For some, the only thing that matters is whether the “non-germane” causes to which the State Bar of Texas, or anywhere else for that matter, are “good.” Agree with the bar using its juice to push for a cause and, well, what could be wrong? So what if it has nothing to do with the purposes for which the bar association exists, the regulation of lawyers and the improvement of the quality of legal services. After all, aren’t lawyers supposed to stand for truth, justice and the American way?

In McDonald v. Longley, the Fifth Circuit said no. If you want to join your brethren (sistren?) at the bar in supporting a cause, by all means do so. Form a group. Charge dues if you want. Send letters, write laws, march in circles. Do whatever you want to do. But what you cannot, you should not, do is make that a cause of a state mandatory bar association, to which every lawyer must be a member and pay dues if they want to be licensed to practice law in that state, if it is not germane to the purpose for which the bar association’s authority to compel membership and payment exists. Continue reading →

There’s an old tale among bartenders.

According to those of the profession, the Devil picks a watering hole at random when the Lord of Lies desires a drink. He’s not picky.

He always appears at closing and is an especially insufferable patron. The upside of the encounter is the bartender who survives gets quite the tip: they’ll never have to work again.

If you, dear reader, should find yourself serving the Devil a highball, keep one crucial fact in mind: he’s got a fondness for artisanal pretzels. Continue reading →

Six years in San Quentin and a stabbing passed before Jamal Trulove was retried and acquitted. In his second trial, the prosecutor wasn’t allowed to lie. The jury found Trulove not guilty. But Linda Allen lied in his first trial, and that cost him six years in San Quentin and a stabbing. It’s not that he was acquitted that makes her a liar, although that certainly demonstrates the significance of her lies at the first trial. It’s that the Court of Appeals said so.

[T]he California Court of Appeal ruled that Allen committed “egregious” and “highly prejudicial” prosecutorial misconduct in the Trulove murder trial because Allen presented a closing argument that was a “yarn [] made out of whole cloth.”

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If you start from a place of guilt, that the once-beloved Bill Cosby was a serial rapist, as an indisputable fact, it makes the decision of the Pennsylvania Supreme Court hard to swallow. There are the usual cries of ludicrous conspiracy-type excuses, that it was money, the fix was in, the patriarchy. But the challenge is understanding two things. First, the case was extremely weak on the facts alone, which was why it wasn’t brought until after the paradigm shift of #MeToo substantially altered people’s belief system about sexual assault so that a prosecution that never would have survived twenty years ago was viable then.

The second was that even so, the prosecution still needed to play fast and loose with the law to get a conviction. Between the five propensity witnesses and the allowance of an unqualified “expert” Rape ‘Splainer. the trial was so front-loaded against the defendant, to the applause and appreciation of the choir that couldn’t care less about anything other than conviction because this was a sex crime, and men must always be convicted when accused of a sex crime, no matter what. Continue reading →

The big push a few years ago was the emergence of organized advocates for juror nullification. There were sincere and serious arguments that the ability of a jury to nullify a conviction was not merely permitted by law, but a foundation of the jury system. Yet judges instructed juries that they are to apply the law as given them by the court and not let emotion stay them from their duty.

Of course, one aspect of nullification its advocates never really appreciated is that if jurors believed themselves entitled to ignore law, the outcome might well be that they ignored doctrinal instructions like the presumption of innocence or the burden of proof and convict for reasons less savory than there was no reasonable doubt the defendant committed the crime. The assumption that nullifying jurors would always side with the defense might have been a bit naive. Continue reading →

Harvard lawprof Nico Bowie submitted written testimony to the Presidential Commission on SCOTUS, which was theoretically created to address issues arising from the three justices appointed by the last president that gave rise to fear and outrage that the Supreme Court now had a conservative wing of political hacks. Or to pacify the outraged by creating a committee that would spend a lot of time murdering words and ultimately do nothing, if you’re just a wee bit cynical.

Bowie argues that the Supreme Court is anti-democratic, which, of course, is correct. But his argument is that it should be democratic. Continue reading →

I like Patrick Frey, better known online as Patterico, even if we tend to disagree about many things. But we did agree on two things, that the current spate of laws being proposed and enacted to prohibit the teaching of critical race theories in K-12 public schools are bad laws, poorly written, vague and overbroad, often unconstitutional and will wreak havoc on both education and law.

Law is hard, and expressing in the blunt instrument of words what you’re trying to accomplish is hard when the goal is simple and straightforward is often too difficult to do. Expressing something as ephemeral as a prohibited concept is likely impossible. But at the same time, both Patrick and I agree that indoctrinating students into an array of CRT, Kendian anti-racist curricula, dumbing down education to accommodate excuses for disparate outcomes, is a legitimate problem that needs to be addressed. Continue reading →

As the current comptroller of New York City, and a guy with all the right words on his resume to become the mayor of the Big Apple, Scott Stringer should have been in the middle of the fight. Yet the best he could do was a fifth place finish. Even Yang finished ahead of him, for crying out loud.

He had great TV commercials. He had an impeccable background. He had strong progressive endorsements. Oh wait. He did, then he didn’t, because he got accused. Or as people like to say these days, “credibly accused,” which means there is no conclusive proof that the accusation was false, so it could be true. Was that what took Stringer down? Continue reading →

This is hard. Very hard. My feelings toward Rudy Giuliani have been decidedly ungood since the 1980s, and they haven’t gotten any better since, which makes him a test case for whether I can not join the schadenfreude chorus singing hallelujah at the New York Appellate Division, First Department’s interim suspension of his license to practice law.

For the reasons that follow, we conclude that there is uncontroverted evidence that respondent communicated demonstrably false and misleading statements to courts, lawmakers and the public at large in his capacity as lawyer for former President Donald J. Trump and the Trump campaign in connection with Trump’s failed effort at reelection in 2020. These false statements were made to improperly bolster respondent’s narrative that due to widespread voter fraud, victory in the 2020 United States presidential election was stolen from his client. We conclude that respondent’s conduct immediately threatens the public interest and warrants interim suspension from the practice of law, pending further proceedings before the Attorney Grievance Committee.

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It’s curious that South Carolina lawyer David Traywick chose not to fight. His lawyers expressly refused to assert a First Amendment defense, and the Court, in deciding the case, expressly chose not to consider it. Instead, they grounded their decision in two rules of professional conduct, Rule 402(h)(3) requiring lawyers to “maintain the dignity of the legal system,” and Rule 7(a)(5), prohibiting conduct tending to bring the courts or the legal profession into disrepute.

It happened on Facebook, where Traywick wrote some angry and vulgar posts. There are, according to the decision, 12 statements at issue, but only two are recited in the decision. Presumably, they are the most offensive of the bunch. They were sufficiently offensive to cause 46 people to complain about Traywick. It’s unclear from the decision whether these were lawyers, clients, judges or just 46 random people who happened to see his Facebook page. Apparently, the number of people was of sufficient consequence to make the opinion. Continue reading →