United States Judge Andrew Hanen has rocked the legal world with an order of shocking, if legally dubious, magnitude.

Therefore, this Court, in an effort to ensure that all Justice Department attorneys who appear in the courts of the Plaintiff States that have been harmed by this misconduct are aware of and comply with their ethical duties, hereby orders that any attorney employed at the Justice Department in Washington, D.C. who appears, or seeks to appear, in a court (state or federal) in any of the 26 Plaintiff States annually attend a legal ethics course. It shall be taught by at least one recognized ethics expert who is unaffiliated with the Justice Department. At a minimum, this course (or courses) shall total at least three hours of ethics training per year. The subject matter shall include a discussion of the ethical codes of conduct (which will include candor to the court and truthfulness to third parties) applicable in that jurisdiction.

Whether the court has the authority to issue an order requiring lawyers working in the Department of Justice in 26 states to take an ethics course is unclear. How many lawyers this involves is unclear, but they weren’t the lawyers who appeared before Judge Hanen and whose conduct gave rise to the order. Continue reading →

The New York Times bemoans the “broken bargain” with college graduates, following up on President Obama’s commencement address to students at Rutgers, who are already starting out at the deficit of being in New Jersey:

In his recent commencement address at Rutgers University, President Obama focused on the noneconomic reasons for going to college. The skills gained in college, he said, are tools to help “make the right choices — away from fear and division and paralysis, and toward cooperation and innovation and hope.”

No, no mention of his imploring the kids not to be such fragile teacups. That’s not the broken promise. This is:

It was an important reminder, well suited to the times and the occasion. But it also came across as if the economic benefits of college were a given. In fact, the familiar assumption — graduate from college and prosperity will follow — has been disproved in this century. College-educated workers have not seen meaningful pay raises, and public policy has failed to address the stagnation.

Continue reading →

In a bit of typical twitter silliness, a truncated discussion broke out following the Stanford Law School CodeX lie-fest. Too mean? Okay, how about circle jerk? Still too mean? Jeez, tough crowd. Let’s try, well-intended but clueless gathering. That’s the best I’m going to do, so suck it up.

One piece of the discussion addressed the self-serving contention that legal tech was the savior of the poor and downtrodden who couldn’t afford legal representation, access to justice, or A2J. I called bullshit.

They wrap themselves up in their white knight armor under the A2J banner, all the while concerned only with whether they can sell their gadget and make a fortune. Don’t be shocked at the hypocrisy and ignorance. These are desperate people, constantly staring failure in the face, in critical need of facile excuses that shift the blame for their ugly, unwanted babies to anyone but them.

How absurd are these self-proclaimed heroes of the poor? When I twitted that if they were serious, they would want serious lawyers to speak at their insular conferences about what law is, lawyers do, clients need, so they would stop creating shiny, worthless gimmicks that fail miserably. The response from the “dumber than dirt” side (apologies to dirt) was: Continue reading →

Supreme Court Justice Sonia Sotomayor opened a can of worms at the American Law Institute when she announced that she was in favor of “forced labor,” a very curious choice of words.

U.S. Supreme Court Justice Sonia Sotomayor said Monday that all lawyers should be required to provide pro bono legal services.

“I believe in forced labor” when it comes to improving access to justice for the poor, she said during an appearance at the American Law Institute’s annual meeting in Washington. “If I had my way, I would make pro bono service a requirement.”

Sotomayor made the comment in response to a question from institute director Richard Revesz about the dearth of legal services for low-income individuals.

The justice said she was aware of programs—like New York state’s—that make pro bono work a requirement for admission to the bar. She also acknowledged that some critics say lawyers who are compelled to work for free “may not give their best effort” to the task.

But professional and ethical duties require it, Sotomayor insisted. “It has to become part of their being,” she said.

Continue reading →

In the grand scheme of piss-poor analogies (edit: and the beloved metaphor), leveling the playing field is a winner.  First, it’s not a game. Second, the field is so grossly unlevel that no matter what the defense does, it can’t touch the advantage the prosecution enjoys. Forget all the platitudes that people use about the legal system; it’s meant to be unfair, to favor the prosecution. Anyone who doesn’t realize this doesn’t “get” the system.

But there was a private investigator who found a crack in the system. The crack was an NYPD sergeant, Ronald Buell, who wanted to earn some extra money. Cops like to earn extra money, and this was a particularly easy way to do so, and far less nefarious than other ways, like copping spare dope from dealers or pocketing the piles of cash found in stash houses. Buell sold access to his police computer.

To many defense lawyers, Joseph P. Dwyer, a retired New York police officer who became a private eye, was guided by justice — a highly sought investigator who uncovered key information to help their clients.

But that came at a price: Mr. Dwyer had been paying a police sergeant for information from a restricted law enforcement database, prosecutors charged. And in a sentencing memo this week, the government said Mr. Dwyer’s motivation had been “a desire to enrich himself,” citing his billings of about $500,000 from 2011 to 2014 from public funds used for indigent defense.

Continue reading →

One of my snappy retorts to commenters here when they lose connection to reality is that Reddit called and wants them back. This, of course, is a swipe at Reddit, a website built of insular communities that tend to have a specific issue focus.

It was once the paradigm of the internet, the wild west, self-policing its content and members. Cross a line, such as dox (reveal the identity of) another commenter and be banned. Moderators were chosen from its more involved and respected members. While some of this has changed, as Reddit became touchy-feely over purported misogyny and subjects that gave some people the willies (often with good cause, but that’s just my sensibilities), it still provides a forum for like-minded folks to discuss matters of interest.

This is good. And terrible. And helpful in a damning sort of way.

At a subreddit called “Bad Cop, No Donut,” a mod who went by the handle FritzMuffKnuckle started having some doubts. He reached out to me. He had an issue with a poster there, a guy who said he was a lawyer, who appeared to be knowledgeable about the law, and who was schooling others about the “meaning” of stories posted. He asked me whether this commenter was for real, knew what he was talking about.   Continue reading →

Is there a “right to privacy”?  The answer, apparently, is whether you want there to be one for whatever outcome you’re trying to achieve.  Cristian Farias makes the point in noting how the Alliance Defending Freedom, an evangelical legal advocacy group, has discovered the right and seized upon it in opposition to the government’s transgender overreach.

As a result of the government’s overreach, students “will suffer the loss of their constitutional right to privacy, because they will be compelled by the government to use restrooms and locker rooms with members of the opposite sex,” wrote lawyers for the faith-based Alliance Defending Freedom, a legal advocacy group representing the plaintiffs.

The “right to privacy” is a peculiar claim for Alliance Defending Freedom, which over the years has supported “religious freedom” litigation before the Supreme Court and lower courts in a number of high-profile disputes. A recent Mother Jones report suggested the group may have played a role in the wave of similar bathroom bills appearing in a number of states.

The reason ADF’s appeal to “bodily privacy rights” or the “fundamental right to privacy” may seem out of place — especially in light of recent constitutional history — is the lack of an explanation for where the right comes from. The lawyers provide no legal citations or support for its source.

Continue reading →

In his concurrence in United States v. Dessart, Seventh Circuit Judge Richard Posner takes issue with the obsequiousness of review of a warrant under Franks v. Delaware, and that’s terrific, because Franks is a ridiculous decision decided by the Supreme Court of Fantasy Land where a judge will review a warrant, whether issued by him or one of his pals at the judge cafeteria, and, with a completely open mind, opine that he or the other judge was a blithering idiot for signing off on the warrant.

Except, Posner can’t seem to focus on the ridiculousness of the Franks decision, but lapses into a rant against the words, the rhetoric, used by courts in their opinions.

I do not criticize the majority for re‐ citing them, because they are common, orthodox, even canonical. But they are also inessential and in some respects erroneous, and on both grounds ripe for reexamination. First is the proposition that when a judge issues a warrant, whether to search or to arrest, the appellate court “must afford ‘great deference’ to the issuing judge’s conclusion” that there was probable cause. United States v. McIntire, 516 F.3d 576, 578 (7th Cir. 2008). This proposition derives from Illinois v. Gates, 462 U.S. 213, 236 (1983), where we are told that the Supreme Court has “repeatedly said that after‐ the‐fact scrutiny by courts of the sufficiency of an affidavit should not take the form of de novo review. A magistrate’s ‘determination of probable cause should be paid great deference by reviewing courts.’” Why great deference? Because, we’re told in Ornelas v. United States, 517 U.S. 690, 698–99 (1996), “the Fourth Amendment demonstrates a ‘strong preference for searches conducted pursuant to a warrant,’ Illinois v. Gates, supra, 462 U.S. at 236, and the police are more likely to use the warrant process if the scrutiny applied to a magistrate’s probable‐cause determination to issue a warrant is less than that for warrantless searches. Were we to eliminate this distinction, we would eliminate the incentive.” Continue reading →

It’s bad enough to be on the receiving end of tons of flackcrap, announcing the critically important news that some lawyer won a case or some federal agency managed not to totally screw up the job for which it exists. But once in a while, I open a press release for kicks to find that some publicist hit send after taking a massive dose of a forbidden narcotic. This one was special enough to share.

The new Legal Dream Team!

Hi Scott,
When you hear “dream team,” you’re likely to think of the 1982* United States Men’s Olympic Basketball Team.

But what if we told you there was a legal “dream team” right in the heartland … this one comprised of all-women.

Meet Cathy Kelaghan, Pam Williams and Kathy Kiefer, who lead Anthem Insurance’s Legal Department, based in Indianapolis. Continue reading →

Emily Winslow was raped in 1992. To call what happened to her rape raises no red flags, as rape was still rape in 1992, before the word lost all meaning and it became fashionable among one’s friends to be a rape “survivor.” This was the rape that forms our disgust and hatred of the crime. And, under the circumstances as they played out, there is no reason to doubt that she was raped.

Winslow wrote about it, reflecting a knowledgeable understanding of why, 20 years later, the rape kit prepared in 1992 wasn’t tested.

MY rape kit was created on the evening of Sunday, Jan. 12, 1992, at Magee-Womens Hospital in Pittsburgh. Tiny pieces of evidence were swabbed, plucked and combed from me: bits of me and, they hoped, bits of him, to be used in court one day to prove who had done this to me. Like many evidence kits collected at that time, it was not analyzed for DNA, and became part of what is called the backlog: untested rape kits across the country, which number at minimum in the tens of thousands.

Rather than bemoan the backlog, Winslow took the time to understand it. Continue reading →