While it won’t impact murderers or sex offenders, it’s likely to matter to your next door neighbor, or perhaps the guy down the block.  From David Ingram at BLT:

The subcommittee on crime and drugs, chaired by Sen. Arlen Specter (D-Pa.), is hearing testimony from academics, advocates, and at least one voice from Big Law. One major point of dispute: a proposed requirement for some financial-services employees to meet a fiduciary duty to their customers, or else face criminal charges and potential prison time.

“I have long believed that it is insufficient to have fines for fraud,” Specter said in an opening statement, adding that fines from the Securities and Exchange Commission are “calculated as part of doing business.”

This isn’t nearly as isolated at Arlen Specter suggests.  Those who are engaged in the business of selling drugs realize that what they are doing could net them some serious prison time.  That’s the price of selling drugs.  There’s a lot of money to be made, and there’s a risk associated with making all that money.  They get it.  They’ve weighed the calculus, the risk of getting caught, of being convicted, of doing time.  They make a choice.

The same is true of those in the financial services industry who engage in wilful deceit and manipulation, except that they don’t need to package their product in glassine envelopes. 

Proving fraud, of course, is quite another matter from proving that someone sells drugs.  The view from behind can be very different from the view in front.  What’s perceived as fraud due to bad, sometimes horrific, results, is often just a lousy job.  Memo to Justice: Not everybody in the financial services industry knows what they are doing, or makes the right guess.  Worse still, not everybody has all the really good information or puts it together the right way.

The impetus for this latest round of criminalization comes from Lloyd Blankfein’s inability to follow his lawyer’s advice when answering questions on television.

Sen. Ted Kaufman (D-Del.) said the public is demanding some action by Congress, especially in the wake of last week’s congressional testimony by Goldman Sachs executives. “I just think there’s a crisis, in terms of people thinking there are two sets of rules,” Kaufman said.

It’s not just a knee-jerk reaction, but one that allows politicians to become overnight heros by criminalizing something.  These opportunities are growing fewer and farther between, and to pass up a chance to pander is just foolish.  There’s always another election right around the corner.  But how novel is this approach?

Damon Silvers, associate general counsel of the AFL-CIO, said such a statute would not be unique. “I would submit that there’s nothing particularly exotic about criminalizing willful breaches of fiduciary duty. It’s a well-known feature of our pension law today,” Silvers said.

It’s a well-known feature of the law that applies to essentially every endeavor, except when it comes to financial services.  A curious omission, to be sure.  When a person deliberately defrauds someone, the idea that they have committed a crime doesn’t strike anyone as odd.  So why has the financial services industry been exempt from criminal liability up to now, with the worst ramification a fine levied by the SEC? 

It could be part of a Financial-Military Complex conspiracy, or that distinguishing wilful conduct from screw-up in this context requires too fine a point.  Then again, Goldman Sachs seems to be awfully good at trading when it comes to their own account.  Why aren’t they ever that good when it comes to anyone else’s?

Of the people who testified before Sen. Specter’s committee, one was there to speak up for the potentially downtrodden.  Not poor, mind you, but downtrodden inchoate.

Among those testifying at the hearing is Andrew Weissmann, former director of the Justice Department’s Enron Task Force. Now the co-chair of the white-collar defense practice at Jenner & Block, he said a new criminal statute relating to fiduciary duty would raise questions of fairness and proper notice to those who might be covered.

“Would every breach of a duty of care now become a crime?” Weissmann asked this morning.

Only in passing do I note that Weissmann went from DOJ to co-chair of white collar defense in the blink of an eye, since he naturally had vast experience in the defense of financial crimes as opposed to their prosecution.  Or maybe it was his huge portfolio of clients.  Or maybe it was because Jenner & Block knows that most of their potential “white-collar” defendants wouldn’t realize that prosecutorial credentials, which sound so impressive, lead down the road to perdition (and conviction).  Still, lack of skillset notwithstanding, Weissmann was chosen to defend the public good.

No doubt there was more said than just one question, but the question is an interesting one.  “Would every breach of a duty of care become a crime?”  As opposed to what, “would every crime be a crime?”  If a fiduciary duty is imposed, and it someone wilfully violates that duty, and if violation of that duty is criminalized, what question is there?  Does he mean, “Would this apply to Goldman Sachs too?”  Does he mean, “What if the loss is under $10 million?” If the question is whether the breach has to be wilful, rather than accidental, then it would appear that he wasn’t listening.

The better question is how one distinguishes the deliberate fraud from the basic fact of life that players in financial services talk a good game but often don’t have a clue how a bet will turn out.  As is brutally clear to anyone who has spent any significant amount of time trying to defend such matters, this is where systems that sound good in theory break down. 

Intent is discerned from conduct, since we can’t see into people’s minds, and conduct is rarely clear enough to differentiate between malice and ignorance.  Pretty soon, everything gets swept together and the negligent get tossed in the same hopper as the deliberate fraudsters.  They all look the same, more or less, and once they are tarred as criminals, nobody really cares all that much whether they meant to do harm or just couldn’t do any better.

As AFL-CIO associate general counsel Damon Silvers noted, it’s really not all that exotic a notion to subject people to criminal sanction for deliberate fraud.  The question then becomes, how has it worked out for others?  It’s unfortunate that nobody thought to ask that question, but then, there was nobody in the room capable of answering.

I’ve long subscribed to Norm Pattis’  trench lawyer movement, predicated upon the belief that it would be really, really useful to have a Supreme Court justice who had some actual experience in the field of endeavor over which he or she presides as ultimate decision-maker,  Now that Elena Kagan, former dean of Harvard Law School, Solicitor General, woman of ambiguous sexuality, has been nominated to the court, and more particularly since she will be the primary focus of discussion for lawyers everywhere for a while, how does she look from the trenches?

Aside from the whole Harvard/Yale thing, and the “third set of breasts on the court” sexist argument, Eric Turkewitz notes from his review of Tom Goldstein’s s 9750 Words on Elena Kagan (more than you ever wanted to know) that the sum total of her legal experience on the ground is

Upon completing her clerkship, in 1988, Kagan went to work as an associate at Williams & Connolly in Washington, D.C.

That ended in 1991, and there are no further details to flesh out what she did at Biglaw aside from warming a chair in the library.  It doesn’t make her a bad person.  It also doesn’t make her experienced in what real lawyers do or what really happens in courtrooms to real people.  Max Kennerly  notes that lack of experience, like an Ivy League education, is a hallmark of our Supremes.

The experiences of Justices Scalia, Thomas, Ginsburg, and Roberts should be discounted. Their work was either for only a few years at the very early part of their career and involved primarily institutional representation (e.g., Monsanto Corporation or the United States itself), or was in a particularly rarefied air, e.g. Supreme Court cases. That leaves us with the “trenches” experience of Justices Kennedy, Alito, and Sotomayor, who together have 34 years of “trenches” experience, compared to the, say, 130–150 years of collective pre-Supreme Court experience on the Court, most of which was policy work for the government or political work for politicians.

You would think that putting nine lawyers in a room, they would have to come up with more than 34 years of actual experience in the trenches.  Nope. Not this bunch.  It must be hard work to find that many lawyers with that little experience.  But, Max asks, “do we need more?”

Most of the time, they’re policy-making politicians like Congress, setting up big generalized rules with which the rest of us must deal. By tradition and by necessity, the Supreme Court rarely sets down useful, unambiguous rules for the benefit of the public. Instead, they reverse or affirm lower courts based on their own views of what the law should be, then justify that decision with sweeping essays about precedent and the public policy of the United States. Given the context in which those essays are created, they’re bound to be vague, self-contradictory, and inscrutable to lower courts.

To put it another way: if someone is going to lose, it’s because the Supreme Court wants them to lose, not because they don’t understand the reality of the law. They don’t care about the reality. That’s the way it has always been and the way will continue to be.

A wee bit cynical, but certainly a fair assessment of the court over the past generation.  From this, Max concludes:

Thus, as much as I would like to see a “trenches” lawyer on the Supreme Court, it’s more important to me that the nominee have sound views on legal policy — sound views on who should win and who should lose — than genuine experience in legal reality. What good is experience in the trenches if the Justice ends up ruling the wrong way anyway?

Here’s where the analysis goes awry.  That we have a Supreme Court bent on political policy making, whether from right or left, without regard to the real life implications of their “vague, self-contradictory, and inscrutable” pronouncements (and let there be no doubt that this Court’s decisions have invariably done more to muddle than clarify, and rested on a “clear” view of life that bears no resemblance to reality in the trenches), the solution isn’t capitulation.  That’s the whole point of the trench lawyer movement.  It’s bad, but it shouldn’t be and doesn’t have to be. 

The disconnect between the politics of the Supreme Court and the reality of the trial court, or more to the point, the life of real people with the misfortune of finding themselves in court, is the wrong that the trench lawyer movement seeks to right.  That presidents and senators pontificate in such a way as to make it politically expedient to avoid any lawyer with actual experience doesn’t mean that putting another theorist (more or less) on the court is the solution. 

There used to be real lawyers on the Supreme Court, but that was before every nominee underwent a political proctology exam, and when the other two branches in Washington played together a little better.  Now that it’s a life and death struggle for political hegemony from two political parties whose members can’t be distinguished without a scorecard, the risk of nominating a real lawyer is far too great.  There might be a tea party, or coffee klatch, or beer bash, because of it.  We can’t take the risk of doing something right.

With the practicalities of politics duly acknowledged, do we just give up and take the best we can push through?  Not to say that Kagan is necessarily the best, or even any good, but she certainly appears to be capable of getting consent of the Senate after the requisite bashing for the television cameras.  Of course, after approval, she could always hire a couple of real lawyer to show her where the courthouse is, explain what lawyers do in there and describe how people who didn’t attend Harvard or Yale are forced to live with her decisions.

Instead, she’s likely to hire a few clerks fresh out of law school.  I wonder what schools they’ll be from?

While the blawgosphere will be atwitter today over Elena Kagan’s nomination to the Supreme Court, about which Norm Pattis has pretty much captured my feelings, Attorney General Eric Holder’s revelation  that the Obama administration will support changes to Miranda to deal with the Communist terrorist threat is likely to get lost in the sauce.  Aren’t you glad you voted Democratic?

The Obama administration is considering changes to the laws requiring police to inform suspects of their rights, potentially pursuing an expansion of the “public safety exception” that allows officers to delay issuing Miranda warnings, officials said Sunday.

Attorney General Eric Holder, in his first appearances on Sunday morning news shows as a cabinet secretary, said the Justice Department is examining “whether or not we have the necessary flexibility” to deal with terrorist suspects such as the Pakistani-born U.S. citizen who tried to detonate a car bomb in Times Square last weekend.

“We’re now dealing with international terrorism,” Holder said on ABC’s “This Week.” “And if we are going to have a system that is capable of dealing in a public safety context with this new threat, I think we have to give serious consideration to at least modifying that public safety exception.”

I feel safer already, just knowing that Holder seeks to further entrench the facile distinction between terrorists and criminals.  Whouldathunk criminals would be the preferred crowd? Well, not quite preferred, but to the extent they can’t be labeled terrorist.

Over at Volokh Conspiracy, Orin posts about some underlying legal questions with the concept of Congress legislating some new variant on Miranda, given that it’s derived from a Supreme Court decision.  Of course, the remedy for a Miranda violation is the inability to use statements in direct evidence at trial.  That presupposes that terrorists get trials, which isn’t exactly a given yet. 

There’s no word on what exactly Holder is talking about when he says that the adminstration will expand the public safety exception.  Will there be changes to the warning itself, such as “you have the right to remain silent, and we have a waterboard right here with your name on it,” or will it be that Miranda warnings need only be given when the TV cameras have moved on to the next story of public fascination? 

Either way, the concept that there is a new enemy to America that transcends the system that now exists and requires new rules because, well, this is War, will permeate our approach to all threats, real and perceived.  We’re always at war with something these days, and by using the jargon of war to explain our situation to a public ridden with fear, thus muddying up the thought process and creating the appearance of distinctions that justify, if not compel, new approaches for these new threats, our war against the terrorists today will be our war against somebody else tomorrow.  Just as the war against crime, against drugs, brought us to this point.  Full of fervor.  Full of fear.  We must fight the enemy.

Some 110% American will inform me that I just don’t get it.  There are evil people out there bent on destroying our way of life, and here some pantywaist criminal defense lawyer would treat these murderers like they are entitled to a walk in the park in the spring-time, with cable TV.  “You just don’t get it.”  No, I don’t.

Put aside that my idea is to treat murderers like . . . murderers.  Whatever was I thinking?  Despite the intrinsic issues with the criminal justice system as it now applies to those accused of crimes, it’s not enough to deal with the threat of terrorists.  It might give them some chance.  We can’t have that, because these aren’t just mere criminals.  These are especially evil criminals.  Not good, wholesome criminals like those other ones.

We’ve tried suspending the rules, along with our ability to reason, in the past, and it has always come back to shame us for our disgraceful lack of fortitude in the face of a perceived threat.  Anybody remember Japanese internment camps during WWII?  Yet we ignore George Santayana and manipulate those with short memories by offering solutions to today’s grave threat. 

Who knows what fine measures Attorney General Holder and the Obama administration have in mind.  No doubt this will change everything and make us much, much safer.  You can never be safe enough, you know.

Via the first worthwhile post I’ve seen from Deliberations  since Anne Reed left to save the whales of Wisconsin, the Blog of Legal Times  posts about the advice provided Goldman Sachs’  executives when called to give “testimony” before Congress.

O’Melveny & Myers partner K. Lee Blalack II spoke to The American Lawyer for a March 2009 story about what it’s like to prepare clients for a congressional hearing. His advice: a congressional hearing room is not a forum for getting at the truth. A day in the klieg lights, he said, should end with minimal damage to reputation while not complicating a client’s position in other investigations or litigation.

“Long, thoughtful pauses followed by rambling non-responsive answers can easily devour half of a member’s allotted questioning time.”

Outrageous?  Disgraceful?  Maybe, but so what?  Effective?  You bet, and that’s why Blalack gets paid the big bucks, and you can bet the bucks are big.  Having watched some of the hearings, my bet is that Goldman CEO Lloyd Blankfein was too smart to heed sound counsel.  Clients are like that sometimes.

Lest anyone get too bent out of shape about the advice, bear in mind that congressional hearings are all about speechifying and showmanship.  The questions can go on for hours so that a Congressperson can keep his mug on TV as long as possible.  It’s not like they actually want an answer to questions, as long as they get to make a speech ask the questions.

There has been an explosion recently of new blawgs that run the gamut of emotional pleas about Justice.  They ooze.  They make my eyes feel sticky when I’m done reading them.

Criminal defense lawyers have a strong innate sense of justice, a desire for fairness and zeal for fighting for the underdog.  It’s our passion.  But it’s not our job.  Our job is to serve our clients, and that often bears no relation to justice.  With all this emotion, writers wrapping themselves up in their feelings about right and wrong, good and evil, fair and unfair, it appears that they may either forget what they do or begin to believe their own press.  No one owns the side of good.  The prosecutors who believe that they sit at God’s right hand are just as foolish as defense lawyers who believe the same.

Unless you happen to be on the bonus list at Goldman Sachs, you are not likely to feel particularly sympathetic toward Blalack’s advice, at least in this instance.  There may be no enterprise more evil than Goldman, at least today.  Never underestimate the ability of a financial services corporation to come up with something even more evil tomorrow.  Certainly, no criminal defense lawyer feels great love for Goldman, unless they are on the payroll through the good fortune of indemnification. 

But Blalack’s advice is effective and undeniably sound.  That’s what a good lawyer gives his client, even if it stinks to high heaven.  Nothing unlawful or unethical, but effective.  Emotional rants are the stuff of childish self-indulgence and blind faith.  That’s fine when it doesn’t count, but it’s worthless when a client seeks advice.  Lawyers serve their clients and leave their emotions at home.

From Saturday to Sunday, it was as if the world shifted on its axis.  Saturday was the senior competition in Poughkeepsie and it promised to be a tough one.  My little chunk of it involved epee, my son’s weapon of choice.  He’s just 15 years old, but he’s pretty good at it.  Far, far better a fencer than his old man ever was.

It was the North Atlantic Section of the United State Fencing Association championship.  It qualified fencers to compete in the Summer National Championships.  It was held at Vassar College in Poughkeepsie, neutral ground.  And it teaches fencers something that young lawyers and law students have yet to learn.  There are winners and losers. The winners go on to fence again. The losers go home.  The winners get a medal.  The losers go home.  If the losers don’t like it, work harder and become a winner. 

Or maybe it just wasn’t your day, and that happens too.  Sometimes, no matter how hard you work, you still lose.  That’s life.

My son wanted to do well in the senior competition.  You don’t need a recitation of how fencing competitions work, so I won’t bore you, but he won his first two direct elimination bouts (which come after the pool round) handily.  His third DE was against a college fencer he had beaten in the pool.  He got the first three touches, up three to zero.  He was feeling pretty good about things.

His competitor didn’t give up or lose faith. He upped his game and took the next six touches.  In frustration at his inability to stop his opponent, my son first lost focus.  He then lost his cool.  Then he lost the bout. 

He ended up doing okay in the competition, but nowhere near as well as he hoped.  He was crushed, though his reaction was overwrought.  That’s the nature of serious competition: someone wins, someone loses.  This was his day to lose.  He gets no medal, no glory, no win.  There’s no sweet spin to put on it.  He did fine.  He lost.  Pack up and go, your day is over.

After the competition, my son and I had a talk.  Actually, it was more my talking and his being in my presence.  Father/son talks with a 15 year old tend to be that way.  They don’t talk all that much.  He was furious with himself for having failed and wanted to go home, even though the Junior championship (under 19 years of age) was the next day.  I told him to toughen up, that losing is part of the nature of competition and you have to take losing in stride, just like winning. 

I told him that this was just a sport, and if he thought this was the end of the world, just wait until really important things in his life went sour.  It would happen, and it would be crushing.  Still, you have to brush yourself off and get on with it.  The only real losers are the ones who wallow in their misery and can’t muster the will to fight again.  He went to sleep in silence.

The next morning, he woke up and dressed for competition.  He came in second place, losing a tough gold medal bout.  The final score was 5-2, but it doesn’t tell the story.  While bouts go to 15 in three 3 minute periods, his was one of cat and mouse, with the score 3-2 with ten seconds left.  He was behind.  He tried two desperation fleches in the final ten seconds, and was caught both times.  His opponent was older and much stronger than he was, and was able to parry his attack.  But he did what he had to do to try to grab victory.  It was tactically perfect, even though it didn’t work. 

He was proud of himself, even though he didn’t take the gold medal.  He fought the good fight.  He didn’t give up, or offer an excuse for the loss, even though it would have been easy enough to do.  He took the defeat with grace.  Afterward, he hugged the other fencer, and I shook his hand and his coach’s.  We talked about what a great bout it was, and how the winner fenced.  He talked about how well my son fenced and how difficult a bout it was.  They were most gracious in winning.

From a father’s perspective, he did spectacularly well, and I swelled with pride at his effort and spirit that day.  For his fencing, his grace in defeat, his will to continue the fight, and his looking forward to his next chance to do battle.  My son is certain that he will win next time, even though he knows that he can lose, whether because he didn’t work hard enough or it just wasn’t his day. 

Losing is a more important lesson in life than winning, and far too many young people have never learned to lose.  You just don’t want to learn it too often.

By my unscientific calculations, I answered my five millionth stupid question yesterday.  Not a question from a client, which may not always be the greatest question, but never falls into the stupid question category.  Rather, a question from the outside, whether a potential client, a law student, a dabbler or a lawyer who made a mistaken career choice. 

No doubt questioners believe that they have good reason to ask, but that doesn’t mean that the question isn’t stupid.  Earlier in my legal career, answering stupid questions wasn’t a big deal.  Just part of the game.  But they’ve lost some of their pizzazz after the first few thousand answers.  The problem is that the same sorts of questions are asked over and over, and they don’t get any better with age.

I’m not talking about the cocktail party questions.  Those can’t be helped.  I’m talking about the predicting the future type questions, the “you’re the lawyer so you should know” questions about why the law doesn’t meet the simpleton’s solutions for all things.  The whiny questions about why the law doesn’t revolve around the particular individual’s personal needs.  Will I handle your sad, pathetic case pro bono because you are the only person ever maligned by the criminal justice system and ended up in a completely untenable situation, and you’re broke.   That sort of stuff.

I’m often called prickly by those who like me, and mean by those who don’t.  I’m expected to tolerate a never-ending onslaught of first year law students who want to debate a law they have yet to grasp, or laymen who think that there’s a magic bullet solution to every problem man can create.   Others demand that I explain to their satisfaction why they can’t immediately get everything they want, since they are invariably right about everything and yet no one else seems to get this obvious reality.  It’s tiresome.

Yes, I’m sure you’re brilliant and if I don’t agree with you, I’m a terrible human being.  I’m equally sure that you’re worthy of my time and attention, even though you’re not my client and, in fact, are merely some anonymous person with a computer who emails me to demand answers to problems of your own creation.  Of course, since online marketers and websites bombard you with the expectation that every lawyer is there at your beck and call, available for free answers, I owe you.

If I fail to meet your expectations, I’m sorry.  I’ve disappointed many who demand my time before, and expect to continue to do so in the future.  But I’ve heard your question too many times already, and you just aren’t nearly as interesting to me as I may be to you.  Feel free to call me any name you please.  Feel free to never come back to Simple Justice again as my punishment for not treating you with the respect you demand. 

But I’ve already been asked five million stupid questions. That’s enough.  Go ask someone else.  I’ve done my part.

If you’ve got an interesting question, on the other hand, well…

It could have been great.  It wasn’t.  So we learned that Twitter, beloved of lawyers who drink vente lattes, isn’t the best medium for a debate.  No worries.  It can’t be good for everything, though it’s unclear what it’s good for other than some fun with friends and time sucking.

The ABA Journal  “sponsored” the first ever debate on twitter between Stephanie Kimbro and Brian Tannebaum over Virtual Law Offices—Game Changer or Business as Usual?  It’s not clear how the ABA Journal sponsored it, considering that it cost them nothing and the dirty work was done by moderator Lance Goddard of @22twits. 

The ABA Journal’s transcript provides just the debater’s twits, while the actual debate was overwhelmed by worthless retwits and dubious thoughts from the peanut gallery that so clogged the stream as to make it a cacophony of noise.  Many of the twits were worthless, either as non-responsive or shallow, but then twitter has never been a good format for conveying any idea deeper than a puddle.  It’s perfect for people who don’t like to think too hard or have very little to say.

The debate itself wasn’t much of a debate, with the two sides largely ignoring the points of disagreement.  Kimbro was largely promoting the concept, independent of the issues raised, but then she’s in the business of selling the platform (a point that was never disclosed).  She had a lot of support, naturally, by lawyers who want to practice from the local coffee shops and are sensitive that they are now viewed as losers and outcasts by lawyers who waste their money on offices.

To a large extent, I have no issue with Virtual Law Offices.  To the extent that Kimbro was selling her platform for lawyers who also have brick & mortar offices, I have no issue at all.  To the extent that lawyers who do transactional work rather than litigation do it in their bathrobes, I still have no issue, with one caveat that I raised during the debate but was never addressed.

For those lawyers with VLOs, where does the client go to find them when there’s a problem with their work and they stop answering their email?  The closest thing to a response I got was clients loved VLO lawyers, so this wasn’t a problem.  Spare me.  There will always be clients who are dissatisfied with a lawyer’s work, and lawyers who only exist on the internet can simply go underground to avoid the irate client. 

While this might be satisfactory for the VLO lawyers, it’s wholly inadequate for the clients, particularly if the client is right and the lawyer’s work was bad, inadequate, late or otherwise problematic.  Platitudes about how it’s all about client satisfaction don’t solve the problem; they have no answer.  The closest attempt to respond was that they can always complain to the disciplinary authorities, as if that helps a client with an emergent problem.  This was a gaping hole in the argument.

The more curious argument asserted was the VLOs fulfill the demands of clients for inexpensive, available legal services.  I’ve no doubt it’s true, that clients want convenient legal services and the lowest possible prices.  One of the VLO supporters, Rich Granat , twitted:

OUr latest survey shows that over half of consumers (56%) want to deal with their lawyers on-line.

My snarky response :

Our surveys show that 97.4% of clients would like their lawyers to work for free. And validate parking.

No one can blame clients for wanting ease and low price.  Who doesn’t?  They also want competent legal services, responsibility and, when things go south, a warm body to scream at.  Clients want it all, as they should.  Lawyers want to recognize only those parts that coincidentally work for them, pretend that they are doing it for the benefit of clients when it’s really for their own personal gain.  That’s just good marketing.  Sure, it’s a lie, but it sounds good.

Much of the debate was spent discussing the value of technology, an issue about which there was no disagreement and yet the pro-VLO supporters kept harping.  It talked about client satisfaction, again no disagreement and yet they kept harping.  It talked about lawyer satisfaction, which raised an issue: 

@BTannebaum : We have lawyers that are laid off, lazy, entitled, and want what they want. They never went to law school to be lawyers

This twit raised an issue that, unfortunately, the format was unable to accommodate.  Given the groundswell of pro-VLO supporters twitting about their right to practice law in the manner that was most suited to their lifestyle choices, it was unfortunate that the format precluded a significant fleshing out of this point.  The practice of law is about clients, not the convenience of lawyers who believe that they are owed a practice that suits their lifestyle.  They want to work when they feel like it and have the practice of law wrap around their convenience. 

There’s nothing client-centric about that.  To the extent that some supporters see this as an entitlement, they are in the wrong profession.  If it happens, on the other hand, that they can provide clients with what they want, need and deserve, while coincidentally doing so in a way that suits the lawyer’s preferences, that’s fine. The lawyers should never, however, misapprehend that the practice of law is all about the lawyer’s convenience.  This entitlement perspective is one that needs to be clearly rejected at every juncture, and yet is becoming a pervasive argument amongst this new breed of lawyers who think that it’s all about their right to make a living in whatever fashion best suits them, even if it’s at the expense of the client. It’s a very dangerous concept.

Having spent an hour of my time following the debate, I was left with three overarching thoughts: (1) I learned nothing new about VLOs, and the forseeable problems remain unresolved; (2) Twitter is a terrible format for a debate;  (3) That’s an hour of my life I’ll never get back.

To the extent that the VLO position favors the use of technology to enhance the practice of law and better serve clients, that’s great.  That some lawyers can work in their bathrobes from Starbucks, that’s fine too provided they fulfill their professional responsibilities to their clients.  But when this discussion devolves into nonsensical rationalizations that ignore client problems and justify lawyers doing what’s in their own facile self-interest, it fails. 

Like so many reasonably good and interesting ideas in the hands of technophiles, their zeal to serve their own interests allows them to shut their eyes and pretend that there is no potential to harm clients and the profession.  Until they open their eyes, the only ones who will find them persuasive are those similarly inclined to self-interest and willing to lie to themselves.  The future of VLOs is in the hands of those who will address its current faults rather than those who want to spout platitudes and ignore the problems.  I’m not sure they are up to the task based on this twitter debate.

Lawprof Katrina Kuh raises an interesting question over at PrawfsBlawg.  While Kuh’s concern is purely sexist, she inadvertently lobs a pitch in our direction.

The reasonable person standard (previously, the reasonable man standard) indexes liability to whether an individual acted in the manner of a reasonable and prudent person under the same or similar circumstances.  In making this determination, fact finders may consider an actor’s physical disability and any special knowledge or skill possessed by the actor (i.e., use the conduct of a reasonable person with the physical disability or knowledge/skill of the actor as the standard), but may not consider emotional or mental disability (including, for example, stupidity). 

If knowledge or skill of the actor, or gender as Kuh would have it, matters, why not stupid?  While no one has ever met the reasonable man (and I refuse to participate in any discussion of the reasonable woman), once we start to make accommodations for the specialized situations of some, why not everyone?  The answer, obviously, is that there will be no rule once this happens.

The issue revolves around sensibilities.  We each have our own, and by definition believe our own to be appropriate.  The sensibilities of corporate CEO (for whom a $6,000 shower curtain is perfectly reasonable) will differ from that of a Salvadorean (legal) immigrant who prays for good weather so he can work cutting grass today and bring home enough money to feed his children.  How much of a commonality, an overlap if you will, can be demanded of the two?

Reasonableness is a critical component of criminal law, increasingly so as crimes either require no mens rea or where intent is imputed by conduct.  It’s judged in the first instance by a police officer.  Then by a prosecutor.  Later by a judge and, when a case goes to trial, by a jury “of his peers,” to the extent that phrase means “breathing”.  At each step, the defendant’s conduct is judged by the sensibilities of these fine folks.  Did he behave the way they would have behaved under the circumstances? 

Or should they expect/demand that the defendant, given his intelligence, situation in life, experiences, behave like them?

This follows along with my thesis on common sense, the notion that we all share some unwritten concept of what’s “right”.  Rather, we all pretend that such a thing exists to enable us to jump to whatever facile conclusions we want without need for explanation, reason, proof.  It’s all just common sense, though each and every one of us sees it differently.

When it comes to sensibilities, we similarly believe that we reflect the norm.  Most of us sleep well knowing that we are perfectly normal, and that our sensibilities are the common thread that binds society and civilization together.  Because every defendant who grew up with a crack-addicted mother, no father, hungry, and with gunshots ringing in the schoolhouse hallways, has the same life-view as the Ivy League law school graduate whose mommy bought him a suit and tie, bought the apples he gave his teachers, made sure he brushed his teeth properly and ate three healthy meals a day.  They see everything the same way, right?

My background is certainly closer to my mythical law school graduate than the defendant, but having spent years trying to explain to defendants why the people in whose hands their fate depends will not share their sensibilities.  They won’t “get it,” at least not from the defendant’s perspective.  And many a defendant doesn’t get it from theirs.  Trying to find common ground after the fact is worthwhile for the effort of making sense of a bad situation, but it does the defendant little good.  Whatever actions got him in trouble in the first place are already done.  Too late to go, “ooohhhhhh”.

While it might be understandable that a defendant who lacks an adequate education, skills or prospects, might be incapable of grasping the sensibilities of the coddled lawyer class, one might suspect that the prosecutor and judge are smart enough, educated enough, worldly enough, to appreciate the sensibilities of the defendant.  Most of the time, no.  It’s not that they can’t grasp the distinction as much as they just don’t care.  Their sensibilities are correct; his sensibilities are wrong. End of story.

In the early days of the crack wars, one of the commonly used indicia of being a drug dealer was having significant amounts of cash secreted in an apartment.   It was certainly true of drug dealers.  Unfortunately, it was similarly true of working people, who neither trusted nor used banks and put their earnings under the mattress.  I argued countless times to young prosecutors that the stash of cash failed to prove that a defendant was a dealer, to no avail.  In their world, normal people just didn’t do that.  Maybe they just had no common sense.

It’s beneath me to write about this.  It’s childish.  Juvenile, really.  But schadenfreude leaves me no choice.  Via Randazza, Fox News reports:

A TSA worker in Miami was arrested when he “lost his mind” and attacked a colleague who repeatedly made fun of his small penis after the security screener walked through a high-tech scanner that showed his genitalia, according to Miami-Dade police.

Rolando Negrin, 44, was arrested at Miami International Airport Wednesday morning following an altercation with a fellow screener, Hugh Osorno, Tuesday evening. Negrin is facing assault charges for allegedly beating Osorno with a baton in the airport’s parking lot.

A man can only take so much, you know.  It’s bad enough he has to carry a baton, and may explain his inclination to use it.  Do not push Rolando.

It appears that the full body scanners work pretty well, but they aren’t recommended for a first date.  Either way.  Braggadocio is no more attractive than inadequacy.  Well, maybe a little.

I’m sorry.  I should have left this one alone.

From the outside, we have visions of life inside the Blue Wall.  We believe what we see from the outside.  We believe what we’re told by our police officer friends (and enemies).  But we don’t exactly know, because we’re not on the inside.  Graham Rayman at the Village Voice  gives us a peak inside.

Police Officer Adrian Schoolcraft, an eight-year veteran of the NYPD, surreptitiously recorded more than a year of sounds within the 81st  Precinct in Bed-Stuy.

He recorded precinct roll calls. He recorded his precinct commander and other supervisors. He recorded street encounters. He recorded small talk and stationhouse banter. In all, he surreptitiously collected hundreds of hours of cops talking about their jobs.

They reveal that precinct bosses threaten street cops if they don’t make their quotas of arrests and stop-and-frisks, but also tell them not to take certain robbery reports in order to manipulate crime statistics. The tapes also refer to command officers calling crime victims directly to intimidate them about their complaints.

As a result, the tapes show, the rank-and-file NYPD street cop experiences enormous pressure in a strange catch-22: He or she is expected to maintain high “activity”—including stop-and-frisks—but, paradoxically, to record fewer actual crimes.

Not at all what you were expecting?  Me either.

This pressure was accompanied by paranoia—from the precinct commander to the lieutenants to the sergeants to the line officers—of violating any of the seemingly endless bureaucratic rules and regulations that would bring in outside supervision.

The tapes also reveal the locker-room environment at the precinct. On a recording made in September, the subject being discussed at roll call is stationhouse graffiti (done by the cops themselves) and something called “cocking the memo book,” a practical joke in which officers draw penises in each other’s daily notebooks.

Most striking about Rayman’s article is the mundane nature of the recordings.  Petty office politics, stupid school-boy pranks, are the norm, rather than the complex conspiracies to harm the public that paranoia suggests.  But despite its pedestrian appearance, the pressure to write tickets and “stop and frisk” is precisely the low level fraud that implicates the cops in a rampant disregard for civil rights and undermines the integrity of the process.

“You’re not working in Midtown Manhattan, where people are walking around, smiling and being happy,” a lieutenant tells officers in a November 1, 2008, roll call. “You’re working in Bed-Stuy, where everyone’s probably got a warrant.”

That’s the message, that everyone in Bed-Stuy is a perp, even if they haven’t quite figured out why just yet.  And shockingly, they don’t tend to be white-skinned executives either.  But this way, nobody loses sleep over it. Go figure.

Command often set up special summons duty to artificially increase the numbers of tickets issued. On December 13, 2008, there was this from a Sergeant E.: “In order to increase the amount of C summonses patrol is writing, they are going to try to, when they can, put out a quality-of-life auto. Your goal is to write C summonses, all right?”

A “C summons” requires a warrant check and covers a wide range of offenses, like public drinking, disorderly conduct, littering, blocking the sidewalk, and graffiti. An “A summons” is for illegal parking, and a “B summons” is for traffic violations like running a red light or using a cell phone while driving.

It’s not that cops have any particularly problem with any particular person.  It’s just that they have to meet their quota to keep their boss from coming down on them, so their boss’ boss doesn’t come down on him.  It’s just office politics.

For years, decades even, the argument has been made by prosecutor after prosecutor that there’s no reason for a cop to lie; “Why would he have anything against the defendant.  He doesn’t even know the defendant. There’s no reason for him to lie.”  Well, there is.  The officer was behind on writing, and had to write a few more summons.  The defendant just happened to be standing there.  If the officer failed to make his quota, he would be subject to discipline (because he obviously wasn’t being productive), and shift changes to give him the undesirable shifts.  That could interfere with his day job.

The article is at the same time fascinating and pathetic.  It reduces cops to sad little ants scurrying around to please their bosses, only coincidentally at our expense.  As significant as an interaction with police may be to us, to them it may just be a matter of avoiding a shift change.

How many hundreds of thousand of young men and women who grew up in the wrong neighborhoods are saddled with low-rent criminal records because of years of police being compelled to write crap summons to prove they’re being productive?  How many judges refused to believe a defendant when he said in never happened.  Cops wouldn’t lie.