The nature of lawyers who work at New York City’s Legal Aid Society has always been extremely liberal, deeply passionate about equality. Even back in the 70s, when LAS lawyers were known as party animals, they sobered up when it came to their politics, and stood fearless against those who would hate their clients. This probably comes as no surprise, but it needed sayin’.

Lawyers at the Legal Aid Society of New York have been telling me their stories of hysterical baby lawyers attacking their more experienced colleagues.* Other than Appellate Squawk, no one wanted to go public. My guess is that they put the mission of LAS ahead of their treatment at the hands of the ideologically-stunted children, and took the hit rather than harm the cause. Of course, they also could have feared the retaliation by the outraged mob.

Finally, one experienced Legal Aid lawyer, Cynthia Taylor, was pushed too far and sued for its hostile work environment and wrongful termination. Continue reading →

Whoever is in charge of the the New York Times Opinion twitter account chose to pick this pull quote to send out to the twitterverse.

The American Bar Association should signal that anyone who defends the border patrol’s mistreatment of children will not be considered a member in good standing of the legal profession.

Some lawyers, being insufferably myopic, naturally parsed this for the immaterial aspects, that the ABA doesn’t get to decide who is a “member in good standing of the legal profession” and would never do that anyway. Obviously, the ABA is irrelevant to that call, it did put its two cents in on the wrong side of the salient issue. And given Model Rule 8.4(g), it’s not much of a stretch. Continue reading →

It’s understandable why Bari Weiss began her column with a swipe at renowned prude and former Attorney General John Ashcroft. First, he deserves whatever ridicule he gets. Second, it’s a reminder that such ridiculous and disgraceful conduct isn’t only the province of one team. But third, even Ashcroft wasn’t censorious enough to destroy history to create his “safe space.”

Still, the analogy fell flat. Ashcroft was vindicating his personal, sexually-twisted fantasies, even if he adopted the idiot’s rallying cry that he was doing it for the children. The San Francisco school board is doing it for social justice. The Taliban destroying the Buddhas of Bamyan would have been more apropos.

Victor Arnautoff, the Russian immigrant who made the paintings in question, was perhaps the most important muralist in the Bay Area during the Depression. Thanks to President Franklin Roosevelt’s Works Progress Administration, he had the opportunity to make some enduring public artworks. Among them is “City Life” in Coit Tower, in which the artist painted himself standing in front of a newspaper rack conspicuously missing the mainstream San Francisco Chronicle and packed with publications like The Daily Worker. Continue reading →

Judges are people just like us. Sure, they wear robes and have incredible power over our lives, liberties, and property. We still need to cut them some slack from time to time because underneath that black robe is a person, who when tested can make unsound judgments.

Three years ago, Georgia Superior Court Judge Bryant Durham Junior met Denver Fenton Allen for an advisory hearing that arguably turned into the worst day of Judge Durham’s life. Allen was charged with murdering his cellmate. Allen also didn’t care too much for his court-appointed public defender.

It’s worth pausing here to note a later judge handling Allen’s case found him mentally incapable to stand trial. This bit of information may help explain what happened next. Continue reading →

When our host posted Lessons From Fabian’s Viral Video, I was dumbstruck by the outpouring of hatred regarding Ms. Fabian.[i] See, e.g., Manny Fernandez, Lawyer Draws Outrage for Defending Lack of Toothbrushes in Border Detention, New York Times (June 25, 2019) (quoting Howard Dean, the former governor of Vermont and presidential candidate, stating that Fabian “needs to be fired and prevented from ever holding another government job.”)

Having had my ass kicked many a time while arguing before an appellate court, I decided I would take a deep dive into the record to see whether Fabian deserved the attacks. I read the Flores agreement, I read Judge Gee’s opinion in the District Court, and I read the briefs filed in the Ninth Circuit. I also read Ken White’s piece in the Atlantic. Additionally, I watched the entirety of the oral argument in the Ninth Circuit which lasted about an hour. Hell, I even read pieces about Fabian written by Joe Patrice at Above the Law.

For what it may be worth, let me give you my opinion. Ms. Fabian is not the Devil’s Advocate.

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He’s a tricky one, that fast-talking Sam Alito. Adding two plus two and almost making it seem as if .22% BAC was the right answer.

The importance of the needs served by BAC testing is hard to overstate. The bottom line is that BAC tests are needed for enforcing laws that save lives. The specifics, in short, are these: Highway safety is critical; it is served by laws that criminalize driving with a certain BAC level; and enforcing these legal BAC limits requires efficient testing to obtain BAC evidence, which naturally dissipates. So BAC tests are crucial links in a chain on which vital interests hang.

See what he did there? Told you he was tricky. Saving lives is, undeniably, important, but obtaining a blood alcohol concentration level isn’t about saving lives. It’s about collecting evidence for prosecution. A drunk driver is a danger to others while driving, while on the road. Once seized and arrested for drunk driving, the potential harm is abated. After that, the question is what to do about with the drunk driver. Continue reading →

Lawyers, right?

D. APPROVAL OF ALTERNATIVE BUSINESS STRUCTURES/MULTI-DISCIPLINARY PRACTICE SUBCOMMITTEE REPORTS AND RECOMMENDATIONS FOR PUBLIC COMMENT CIRCULATION

1. 1. Recommendation: Confirm that the scope of the Task Force’s charter includes entities which may or may not have lawyer ownership or operational management and/or control.
   2. Recommendation: Entities can be composed of lawyers, non-lawyers or a combination of the two, however, regulation would be required and may differ depending on the structure of the entity.
   3. Recommendation: Non-lawyers will be authorized to provide legal advice and services as an exemption to UPL with appropriate regulation.

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Parsing the Supreme Court’s opinion in Kisor v. Wilkie is more a game for academics than trench lawyers, and they’ve been kind enough to get right on it. The question was whether Auer, Chevron or Seminole Rock, all of which go to the same basic point of mandatory deference by courts to administrative agencies, would be reversed or survive.

The short answer is that they survived, but in name only. Chris Walker explains at Notice and Comment.

So here’s the new Kisor five-step doctrine for deference to agency regulatory interpretations:

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A random lawprof twitted about how the video of AUSA Sarah Fabian, arguing before the Ninth Circuit, proves how critical it is that oral arguments be shown to the public. And the public was, indeed, outraged by the snippet of the argument that went viral.

Ironically, the caption below the video states, “Soap and beds are not essential for detained migrant children says Trump lawyer.” Except Fabian isn’t a “Trump lawyer” at all, but a career assistant who worked for the Department of Justice since 2011, and the case isn’t about Trump, but the 1985 Flores Agreement. Continue reading →

I’m going to admit it from the outset: I admire Tiffany Cabán because she’s got guts. She’s running for District Attorney of Queens, and it takes courage to do so in general, and exceptional courage to do so given Cabán’s circumstances.

She’s got minimal legal experience, having been admitted to practice in 2013 and working as a line public defender since then. She’s never supervised anyone, never run a shop, never had to deal with the politics of running a big city district attorney’s office. She’s never prosecuted anyone for anything. And still, she’s running. Cabán has moxie coming out her ears, and that deserves some serious kudos. There aren’t many people who would expose themselves to the rigors of a campaign given her exceptional dearth of qualifications. Continue reading →