-signers to his $10 million bond.

Write Judge Gorenstein. E-mail him. Call his office. (Contact info here.) Let him know what a terrible injustice he has done to every law-abiding citizen in this country, not to speak of the victims of this incredible fraud.

It is an outrage to me that Madoff is sitting back home in his $7 million Park Avenue pad after what he did to this country. What a joke. It is a complete and utter outrage. 

Don’t get too close to Larry Kudlow, or some of that foam around his mouth is likely to spray you.  As Ken ably notes, Kudlow’s venom may be well placed, but premature.  We try to convict first, then punish.  Bond is an entirely different matter, having nothing to do with punishment.  Of course, one can’t help but wonder when someone with Bernie Madoff’s resources, and at his age, might have an incentive to take an extended vacation in the south of France.  Bond secured by $10 million would likely keep most of us put, but this is what Bernie spends at El Posto for appetizers, and may not mean as much to him as to others.

Should we eventually get to the point of conviction, however, there remains a troubling question.  How does one sentence someone like Bernie Madoff?  Harlan Protass at Slate argues that we’ve lost all perspective.  While accepting the premise that more drugs should mean a longer sentence, he questions whether more money stolen means the same.

Tying jail terms to the amount of money lost also puts way too much power in the hands of prosecutors. It gives them the muscle to threaten long prison stretches in order to coerce guilty pleas. If it weren’t for the risk of lengthy sentences if convicted, many defendants might opt to test the government’s evidence before a jury.

Linking jail time to dollars lost also severs many of the ties to factors courts are supposed to consider when determining and imposing sentences. For example, a relatively short prison term—years, not decades—can be enough to deter prospective financial fraudsters. And economic offenders pose little future threat because they’re generally stripped of powers that would permit continued criminal conduct. Also, aren’t there more fitting and useful ways to punish the titan fraudsters of Wall Street? Strip them of their wealth. Make them work to pay back those they ripped off or to serve the public good.

The gist of Protass’ disconnect seems to connect more to the relative severity of sentence between white collar and street crime. How does one compare a murder to a billion dollar theft?  How does one compare the harm done to one person, and all those who are related to that one person, versus the 10,000 people whose lives are left in shambles as a result of a crime? 

Protass focuses almost exclusively on the individual deterrence factor, and is likely right that these defendants will never have an opportunity commit a similar crime again, ending any concern about recidivism.  But that’s not the only factor to be considered.  General deterrence seems a far larger concern here, and that may well be a numbers game of some concern.  Would you risk a five year prison sentence for $10 billion?  Many people would, and frankly wouldn’t be all that upset to serve it if they’ve hidden their assets well enough so that they (and their family) can enjoy the benefits in their golden years.

Doug Berman, naturally, has much to say about Protass’ sentencing issues.

For me the core problem with an obsessive concern with loss amounts is that, in many settings, the quantifiable amount of “loss” under the guidelines often has little or no connection to offenders’ culpable mental states and subjective culpability.  There are suggestions, however, that Bernie Madoff was in fact very culpable (perhaps for a very long time), and that the high loss levels in his case may have a direct relationship to his subjective culpability.

Moreover, Harlan’s effective commentary still effectively ducks in the hardest question: exactly what punishment levels should be the norm in large-scale frauds involving public companies.  He suggests that years and not decades may be the right ballpark, but there is a huge gulf between say three and thirty years imprisonment.  These cases are so hard — and the current guidelines are so inadequate — because we do not have a ready metric or shared moral sense of how best to assess these kinds of crimes.  But, as suggested above, I do think subjective culpability should be more important and that “loss” concepts are too important in the current federal sentencing scheme.

There’s no doubt that the existing guidelines are inadequate to handle cases such as this, truly beyond the anticipation of the United States Sentencing Commission.  But Doug’s point, that there is no rational metric to judge how much time in prison is proper for conduct of this magnitude, is certainly true.  Is it even possible?

From my standpoint in the trenches, the one troubling aspect of the Bernie Madoff case has been the tossing about of the $50 billion number.  As Harlan Protass notes, the sentencing guidelines put too much sentencing power in the hands of prosecutors when sentence is determined based upon financial loss.  Right now, we haven’t a clue whether this $50 billion is real or sheer hyperbole, yet it’s already so ingrained in the myth of the case that it’s got Larry Kudlow spitting.

Many of these cases leave the subject of loss amount wide open, almost impossible to ascertain with any degree of precision.  Rob a bank and we know how much was taken.  But sophisticated schemes involve all sorts of calculations, many in dispute, and reflect money in and out all over the place.  The government tends to only add up the money going out, without adding back the money coming in.  It’s too much trouble and doesn’t help their position. 

The guidelines are awful when it comes to determining loss amount for white collar crime.  Rather than provide for anything approaching a sophisticated assessment of actual loss, it basically punts and allows the court to estimate the loss in the most simplistic fashion.  Regardless of whether numbers are small or huge, they rarely have much foundation in actual loss.  With a good old murder, at least we have a body count.

Caselaw has helped on an ad hoc basis, narrowing the definition of loss to the actual amount gained in certain instances, but hardly enough to cover the problem with plea agreements that provide for an agreed-upon loss.  Typically, the more accommodating members of the white collar criminal defense bar will accept a plea that overstates the loss amount by millions because it’s what their buddies (and former co-workers) at the United States Attorneys office put on the table.  Once it’s accepted, there’s no longer an issue.  And we certainly wouldn’t expect them to turn down a plea over a few million, here and there.

But this case, if one accepts the myth as true, is so far beyond the outer limits of the guidelines that there is nothing with which to compare it.  Given his age, it’s likely that Bernie Madoff, bastion of NASDAQ, will end his life in prison.  But if Skilling and Ebbers received about a quarter century for their crimes, does Madoff get a millennium?  Still, it’s not like he killed anyone.  Or is it?

News of late has made it painfully clear how strong a motivator pathological greed can be, and the crimes it’s produced are of a magnitude that no one would have believed possible.  Contrary to Protass’ view, the sentences handed out are insufficient to provide general deterrence on the upper end of the scale.  People will take a lot of risk for a few billion. 

And a few billion loss hurts a lot of people. 

It still doesn’t answer the question of what constitutes a proper period of time in prison for a crime such as Madoff’s, and there is no calm and thoughtful consensus to guide us.  But this may open the debate about how many murders equals a billion dollars of loss, and whether there is any rational basis to connect the two together.  Given the nature of white collar crime of late, this is a discussion that must be had.

The pervasiveness of video has changed everything, and the ability of any 10 year old to upload a video to Youtube and turn Sgt. Friday into an international “star” has fundamentally altered the dark ugly secret of official misconduct and abuse.  So what do cops think about it?  The New York Times, finally figuring out that this is going on, decided to ask.

“People tape all the time,” said an eight-year veteran of the department, a female officer in Downtown Brooklyn who, like other officers questioned for this article, spoke only on the condition of anonymity because she is not authorized to speak to reporters. “It makes you uncomfortable, but that’s their right. You can’t stop them from taping.”

A search on YouTube unearthed dozens of encounters with New York police officers that often show the daily realities of policing at its most mundane.

A cadre of citizens have taken to regularly videotaping police officer in the performance of their duty.  For the most part, it’s a crashing bore.  But they want to capture that one moment when an Officer Pogan does “the Great Shove” and nails Critical Mass cyclist Christopher Long.  Why?  For the pride of “the 1,784,775 views of the video.” 

Several videos were made by a man calling himself Jimmy Justice, and they follow a similar formula: he confronts a police officer in the midst of some sort of apparent parking or driving violation. The traffic officer in the deli drove away from Mr. Justice with a smile, but others appeared to be more irked.

The unwitting star of a video titled “Traffic Cop Makes Illegal U-Turn” tells Mr. Justice, “Arrest me,” and encourages him to call 911. She finally concludes, “Step out of my face.”

In another video, “N.Y.P.D. Traffic Enforcement Sergeant Parks Illegally” (the titles of the videos are often benign compared to Mr. Justice’s hostility and obscenities that follow), Mr. Justice confronts a sergeant who parked beneath a no-parking sign to get money from an A.T.M.

“What was I supposed to do?” the sergeant says. “Stay hungry all day because of you?”

Hardly a top notch misconduct opportunity, but it’s telling.  Most officers seem to take the existence of video in stride, recognizing that it’s hear to stay and focused on them.  But not all:

An officer directing traffic in Brooklyn asserted that it is illegal to tape police officers. “If I know that he’s taking video, I’m going to walk up to him and stop him,” the officer said.

Now that might make for a more interesting video.  But the official PD word is otherwise:

That is not necessarily true, said Paul J. Browne, a police spokesman. Filming itself is not illegal, but interference with a police officer’s work can lead to arrest, he said. “Interference beyond just merely being obnoxious,” he said.

As the articles notes, videos are similarly useful to the police in capturing crimes occurring, and may well prove to be of great help to the police in identifying people committing crimes and providing evidence against them.  And since no police officer knows for sure that he’s not about to become the next international video star, the fact that officers know they may be on candid camera may not deter all misconduct, but will certainly have a positive influence on their choices.

And if you think Jimmy Justice is silly for videotaping such trivial misconduct as parking violations, just bear in mind that the cop might have given you a ticket had you done the same.  There’s nothing wrong with keeping them honest.

An officer in his patrol car in Harlem shrugged off the cameras. “It’s a brave new world now,” he said. “They’ve got all kinds of things. You could be recording me right now.”

Exactly.

Taken wholesale from Lawrence Cunningham at Co-Op, because every President of the United States of America should get his due.

Dear Fellow Constituent:

The George W. Bush Presidential Library is now in the planning stages and accepting donations. The Library will include:

1. The Hurricane Katrina Room, still under construction.

2. The Alberto Gonzales Room, where you forget everything.

3. The Texas Air National Guard Room, where you don’t even have to show up.

4. The Walter Reed Hospital Room, where they don’t let you in.

5. The Guantanamo Bay Room, where they don’t let you out.

6. The Weapons of Mass Destruction Room, though no one has been able to find it.

7. The National Debt Room, which is huge and has no ceiling.

8. The Tax Cut Room (only the super rich, if any are left, can enter this one).

9. The Economy Room, which is in the toilet.

10. The Iraq War Room. (After you complete your first visit, the stern librarians make you go back for a second, third, fourth, and sometimes fifth visit.)

11. The Dick Cheney Room, in an undisclosed location, but complete with shooting gallery.

12. The Environmental Conservation Room, still empty, though full of promise.

13. The Supreme Gift Shop, where elections may be on sale.

14. The Airport Men’s Room, where some Senators have been observed hanging about.

15. The Decider Room, complete with dart board, magic 8-ball, Ouija board, dice, coins and straws.

The library will include many famous Quotes by George W. Bush, including the following:

1. ‘The vast majority of our imports come from outside the country.’

2. ‘If we don’t succeed, we run the risk of failure.’

3. ‘Republicans understand the importance of bondage between a mother and child.’

4. ‘No senior citizen should ever have to choose betweenprescription drugs and medicine.’

5. ‘I believe we are on an irreversible trend toward more freedom and democracy – but that could change.’

6. ‘One word sums up probably the responsibility of any Governor, and that one word is ‘to be prepared’.’

7. ‘Verbosity leads to unclear, inarticulate things.’

8. ‘I have made good judgments in the past. I have made good judgments in the future.’

9. ‘The future will be better tomorrow.’

10. ‘We’re going to have the best educated American people in the world..’

11. ‘One of the great things about books is sometimes there are some fantastic pictures.’ (during an education photo-op)

12. ‘Illegitimacy is something we should talk about in terms of not having it.’

13. ‘We are ready for any unforeseen event that may or may not occur.’

14. ‘It isn’t pollution that’s harming the environment. It’s the impurities in our air and water that are doing it.’

15. ‘I stand by all the misstatements that I’ve made.’…George W. Bush to Sam Donaldson

PLEASE GIVE GENEROUSLY!

Sincerely,

Jack Abramoff, Co-Chair
G.W. Bush Library Board of Directors

It’s going to be a difficult year for donations, but think of all that President Bush has done for us and return the favor.

Times are tough for Biglaw.  Layoffs.  Firms folding.  Offers rescinded.  Bonuses cut in half.  So what’s the deal with this?

Judge Chin, in a polite and judicious order, asked Dewey [& LeBoeuf] to provide a bit more information on its fees:

It is difficult to evaluate the reasonableness of the hourly rates for most of the lawyers listed. For example, [five attorneys] — all simply described as “Associate” — have substantial hours billed at hourly rates of, respectively, $605, $605, $550, $605, and $605. Without knowing anything about their backgrounds, it is difficult for the Court to determine whether the requested hourly rates are reasonable. While I do not need descriptions of the backgrounds for all the lawyers, it would be helpful to have them for the lawyers who spent substantial amounts of time of these matters.

While I accept the representations that the requested hourly rates are D&L’s standard hourly rates for the individuals involved, I wonder whether the rates are high for legal services rendered in connection with a securities receivership proceeding. Is it reasonable to bill at hourly rates of $700 to $950 to $950 for partners and $425 to $550 to $605 for associates in the context of a securities receivership? Is it reasonable to bill at hourly rates of $285 for summer associates & $175 to $275 for paralegals?

Now I can well understand why Biglaw needs to bill out summer associates at $285 an hour, particularly.  The lunches and parties thrown in their honor aren’t free, you know.  But what’s with the $605 for associates?  How did that extra $5 get in there?

Yes, I know that they have student loans to pay off.  All the public defenders and assistant district attorneys, all the small firm lawyers, all the public service lawyers, must have gotten their education for free.  Lucky bastards. 

Lest anyone think that Dewey is taking advantage of the situation, consider this:

Dewey submitted an application to collect compensation and expenses for the first twenty or so days it served as receiver. Dewey’s tab? Approximately $2.2 million.

It’s not like it billed $2.2 million per week or anything.  That would be greedy.

And what if the bill isn’t paid?  There is always the Geeklawyer method of bill collection.  They could probably use a drink.  Bottoms up!

When a niche blawger like me says something, nobody listens.  But when a Master of the Internet speaks out, his voice is heard throughout the blawgosphere.  Kevin O’Keefe has called for a Revolution.  I’m with him.

As everyone with eyes knows, Kevin is the Big Guy at Lexblog, home of the Lexblog family of Lexblogs.  His goal is to put a blawg in every lawyer’s hands, and if they all happen to be created by Lexblog, like Iowa Dirt Lawyer (his latest and my favorite new blawg name), the better.  But there is a line.

I’m getting sick of lawyers leaving comments here under the name ‘DC Divorce Lawyer’ or ‘Injury Lawyer.’ Is that what your kids call you? Is that how you get introduced when speaking to a group? You mean you use your real name. Amazing.

Why not have the decency to use your name when participating in conversations on my blog and other blogs around the net? Blogs really are conversations.

Even if you don’t care whether you look like an idiot, lawyers publishing blogs aren’t blogging for the benefit of sleazy lawyers looking for a free way to get SEO for their blog or website. It may sound unbelievable, but lawyers are blogging to provide value to a growing Internet discussion, not for SEO to get traffic to a website.

Kevin and I have had a number of discussions about the future of the blawgosphere, and how what we do now impacts on how bright, or dull, the future looks.  We disagree about a couple of things.  But we agree about one very important thing.  The vitality of the blawgosphere depends upon lawyers using it to offer substantive content.   Put another way, if the blawgosphere exists to serve as a big, ugly, nasty infomercial, no one will come.  No one should come. 

When someone comes to Kevin for a Lexblog, he implores them to use this tool carefully.  It is not, he tells them, a bludgeon to beat potential clients over the head.  It is a scalpel, they are told, with which to surgically dissect the legal world in fascinating ways by providing interesting, informative and entertaining reading.  Write things that people want to read is the mantra of Lexblog, and you will attract readers.  Write crap, or worse still, write about how wonderful you are, and you will be very lonely.

Kevin markets Lexblog to lawyers who want to market in the blawgosphere.  Yes, it leaves a sour taste in my mouth.  But I’m not so foolish as to think that my aversion to marketing will change lawyers’ motivations, and I am not against lawyers having clients and making a living, even though I don’t think this is the right way to go about it.  Nonetheless, I admire Kevin’s position that substance is the right path.  After all, had Hemingway written novels for no other reason than to get pocket change for his next drink, would his stories be less macho?  Of course not.

Of all the horrors perpetrated on and by lawyers seeking to elevate their online presence, aside from the mass emails seeking link exchanges and faculty positions at Solo Practice University, the most nefarious is the commenter who seeks SEO supremacy.  And of these, the lowest is the one who pays the legal marketer to have some starving third-world child spam comments on their behalf. This is the true nadir of the blawgosphere.

It outrages Kevin.  It outrages me.  It should outrage you as well.  But do you see it?  Do you get it?

Lawyers can be a funny breed of human being.  Many possess agile minds, which allow them to perform their functions well in the face of adversity.  This same skill, however, also allows them to construct arguments that rationalize their own behaviors, deny that they are doing what they claim to despise in others.  Sometimes the dissonance is real, whether by intent or distinguishing act, and sometimes it’s just a lot of hooey. 

Indeed, the irony is made plain in the comments to Kevin’s post, where one commenter so fundamentally missed the point that he posted under the name of some blog rather than a real name, as did all others.  Yet, this comment was directed at distinguishing evil blawgers who market shamelessly from legitimate blawgers who market shamelessly.  One can only assume that this blogger places himself in the “good” category, evidence to the contrary notwithstanding.

Now that the Master of the Blawgosphere has called for Revolution, I echo (or retweet if this was tweeterville) his cry.  Join us.  Spread the word.  Save the blawgosphere.  And I join  Grant Griffith in saying, thanks Kevin for taking the lead. 

That’s right, it’s time again for me to assist you with fulfilling your dreams of sartorial splendor.  Today is headwear day at Simple Justice.  There once was a time when every well-dressed man and woman wore a chapeau.  As a result, rules were developed to distinguish when it was appropriate and when it was not.  These are very important rules, and surmount such mundane concerns as religion.  Of course, back then everyone was Christian, so it really didn’t implicate any external concerns other than hat head,

While the fedora days are done (boater in the south), the rules remain.  Lisa Valentine, according to the Atlanta Journal-Constitution, via Court-o-Rama (the least dangerous blog), thought she need not concern herself with proper headwear etiquette, apparently assuming that her Muslim belief in headcovering absolved her of fashion compliance.  Let that be a lesson to all:  Proper dress surpasses such trivialities as religious demands.  At least in Georgia.

Valentine said she was accompanying her 19-year-old nephew to address a citation Tuesday morning when she was stopped at the metal detector and told she would not be allowed to enter the courtroom with a head scarf.

Valentine, an insurance underwriter, told the bailiff that she had been in courtrooms before with a scarf on and that removing it would be a religious violation.

Frustrated, she turned to leave and uttered an expletive. She said the bailiff then told her she could take the matter up in front of the judge. She said she was handcuffed and taken into Rollins’ courtroom.

“They were putting me in there like I was some sort of criminal,” she said.

The judge ordered her to serve 10 days in jail, where she was forced to remove her headscarf.

Like some sort of criminal?  Am I the only one who noticed that she’s an “insurance underwriter?”  Does AIG ring a bell?  Connect the dots, people.  Exactly how many billions of dollars must be lost before we recognize a headwear conspiracy?

The rule prohibiting headwear in a courtroom has been ridiculed as capricious by such luminaries as Eugene Volokh, who writes : 

And this, it seems to me, makes perfect sense, especially when the concern is simply about decorum and not juror prejudice. (Note that this case didn’t involve a jury trial.) Whatever might be the symbolism of wearing a normal hat indoors, surely there’s no disrespect that’s usually intended, or likely to be reasonably perceived, when someone is wearing religiously mandated garb. A judge need not feel insulted by an Orthodox Jew’s wearing a yarmulke, or a Muslim woman’s wearing a hijab.

Apparently Gene is unaware of the Hasidic command that all New York Yankees baseball caps be worn slightly askew.  That may be fine with him, but must the rest of us be subjected to this reverse religious discrimination?  Hmmmm, I think not.

Of course, for all the hubbub about this hijab, inadequate attention has focused on Ms. Valentine’s verbal reaction when told by the court officer to take a hike, whereupon the turned and “uttered an expletive.”  Notably, the bailiff only then acted, as she was on her way out the door to take up the issue with the ACLU, no doubt on retainer with a local haberdasher.

Might the expletive have had a little something to do with her being handcuffed and held in contempt?  We don’t know what she said to the bailiff, though Eugene takes a vicious stab by attributing a Randazza-like word that is highly unlikely to come from the lips of a hat-wearer. My guess would be that the word was much more benign, though I am too refined to tell you which one it is.

My issue with accepting at face value the claim that it was the hijab that brought a 10 day contempt sentence down on Ms. Valentine’s head was that she had reluctantly acquiesced in adhering to this most critical rule in the prevention of society’s descent into anarchy by leaving.  No harm, no foul.  On the other hand, no self-respecting Georgia Bailiff will allow a woman to utter such language in his presence unless she is also possessed of ample décolletage.  Lacking a photograph of Ms. Valentine, we will assume that she bears no likeness to Daisy Duke.

While the use of epithets is constitutionally protected in 27 of 50 states, one’s understanding of its impact on the fragile psyche of a courtroom bailiff must necessarily be taken into account.  After all, this woman was an insurance underwriter.  To expect the bailiff not to crack under the pressure asks far too much.  But as has become far too commonplace these days, the main stream media would prefer to blame it on the headwear, being comprised as it is by fashion Philistine liberals.

Many of my friends would be astounded to know this, but since Leslie Crocker Snyder left the bench to assume her rightful place as successor to legendary Manhattan District Attorney Robert Morganthau, she and I have become great friends.  You don’t believe me? Ha!  Check this out: