According to the review in the Chronicle of Higher Education, the advance copy of Washington lawprof Brian Tamanaha’s new book, Failing Law Schools, was “circulated to a handful of prominent legal scholars.” And I got one too.  It’s devastating. 

While it thoroughly covers the obvious, from bloated salaries for underworked “scholars” whose glorious research and writing is subsidized by students who take on massive debt for the honor, yet leave school armed with theories without the slightest clue of how to practice law, to schools driven by profit incentive to game the U.S. News and World Reports ranking for fear of dropping a notch and being relegated to the academic junkheap, where their fellow scholars will laugh at them and their salary will shrivel like a penis in Long Island Sound in May. 

But Brian covers a wealth of historic background, the “how we got here” stuff that goes back to the days when law transitions from common apprenticeships to the “professionalized academic” style we now see as absolutely necessary and beyond the possibility of reformation.  This part of his book made me realize that the tin foil hat wearers, while still crazy, aren’t as crazy as I thought.

As the notion of normalizing a legal education across the country and schools took form, a conflict existed as to how it ought to look. The ABA, captured by the professoriat who represented the ideals of Big University, created an image of law school that served two purposes, ridding the scholars of those annoying schools capable of turning out lawyers quickly, inexpensively and effectively at the expense of grander academic ideals.  The other purpose, which comes as no surprise, was to institutionalize and mandate the protection of the scholar class, even though it bore no necessary connection to the core purpose of educating lawyers.

In other words, it was a conspiracy to preserve and protect scholars, even though it really had nothing much to do with educating lawyers.  They just needed some protecting or they, like dinosaurs, would become extinct.  As they got to write the rules, they wrote rules that perpetuated their continued existence.

Some of the big questions, such as why three years rather than two?  Why tenure? Why scholarship as a necessary component of law school academia?  Tamanaha gives answers. They’re not pretty.  Had there been a shift in relative power at the time, things would have looked very different indeed, and law school today would have looked very different.

The point of this digression into the history of law school is that most of our sacred cows today were borne of self-interest by the professoriat at the time the model was created, rather than sound educational necessity.  What we now think we can’t live without could just as easily have never existed, and we would have been no worse for it.

It’s a pretty shocking view. 

Another bit of news is that one of the most highly promoted options that have been moving about the discussion, the creation of third year clinical programs in order to teach students to practice while keeping them on board as tuition payers, isn’t all its cracked up to be.  They’re expensive to run.  They don’t do nearly as well at teaching practice as an actual apprenticeship would do. They continue to add to law school debt, even though students are working for a living. 

Add to this  Walter Olson’s beef, from Schools for Misrule, that the focus of most clinical programs reflects the political bias of academia (why should students be indoctrinated to believe that people suing large corporations are inherently more righteous and entitled to clinical love than the corporations being sued, or that “victims” of domestic violence are invariably honest and good while defendants are necessarily guilty and evil?), generally a very liberal bias, such that they’re not only teaching practice, but good and evil as well, and suddenly clinics aren’t a panacea.

Brian Tamanaha’s Failing Law Schools is meant to serve two purposes: First, to compel his fellow lawprofs to pull their collective heads out of their butts and stop denying that they’ve created an awfully damned cushy world for themselves at the expense of students.  The second is to begin the discussion of how to fix things.

From the rumbling I’ve heard in advance of the book, a great many lawprofs believe that this book is going break things wide open.  Though many won’t speak out publicly, whether because they’re a bunch of sissies, fear loss of admiration from their peers, can’t bring themselves to hurt people’s feelings or, as seems to be the predominant reason, fear that once the words leave their fingertips, there will be no going back.  They fear that a rift will develop within the academy, and they don’t want to be either pariahs (if they’re on the losing end of the debate) or lose the camaraderie of others in their insular community.  Yes, it sucks to believe in something but lack the guts to stand up for it.  Ask Paul Campos, the most hated man in academia.

What some don’t realize, but I do, is that there are a lot of lawprofs who agree with Campos. I know because they tell me, though they ask me to keep it our little secret. While I honor my promise to bite my tongue, they need to know they aren’t alone.

Then again, the view of the institutional tool remains :

Paul S. Berman, dean of law at George Washington University, says there is some truth to Mr. Tamanaha’s arguments about the economic consequences of attending law school, particularly when students attend expensive, low-ranked schools in weak job markets. But he says Mr. Tamanaha exaggerates the extent of the problem, in part by failing to adequately consider the flexibility that federal income-based loan-repayment plans offer students.

Michael A. Olivas, a professor of law at the University of Houston and a past president of the Association of American Law Schools, says relaxing accreditation standards to allow more-diverse education models, which Mr. Tamanaha calls for, could lead law schools in the direction of for-profit institutions like the University of Phoenix, which critics contend shortchange students.

As Mr. Olivas puts it, the result could be “the Phoenix-ation of law schools, churning students through, having a contingent and transient faculty, and none of the institutional investment in the broad roles of legal education.”

Some law schools may follow that approach, but others won’t. And students ultimately will be the ones to decide which balance of approaches is best, as their decisions where to enroll will determine which schools remain viable. I don’t see why we wouldn’t want students to have that choice. “Institutional investment in the broad roles of legal education” is expensive. If students can get a good legal education without it, I don’t know why they shouldn’t be able to choose to do that.

When Eastern District of New York Judge John Gleeson used his sentencing memo in  U.S. v. Dossie to send a message to the Attorney General to stop being such a mindless tool, his purpose was to castigate the Department of Justice and its co-conspirators in abusing the power it was given just because they could. 

Former prosecutor turned Gibson Dunn partner, Jim Walden, didn’t quite get the message.  In the National Law Journal, Walden makes sure his bona fides are clear:

I support the war on drugs. Indeed, I can fairly be called a hawk. I spent most of my nearly nine-year career as a federal prosecutor attacking (largely white and Asian) drug-trafficking organizations and putting their members behind bars for long stretches. For every wide-eyed, liberal, young lawyer I meet who naïvely criticizes the wisdom and resources this “war” has entailed, I issue the same challenge: Read the daily papers and keep track of drug-related murders, assaults, robberies, break-ins and general violence for six months — and then explain to me why drug enforcement should not be one of our top enforcement priorities.

Glad to know that you’re available to have lunch with Andy McCarthy, though this is no doubt expressed so that other “hawks” realize you’re no “wide-eyed, liberal” who “naïvely criticizes” the drug war.  As Walden informs, however, the problem isn’t the worthiness of the war, but that it has exceeded its purpose:

Congress empowered the Department of Justice — through the creation of mandatory-minimum sentences — to end the careers of committed drug dealers. Second, the mandatory-minimum sentences were intended to be used against drug “kingpins” — the people at the upper echelons of large trafficking organizations, who make the most money, wield the most power and inflict the greatest violence and destruction.

Is that really what Congress did, or did you just believe the press release with all your heart and soul, the stuff meant to keep the nice folks in Peoria happy and buy votes in Cincinnati.  The story behind mandatory minimums was that it was to put drug kingpins in prison, but the quantities at which mandatory minimums kick in tells a different story.  Take a peak inside any federal prison and tell us how many cartel drug kingpins you see in those cells?  They’re filled to capacity, and not a kingpin to be found.

Walden, the drug hawk, contends that the problem isn’t with the war, or the law, but the overuse of mandatory minimums by prosecutors.

Cracking down on the street-level organizations, and stopping the collateral damage they inflict, is a laudable goal, an essential one. Doing so at the expense of fairness and equity is not, and street-level traffickers should not face the same consequences Congress intended for kingpins.

This is where Judge Gleeson’s Dossie decision comes into play. And where it’s artfully abused.  Using Dossie as the exemplar, Walden argues that prosecutors could “cure” the lack of fairness and equity by exercising better discretion in applying the mandatory minimums.  The problem, thus, isn’t that the law is horrendously wrong, imposing mandatory minimums on people who fall a bit shy of drug kingpin.  No, no. No problem there. It’s merely an empowerment of the DOJ to have the weapons available for when Prosecutors, there to protect us from the ravages of crime, feel the need to impose these harsh sentences. 

Yet again, we’re asked to trust those in power to exercise it as they see fit.  Trust them. Believe in them. Don’t worry our naive heads about it, as they will protect us from the evil people.  Let them have their mandatory minimums, and smarter people than us will remind the Prosecutors should they forget Congress’ will, to exercise their vast but necessary power with mercy and discretion, fairness and equity.

Except that’s neither how the law works, nor is supposed to work.  The law is not meant to be a bludgeon in the hands of the government, where the powerful get to exercise it if and when they deem it necessary.  That Hawkish Mr. Walden trusts the Department of Justice to tread lightly where he, in his hawkish personal opinion, believes it’s warranted is not a substitute for my vision of fairness and equity. 

It’s not that we disagree that street level drug dealers should not be subject to the mandatory minimums. Indeed, we are in complete agreement, to that extent.  But I have no plans on handing unfettered discretion to the government to decide if and when to slam a defendant, because someone in the United States Attorneys office has decided that he’s the one who deserves it.

What makes posts like Walden’s insidious is that many will applaud his take, that he argues against the application of mandatory minimums to non-kingpins.  Woo hoo, they cry. He’s one of us.  Do not be fooled.  He is most assuredly not one of us, whoever us is.  He is a purveyor of omnipotent government, with only Prosecutorial Oblige to limit its worst impulses. 

If you trust the government to be all-powerful, but only use that power when it’s deemed necessary, than maybe you can go to lunch with Walden and McCarthy.  If you prefer that Congress enact laws that prevent the government from using the bludgeon at will, then don’t be fooled. When the government has power, it uses it.  As long as there are mandatory minimums, there will be full prisons.

The crime committed by former New York  Police Officer Michael Pena was, as Justice Richard Carruthers called it at sentence, “deplorable.”

Handing down a sentence that virtually assures 28-year-old Michael Pena will spend the rest of his life behind bars, state Supreme Court Justice Richard Carruthers said the former officer “showed by his deplorable conduct that he was not one of New York’s Finest,” invoking the department’s nickname.

“He showed instead that he is a sexual predator,” Justice Carruthers said.

No question about that. Pena was a forcible sexual predator in the real sense, not merely the politically correct hyperbole that reduces words to meaninglessness. His conduct was, in every sense, deplorable.

But that doesn’t provide much of a measure for sentence.  When the judge announced the sentence of 75 years, two things became abundantly clear: First, that the sentence was significantly more harsh than Pena would have received had he been convicted in a typical murder case. Second, that he would die in prison.  He was sentenced to death, the slow way.

In Tamer el-Ghobashy’s  Wall Street Journal story about the sentence, I sought to convey the disconnect between the deplorable crime and the severity of the sentence:

Scott Greenfield, a veteran criminal-defense attorney who runs a legal blog, said the sentence is “hugely excessive in the abstract,” especially when weighed against the 25-years-to-life sentence typically reserved for murder.

Mr. Greenfield suggested that Mr. Pena’s status as a police officer who broke the public trust and used a police-issued weapon was “probably an aggravating factor that elevated” the sentence.

Still, as legal thresholds evolve, Mr. Greenfield said, a life sentence for crimes such as drug dealing are becoming more common. He said it is difficult to assess how unusual Mr. Pena’s penalty is.

“Is this an extreme sentence for someone who didn’t commit the crime of murder? It used to be,” he said.

In the post-federal sentencing guidelines age, the post-Madoff sentence, it’s no longer possible to assess an unusual sentence. The range tends to be from harsh to ridiculously harsh.  Trying to make sense of sentences, or even to find context within which to place a sentence, is nearly impossible.

After Tamer’s article appeared, I received an email from a woman who claimed no connection to the case, but wished my wife and daughter would be brutally raped in punishment for my words. That someone overwrought with emotion would write such a thing isn’t uncommon, but reflects that an unfortunately typical lack of reason when it comes to the public’s perception of sentencing. The anger is so strong that they should all die, as should anyone who doesn’t share their anger.

Pena’s lawyer, Ephraim Savitt, was so outraged by the severity of the sentence that he took the media.  In an op-ed that was published in the Daily News, Savitt wrote:

True, my client was convicted of acts that are unpardonable. The jury found unanimously that he sexually assaulted the victim, but was deadlocked on whether or not he had raped her.

This calls for a strong sentence. According to the John Jay College of Criminal Justice, the national average sentence for rape offenders does not exceed 10 years. Michael Pena has been sentenced to more than seven times the average for his conviction on nonrape charges. Life behind bars, which is essentially what he received, is typically the sentence given to career criminals, Al Qaeda terrorists and professional hit men.

While making a strong case for the disproportionality of the sentence, Savitt took a problematic path to get there:

But what’s this really about? Will the victim “find peace” now that my client has been sentenced to the functional equivalent of life imprisonment?

Hardly. These days, politics, vengeance and trial by the media have become the order of the day. Those factors have created significantly higher watermarks in sentencing — but only for certain offenders, namely those who serve or served as cops.

His explanation for what went so terribly wrong is that Pena was a cop.  This argument doesn’t bear out particularly well for two reasons.  The fact that Pena was a cop, a New York City Police Officer, with a shield and a department issued gun which was used to perpetrate his crime, is a factor that should be taken into consideration.  Had he not been a cop, he wouldn’t have been authorized to carry that gun, a huge trust between society and a man that he can wield a  weapon and authority to serve society.  That he used it to sexually assault a woman is a massive violation of that trust, and deserves recognition as an aggravating factor.

The other aspect is that the newspapers, and these digital pages, are replete with stories of cops doing harm, committing crimes, even murdering people, who walk away with light to no sentences because they’re society’s heroes.  Maybe they did wrong, but we avert our eyes from the dead and destruction they cause because they are cops.  Savitt’s claim that cops have it worse because of “politics, vengeance and trial by media” just doesn’t bear out.

Once again,  Carlos Miller proves that a picture is worth a thousand words, and that our need for images of the reality on the streets of police encounters cannot be understated.  Two cops are on trial for their beating to death a homeless man, Kelly Thomas, the subject of an earlier post.

Carlos now provides the video of Thomas’ killing.  While I could embed it here, I prefer that you watch it at Carlos’ blog, as he provides a substantial amount of additional information about the case and, frankly, deserves your interest more than I do.  He’s done all the heavy lifting, and I just ride his coattails.

But Carlos includes a few pictures in addition to the video, which provide as stark a juxtaposition as I’ve ever seen.  Here’s the picture of us.



Here’s the picture of them.



I have nothing more to add.

H/T Radley Balko

Given the amount of time I spend thinking about legal marketing and its impact on the legal profession, I couldn’t help but watch in amazement/amusement the debate between Lexblog honcho  Kevin O’Keefe and Tom Watson, Senior Vice President at Wisconsin Lawyers Mutual Insurance Company.

Watson wrote about a cautionary post about the perils of social media.

Use social networking sites to better serve your clients and help create new business. But do not lose sight of your ethical obligations in accessing, or protecting a client from, information disclosed electronically.

He also gave a long list of horribles, and short list of benefits. This made Kevin start to sweat profusely, and prompted this response.

I don’t know whether Watson uses Twitter, Facebook, or a blog to build and nurture relationships or enhance his reputation as a thought leader on malpractice insurance statewide or nationwide. He may not fully appreciate how social media works nor the benefits it brings to the public an lawyers.

I understand that he is just doing his job as a legal malpractice carrier and that he is citing other authorities for much of what he writes. But my gut tells me articles like this on the perils of social media do far more harm than good to lawyers and the public we serve.

Things get uglier in the comments, where  Watson argues that he’s saying nothing more than be cautious, and Kevin, in an interesting rejoinder, questions whether anybody has ever been disciplined for something they did on social media. 

This is a dangerous question in the abstract, but because  there have  certainly been disciplinary cases involving social media (even if Kevin doesn’t know about them), but more importantly, the sine qua non of ethics isn’t whether someone was nailed for a violation of a disciplinary rule, and the suggestion that anything that doesn’t land you in lawyer-jail is cool is, frankly, dangerous and foolish. Some of us prefer to be ethical. Some of us prefer to do whatever serves our self-interest, provided we don’t get caught. What’s your preference?

While the dispute didn’t strike me as too, well, serious, it apparently compelled Kevin to write another post questioning whether the use of all social media is subject to ethics rules.  This is where an otherwise mundane disagreement becomes interesting.

The simple answer is that everything a lawyer does is subject to ethics rules. Being a lawyer is a 24/7 gig, and no one should be confused about the obligation to be ethical after hours. But that’s not really the issue Kevin’s raising. Rather, the issue is whether all use of social media is advertising, and therefore subject to the rules for attorney advertising. 

To answer this question, it helps to know the definition of commercial speech, which is subject to intermediate rather than strict scrutiny, and can therefore be regulated provided the government has pretty good reason and it’s regulations don’t go too far over the edge. 

Kevin  kicks the question over to my buddy Josh King, who holds the curiously divergent positions of general counsel of Avvo and VP of business development.  In a video interview with Colin O’Keefe (Kevin’s son and a great kid) done at Avvocating 2012 (see my  keynote address that went undelivered), Josh defines commercial speech (and thus speech subject to regulation as attorney advertising) as speech which “proposed a commercial transaction.”

Well, yeah. That’s accurate as far as one definition is concerned, but it’s not the end of the story, both because defining a word by using the word in the definition never works, and more importantly, that’s not the end of the definition.   Caselaw also defines commercial speech as that which informs the public of the quality, nature and availability of good and services.  That means much of the writing by lawyers in social media is certainly commercial speech.  All of it is not. 

This is where Kevin gets himself into trouble, with an unfortunate attempt at analogy:

Is fashion attorney  Staci Riordan, perhaps the fastest woman associate to make equity partner at Fox Rothschild, a century old national law firm, advertising with her heavy use of Facebook and Twitter?

Riordan, like many shrewd lawyers who truly understand relationships and reputation aren’t built by having separate online identities, uses Twitter and Facebook to network and engage with business leaders, other lawyers, civic leaders, and friends. Riordan knows networking to nurture relationships and establish trust with others so as to build a strong word of mouth reputation is the stuff life is made of for lawyers looking to grow their business and become better lawyers.

Is Riordan’s activity on Twitter and Facebook advertising? How about her Fashion Law Blog?

For some reason, I suspect Staci’s making partner had more to do with her abilities as a lawyer than her blog. Why Kevin would choose to diminish Staci’s substantial professional accomplishments in order to promote her blogginess, wrapped up in such absurdly pretentious language that it makes me wince, is that it serves his interest, the promotion of blogging.  Staci deserves better.

But the problem is that if Staci’s blog was directed to the purposes Kevin attributes, it would likely be commercial speech rather than substantive speech.  If her purpose is to grow business rather than illuminate issues in the law, then it’s about the quality and nature of services for sale.  Sure, Kevin tosses in at the end “better lawyer,” but nothing else he’s written suggests any connection whatsoever.  It plays better if you try not to think too hard.

So what’s the point?  It’s hard to imagine how anyone without a direct financial interest would have a problem with Tom Watson’s admonitions to be cautious and ethical in social media. We should be ethical in everything we do, and this shouldn’t be controversial.  Similarly, Josh’s argument, that we ought to push the limits of ethics to test how far we can take speech to reap financial rewards is troubling. It seems like the Gordon Gecko version of ethics in the age of greed.

As for Kevin’s point, perhaps he’s right that there are financial benefits to engaging in social media, though I’ve never found it to be true, or that the trade-offs come close to making it worth your time if your purpose is to develop business.  There may be that one in a thousand lawyer who’s gotten enough business off the internet to make it worthwhile, and I don’t begrudge her if that’s the case. 

Yet, denying that social media doesn’t hold the potential, if not the likelihood, of being a vast cesspool of unethical conduct by lawyers is fundamentally wrong. It is not a truth-free zone.  It is not absolved from ethical considerations because it’s web 2.0.  It is not an opportunity to put on those pink hotpants and strut down the boulevard. 

You want to use social media to generate business?  Heed Tom Watson.

And now we return to our regularly scheduled programming.

The only place in New York City that gives Bed-Sty a run for its money on the Police Department’s stop and frisk initiative is The Bronx.  You know the place, Yankee Stadium.  The Grand Concourse. Blacks and Hispanics. Drugs.

And like any good police initiative that just happens to focus on people whose skin color is a shade or two darker than white folks, we can rest easy knowing that New York’s Finest are there to protect and serve, and they would never, NEVER, make stuff up about busting some kid on the street. Except when there’s video.

Via NY1 :

Officers swore they witnessed bags of crack and marijuana being carried by [Jateik] Reed. In the criminal complaint one officer is quoted as saying, “He observed the defendant to have on his person, in his hand, one (1) clear plastic bag containing a white, rock-like substance, which he threw to the ground. In his hand, two (2) clear plastic bags, each containing a dried green leafy substance with a distinctive odor, in public view.”

Surveillance video from a nearby building shows Reed walking with his hands out, no drugs in view. John Eterno, a retired New York City Police Department captain, says it appears Reed shouldn’t have been stopped.

But the officers swore.  They swore.  Doesn’t that mean anything?



And if the lie isn’t reason enough to watch the video, the gratuitous kick at the end is icing on the cake. There’s nothing like a fun little kick of a handcuffed perp on the ground to cap off a busy day, right?  And see all the other officers rush to stop the kicking cop?  Neither did I.

The allegations against Jateik Reed are about as ordinary as they come. It would hardly be surprising if they have a change-the-name form on the computer in ECAB to save time.  Naturally, street level drug dealers walk around the Bronx flashing packages of drugs in their hands to everyone in sight.  At least that’s what cops say, and prosecutors and judges believe.

Yet again, a lie is exposed, and a defendant walks free, because a video showed that the police lied.  The cops are on paid vacation while the matter is sorted out, since lies by police officers require massive, lengthy investigation, although lies by civilians are dealt with swiftly and harshly.  But then, civilians don’t protect us at night, and therefore aren’t deserving of our respect and admiration. And the benefit of the doubt.

And without the video?  Take a guess at what would have happened to Jateik Reed.  And the fair maiden officer who booted him would have put in for permanent disability at full pension for the injury to her toe.  it’s a very dangerous job, police officer. 

When someone wants to learn how to do something today, all they need to do is Google it. That’s true of reglazing a broken window, unclogging a pipe or performing an impromptu appendectomy.  It’s overwhelmingly true of hiring a lawyer, and there are, at this moment,  more than 75,000,000 results to a search of this question.

For the most part, the results exist for the purpose of steering the ignorant and pathetic to websites that funnel potential clients to desperate lawyers, who fee-split share advertising costs with the website for the referral.  Savvy consumers, of course, ignore these links, recognizing them for the shams they are.  Instead, they seek out independent voices, people with no financial interest in their advice, such as people who appear to be legitimate media columnists offering what seems to be “common sense” advice.

And this is what made Carolyn Elefant’s head explode.  Some guy named Warren Boroson, who writes a financial column in New Jersey (oxymoron?) posted Why every middle-class family needs a lawyer.  It’s a silly bit of writing, reflecting the typical naivete of someone with limited math skills and disinclined toward thinking.  The column first explains the “why””

I was thinking of this the other day when I learned that a young friend of mine was unhappy about paying a $300 hospital bill. He had already paid a few hundred to physicians relating to the same incident.

Seems that he was eating out — and swallowed a bay leaf, which had been left inside a burrito. He was in such pain, he had to be taken to a hospital, where he was anesthetized and the bay leaf removed from his throat. He’s still paying the bills.

Yes, HE’S paying the bills! Not the damn restaurant! He never even contacted the restaurant about the matter. For all he knows, the restaurant is still slipping bay leaves into innocent people’s gullets. And he never even contacted a lawyer!

A lawyer, if he or she was any good, would have contacted the restaurant and demanded that it pay all the young man’s medical bills. And maybe suggested that the restaurant shell out something for the young man’s pain and suffering, too — based on what such cases have been fetching in recent years. I would guess: $50,000 at least. The restaurant no doubt has insurance to cover such contingencies. Of course, if the restaurant proved recalcitrant, the lawyer could actually have filed suit.

But no, the young man did nothing. He didn’t even have a lawyer.

When you PI guys are done chuckling, now you know why you got a call from Jersey yesterday from some nutjob who demanded his $50 grand from Taco Bell, and was doing you a huge favor by letting you collect it for him. 

Boroson raised a laundry list of trivial issues where a lawyer would come in handy. Indeed, few of us would argue the point of how handy we are.  On the flip side, he doesn’t seem to grasp that lawyers aren’t dying to fight that $127 repair charge for the KitchenAid mixer that leaked oil into your cupcake batter. Not even in the vain hope that next year, the client will sue his neighbors for making too much noise at night. This is one of the bizarre dreams of folks who don’t get the idea that lawyers work for a living.

So New Jersey’s most brilliant financial advisor offered a short list of things the middle class client should consider in finding a lawyer:

Some other advice about hiring a lawyer:

• Ask up front what he or she charges — and what his or her assistants charge.

• In general, avoid solo practitioners. Their ethical standards tend to be lower than those of lawyers in partnerships. (Comments the lawyer: “Many solos specialize in fairly narrow fields and opt to be independent.”)

• Complain if your lawyer doesn’t return your phone calls promptly, or in general doesn’t keep you informed. (Lawyer: “But be reasonable. If you lawyer-hop, no good lawyer will take you on as a client.”)

The parentheticals are some unnamed lawyer’s reactions to Boroson’s advice, as related by Boroson.  And no doubt you see what set Carolyn off.  What, you wonder, is the basis for such a remarkable assertion? While the column offers nothing,  Boroson’s comment to Carolyn’s post provides a clue:

Even among physicians, solos are less ethical–and more likely to have problems, because they aren’t working directly with physicians who could monitor their conduct.

This reminds me of the old joke about the client who paid in cash, and while counting the money, the lawyer found that two $100 bills were stuck together, giving rise to the ethical dilemma: Did he have to tell his partner?

The internet is lousy with insufferably simplistic, assumptive “advice” from people like Boroson, whose reach far exceeds their grasp. Frankly, I’m happy he didn’t tell his readers to only hire lawyers with iPads, because that means they’re “cutting edge” and cool.

But while his assertion is simply wrong, and his reasoning is fundamentally flawed, there is an aspect that can’t be so easily dismissed.  And as much as Carolyn, the foremost advocate for solo practitioners in the blawgosphere, tries to fight it, the fact of the problem can’t be denied.

What the heck are you talking about, you ask?

You’re inviting foolishness by writers like Boroson with deceptive legal marketing.  Every lawyer website claiming to be the best lawyer since Clarence Darrow, to be experienced despite being admitted yesterday, to puff our victories and ignore our defeats, feeds the perception that lawyers lack integrity.  And sadly, this is more prevalent with solos and small firms, who are struggling to create an internet presence that will bring them business at the price of honesty. 

It’s disingenuous to promote legal marketing with the proviso that it be entirely ethical and accurate, pretending that the race to the bottom isn’t happening and dismissing the dishonest as if what they’re doing doesn’t relate to the rest of the profession.  From the outside, we’re all just lawyers, and as some slime their way into the gutter, their stench attaches to all of us.  Expecting the public, or New Jersey financial columnists, to spend the time to differentiate the integrity on a lawyer by lawyer basis is foolish. They won’t spend the time. We’re not worth the time.

And so we’re painted with a broad brush, wrong as it may be, as lacking the ethical standards necessary to represent the guy who ate a bay leaf.  No matter how silly Boroson may be, we’re wrong to ignore how legal marketing has fed into this perception.  And if you don’t like being called unethical because some other lawyer has chosen to walk the boulevard in hot pants, then do something about it. 

Don’t blame Boroson (or any of the other clueless people offering ignorant advice on the internet) for assuming the slime of the legal profession reflect all of us.  That’s the view from the outside.  Either stand up and do something about it or don’t complain.

Via Jonathan Turley, counsel for a Gitmo defendant has raised a very curious issue, and engaged in what may be a dangerous tactic, by wearing a hijab before the military tribunal and requesting an order requiring other women do so as well.

Cheryl Bormann, counsel for defendant Walid bin Attash, has created a stir over wearing a hijab to the military tribunal and asking other women to cover up out of respect of the Muslim sensibilities for the defendants.

Bormann requested a court order for other women to follow her example, at least in dressing modestly, so that the defendants do not have to avert their eyes “for fear of committing a sin under their faith.” She insisted that her hijab was necessary since, “[w]hen you’re on trial for your life, you need to be focused.”

However, regardless of the forum, I do not believe an attorney should accommodate a client’s beliefs to this extent. It is important for clients to understand the relationship with an attorney is a strictly professional one. Moreover, they appear in a court that reflects the values of a pluralistic society. While you are allowed to personally follow any set of moral beliefs and practices, you cannot force others to adhere to those values.

While this is certainly true, and a point that I’ve emphasized in the past in contrast to some lawyers whose emotional investment in a case impairs their professional detachment, I’m not entirely sure that Bormann’s choice, and bearing in mind that it’s entirely Bormann’s choice as no one is forcing her to don a hijab, isn’t quite a shrewd tactical move.



In essence, she has made herself into a walking witness for a critical aspect of the case, that her client’s perspective, his universal view if you will, isn’t that of a mall rat from Jersey, but of a Muslim.  Her attire is demonstrative evidence, and an ever-present reminder, that the trial reflects a cultural clash of massive proportions.  Americans have a particularly difficult time comprehending that our sensibilities aren’t shared by everyone else.  The hijab shows otherwise.

This isn’t to say that Bormann had any obligation to dress herself in a way that better suited her client’s religious beliefs.  As for his ability to “focus” without averting his eyes from his hot American lawyer, that’s hardly Bormann’s problem, or anyone else in the courtroom.  Regardless of whether he stands trial in Gitmo or the Southern District of New York, there was little expectation that it would reflect Muslim culture and religion. 

To a small extent, Bormann’s choice may present an issue as to whether she’s been coopted by radical Islam, wearing the hijab as a reflection of her own religious and political conversion.  Her credibility as counsel is a critical component of her effectiveness, and if the hijab gets in the way of her being taken seriously, then the tactic of being walking evidence is severely undermined.  It’s a risky move, for sure.

At the same time, her credibility as counsel will be based far more on what comes out of her mouth than what she wears on her head.  The hijab will fade into the background soon enough, as everyone gets used to seeing her attire, and then it will be up to her to provide the substance needed to defend her client.

The request that the tribunal order other women to wear a hijab out of respect for her client’s sensibilities, however. strikes me as a step over the line, both professionally and tactically.  That Bormann has chosen to do so is her choice. 

There’s a huge difference between making a voluntary decision and trying to ram it down other’s throats.  They tend not to take kindly to such efforts, and the argument in support, that an American tribunal (or courtroom) should remake itself to meet a defendant’s religious sensibilities.  It’s not just the fact that it’s a losing argument, but that it borders on ridiculous.

Orthogonally, Turley makes clear his objection to defendant’s being tried by Gitmo tribunals, which is clearly understandable from a doctrinal perspective.  And a while back, it wouldn’t have dawned upon me to question this.  But having learned a great deal from Eric Mayer’s  Unwashed Advocate (formerly Military Underdog), the seeds of doubt have been sown. 

There’s something to be said about a tribunal with so firmly entrenched a sense of honor that it isn’t necessarily trumped by outcome which makes me wonder whether, on a very practical level, the defendant doesn’t stand a better chance before a military tribunal than before a federal judge sitting in an American courthouse.  It’s not that the former is immune to bias, but that the latter is as well and lacks indoctrination in a culture where honor compels the trier of fact to make the hardest choices rather than the expedient ones.

This isn’t to suggest that the military tribunals in Gitmo are the proper way to go, or that this is a legally justifiable choice.  Rather, just a reflection of doubt about our legal systems strength of will when it comes to providing fundamental fairness to so hated a defendant.  Given the struggle to obtain due process and a fair hearing for the “ordinary” defendant, it’s hard to believe that alleged enemies of our nation will be given much of a chance at experiencing the greatest legal system there is (if we do say so ourselves).

There’s nothing like some media attention to get cops off their stools at Dunkin’ Donuts, so when the “dapper groper” case caught the attention of the press, someone had to be arrested.  That someone was Karl Vanderwoude, whose picture was smeared across the screen and tabloids.

As that bastion of journalistic integrity, the New York Post put it:

[Note: This isn’t going to be a funny or salacious post. The first half is pretty boring, and I beg you to get through it. The subject is important, maybe even critical, to our profession.  At least I think so. I don’t ask much of readers, but do me the courtesy of reading through to the end.]

On the surface, law schools today are thriving. Enrollments are on the rise, and their resources are often the envy of every other university department. Law professors are among the highest paid and play key roles as public intellectuals, advisers, and government officials. Yet behind the flourishing facade, law schools are failing abjectly. Recent front-page stories have detailed widespread dubious practices, including false reporting of LSAT and GPA scores, misleading placement reports, and the fundamental failure to prepare graduates to enter the profession.

 

Addressing all these problems and more in a ringing critique is renowned legal scholar Brian Z. Tamanaha. Piece by piece, Tamanaha lays out the how and why of the crisis and the likely consequences if the current trend continues. The out-of-pocket cost of obtaining a law degree at many schools now approaches $200,000. The average law school graduate’s debt is around $100,000—the highest it has ever been—while the legal job market is the worst in decades, with the scarce jobs offering starting salaries well below what is needed to handle such a debt load. At the heart of the problem, Tamanaha argues, are the economic demands and competitive pressures on law schools—driven by competition over U.S. News and World Report ranking. When paired with a lack of regulatory oversight, the work environment of professors, the limited information available to prospective students, and loan-based tuition financing, the result is a system that is fundamentally unsustainable.

Look past the occasional vulgarity and disgusting pictures. Don’t dismiss the posters as whiners. To a person they accept responsibility for their poor decisions. But they make a strong case that something is deeply wrong with law schools.

In most states, you can’t be a lawyer unless you graduated from an ABA-accredited school. Law professors have run the ABA accreditation process, however, and have done so in ways that ensure that all ABA-accredited schools treat professors extremely well and that law schools are quite nice places to work. This has led to a surprisingly uniform educational system in which nearly every school adopts a high tuition model that gives professors low teaching loads, nice salaries, and lots of time for research. Some professors work extremely hard and produce important scholarship, which is the goal. But many other professors just coast and take advantage of their good fortune after making it past the (typically low) tenure hurdle. And Deans generally can’t treat the hard workers and productive scholars better than the dead wood because Deans generally require faculty support to stay in office: A Dean who favors the productive scholars and top teachers too much may not stay in office long. So salaries for all professors are high and course loads are low, whether the professors work 80 hours a week or 20.