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.

Over at VC, Eugene Volokh posts about the Iowa Supreme Court’s decision in State v. Cox, in which the court held that the use of propensity evidence, permitted by Iowa Code § 701.11, violated due process.

The policy against admissibility of general propensity evidence stems from ‘a fundamental sense that no one should be convicted of a crime based on his or her previous misdeeds.’ ‘A concomitant of the presumption of innocence is that a defendant must be tried for what he did, not for who he is.’ This concept is ‘fundamental to American jurisprudence.’

Of all the various forms of evidence, propensity is among the most insidious.  It taints the defendant, labels him an inherently bad person, and compels a jury to believe that he deserves conviction regardless of whether he committed the particular crime for which he’s on trial.  It’s a pure appeal to prejudice.

Eugene notes of the Iowa decision:

In this, the court departed from the view of federal courts and most state courts, and adhered to the minority view, which until then apparently was followed only by the Missouri Supreme Court.

This statement requires some clarification, as it gives a very misleading impression.  While true of the use of prior bad acts for sex offenders (see FRE 414 and 415), it is not the general rule.  In New York, the rule is Molineux, and Larry Cunningham offers a good explanation (via Judge Barry Kamins) at his modestly named New York Criminal Law and Procedure Blog . 

But Eugene then offers a very curious, albeit unexplained, position.

An interesting decision; I’m not sure it’s right, but I wanted to pass it along. Since it interprets the Iowa Constitution, the U.S. Supreme Court can’t review it, though Iowans could amend the constitution if they disapprove of this decision.

No explanation is given as to why Eugene doesn’t think it’s right, and whether it may relate to the sex offender aspect or whether Eugene thinks propensity evidence is a good idea in general.  It would be appreciated if Eugene could clear this up for me.

The distinction when it comes to sex offenders is clear.  They are, as far as the criminal justice system is concerned, incurable.  They are recidivists.  Once a sex offender, always a sex offender.  Therefore, their prior history (including uncharged bad acts) leads to the inexorable conclusion that they must be guilty of any new crime charged.  So the argument goes.

The obvious response is that if a defendant is alleged to have committed a crime, prove the crime, not the defendant’s bad character.  Putting aside the trial within a trial aspect of using uncharged prior bad acts, itself a nightmare to defend, the use of propensity to smear a defendant seems far too obvious for someone as smart as Eugene to ignore.  It’s the sex offender aspect, then; that they are so hated, and so presumed to reoffend, that they neither deserve a fair trial nor the slightest concern on the part of good people.  They are animals and unworthy of a fair trial.  This is borne out in the comments, where most of Eugene’s readers make clear their feelings toward sex offenders in particular, and criminals in general.

Most people, including lawyers, find propensity compelling.  This is what makes it so dangerous.  It is marginally relevant, but it is also the most unduly prejudicial evidence available.  As bad as it is for most, it’s worse for anyone accused of being a sex offender, since that characterization already creates a taint that few are able to overcome.  There are few offenses that can turn a stomach faster or harder, particularly when the offense involves a child.

As much as the public would be just as happy to take anyone accused of a sex offense and hang them in a tree, after which they can have as fair a trial as they want, this is precisely why propensity evidence should not be permitted at trials involving alleged sex offenses.  The mere allegation of a sex offense carries overwhelming prejudice.  To further remove the need to prove the crime, by supplanting proof with the prejudice of propensity, reduces the trial to a farce.  Defendants should be convicted for what they did, not because they’ve been smeared in the process.

Outside of some very limited circumstances where prior bad acts carry particular relevance, most of which occurs only after the defendant has raised issues as discussed in Molineux, the use of propensity evidence is fundamentally wrong and foreign to the constitutional presumption of innocence and the demand of proof beyond a reasonable doubt.  If a person is sufficiently proven to have committed a crime, then convict him.  But not because we hate him for what he did before.

While I owe no explanation, I offer one.  No doubt a week, or a month, or a year from now, I’ll be hearing the same crap that I hear now, “I think I should be allowed to put a link to my blog in your comments,” which is one of the systemic problems with this format, but as a courtesy to those who complain unmercifully to me now, here’s the deal.

My general policy is not to allow links in the body of comments.  I also ban commenters who include commercial links to their names, but that’s because they are only doing so to gain backlink benefit on Google, and they bring nothing to the conversation as far as I’m concerned.  Disagree?  I don’t care.  This isn’t a democracy.

There are times when a link in a comment makes greater sense, or is less objectionable to me, than others.  These tend to have a couple common factors.  First, they come from someone I like, a regular commenter who has contributed regularly to the conversation.  They get greater latitude than others.  First time commenters get no latitude.  Unfair?  Tough.

Sometimes links are to news reports that add to the information that forms the subject of the post.  This is the sort of link that I’m most inclined to allow, but only when it goes to a news source, not a blog post about a new source.  Sometimes the links are to a study that supports a commenter’s position, which I’m also inclined to allow provided that it’s on topic (note that many comments go off on a tangent that the commenter finds “fascinating”, or the study is conducted by some fringe group that comports with the commenters belief in imminent alien invasion).  

More often, links are to blogs or websites of others who are trying to either trade off Google juice or skim some eyeballs.  This is not the way to get people to take a look at your budding blog, but it is a really quick way to get me to embarrass you publicly.  Yes, I know that marketers tell you that this is the magic secret to blogging success, but the marketers are morons.  It’s not my fault that you chose to heed the biggest idiot in the room.

Sometimes, commenters post links to their posts on the same/similar topic because they think their views are so fascinating.  If that’s the case (and it may be), then let people go to your blog and read to their heart’s content.  But unless I think your views are fascinating, you don’t get to plug yourself.  That’s my choice, and I reserve it exclusively to myself.  You disagree?  So what?  And by the way, you’re not that fascinating.

The inclusion of links can also kill, rather than enhance, a conversation.  In a comment to my Blawging 101 post, Jon Katz’s comment consisted of links to two old posts of his.  While Jon’s a friend, he only comments to defend one of his sacred cows or to try to grab some readers for himself.  If he wanted to engage in the conversation, he could have written any advice he wanted. Instead, he wanted to pull people away from here to his blawg, which is primarily intended to market himself (which is why he rarely links to anyone else in his blawg).  This defeats the purpose of having a conversation.  If he had something worth saying, say it.  In contrast, Carolyn Elefant , who has written far more (and far better) on the subject commented, and included in the comment her thoughts so that it could be part of the conversation here.  That’s how comments should be.

And as long as I’m on the subject, another commenter noting my deletion of links decided that it was a good idea to include in a comment of his own that he wants links and that I should change my policy to make him happy.  I banned him.  He responded in an email that he thought I had more class.  I don’t, and told him he was an asshole.  That’s that.  Nobody has a right to comment, and I have no obligation to tolerate anyone I don’t like.  I feel no qualms about banning people who annoy me.

An overarching issue with allowing links in comments is that whenever I allow one, more invariably follow.  There are a lot of people who want to get their link into my comments, for a variety of reasons.  This creates far more work in cleaning up comments than I care to do, and so I am quick to delete links to avoid instilling the belief that everyone is entitled to do as they please in the comments.  Many readers think that they have some sort of right to have things their way. They don’t. And if that displeases you, go elsewhere.

This is pretty much the way I view hyperlinks in comments.  My reaction changes from time to time, and I may not apply my rules fairly or consistently. but that’s my choice and right.  If you want to vote on how I run this place, do it with your mouse.  There are plenty of other blawgs on the internet.  Feel free to go elsewhere.

Timing is so important.  When the American Bar Association, in conjunction with the National Legal Aid & Defender Association (NLADA), decided to hold the Equal Justice Conference  at the Pointe Hilton Tapatio Cliffs Resort in Phoenix next week, no one could have guessed that it would follow on the heels of one of the most xenophobic pieces of legislation ever crafted,   ABA President Carolyn Lamm wrote :

This law encourages second-class treatment  of individuals based on the color of their skin, and that is unacceptable.  The  American Bar Association has long opposed these kinds of initiatives because they intrude on personal civil rights and  because they belie our nation’s principle of justice for all.  When justice for anyone in America is threatened, it diminishes us all as a free people.

For the ABA, an association largely dedicated to upsetting no one, this is quite a strong statement.  Clearly, the ABA has taken the position that Arizona SB1070 is “unacceptable”.  Some might think this is a reason not to bring its members, and their cash, to Arizona.  But it takes a lot of planning to put a conference together.  And there are non-refundable plane tickets, and hotel reservations, and, well, many impediments to change.  As long as any dark or ethnic appearing attendees bring their proof of citizenship, they should be fine.

The NLADA didn’t think so.  They pulled out.

For nearly 100 years we have been utilizing our collective passion, expertise and voices under the umbrella of NLADA to promote equal justice. While we call it “equal justice,” at bottom NLADA’s mission is about ensuring that all people are treated with fairness and respect; it is about protecting human dignity; it’s about people. Thus, while recognizing that the decision to participate is an individual one, given the reality of the law we do not believe that we should play an institutional role in potentially placing our members in the position of suffering the indignity and abuse of rights and freedoms that laws like this promulgate. Accordingly, after much debate we have taken the position that NLADA will withdraw from the Equal Justice Conference. Our decision is grounded in our mission, vision and values.

The ABA, however, chose to stay the course.  It would be a shame if they blew off Equal Justice just because it was being held in a state that had just legislated its denial.

Recognizing that the participants in this particular conference might find the ABA’s decision problematic, it issued This entry was posted in Uncategorized on May 6, 2010 by SHG.

Rarely do we get a really good video of the execution of a search warrant.  This one, courtesy of Radley Balko , is destined to be a classic.

The police found only misdemeanor weight marijuana, but they saved a seven year old child from the perils of pot-smoking parents.  Anybody want to bet whether the child now wants to grow up to be a police officer?  How cool are those uniforms?

Radley provides the perspective of those who might take issue with the execution of the warrant.  I surmise that this will be used for training purposes for a long time to come, as it reflects an absolutely perfect warrant execution as far as the police are concerned.  In the war on drugs, it doesn’t get any better than this.

Sorry about the dog.

The New York County Lawyers Association has issued  an ethics opinion  in response to this nagging question:

Can a lawyer ethically remain behind the scenes a litigation and prepare pleadings and other submissions for a pro se litigant without disclosing the lawyer’s participation to the court and adverse counsel?

For those not in the know, this is the unbundling question.  In other words, if a client wants to hire a lawyer to do some of the legal work but not all, can the client pretend to be pro se while using a lawyer to do piece work without telling anyone.  This allows the client to only pay for the legal services the client wants without paying for more.  If a client either lacks the funds, or just doesn’t think he needs more legal services than bits and pieces, it allows the client to pick and choose, and only pay for what he gets.

On the lawyer side, it allows the lawyer to make a fee from a client he would otherwise lose.  It allows the lawyer to conceal his involvement and thus avoid responsibility for his work, particularly if it sucks.  It absolves the lawyer from responsibility for failed legal work when the client pays the lawyer for a piece, but the lawyers knows, or would know if he did his job, that the client’s got it all wrong and is absolutely nuts.

Happy ending, right?

Unless of course, one expects a lawyer to be a lawyer rather than a piece worker, or one thinks that the lawyer’s ability to make a quick buck is secondary to his responsibility to serve the larger interests of the person paying him.

Okay, so I’m not the biggest fan of unbundled services.  The NYCLA opinion rests entirely on the virtues of unbundled services in making legal services more affordable.  That it also happens to be good for lawyers who don’t have enough work is besides the point.  The opinion concludes:

We believe that client interests are best served by allowing limited scope representation when the client requests it. Based on the newly adopted Rules of Professional Conduct York, we find that notice of limited representation need not be given in every circumstance.

While the opinion conceded (very nice of them, by the way) that disclosure must be made when ordered by a court (imagine, complying with a court order requires an opinion), what possible explanation is there for concealing the identify of a lawyer who worked on a putative pro se case?  While unbundled services are permissible, even if not in my opinion advisable, there is simply no rationale to justify concealing it.  And make no mistake about it, failing to alert the court and adversary that there’s a lawyer working in the background in concealment.

Why would NYCLA arrive at this conclusion?  It smells like the way to get more business for lawyers, the bits that they can get paid for which would otherwise be lost to the pro se litigant, while covering the lawyer’s butt and absolving them of responsibility for their work.  In other words, this is a cash for lawyers deal under the guise of good for clients.

Should lawyers “ghost write” for pro se litigants, why not include the legend “prepared with the assistance of Joe Smith, an attorney duly admitted to practice law in the State of New York?”  It’s true. It’s accurate.  It holds Smitty, the lawyer who got paid, responsible for his work. 

And when Smitty’s client screws it all up and comes back to blame Smitty for his failure to advise his pro se client that he didn’t have a clue what he was doing or what services he needed, maybe Smitty will think twice before cashing that check for $37,52.

No, the law is not all about finding new ways for lawyers to make small change at the expense of layfolks who don’t know better.  That’s why they let us practice law.  So do you really want to be a ghost lawyer?