The American legal system is in crisis.  I know because the first line of a  New York Times editorial says so, and if it’s in the paper, it must be true.

American legal education is in crisis. The economic downturn has left many recent law graduates saddled with crushing student loans and bleak job prospects. The law schools have been targets of lawsuits by students and scrutiny from the United States Senate for alleged false advertising about potential jobs. Yet, at the same time, more and more Americans find that they cannot afford any kind of legal help.

It’s not a great scenario by any stretch of the imagination, but a crisis?  The country’s economy remains in deep trouble as the price to be paid from living the unearned dream and profligate spending.  Sure, law schools turn out more lawyers than the economy can absorb, and neither the ABA nor the schools themselves want to admit this or deal with it.  We’ve known this for a while, yet neither law students nor their parents had the good sense to do the legwork of figuring out that one shouldn’t go to law school unless one really wanted to be a lawyer,

The claim of crisis, however, turns on the argument that Americans can’t afford legal help.  That likely has something to do with the fact that they don’t have jobs, real earnings are in the toilet, we’re a litigious, over-regulated and over-criminalized society. 

We could take all those underutilized lawyers and hook them up with the unrepresented litigants, except it wouldn’t do much to pay off their student loan debt or feed their babies, on the lawkids side, or provided competent representation, on the poor litigant side.

Some might see this as a crisis, and maybe it is.  Certainly, the young lawyer with neither job nor expectation of one is having a crisis.  Similarly, the poor litigant with neither competent representation nor ability to fend off his accuser is having a crisis.  For that matter, we’re having a crisis in history majors in college. Philosophy too, unless they get credit for employment in the food service industry.

But law schools aren’t having a crisis. They’ve maintained their position of cash cow in the university structure.  They are educational Robin Hoods, stealing from the rich to give to the poor. They have to, or the American promise, a nation where there are only corner offices, cannot be fulfilled.

Somehow, the NYT relates this crisis to Langdellian method. 

Instead of a curriculum taught largely through professors’ grilling of students about appellate cases, some schools are offering more apprentice-style learning in legal clinics and more courses that train students for their multiple future roles as advocates and counselors, negotiators and deal-shapers, and problem-solvers.

While there’s much to discuss about the way to produce competent and client-safe lawyers, whoever drew the connections between this and the crisis hasn’t got the slightest clue about lawyers.  From what I can tell, the theory is that if law school was less expensive and produced more competent new lawyers, the excess would be able to go forth in the world and make a living representing people who can’t afford legal services.  Problem solved, right?

Well, no. Law students fight to get into school, and lose three years of their life, after four years of college, for the privilege of making it through a fairly rigorous course of study (regardless of whether that course of study does anything to really prepare them to eventually practice law). When they pop out the other side, some will chose to forego making big bucks to serve people in need, just as they always have. Others, however, want some remuneration greater than what they could have gotten as assistant manager at Dairy Queen, something they could have gotten without all this struggle.

The people who can’t afford legal services have one abiding quality. They don’t have money to spend on lawyers. This means that no matter how qualified the lawyers are, they aren’t going to make a good living representing them. Sure, if their student loans were smaller, they would be able to keep more or what they earned, but the differential doesn’t make a dent in the problem. The bulk of people who can’t afford legal services can’t afford to pay anything. Maybe they can give their lawyer a chicken, but that’s about it. They have their own children to feed, and they can barely do that. Plus, they need a new iPhone.

So the poor still won’t be able to pay lawyers, even cheap lawyers, because they’re poor.  The new lawyers still won’t be able to survive, even if law school cost less, because they are being paid squat by poor people. Even if they come out of law school incredibly competent and skilled, they will still go hungry.  And it makes no sense to go to law school, even if it was free, if you’ve going to end up earning the median income of an assistant manager at Dairy Queen.  Just head straight for the Dairy Queen, and then we can have a Dairy Queen crisis.

The problems start at the top, with our litigious, over-regulated, over-criminalized society, creating a demand for lawyers by people who can’t afford a lawyer.  If they had jobs and earned decent money, they would be better able to afford a lawyer. If politicians stopped manufacturing legal solutions for every oddball complaint, they could save their money because they wouldn’t have as great a need for legal representation as every facet of American life wouldn’t require counsel. 

If the ABA shut down a third of the law schools, we wouldn’t be pushing out 15,000 more lawyers than our economy can absorb, and those who came out would have a place to go during the day.  The displaced lawprofs would have to work for a living, but then they would gain the practical lawyering skills that would be demanded by law schools bent on using lawyers/scholars as professors rather than philosophers. Imagine law schools where experience was viewed as a positive rather than odious.

As for the cost of law school, it can be cut to near zero by charging liberal arts doctoral students what we now charge law students.  Except they wouldn’t pay it, because law students get rich and they don’t? 

If this is a crisis, and the New York Times says it is, then it’s one created by all the players, most of whom exist outside the profession and the academy.  Sure, we’ve got plenty to do to put our house in order, and plenty of resistance to change.  But our crisis came about in the context of problems created outside the law.

Fixing our internal problems won’t solve the crisis, and expecting the profession and academy to suffer the pain while the rest of society,

• the ones who demand a new law every time a child dies,


• the ones who refuse to work on the assembly line because they were promised a corner office in a society that doesn’t produce anything of value,


• the ones who want lawyers to spend years in school but work for free,


• the ones who demand free doctorates on the backs of law students,


• the ones who see no problem sucking gazillions out of our economy to bomb and rebuild countries across the globe who want nothing to do with us,


• the ones who demand law and order but refuse to pay taxes,


• the ones who will pay any price in the name of safety,


• the ones who want to micromanage every perceived societal ill,


• the ones who want to get rich themselves but decry others as greedy,


• the ones who expect to earn a paycheck but can’t understand why others want to earn a decent living commensurate with their education, effort and opportunity costs, as well,

goes about their lives as if this has nothing to do with them.  So lawyers suck and we’re all a bunch of blood sucking leeches?  Try running a society without us. Then you will have a crisis. For real.

We may argue amongst ourselves over the best way to produce the proper number of competent and honorable lawyers to serve the needs of this nation, but I’ll be damned if the rest of society can screw itself up and dump its problems on the backs of either lawyers or lawprofs. The “crisis” about which the New York Times opines stems from a badly screwed up nation, its economy, philosophy, work ethic, expectations and irrational demands.

It’s not up to lawyers to suffer for society’s sins. We’ll fix our problems. You fix yours.

The holiday season brings back memories of one of my more enduring experiences with a client many years ago who sent me a very unpleasant letter.  He accused me of everything from incompetence to misanthropy because I failed to visit him in the slammer between Thanksgiving and Christmas.

I thought you loved me like your own son, and yet you didn’t even bother to visit me.

I’ve had many clients with whom relationships have grown.  We’ve become friends, outside of my relationship as lawyer.  But when I wore my lawyer hat, I was their lawyer. All the way.

There are some lawyers who drip with emotion over their clients, whether expressing some odd adoration or sharing in the melodrama of their misery.  They claim an emotional connection more appropriate for lovers than lawyers.  Sometimes, it’s as if they do love them like the defendant is their own son.

This is a disservice.  This is a mistake.  While the client may believe that’s what he wants of you, and may, at least during the course of representation, deeply appreciate the bond that develops, you do not serve him well by becoming his father or mother. 

I responded to my client’s letter by telling him that I am not his father. I am his lawyer. I do not love him, but I represent him. I will not cry regardless of the outcome, but I will do everything within the bounds of the law to achieve the outcome he wants. And because I am not his father, because I do not love him, because I will not cry over him, my eyes will remain clear to see my duty, my responsibility, my opportunity, unclouded by emotion or tears.

As for the visit, I go to jail to meet with a client when there is a reason for me to do so as his lawyer.  I expect his family to go regularly, frequently, to hold his hand and to keep him abreast of things that interest him, but my job is not babysitter or hand-holder.  I include in my retainers a provision that if a client wants me to visit him in jail when there is no need for a visit for the purpose of my representation, there will be an additional fee.  Rarely does any client want to pay the additional fee, and so rarely do they ask for an extra visit.

Is this cold?  Is this heartless?  Well, yes, to some extent it is.  It’s also what is demanded of us as lawyers.  Cold, heartless representation.  Warm and fuzzy is better provided by a puppy, but our work has very real consequences.  When our decisions, our will to act, is guided by emotional concerns rather than cold, heartless reason, we lose our detachment and allow our feelings to influence our choices.  That’s self-indulgent. 

Clients do not come to us because they want to retain a new best friend.  That they don’t understand this isn’t the point; for the most part, if they thought a bit harder, they wouldn’t need us at all.  But they do because they are in trouble, desperate straits, and we are the unpleasant profession to which they turn to save their sorry butts. 

I remember working a case years ago with David Lewis, a big bear of a guy with great wit and a winning smile.  The defendant asked David to win the case for him.  David bared his teeth, and went from teddy to polar, looking remarkably unattractive and inordinately threatening.  He told the client, “I will win your case, but for me, not you. I’ll win because that’s what I want to do for my reputation, because I have the need to win.  I would win it whether you were the defendant or anybody else. I’m not your friend. I’m your lawyer.”

It’s not that it would kill you (or me) to pay a visit to the jail to see a detained client during the holiday season. If you have the time, it would be quite a thoughtful thing to do.  There is nothing about serving your clients that preclude being civil and accommodating, engaging in the normal courtesies that humans typically extend to each other.  But this isn’t to confuse what our obligation is toward our clients, to be capable of turning cold and heartless when our duty demands it. 

Now that Black Friday is behind us, and as we move forward toward Christmas, the season of goodwill toward men (and women, and dogs, and whatever), your clients will wonder whether you love them enough, whether they are like a son (or daughter, or pet, or whatever) to you. And you will want to show them you do. We’re still human, and of the particular subset inclined to defend human beings accused of crimes.  We’re wired to care or we couldn’t do this job.

And in this age of desperation, where getting the business drives us more than winning the cases, appealing to the things that make client’s love us in return seems such a natural way to run our practices.  Isn’t the magic bullet that people do business with people they like, and so making them like us is the overarching concern for lawyers who want to earn enough to put sweet gifts under the tree for their actual children?

There are many lawyers who are exceptionally nice, likeable and caring toward their clients.  There are lawyers who will do everything within their power to represent their clients zealously, with cold, heartless detachment.  There are very, very few who can claim both attributes. There are no lawyers who love their clients and can still do their job well. 

After you win the case, you can love them all you want. Until you win their case, you are their lawyer, first and last.  Don’t let the season cloud your eyes as to why they come to you or what they truly need of you. Give them the gift of excellent representation.  Others can give them love.

The  recriminations from David Segal’s  New York Times article on law schools continue, most beginning with some variation of a disclaimer, with this being the best :

On the topic of scholarship and lawyering inspired by Segal’s NYT bile pile, I’ve mostly refrained from weighing in. But one of the recent comments however has spurred me to temporarily intervene. The legal academy has been emphasizing scholarship among its members for at least 20 years and at the top schools it has been even longer. Some of the Segal/Campos scamfans talk about law profs under this regime of intellectualism as being poorly situated to instruct the next generation of attorneys. 

Do we think the lawyers who were trained over the last 20 years at law schools under this new ‘scholarship’ regime are worse than the lawyers who were trained beforehand when scholarship was less significant in the lives of law professors? If so, what are the metrics for making that claim? Or do people not actually think that pinheaded prawfs are bad for lawyering but rather their recherche* interests simply raise the cost of legal education more than it’s worth? 

Aside: the truly misguided aspect of Segal’s article with regard to how criminal law is taught is that he complains that students are taught “plea bargaining,” as if they should bypass learning how to win and go straight to learning how to lose gracefully.  Rather than smack Segal for this egregious error, Mazzone adds:

Finally, given Segal’s complaint that scholarship lacks relevance, it is worth noting that there is a huge amount of scholarly attention to plea bargaining. Some of the best work in the field of criminal law/procedure is on the topic.

So Mazzone not only misses the chance to finally land a blow against Segal, but demonstrates the disconnect between scholarship and utility in the same breath. 

Aside: In New York, a contract for the sale of a house 30 years ago consisted primarily of a four page Blumberg form, plus a one to two page rider inserted in the middle, typed in triplicate using carbon paper between the three sheets of onion bond.  Today, a contract without a 20 page (at minimum) rider is considered prima facie incompetent.

Aside: St. John’s lawprof Marc DiGirolami , in a post reminiscent of a three year old screaming “look at me” to the grown-ups, pumps an essay of his that is tangentially related to the discussion (why not seize the opportunity to get people to read his stuff, since otherwise it might go wholly unnoticed), as the voice of quasi-experience:

A number of the differences between Anders and me are peripheral to the discussion here, but some of what my reply does is to think a little bit about what sorts of abilities the criminal practitioner possesses, based on my own experience as an ADA for a few years before I began to teach.  I certainly do not claim that my experience is typical (I did not practice long or broadly enough to be able to make anything like that claim); it reflects merely one person’s thoughts about the quality of what a criminal practitioner knows, and so what it might be useful for him or her to begin to learn in the criminal law course.

While the essay is actually pretty good, if unduly dorky, the experience to which Marc refers is a year as an ADA, and another year as a “special” ADA, and this is sufficient experience to give a theorist a decent spanking.  You can’t make this stuff up.

1. Exquisite; lavishly elegant and refined.


2. Exotic or obscure.

** Mouse-milking – adj.

    A phrase used by the late Chief Judge Charles Brieant of the Southern District of New York to describe an argument grounded in trivial, and hence worthless, distinctions that would be unconvincing regardless of whether correct.

What would the internet do without Walmart?  There’s always something special about Walmart shoppers, good for a laugh and to appreciate that you aren’t in the photo, but combining these special patrons with Black Friday is just too toxic for words.

I make no bones about declaring Black Friday to be the  worst symptom of our diseased consumerist society.  It’s just sick.  But that doesn’t mean it can’t get sicker, and here’s this year’s flavor.

A woman shot pepper spray to keep shoppers from merchandise she wanted during a Black Friday sale, and 20 people suffered minor injuries, authorities said.

Police said the suspect shot the pepper spray when the coverings over the items she wanted were removed.

“Somehow she was trying to use it to gain an upper hand,” police Lt. Abel Parga told The Associated Press early Friday.

He said she was apparently after some electronics and used the pepper spray to keep other shoppers at bay.

If she had a taser (or maybe a handgun, as is her fundamental right), she could only nail one competing Walmart shopper at a time. That would never do.  She could never reload fast enough to keep the other shoppers away.

No doubt whatever piece of electronics she sought was very important to her, and likely at an exceptional price.  It would make someone a wonderful gift. Really, she was just trying to make a loved one happy at an exceptionally good price, and would happily harm anyone in her way.

It’s a disease, and this is just a symptom of a sick society who will harm another human being for a gadget.

Happy Holiday.

In one of the most absurd fact patterns, Grant County, Wisconsin, District Attorney Lisa Riniker decided it would be a  really good idea to prosecute a little boy, playing doctor and touching a 5 year old girl on her buttocks, for first degree sexual assault.  Riniker sent the summons to the 6-year-old, informing the child that he can be jailed for his failure to appear.

Riniker’s rationale was that “the Legislature could have put an age restriction in the statute … the legislature did no such thing.” As Radley Balko aptly notes, so much for relying on prosecutorial discretion to keep the lid on taking half-baked legislation to its logical extreme.

So attorneys for the boy have filed a §1983 action.

Attorneys for the parents of the 6-year-old, who is being referred to as “D,” said that Riniker has gone too far by bringing a felony sex charge against a first-grader for touching a 5-year-old girl inappropriately while playing doctor last fall.

“That behavior by a prosecutor is outrageous,” said Christopher Cooper, an attorney for the boy’s parents.

Cooper and attorney David Sigale filed the federal suit last week, alleging that Riniker wants D to sign a consent decree admitting some level of guilt.

 “We’re certainly hoping to vindicate D in the eyes of the law,” Sigale said.

The action seeks damages and injunctive relief.

Plaintiffs also seek injunctive relief to cause the Defendant Riniker to cease and desist from abridging the Parents (Plaintiffs) First Amendment rights by her pressuring the parents of “D” to force “D” to admit guilt when the boy says he did not do the act and, additionally, that the DA is demanding and pressuring the parents to sign a consent decree.

To make matters worse, the complaint alleges that the pursuit of this child is politically motivated.

[T]he girl is “the daughter of a well-known political figure in Grant County,” and her brother, who is the same age, also was involved in playing doctor but was not charged. In addition to Riniker, the lawsuit names as defendants retired Grant County Sheriff’s Sgt. James Kopp and Jan Moravits, an investigator with Grant County Social Services “whose regional supervisor…is the political figure’s wife’s sister-in-law”—i.e., the aunt of the alleged victim.

As the boy is too young to be the subject of a juvenile complaint, he  falls into the netherworld of “protection” for children:

Spend any amount of time researching the question on the internet, and you’re likely to think that anybody who doesn’t start their own firm is out of their mind.  Every lawyer with a freshly painted shingle touts how great it is, how great they’re doing, and they’ve discovered the good life. 

Sure, they’re not bringing down partner shares, but it’s positive and upbeat, plus they can spend half their day in Starbucks and the other half on the internet writing “winning” on every available social media platform, especially those dedicated to teaching, for a reasonable fee, how to market a new practice.  And then comes the New York Times.

Five and a half years ago, after spending years as commercial litigation lawyers at Proskauer Rose in New York City, Sari Gabay-Rafiy and Anne Marie Bowler decided to strike out on their own. They started Gabay-Rafiy & Bowler more as a lifestyle choice than a money-making venture. The first year in business, Ms. Gabay-Rafiy said, she made “just enough to pay the babysitter.”

And this is a success. They were making money, rather than losing.  According to the story, they learned to work lean and mean, and were able to increase their income to the point where they exceed what they were earning at Proskauer.  Whether that’s true can’t be determined, but reading a  randomly selected story from their “in the news” section of their websites suggested that the most newsworthy thing about the firm was its ability to show empathy in poverty. This isn’t exactly Proskauer’s slogan.  The problem is that every lawyer wants to make it look like their a player in the media, so anytime their name is mention, they make a big deal of it and stick it on the websites.  And hope no one clicks on the link.

The article is positive, but disinclined to puff the common lies being told.

Starting a law firm presents many challenges, especially for associates who have not had much experience running a firm. Michael Yim, Jane Chuang and a third lawyer, all former law school classmates, decided to start a firm in Manhattan last year, taking one large client with them. Three months later that client dropped them, taking 75 percent of the fledging firm’s revenue. Mr. Yim and Ms. Chuang’s third partner could not stomach the loss, and the relationship among the three became tense. He soon left, but Mr. Yim and Ms. Chuang soldiered on. “We started from scratch again, taking a long-term view of profit generation,” Mr. Yim said.

The firm became Yim & Chuang and now, a year later, business is better than Mr. Yim had projected, although marketing has been difficult. “There aren’t a lot of people who know about us yet,” he said. Still, he and Ms. Chuang decided not to take work they could not handle or simply did not want, even when it was tempting. “You can get this sense of desperation where you’ll take any paying client that walks through the door,” Mr. Yim said. “We’ve learned the best clients are people we would socialize with, because the relationship is comfortable, there is trust and it’s far more productive.”

There’s nothing like having a practice dependent on one client, then losing the client. And your third partner when they figure out there’s no money coming in the door.  Not good. As this firm at least has a working website, it was possible to see what they do, though notably their attorney profiles omit the single most significant bit of information that I look for, their year of admission or graduation, suggesting that they’re inexperienced and trying to conceal it from potential clients.  Welcome to the internet business model, 2.0. 

And what of alternative models, the forward-thinking panacea according to some?

In 2007 Joel Kauth and two of his colleagues left Christie Parker Hale in Irvine, Calif., to start Kauth, Pomeroy, Peck & Bailey with Kent Pomeroy, a lawyer and accountant. Mr. Kauth and his former Christie colleagues did not like the traditional billable-hours structure, so they decided to give clients a flat rate for services. “Clients love us because we give them predictability,” Mr. Kauth said. “It’s not some billable black hole.”

The billing system has been profitable for the firm because its partners have enough experience to estimate their time, and they give specific prices for particular tasks. Still, once in a while, Mr. Kauth said, “if the court is being difficult or opposing counsel is crazy, the cost goes up and we just have to eat it.”

“Eat it” is a nice way of saying that you just took a hit that sucks all the profit out of a case. Bummer.

This isn’t intended to suggest that solo or small firm practice is in any way less competent or professional than Biglaw, and those who do are little more than pompous fools trying to rationalize their miserable life by denigrating others. But it is meant to say that this isn’t easy, and hardly any guarantee of wealth and prestige. 

Given the lack of jobs, many are left with no choice but to hang out their own shingle. That puts them in competition with the thousands of similarly situated lawyers, most of whom hand out business cards everywhere they go, only to have the recipients toss them in the garbage at their earliest opportunity.  Those who are sold on the marketing lies, paid for out of the Starbucks budget, hope to overcome their very real deficits, like inexperience, with some very desperate clients with enough cash on hand to cover the nut. 

Over the years, I’ve addressed the ups and downs of many aspects of solo and small firm practice here, and there are ups and there are downs.  Yet the din of liars telling every lawyer, brand new fresh faced kids and wizened veterans of Biglaw layoffs, that everybody who hangs out a shingle can count on a new BMW and dinner with the family every night continues to drown out the realities.  It’s hard work. It takes years to turn a practice profitable, and some never get there because they aren’t good enough.  You have to be pretty tough to sit in your office day after day staring at a silent telephone.

And no, creating a website and blog about how spectacularly fabulous you are, even though it’s made of outrageous lies, there’s no guarantee that you will be able to pay the rent.  You’re just one of many pathetic liars on the internet, trying to scam the same clients as the rest of your classmates.  And those clients, when they do call, are often just trying to scam you.  No, this isn’t an easy life.  No, there is no assurance that you will ever be able to afford a mocha frappucino.  And no, there is no magic bullet that will make it any easier or better.

Some will succeed, and create a great practice consistent with the lifestyle they seek.  Chances are it won’t be you.  And if it’s not, you just have to eat it.

It’s disingenuous for someone who lives a fabulous life to not express appreciation for the fabulous life we lead.  Yadda, yadda, yadda. Yes. I’m thankful. Yes, I have a fabulous life. Yes, it’s fabulous to be me.

Year after year, bloggers write introspective posts about the gifts they enjoy and say thanks to those who bestow those gifts on them. It can get awfully damn sappy. 

Some, like,  Jeff Gamso , write about how our personal opportunity to express thanks fits into the greater scheme of life and death.

Amidst death there is life.  Amidst loss, comes a glimmer of hope.

We mourn what we must and rejoice when we may.

And these times, the best and worst of times as Dickens said of the days of the French Revolution but really it could have been of any time because they’re all the best and worst.

These times, we rely on each other.  For strength, for courage, for wisdom, for patience.

Sometimes the need is professional. Sometimes personal.

Thanks doesn’t really cover it, but thanks is what we have to give.

To friends I’ve met and those I haven’t.  To clients.  To the deserving and the un.  To my colleagues in the blawgosphere.  To friends and family.  To those faithful few who actually read what I write.

Thank you.

Ditto. I’ve left the best parts of Jeff’s post out, so you have to go to his blawg to read them.

Yes, I’m thankful.  I appreciate that anyone comes to read what I write. If I am able to influence anyone making a decision about another human being, I’m thankful for the opportunity.  But I really don’t want to get all sappy about this, and when the motivation is based on a secular holiday that commands us to be sappy, it smacks of insincerity.  No, I’m not insincere, nor do I think anybody else is, but it still seems forced. 

So thank you all. Go eat turkey and be thankful you don’t have to go to Cherry Hill, New Jersey, because you got outmaneuvered on the situs of dinner by someone more manipulative than you.  Remember that no matter how miserable you are, there are plenty of people who are more miserable than you. That’s about as sappy as I can muster today.  I hope this fulfills my Thanksgiving obligation.

In a decidedly unsatisfying opinion the  Second Circuit ruled that Fengling Liu, an immigration lawyer who, inter alia, drafted the papers submitted by pro se litigants without disclosing to the court that it was her work, did not violate her “duty of candor” to the court.  The decision reversed the finding of the Committee on Attorney Admissions and Grievances, which concluded that she had, indeed, engaged in unethical conduct by “ghostwriting” pleadings.

For the stay-at-home unbundling lawyer, this strikes at the heart of their practice model, selling bits and pieces of lawyering to clients, without signing onto the case and taking responsibility for both the work they aren’t being paid for as well as the competency of the work they are.

The problem is that the decision does not hold that unbundling is not unethical.  Indeed, it recites over and over the reasons why it is.

However, a number of other federal courts have found that attorneys who had ghostwritten briefs or other pleadings for ostensibly pro se litigants had engaged in misconduct. In Duran v. Carris, for example, the Tenth Circuit admonished an attorney for ghostwriting a pro se brief for his former client without acknowledging his participation by signing the brief. 238 F.3d 1268, 1271-73 (10th Cir. 2001) (per curiam). The court stated that the attorney’s conduct had inappropriately afforded the former client the benefit of the liberal construction rule for pro se pleadings, had shielded the attorney from accountability for his actions, and conflicted with the requirement of Federal Rule of Civil Procedure 11(a) that all pleadings, motions, and papers be signed by the party’s attorney. See id. at 1271-72; see also, e.g., Ellis v. Maine, 448 F.2d 1325, 1328 (1st Cir. 1971) (disapproving of members of bar “represent[ing] petitioners, informally or otherwise, and prepar[ing] briefs for them which the assisting lawyers do not sign, and thus escape the obligation imposed on members of the bar … of representing to the court that there is good ground to support the assertions made”); Ira P. Robbins, Ghostwriting: Filling in the Gaps of Pro se Prisoners’ Access to the Courts, 23 Geo. J. Legal Ethics 271, 285 and n.73 (2010) (“The  federal courts have almost universally condemned ghostwriting.” (collecting cases)).

On the other hand, a number of bar association ethics committees have been more accepting of ghostwriting. The ethics committee opinions described in the following paragraphs are representative of the range of views on the subject and suggest a possible trend toward greater acceptance of various forms of ghostwriting.

The court let Liu off the hook not because it approved of ghostwriting, but because it concluded that, given these conflicting messages, it was unclear whether it was unethical.

In light of this Court’s lack of any rule or precedent governing attorney ghostwriting, and the various authorities that permit that practice, we conclude that Liu could not have been aware of any general obligation to disclose her participation to this Court.5 We also conclude that there is no evidence suggesting that Liu knew, or should have known, that she was withholding material information from the Court or that she otherwise acted in bad faith.

But then, the court drops a footnote that makes this decision more of a problem than an aid.

However, in light of the importance of the ghostwriting issue, and the fact that the effect of ghostwriting on disqualification issues is not discussed in the ethics opinions described in the text, we recommend to the Court that it consider the amendment of its rules to resolve the matter.

To the extent that Liu found refuge in the confusion, it seems that the court has now given her it’s one free pass, and this decision warns everyone else in the Second Circuit that unless and until the rules are clarified, no one can claim confusion as a safe harbor.

This should put a crimp in the social media twinkies’ pontificating about ignoring their ethical obligations because courts are just not sufficiently forward thinking and too far behind the times.  Whether that’s so isnt the point.  Try arguing your way out of discipline because somebody on the internet said so, particularly somebody trying to make a living by life-coach other lawyers because they’ve been disbarred, failed in practice or have a sum total of 12 minutes legal experience.  Do you really think the Second Circuit is going to be impressed with their number of twitter followers?

At Concurring Opinions, Dave Hoffman takes the “law school fail” discussion down a different path than others, raising the question of what role an individual law professor plays in advising the student.  After reminiscing about learning to dance at an Arthur Murray franchise, Dave muses:

But it got me to wondering about an issue tangentially raised by David Segal’s  embarrassingly  error-ridden and ideologically charged series in the Times about legal education, and more forcefully by the equally thoughtful Paul Campos. Both argue (ironically) that law schools are contributing to the problems of the legal profession by not raising higher barriers to entry.  Those barriers might be incidentally related to other worthy goals — experiential education, a single tenure system, and a more rigorous disclosure regime are all popular reforms that are very, very expensive. But sometimes reformers make a more direct claim: like the Texas lawyers of the 1930s, they claim that “Our bar, already overcrowded, is held out as an asylum for the lame, and the halt, and the blind from the law schools of this country.”  Law schools are failing students by encouraging them to apply (it’s a “scam”), taking their money (it’s really a “scam!”), not preparing them to practice (“scam! scam! scam!”), and then not supporting them in getting jobs (“SCAM!”) (Footnote [yes, footnote] omitted.)

But how far, I mused outloud in class, does this argument run?  Let’s say a student comes to your office hours early in the Fall semester.  They are lost.  Really, desperately, lost.  They are working all the time, but they can’t see the forest, the trees, the continent, the planet.  Law’s greek to them. What to do?  One view – let’s call this the Segal/Campos view – is that the morally right thing to do at that very moment is to 1) recognize that my livelihood depends on the students; 2) this puts me, like every provider of services, in a slightly compromised position when talking to a student about whether they ought to be in school; 3) realizing this, decide pretty quickly if I think that the student is a candidate for Bar passage and employment; 4) if not, tell the student that they’d be better off leaving school and pursuing other opportunities in today’s job market, or to take the Ayes-refund offer if it comes.

While Dave sets up his question with a strawman right up front (note the “very moment” language), it remains that this is less about winning the point than about the deeply personal responsibility and decision of making or breaking some kid’s life.  It’s a huge decision, a life changing decision.  And a student has asked for help making it.

Dave answers his own question:

So I encourage most students to persevere, to stick to it, to work super hard, to postpone good times and return again to the books. I tell them that the Law School’s most successful graduates got bad grades.  (True, if success means money earned.)  I tell them that I felt confused in my first semester.  (True, and it’s also true that Contracts was my least favorite, and least understood, class.)  I sometimes tell them they are improving though they aren’t – but only if they seem to me to desperately need some solace.  (I never tell them that about their practice exams, in case my current students are reading this – you’ll get only criticism from me in the service of better final performance.)  I often tell people that hard work and caring more than other lawyers is the path to success, though I know that in life, social connections, being good looking/tall, and luck probably play just as much if not a larger role.  In short, I try to be a supportive mentor as much as I can, though I know, in grim probabilistic terms, that some students would be better off cutting their losses.

Good answer?  Maybe, notwithstanding its Pollyanna-ish, rose-colored approach, material omissions and, most importantly, potential abdication of responsibility.  It’s understandable that Dave doesn’t relish the unpleasant job of telling a student that they aren’t cut out for the law.  I doubt he’s motivated by his conflicted need for a pay check, but more by the awesome responsibility of ruining a student’s dreams.

The strawman built into the inquiry, that the lawprof is put into the position of making a snap judgment, that “very moment” thing, needs to be addressed.  The lawprof has had the opportunity to see the student in action over the course of a semester, to hear his discussion, to assess his ability to reason and articulate reasoning.  It’s not like he’s never seen the student seeking advice before that very moment.  He does, or should, have a pretty good feel for the person asking, and have some the experience as a lawyer and professor to know whether the rosy future speech is appropriate.

Even if he wants to find out more, say speak with other profs, the student doesn’t have a gun to his head to demand an answer that very moment.  So what if you tell the  student that you need some time to think about it before giving a response.  It’s not like the student can make you answer immediately.

But more importantly, there is a duty on the part of a lawprof to give an honest assessment.  Both legal and moral.  By encouraging the student to remain in law school, you induce him to sink in more money, perhaps shoulder more debt, and commit himself to a career in the law.  Like the Arthur Murray dance teacher, you’ve told the student that he’s got a future as a dancer.  If that’s not true, then your inducement is a fraud. You’re a lawprof. You ought to know if the student isn’t going to cut it.

The moral piece, however, is the one that Dave Hoffman should find most persuasive. I’m sure he cares deeply about his students and wants the best for them.  Sometimes, the best is to break their hearts, dash their dreams, burst their bubble.  It’s cruel to encourage someone to pursue a career, and an expensive one at that, when they just don’t have what it takes.  Sure, it’s unpleasant.  But nobody said that responsibility was limited to pleasant things.

And i would take this one step farther.  If a lawprof becomes aware of a student who isn’t cut out to be a lawyer, then the moral duty is to hand him a dime and tell him to call his mother.  Even if he doesn’t ask for advice.  Culling the herd to those who belong is a responsibility of law school, and it’s about time lawprofs lived up to their unpleasant responsibility of brutal honesty.  That’s why they pay you the big bucks.

While some talk about sentencing as if it’s a science, notwithstanding efforts to make it more science by the Federal Sentencing Guidelines Commission, there’s nothing scientific about it.  It’s what one person in a robe decides it should be, with only history and experience for guidance. Hardly much of a basis to decide how many years to lock a guy up.

But it’s part of the job, and there comes a time when a decision gets made. Rule and roll.

When David Hall first stood before the court for sentence, he sought a downward departure despite the government’s agreement to hold to the mandatory minimums.  The argument was that if the defendant wanted out of his deal down, then the government wanted out of its deal up. 

The district court held a sentencing hearing on February 5, 2010. Based in part on the district court’s view “that the policy on the crack-to-powder ratio should be one-to-one,” Hall’s counsel sought a below-Guidelines sentence on Count 2 of 117 to 131 months of imprisonment. In response, counsel for the Government disclosed that prior counsel for the Government had told Hall’s attorney that the government had no problem with a total sentence of 15 years, which would have been the mandatory minimums on both counts. Government counsel explained, however, that this conversation occurred before the guideline calculations, and that, if the court were inclined to depart from the Guidelines on Count 2, the Government now recommended a sentence towards the top end of a range of 130 to 162 months. At the end of the hearing, the district court orally sentenced Hall to 156 months of imprisonment on Count 2, well above the mandatory minimum of 120 months, and 60 months on Count 4, to run consecutively for a total sentence of 216 months. The court did not enter judgment at that time.

Four days later, on February 9, the district court noticed a hearing for February 23 for the purpose of resentencing Hall. At the hearing, the court announced it would like to resentence Hall on Count 2 of the indictment, referencing the conversations at the time of the last sentencing hearing that presumably referred to the Government’s previous indication that it had no problem with a mandatory-minimum sentence on both counts. In light of the parties’ acknowledgment of the Government’s prior position, the court stated its revised view that the appropriate sentence would be 120 months on Count 2, the mandatory-minimum sentence for that count. The court announced that the 60-month sentence on Count 4 would remain unchanged and that the sentences would be consecutive as previously pronounced.

So it took Judge Barrett four days to realize that making the defendant pay three years of his life for having argued at sentence was, oh, insane wrong.  His fit of pique past, he was ready to undo his damage and clean up the mess he made of another person’s life.  Who knows, maybe he was in a bad mood, or just had enough of defendants (or their lawyers) always pushing, pushing, pushing.  Whatever, he acted like a baby and was man enough to admit his mistake and fix it.

Not so fast.  Federal judges are as close as humans come to omnipotent, declaring day to be night and innocent conversations to be conspiracies.  But apparently, they cannot turn 18 days into 14.  The 6th Circuit reversed. Via Doug Berman :

Eighteen days after originally sentencing Defendant-Appellee David Hall to eighteen years of imprisonment, the district court sua sponte resentenced him to three fewer years.   After fourteen days following the original imposition of sentence the district court lacked jurisdiction to resentence Hall; therefore, we must VACATE the district court’s revised sentence and REMAND for reimposition of the original sentence….

It is laudable that the district court seriously considered the sentence, returning again to the issues and prior statements of counsel to be certain that only the “appropriate” sentence would be imposed. That brings to mind Portia’s description of mercy:

The quality of mercy is not strain’d,

It droppeth as the gentle rain from heaven

Upon the place beneath. It is twice blest:

It blesseth him that gives and him that takes.

The Merchant Of Venice Act 4, scene 1, 180-87.  However, the Government seeks enforcement under Rule 35.   Thus, it appears that the “gentle rain” of mercy had to drop from heaven within fourteen days.  It took eighteen.

Because the district court lacked jurisdiction to resentence Hall more than fourteen days after originally imposing sentence, we are required to vacate the district court’s March 1, 2010 judgment and remand for reimposition of the original sentence announced on February 5, 2010.

The lesson here is twofold.  First, don’t impose a sentence out of pettiness that you will later regret.  Second, don’t delay more than 14 days to fix your screw up.

Notably, the circuit was completely untroubled by the fact that Hall would pay three years extra for nothing.  After all, if you’re down for 15, what’s another three?  It’s not like anybody other than the defendant and his family care anyway.  And it’s not like it’s science.

As pointed out by a commenter, “FPD” (federal public defender?), Hall didn’t appeal the original sentence, though it would make no sense for him to do so since he learned, four days after sentence, that he was going to be resentenced to the lesser time.  Because of this highly unusual process, the question remains whether the resentence to 18 years will be appealable, or whether it’s been waived.

The 6th Circuit’s opinion, poetic though it may be, misses the point when it applauds Judge Barrett’s “gentle rain” of mercy.  This wasn’t mercy. This was error, pettiness and wrong.  He wasn’t being a nice guy by resentencing Hall, but trying to clean up his flagrant mistake.  And even that he screwed up.