My op-ed on the Great Neck North SAT cheating scandal appears at Newsday, with access behind the dreaded paywall. 

The TL;dr version: Yes, cheating by having a ringer take the SAT’s is a verybad thing, no matter how bad the pressure to achieve.   Life is full of pressures. Dishonesty isn’t the answer. Anything sound familiar yet?

But no, prosecution, nor the potential for a jail sentence, isn’t the answer.  That there needs to be significant consequences is clear, but we still have to be guided by proportionality.  Most importantly, these are teens, children, and despite our anger at what they’ve done, we do not impose needlessly harsh punishment on children that will have a permanent and devastating impact on their lives.

Greenfield: Jail not right for SAT cheating

Hopefully, we can demonstrate our ability to be the adults in addressing this problem, to send not merely a message, but the right message, to our children. 

In a decision out of the Southern District of New York, the heartland of wiretaps, Judge Robert Patterson refused to suppress the recording of defendant Michael Lamond.  So what, you say?  Lamond was a lawyer, and the recordings were of his communications with his client, now co-defendant, Aron Chervin.

Without necessarily holding that the communications were privileged, Judge Patterson held that the burden was on the government to show that the crime-fraud exception applied:

The Second Circuit has held that the party seeking to invoke the crime-fraud exception must prove there is a “factual basis for a showing of probable cause to believe that a fraud or crime has been committed and that the communications in question were in furtherance of the fraud or crime.”

Defendant Lamond argues that he is “clearly providing legitimate legal services to his client by consulting with him concerning financing, no-fault collections, and arbitrations.” However, the attorney-client privilege will not attach to any communications in furtherance of a crime or fraud regardless of the attorney’s lack of knowledge that he is being consulted in furtherance of that crime or fraud.

Therefore, Lamond’s knowledge of whether a fraudulent scheme was afoot is not relevant to the application of the crime-fraud exception to Lamond’s interactions with Aron Chervin.

Lamond claims that the conversations he is seeking to suppress took place in his capacity as legal counsel to Mr. Chervin and involved consultations regarding financing, no-fault insurance collections and arbitration matters. Specifically, Mr. Lamond states that the conversations are “on their face conversations between a lawyer and his client regarding legal advice in connection with their routine ongoing business transactions relating to no-fault insurance claims.” There is nothing in the seized conversations, according to Mr. Lamond, that gives any “indication that they are related to the commission of a fraudulent act or any other offense.” Id. The conversations do show, however, that the Government has probable cause to believe that Aron Chervin intentionally and knowingly utilized the services of Michael Lamond to further Chervin’s illegal scheme to obtain funds by submitting fraudulent medical bills, traveling in interstate commerce, to no-fault insurance carriers.

V. Conclusion

There is probable cause to believe that Aron Chervin was knowingly involved in a complex mail or wire fraud scheme to defraud no-fault insurance providers. This suppression motion need not decide whether Defendant Lamond had actual knowledge of the fraudulent activity during his conversations with Defendant Aron Chervin. The crime-fraud exception to the attorney-client privilege applies to this set of facts.

This decision suggests that lawyers have a problem and, given the nature of our clientele, criminal defense lawyers have a bigger problem than others.  That we may neither know, nor have reason to know, what motives are behind a question from someone seeking our advice and counsel, our performance of our function in a facially lawful and proper manner could land us square in the middle of our clients Title III investigation, and perhaps sitting next to him at trial as co-defendant rather than lawyer.

This makes perfect sense legally, as the decision is limited to suppression of the wiretapped conversations, and Lamond’s indictment, assuming that his advice and counsel were indeed as legitimate as claimed and provided neither knowledge, nor reason to believe, that he was aiding in the commission of a crime.

Where it becomes a problem is that the conversations, lawfully wiretapped per the crime-fraud exception, are now subject to scrutiny through the eyes of the government.  You know, that would be the same government whose understanding of the recorded conversation between target husband and wife reads:

Target:  Do you want me to stop on the way home and get some milk?
Spouse: That would be great. Could get a quart of whole milk and a quart of skim?
Target:  Will do.

Agent:  Based upon my training and experience, this was a conversation about the sale of large quantities of cocaine.

Certainly, clients have questions from time to time that would appear to relate to how to run their business more efficiently and effectively, including the elimination of unseemly disruptions in the supply line.  Yeah, these were never conversations that you were allowed to have, and it’s critical that lawyers not get sucked into an involvement in matters that clients might very much appreciate but are flagrantly criminal.  We are criminal defense lawyers, not criminals. We cannot do this.

But when the issue isn’t clear, or worse still, when the conversation is completely appropriate, yet for reasons wholly outside our knowledge and control, relate to a criminal transaction, we can very easily find ourselves in the middle of a firefight without the slightest clue what we did wrong.

And this is fine, since we need not have any clue about wrongdoing to become a proper target of a Title III wire.  I figured you would want to know.

Former hand surgeon Michael Brown was not a well-loved defendant around Houston, but then, few guys coke-tooting guys accused of assaulting their wives are embraced with much warmth.  No matter, since Dick DeGuerin  beat the charge and Brown was acquitted. 

But after the acquittal, as jurors met with the lawyers in the case and sought to satisfy their curiosity, things got hot.  In Op-Ed for the Houston Chron, Brian Wice, a member of the defense team, explains:

Late Tuesday morning, in the jury room off state District Judge Jim Wallace’s 15th-floor courtroom at the Harris County Criminal Justice Center, I found myself facing the 12 jurors who, a little less than an hour before, had acquitted Michael Brown, the high-profile CEO of the Brown Hand Centers, of assaulting his estranged wife, Rachel. The jurors had asked to speak with lead defense counsel Dick DeGuerin, co-counsel Catherine Baen and me, as well as the two prosecutors.

*  *  *

Apropos of nothing, the junior prosecutor who had handled almost all of the most important parts of the trial announced that he wanted the jury to know all about “the real Michael Brown.” In a matter of moments, and over DeGuerin’s objection, the prosecutor tainted the jury with the details surrounding Brown’s plea of no contest and his deferred adjudication for assaulting his third wife in 2003 that made this case a felony, not to mention a number of assertions disputed by the defense disparaging Brown’s character and reputation – the very evidence Judge Wallace had properly excluded from trial. But the prosecutor was not quite through. By repeating these reckless allegations to the battery of cameras, microphones and notepads outside the courtroom, the prosecutor took a backhanded slap at Judge Wallace for following the law and the jurors for following their oaths.

Apologies for the length of the quotes, but Wice is an appellate lawyer.  The gist of what they learned from the jurors was that they didn’t find Brown’s wife credible. 

Wice goes on to note that such conduct could violate Texas Disciplinary Rule 3.06, “which prohibits any lawyer from making any post-verdict comments to a juror ‘calculated merely to harass or embarrass the juror or to influence his actions in future jury service.’ “

Some junior Harris County prosecutor got a little too hot under the collar, hearing of the juror’s rejection of the prosecution, and just couldn’t muster the self-restraint not to smear the already-acquitted defendant?  Well, he was still hot as Wice’s commentary hit the streets.  Hot enough to leave this comment:

I am the “out of line” prosecutor. My name is Nathan Hennigan. Wice didn’t want to call me by name, but I feel a necessity to respond, as most don’t know who I am, due to his subterfuge, but I am proud to say,,. Brian Wice is an appellate attorney. He is a good appellate attorney, but he isn’t a trial attorney. That is because he is not a likable person in the least. He actually reminnds me of the weasels from “Who Framed Roger Rabbit.” Uncanny.

What happened in the jury room is as follows…Dick Deguerin went on a 5 minute rant on what a psycho the complainant was. I wanted just to answer questions, but, I felt it was my duty to explain the truth. The truth was Michael Brown beat Darlina with a bedpost while she was 7 months pregnant. The truth was he is probably the worst person I’ve ever dealt with, (and that includes an MS13 Gang member I locked up for life). I offer no apologies to Wice, DeGuerin, or anyone else. I am proud to stand up for the Harris County District Attorney’s Office and fight for what is right. Even if it isn’t easy.

I’ve broken the comment into two paragraphs to make it easier to digest, if not easier to read.  So Nathan felt is was [his] duty to “explain the truth?”  So Nathan thought Brown was the “worst person” he’s ever dealt with?  And he doesn’t like Wice, who reminds him of a cartoon weasel, which is clearly of sufficiently grave importance that Nathan feels constrained to point it out.  A bit more truth, no doubt.

Hennigan is correct, it’s not easy.  It’s not easy to lose a case that was universally seen as a slam dunk.  It’s not easy to lose a case against a man that was despised and despicable, the “worst person” he ever dealt with.  It’s not easy to lose when this “worst person” has a weasel by his side.  But Nathan Hennigan, you lost. You lost.

This paragraph could be an homage to grace in defeat, but nobody needs to read something so obvious.  It could also be a cautionary tale about anger and immaturity getting the better of a prosecutor, but the same is true.  Instead, I’m going straight to the heart of the matter: Nathan, whatever demons fill your baby head, you violated Disciplinary Rule 3.06. 

Not surprisingly, my personal knowledge of Texas disciplinary rules is somewhat inadequate to make such an assessment.  I therefore turn to someone more knowledgeable than me, and as luck would have it,  Mark Bennett wrote at some length about this particular rule.

Okay, listen up, Harris County prosecutors, because one of you is going to find that this is your ticket to a grievance. (Actually, it’s a marvel if none of you have been grieved for this already, but the defense bar is better educated about this issue, and less reluctant to file grievances against their adversaries for the most egregious ethical violations, every year.)

The things that the jury didn’t hear about in trial, they didn’t hear about for a reason. When you go into the jury room after a verdict, and you start telling the jury about those things, it’s likely to influence their actions in future jury service. You and I know that your intent is to poison the jury pool so that these jurors, when they are next called, are more inclined to convict.

It’s almost as if Bennett anticipated Nathan Hennigan’s emergence as the angry, graceless loser, whose outrageous lack of self-control compelled him to “explain the truth.”  That this happens to be Nathan’s truth, his graceless loser truth, is of little consequence.  Nathan Hennigan is of little consequence.  Having lost the big case, the slam-dunk win that no prosecutor could possibly lose, Nathan has already shown the world that as a lawyer, he sucks.  Having called Wice a weasel because, well, he has no control over his anger and impulsivity, he’s shown the world that as a person, he sucks.

But as a prosecutor, he has violated the disciplinary rules by poisoning a jury in violation of DR 3.06.

 I am proud to stand up for the Harris County District Attorney’s Office and fight for what is right.

Yes, the zealot’s call to arms, to “fight for what is right.”  And what is right in the twisted mind of Nathan Hennigan is violate the disciplinary rules and his oath of office because little Nathan is all angry.  A prosecutor, however, doesn’t have the latitude to indulge his personal fantasies. He is a state actor, given power and authority by the state, whether he deserves it or not.  Having abused that power by poisoning a jury, there’s no refuge by whining that he’ll “fight for what is right.”

Harris County District Attorney (and former judge) Pat Lykos is a grown up.  Let’s see whether she gives her baby lawyers a damn good spanking for this outrageous exhibition of impropriety and immaturity.  It may well have been a disgrace that her office lost this case, but a loss hardly brings the kind of shame upon the office that Hennigan’s conduct does.

Update: It appears that consequences have been swift for Nathan. From Bennett’s Defending People :

Now—because of his DR violation? because of his Chronicle comment?—this prosecutor has been suspended for a week and moved to the intake division of the DA’s Office for six months.

How will his conduct stack up under Bennett’s Law of Rules? Will he take the punishment as a badge of honor, “proud to fight for what is right,” or will he take his marbles and go home?

Will Nathan be willing to suffer the consequences of his proud fight?  We shall see.  In the meantime, former Harris County prosecutor, purged by Pat Lykos, and alleged barbecue hater, Murray Newman, feels quite differently about Brian Wice’s op-ed.

A couple of days ago, I wrote about a New York Times article hot off the presses.  in 1989.  Not to be left ahead, the  Wall Street Journal reports that there are a  huge  number of federal crimes and they  largely ignore the existence of mens rea.

Shocking.  At least this was shocking the first few times around.

Perhaps there were large white areas in these papers that needed filling.  Perhaps the reporters were new and hadn’t heard that these issues had been thoroughly covered before.  But then, perhaps these issues deserved to be revisited and I’ve been unkind in lambasting these reports.

While there is nothing new about the issues, or the underlying problems, it remains that they are still a blight on our legal system, and our society, that has yet to be cured.  Sure, we know about the problems, but whoever said that knowing the problem was half the battle was wrong.  A start, but we’re nowhere near solving the problems. 

The expectation that people remember is, sadly, no longer reasonable.  People don’t remember.  Whether it has to do with their attention span or retention span, I can’t say, but they don’t seem to have much capacity to recall that we have problems that remain unresolved.  Whether people will remember these articles after the iPhone 5 comes out has yet to be seen.  I’m not sanguine about it.

Then there are the n00bs, the people who have just discovered that there is a big world out there with a bunch of important issues worthy of their attention.  Maybe the discovery came about because some aspect of it touched their lives.  Maybe they tripped over it.  No matter.  Today, they know.

The problem is that the n00bs never look back.  Just because they had the epiphany today doesn’t mean that it’s band, spanking new.  Like television reruns, if you never saw it before, it’s new to you.  Well, that doesn’t make it new to the rest of us.  Think of new parents, like nobody ever had a baby before them and they have invented the concept.  And they must tell us about it at unbearable length.

The issues raised by the Times and WSJ are important.  And they remain important.  And there are likely a great many people who either paid no attention the first (few) times around, or have forgotten, or weren’t there to pay attention because they were too busy cruising in their huggies.  Whatever, the problems are of a sufficient magnitude to justify another airing.

To the extent I was critical because these aren’t exactly cutting edge newsy issues, I now think I was wrong.  It was the curmudgeon in me, but not every article is written for curmudgeons.

That doesn’t mean that the writers couldn’t have put in a line or two about the fact that these are long-standing problems, problems that have defied ready solution, or problems that have festered for decades.  Doesn’t anybody learn about George Santayana anymore?

Still, better that these issues get space in the papers than a generation forget, or never know, they exist.

And Francisco Franco is still dead.  Sorry, I couldn’t help myself.

Lawyers who have a marketing blog need not read this post.  This will never happen to you, because, frankly, no one really cares when you write and, well, you don’t write anything of substance anyway.  If, on the other hand, you have occasional thoughts that appear on a screen, this could matter.

A while back, I  wrote a post about Arthur Alan Wolk’s lawsuit against Overlawyered, and Wolk left me a  love note that ended with the ominous sentence, “I hope you have insurance.”  I didn’t  take kindly to his threat, and apparently Wolk decided that I wasn’t worth his time as nothing came of it.  In the meantime, he had suits pending against a rather large group of people on the internet, with some particularly unsavory things to say about Reason, it’s editor and its commenters.

Since then, Reason and Overlawyered settled with Wolk.  From Paul Alan Levy at Public Citizen :

There are a variety of costs associated with the criminal justice system that aren’t discussed in polite company, from the time lost to arrest and incarceration to the hard-earned money paid out to lawyers to defend.  One of my favorite questions from potential clients is “why do I have to pay if I’m innocent?” 

But Massachusetts has raised cost to a new level, by approving a shift of costs to the defendant even when the he prevails.  That’s right: Lose, you pay. Win, you pay.  Either way, you pay.  Via  Turley, from the Newspaper :

Motorists issued a traffic ticket in Massachusetts will have to pay money to the state whether or not they committed the alleged crime. According to a state supreme court ruling handed down yesterday, fees are to be imposed even on those found completely innocent. The high court saw no injustice in collecting $70 from Ralph C. Sullivan after he successfully fought a $100 ticket for failure to stay within a marked lane.

Bay State drivers given speeding tickets and other moving violations have twenty days either to pay up or make a non-refundable $20 payment to appeal to a clerk-magistrate. After that, further challenge to a district court judge can be had for a non-refundable payment of $50. Sullivan argued that motorists were being forced to pay “fees” not assessed on other types of violations, including drug possession. He argued this was a violation of the Constitution’s Equal Protection clause, but the high court justices found this to be reasonable.

“We conclude that there is a rational basis for requiring those cited for a noncriminal motor vehicle infraction alone to pay a filing fee and not requiring a filing fee for those contesting other types of civil violations,” Justice Ralph D. Gants wrote for the court. “Where the legislature provides greater process that imposes greater demands on the resources of the District Court, it is rational for the legislature to impose filing fees, waivable where a litigant is indigent, to offset part of the additional cost of these judicial proceedings.”

In a quirky decision, the Appellate Division, Second Department  reversed the Staten Island attempted murder conviction of Henry Tucker based upon the prosecution’s use of his post-arrest, post-Miranda silence to contradict his trial testimony fingering another man, “Mustafa,” as the shooter.  From the New York Law Journal :

When arrested in connection to an October 2008 Park Hill double shooting, Henry Tucker refused to answer any questions after being read his Miranda rights.

A police officer then told him he would be charged with two counts of attempted murder, prompting Mr. Tucker to say, “I was there, but I didn’t shoot anybody.”

Mr. Tucker made no further statements until his June 2009 trial, when he again maintained he was present but not the shooter. He instead fingered his friend, an unapprehended man named “Mustafa.”

The typical argument by the prosecution when a defendant offers testimony at trial that exculpates himself is recent fabrication, meaning that given the time between arrest and trial, he invented a story that gets him out of the jam.

To impeach Mr. Tucker, prosecutors at cross-examination repeatedly questioned whether he had told police that Mustafa was the shooter. On summation, Assistant District Attorney Kathleen Naughton told jurors that “an innocent person when they’re arrested for a crime they didn’t commit and they know who did it will say [who] did it.”

The argument was that if Tucker’s claim at trial was truthful, he would have spoken up at the time of his arrest.  His failure to do so, to pin the blame on Mustafa, when he did blurt out that he wasn’t the shooter, undermines the credibility of his trial testimony.

The majority held, notably in contrast to the United States Supreme Court’s  misguided  decision in  Berghuis v. Thompkins, that Tucker’s refusal to answer questions wasn’t converted to a response by his denial of guilt.

“[H]aving deliberately availed himself of his right to remain silent, the defendant’s failure to give a more complete exculpatory statement to the police ‘may simply [have been] attributable to his awareness that he [was] under no obligation to speak’ to the police, including to implicate his friend in a shooting, and to his knowledge that his decision not to speak would not be used against him at trial,” the majority said in an unsigned opinion, citing the 1981 Court of Appeals ruling People v. Conyers, 52 NY2d 454.

Rather than go down the road of the minefield that the Supreme Court has crafted around the invocation and exercise of Miranda rights, the majority concluded that once a defendant chooses silence, it means something and won’t be so easily ignored.

In dissent, Justice Reinaldo E. Rivera wrote:

“Where, as here, a defendant speaks to the police and omits exculpatory information which he presents for the first time at trial, the defendant’s credibility may properly be impeached with that omission,” he wrote, adding that the evidence against Mr. Tucker was overpowering.

While the majority failed to see the evidence as particularly overwhelming, it didn’t dispute that a defendant’s credibility can be impeached by a prior omission that suggests that his trial testimony is a recent fabrication.  Rather, the court held that the exercise of his right to remain silent and refuse to answer questions cannot be used, even as a means of challenging Tucker’s “Mustafa” revelation.  The right to remain silent, once invoked, cannot be used against a defendant for any purpose.

What’s significant about this decision is that firmness of the court’s holding in light of the ongoing federal mushiness of Miranda invocations.  As the Supreme Court appears bent on dismantling Miranda, turning its exercise into a hypertechnicality rather than a shield to protect constitutional rights, the Second Department both strongly backed its invocation, without the subsequent exculpatory blurt somehow undoing the certainty of invocation by silence, and similarly held firm on the notion that the defendant’s enjoyment of a constitutional right cannot be used against him, even when it proves highly material to his credibility.

Of course, while the majority held that the evidence aside from the silence used to impeach the defendant’s credibility was not so overwhelming as to preclude its finding that there was a reasonable possibility that he would have been acquitted, Tucker will still face retrial, and the other evidence, eyewitness identifications of him as the shooter, plus video and still images of the shooting.  It would be highly premature to say that Tucker’s out of the woods.

Still, given the evidence against him, the strength of the majority decision is certainly worthy of note, and supports the vitality of New York’s independent constitutional protections of a defendant’s right to remain silent, and ability to exercise his Constitutional rights without fear that it will come in through the back door to bite him in the butt. 

The win by Kathleen E. Whooley of Appellate Advocates promises Tucker a fairer trial, but it’s still going to be a huge uphill battle.

One of the longtime bulwarks of the blawgosphere, SCOTUSBlog, is gone.  Having served to make  Tom Goldstein a player in that rarified niche, Supreme Court litigation, what once reflected some of the finest blawging is gone.  In its place, an enterprise has arisen.

SCOTUSBlog is now under the “exclusive sponsorship” of Bloomberg Law, whose funding allows it to do mainstream.

The sponsorship represents a tremendous public service by Bloomberg Law.  It allows us to improve and expand the information we distribute about the Court.  We now have four full-time staff.  Along with our reporter Lyle Denniston, Amy will devote almost all her time to editing and directing the blog; Kali and Kiera have converted to full-time blog employees.

Despite this staff, expect a fairly new direction in Supreme Court commentary.

Substantively, we are continuing our transition to more expert coverage.  Last Term, we published symposia with leading commentators, as well as coverage of individual cases from professors like Ronald Mann and Orin Kerr.  This Term, we have commitments from many more prominent academics to take responsibility for merits cases in their fields of expertise.  So we expect that the quality of our analysis will improve considerably.

Instead of getting a lawyer’s view of the decisions, anticipate the “prominent academic’s” approach, Not that they don’t have the time and inclination to write, some at enormous length and in excruciating detail, about important (and inconsequential) decisions, but the days of the “quick and dirty” or pragmatic reaction appear past. 

As for the views of readers, whether lawyers, lawprofs or lay-people, it’s clean and smart or the highway.

To comment, you will need to log in.  This involves a simple registration process, and all of the information provided during the registration process will remain confidential.  Registration is not required just to read the blog or community posts by other readers.

Of note, we will heavily moderate the community for civility and substance (in the sense that the comment has to be substantive, not that we have to agree with it).  We will delete comments and ban commenters when they fail to meet our standards.  Our goal is not to limit or to manipulate the debate.  But we will aggressively control its tenor and ensure that its quality is high.  By “high” quality, we don’t mean that the comments have to be lawyerly or contain detailed legal analysis.  Rather, they have to contribute to the discussion in some fashion, even if by asking further questions.  We hope many commenters will be non-lawyers.

Comments of this sort are a blawgers dream.  We all want brilliant and fascinating discussion, or at least a reasonable facsimile.  There’s nothing about Tom’s new “community” approach that is particularly novel, though he puts together as many rules and controls as the internet has to offer in order to keep the riff-raff out.

It seems curious that Tom emphasizes his hope that many commenters will be non-lawyers, given that SCOTUSBlog’s direction seems to be uber-law-geek with the reliance on academics rather than lawyers (or judges, for that matter) who will use these decisions in the trenches.  I expect it has more to do with the expansion of his reader base, given that lawyers comprise a relatively small universe of potential readers,  but Supreme Court sausage-making is hardly the sort of stuff that benefits from the common touch.

Goldstein’s entrepreneurial spirit is nothing to sneeze at.  He’s turned himself into a viable Supreme Court commodity, and his blog into the primary destination when it comes to all things Supreme Court.  Granted, it was more recitation and description than hard commentary, but that left something for the rest of the blawgosphere to do.  And Tom has now effectively monetized SCOTUSBlog, electing revenue over his Great Humanitarian Award.  Most of us would do the same.

Yet there’s something about this shift from, say, the amateur enthusiasm and freedom of a blawg unfettered by corporate concerns and one that adopts the mantle of officialdom.  There’s something about commenters who are vetted to create a “smarter” discussion, particularly given how many lawyers offer some incredibly dopey observations, but give rise to responses that generate light as well as some occasional heat.

Most disturbing is the resort to the formulaic approach of “ask the expert,” and the expert invariably being someone with scholarly credentials so that their every utterance comes with built-in academic credibility.  We see it in newspaper articles and on television news, the lawprof opining about things he’s never personally touched and only seen from afar.  We were knee deep in ideas from people who have never actually done the things they speak about with such refined expertise.  Now we’ll be neck-deep.

For those of us who have long appreciated SCOTUSBlog being there, being the first resource for Supreme Court decisions, briefs, reports, it seems unfair and unappreciative to question Tom Goldstein’s effort to make money off his blog and further his career as a Supreme Court litigator.  And yet, I can’t help feeling that we’ve lost a trusted friend, a reliable neighbor, who is moving from the ‘hood to the corporate bigtime.  And that our comments will be deemed too stupid and unworthy to make it onto the small screen.

Best of luck to Tom Goldstein, but don’t forget the lawyers who actually do the work in the trenches.  We’re not likely to bring you fame, big bucks or scholarly prestige, but we’ll be the ones cleaning up the mess left behind by the Supreme Court.

A front page story in the New York Times trumpets Sentencing Shift Gives New Leverage to Prosecutors.  Oh my, did I miss something?  Did I miss something that so monumentally huge, and so fundamentally affects my very own practice area? 

After decades of new laws to toughen sentencing for criminals, prosecutors have gained greater leverage to extract guilty pleas from defendants and reduce the number of cases that go to trial, often by using the threat of more serious charges with mandatory sentences or other harsher penalties.

Some experts say the process has become coercive in many state and federal jurisdictions, forcing defendants to weigh their options based on the relative risks of facing a judge and jury rather than simple matters of guilt or innocence. In effect, prosecutors are giving defendants more reasons to avoid having their day in court.

“We now have an incredible concentration of power in the hands of prosecutors,” said Richard E. Myers II, a former assistant United States attorney who is now an associate professor of law at the University of North Carolina. He said that so much influence now resides with prosecutors that “in the wrong hands, the criminal justice system can be held hostage.”

One crucial, if unheralded, effect of this shift is now coming into sharper view, according to academics who study the issue. Growing prosecutorial power is a significant reason that the percentage of felony cases that go to trial has dropped sharply in many places.

While lawyers were busy representing clients, fighting fights and cutting deals, making sense of the mess people make of things, taking relatively easy problems and turning them into monumental fiascos, a bunch of lawprofs held a virtual symposium directed toward one goal: the end of lawyers.

At Truth on the Market, a group of lawprofs (with a notable non-lawprof,  Walter Olson of Overlawyered) discussed  “Unlocking the Law: Deregulating the Legal Profession.”  The scope of discussion was broad, venturing from the elimination of law school entirely to the elimination of the monopoly entirely.  The scope was explained:

Welcome to “Unlocking the Law: Deregulating the Legal Profession.”

Licensing and regulation of lawyers, long questioned by scholars, is emerging as an important public issue.  Legal costs are rising for individuals and firms with increases in litigation and regulation.  These costs tax business growth and entrepreneurship and impede ordinary Americans’ access to the civil justice system.  Meanwhile, the development of new business structures and technologies and significant regulatory moves toward opening up competition for legal services in the UK and elsewhere are forcing policymakers to address lawyer licensing and regulation.   The U.S. is certainly not immune from the economic and other institutional forces nudging toward a reconsideration of existing licensing and regulation regimes.  It is an excellent time to reexamine the costs and benefits of existing and alternative regimes in light of these changes.

It’s unlikely that lawyer licensing will completely die.  It will be hard to reconcile complete deregulation of law practice with continued licensing of doctors, tour guides and horse dentists.   But there’s an important difference between lawyers and these other professions:  the prodigiously powerful lawyer interest group has managed to restrict access to the extremely broad field of human activity called the “practice of law.”  This regulatory monolith is bound to fracture.

Were the practice of law deregulated, allowing anyone to offer a variety of legal services, the prices of the simplest services would surely decline. Equally important, the amount of legal training received would vary across the legal services field. At present, everyone sitting for a bar exam in most states must obtain the equivalent of three years of instruction at an ABA-accredited law school. Surely, three years of law school are not necessary for lawyers handling simple divorces, real estate transfers, or traffic violations.

Under current ABA-sponsored state rules, only lawyers can own law firms. Such a restriction obviously excludes entrepreneurs who might find innovative new ways to deliver legal services, perhaps as complements to other services, such as accounting or business consulting. There is no good reason why lawyers should only work for lawyers in delivering legal services to third parties. More diversity in legal services firms would likely promote innovation and provide consumers of legal services with more options and potentially lower prices.

The obvious argument for occupational licensure in any profession is that it sorts out incompetent and unscrupulous practitioners.  In the practice of law, surely the road to competence is not only through three years of an ABA-accredited law school. At the very least, prospective lawyers could be freed to pursue their legal training wherever they choose and then to sit for a bar exam. And the bar exam could have several variants, depending on the sitter’s intended specialty. Why, for example, should those intending to handle domestic disputes be well versed in all of the technicalities involving complex financial transactions?

Everything old is new again, and don’t call me Shirley.  Back to the apprentice days, and a push for specialization at the earliest years, meaning the death of lawyer as generalist.  Or could Crandall be suggesting the down-sizing of lawyer to Legal Practitioner?

The voices of reason in this symposium turn out to be Walter Olson and  Gillian Hadfield, a lawprof who has long been a forceful advocate for affordable legal representation.

Although it has the zing of a slogan that I myself have often used, the call to ‘deregulate’ the legal profession is misleading.  Yes, most of us who argue that the legal profession is excessively closed to competition—in a way that hampers both access and innovation, as I have argued in recent papers—think that the entry barriers are too high.  But the legal profession is not only over-regulated, it is also under-regulated.  The regulatory regime lawyers and judges have put in place is overly protective of lawyers’ interests and insufficiently protective of the public’s interest in an accessible, innovative, and efficient legal system.  So the goal should not be ‘deregulation’ but ‘right-regulation.’

Hadfield’s challenge isn’t to dismantle legal education and regulation, but to take it out of the exclusive hands of lawyers and introduce others into the mix of crafting legal economic policy.  For this, Crandall immediately takes her to task:

Gillian Hadfield argues that “right-regulation,” not deregulation, is the right palliative for what ails the legal-services industry. But how are we to know what regulation is “right”? Nothing in her posting suggests that three years at an ABA-accredited law school is necessary for the execution of many of the tasks that we now confine to lawyers. Her plea for subjecting the legal services market to the general laws governing coinsumer protection, professional negligence, or antitrust does not translate into the necessity of retaining the current entry barriers for the practice of law. She also argues for transferring the regulation of the legal profession from lawyers and judges to other institutions without explaining why industry-specific regulation is necessary or could could possibly be welfare enhancing.

Anything short of rape and pillage, apparently, is cause for a fight among academics.  Always a bright spot when reading their posts. 

Olson’s vision is far more pragmatic than the academics. The  only thing worse than the regulation of litigators would be the deregulation of litigators.

As a libertarian, I mostly concur in the critique of occupational licensure made famous by (among others) Milton Friedman. For the most part, licensure is a consumer-unfriendly affair that protects incumbent practitioners from competition, locks out promising new methods of service provision, and interferes with voluntary dealings between professional and client. It is dubious enough as applied to occupational groups such as doctors and plumbers, and downright ridiculous (as the Institute for Justice keeps reminding us) as applied to groups like cosmetologists, florists and interior designers.

But lawyers are different. No, seriously — they are.

Bet you didn’t see that coming.

I am not convinced that deregulating the power to commence this sort of civil process and demand money from an opponent for calling it off — in effect, to widen the existing pro se exemption so as to allow anyone to proceed pro se on behalf of anyone else they can get to sign up — would reduce the amount of unjustified legal aggression in a system that already has plenty of it and to spare.

Wally throws the cold water of reality on the theoretical happy faces, that while deregulation offers the promise of a lawyer for everyone (if not everyone being a lawyer), it comes with a side of insanity and incompetence that can’t be ignored.  Not surprisingly, the scholars paid no heed.

In the wrap-up, Tom Crandall takes note of  what shockingly happens when you put a bunch of like-minded people in the same virtual room.

As we approach the end of this Symposium, I am struck by how much consensus exists on this subject. Of course, we are not conducting this exercise under the auspices of the ABA. Nevertheless, there is sufficient intellectual backing for a major push to begin the deregulation of legal services.

It’s always heartwarming to know that scholars think sufficiently highly of their views of things other people do to demand change.  While this recap, obviously and necessarily, scratches the surface of this symposium, and is open to every person involves parsing my omissions at painful length and in excruciating detail (because their words and ideas demand a full airing to appreciate their brilliance), it struck me as worthwhile to point out to lawyers that this was happening off in some ivy covered tower where lawyers never tread.

The discussions were largely superficial, with old arguments rehashed without much scrutiny or recognition of the flaws.  Still, most of the revolutionary changes were neither, but rather the same modest proposals that lawyers have been pushing for a while now, and lawprofs have been resisting tooth and nail because, well, law school is absolutely perfect.

But the rhetoric of a failed profession is something to fear, as it gives rise to such irrational and disjointed pronouncements as the death of law schools, which will be seized upon by the shallow and ignorant as a justification for ignoring the ethical and professional obligations as commerce is elevated to the only thing that matters.

I wonder if that’s what the scholars had in mind?