It’s been a while since I’ve played the legal fashinista, but Justice Eduardo Pardo’s sign compels me to don the fedora of excellent taste again.  The sign says

Pull Up Pants

Urkel-like?  Await the flood (New Jersey pants version)? Nope.  The dreaded saggy pants, worn sufficiently low as to bare the colorful boxers worn casually (and thankfully) beneath.  Been there?  Sure, And been there again.  But Justice Padro, whose  career began at the Legal Aid Society, sits in a Manhattan courtroom, and Manhattan sits at the heart of American fashion.

It’s not my taste, saggy pants and exposed under-drawers.  No client of mine has or will ever step into a courtroom dressed in that fashion, regardless of their preference and desire for self-expression.  As part of the service I render as a legal fashionista,

I explain that there’s no benefit to be gained from using the courtroom as the runway, potentially annoying a judge who doesn’t appreciate couture choices, whether she says something or not. If you want to dress like a fool, do it elsewhere.  That also includes  the “gang rape” t-shirts (available on Amazon until it was noted that this was disgusting and outrageous, and removed).  Seriously bad choices for court attire.

Yet, this is a matter of choice and guidance.  It’s downright foolish to demonstrate disrespect to the person who will exercise discretion with your freedom.  Justice Padro, however, has put up a sign, turning choice into mandate.  From my old pal Laura Italiano at the New York Post :

Whenever I write something about the slackoisie, I’m told I’m just a mean, old curmudgeon engaging in gross generalizations to the detriment of wonderful millennials who are stuggling to take their rightful place in society after boomers screwed everything up.

Me and State Farm, apparently.

Yup.  Just a mean, old curmudgeon, cuz ain’t no such thing as slackoisie. 

For the benefit of bar association types and judges, let’s get something straight off the top.  The word “blog” is short for web log.  The word “blawg” is a bastardization of blog meaning a web log that focuses in law. It’s a bit cutesy, but it differentiates blogs about babies and kittens from blogs about the law.

If a writing is self-promotional, it is marketing and not a web log, blog or blawg (or any other variation on the theme).  Stop calling them all blogs. They’re not.  And when the decision is finally handed down in Horace Hunter’s case, it will not be a decision about blogs, but a decision about something he calls “news” on his website, and a “blog” when he argues his entitlement. It’s marketing. It’s no blog.

Via Carolyn Elefant,

As the saying goes, bad facts make bad law. And there’s going to be some very bad law for lawyer blogs indeed if Virginia small firm lawyer Horace Hunter loses his First Amendment challenge to the Virginia Bar’s attempt to require the firm to include certain disclaimers on its blog.

Don’t get me wrong – I’d love to see Hunter pull this one out.

Unfortunately, the law and facts are still on the Virginia Bar’s side. According to the Washington Post, the Virginia Bar alleges that Hunter violated Virginia’s ethics rules by failing to include on his blog a disclaimer stating that the results reported are specific to the unique facts of the case and do not guarantee favorable results in other future cases.

There was no claim of deception that caused the Virginia bar to go after Hunter, but only a routine audit.  By sheer kismet, he’s become the new first amendment hero, fighting the good fight against putting a disclaimer on his marketing that past results do not guarantee similar results in the future. 

But here, I don’t find this disclaimer – or at least some kind of caveat stating that the cases are “representative” matters – entirely unreasonable or unduly burdensome on the First Amendment.  Without any type of disclaimer specifying that a listed case is representative or not a guarantee of results, lawyers can “cherry-pick” the cases that they seek to list on their website giving the impression that the lawyer has only enjoyed a string of victories and is capable of winning any case that comes his way.

Or, lawyers can just lie about their results. Losses miraculously become wins, huge wins, if that’s how a lawyer chooses to present them. The reader wouldn’t have a clue.  And then there’s the problem with disclosure, as lawyers who write about themselves tend to forget that there’s another person’s life involved in their self-promotion.  From the Washington Post;

The charge, filed in March, also says Hunter blogged about information that would be “embarrassing” or “detrimental” to his clients, including using a pseudonym to discuss the case of a juvenile client. Hunter failed to show that he had obtained his clients’ consent to talk about the cases, the charge said. Hunter calls the claims “frivolous” and maintains that the matters discussed on his blog are public, and that he had the permission of the juvenile’s parents to talk about the case.

But it was good for Hunter and his marketing scheme, and Hunter, the person who benefitted from this conduct, didn’t see a problem.  Really, isn’t the person who’s gaining the self-promotional benefit in the best position to assess the harm done others?

It would be one thing if Horace Hunter fought for his free speech rights based upon the nature of his peculiar choice of content.  While neither Carolyn nor I see any real problem with a disclaimer when the content is all about past results (which are hopefully true, or that raises a separate issue of deceptiveness). And I have long had significant issues with any lawyer happy to sacrifice his client’s privilege and privacy in order to promote himself.  Horace Hunter’s approach to the internet has some very real issues, and the bar’s case against him hardly strikes me as overly burdensome.

But, that’s not what Hunter is fighting for.

Trouble is, Hunter has made this case about more than just website disclaimers, but about blogging.  Here, if the Virginia Bar finds that Hunter’s news feed qua blog is an advertisement and therefore requires disclaimers, mark my words, that decision will be construed broadly to encompass even legitimate blogs that discusses substantive legal issues. A blog that analyzes legal issues or summarizes recent cases is no more of an advertisement than a law review article or op-ed piece, neither of which must be tattooed with disclaimers.  To impose disclaimer requirements on blogs and not any other types of scholarly or informational legal resources diminishes their credibility and in so doing, violates the First Amendment.

That’s right, Horace Hunter is fighting for me, for my blawg, as if there is any similarity between what I do here and what he does.  Thanks, but no thanks.  This has nothing to do with my blawg, or blawging, or blogging.  Hunter is fighting for the right to market himself, and nothing more.  Calling his tripe a blog doesn’t make it so, but the issues has been framed, discussed and argued as one involving the whole of blogging.

Hard as it may be to imagine (kidding here, folks), those not engaged in the blawgosphere have little if any understanding of blawging.  We’re all tossed together as “those lawyers on the internet,” and the distinction between substantive commentary and self-aggrandizement gets lost in the ether. 

And many quasi-or faux-blawgers don’t help matters, as they are busy doing what Hunter is doing, promoting themselves while trying to appear as if their writings are legitimate thought. Without a real feel for the deal, you wouldn’t know that they’re self-promoters like Hunter, just more artful in their presentation.

Whose free speech rights rest in the hands of Hunter? Mine do.  So does Joseph Scura, a New Jersey lawyer who wrote his first blog post entitled “Two Years in Solo Practice.”  This violates every rule of social media marketing, since it’s absolutely critical for a lawyer with only two years under his belt to conceal that fact.  But Scura makes truth his headline.  And more:

People seem to like checklists on the internet, so if I had to distill what I’ve learned (still learning) into a few morsels (that I hope to remember)  they would be:

• Giving a crap goes a long way.  It’s not an outright substitute for experience but it can certainly close   the gap. 


• No matter how smart you are, you need someone to turn to for questions.  Luckily, CDLs are amongst the most generous and collegial in the profession.


•  It’s always about the client first.  Just do good work and your efforts will be rewarded. 


• Don’t expect a “thank you”, but if you get one, be grateful and you can be sure you earned it.


• Be wary of off the rack advice – (paraphrasing) Alan Dershowitz, Letters to a Young Lawyer

Better still, Scura’s post, which strikes me as more of an anthology written for his own benefit than anything a potential client would care about, talks about his path from n00b to second year:

This is by no means a how-to-guide to starting a practice.  This is the way I did it, and I’m not saying it’s the best way, or even a good way…just a way. 

What?  Is he not setting himself up as a legal rainmaker consultant, selling his magic sure-fire methods to the unwary?  Nope, just sound choices he’s giving away for free.  While my blawg will survive a bad decision in Horace Hunter’s case, it would be a terrible shame for Joseph Scura’s wonderful new blawg to suffer for it.

The  New York Times did a feature on Second Circuit Judge Denny Chin that offers one of the most intimate, and painful, visions of how a judge comes to decide the price to be paid for a conviction.  It’s a lengthy article, and remarkably frank in many respects.

Judge Chin served on the Southern District of New York for 16 years before he was elevated to the Circuit.

He took the bench in 1994 at age 40 with little experience in criminal law. He has since sentenced more than 1,100 defendants, including at least a dozen who received sentences of life or the equivalent, according to court statistics. He quickly learned, he said, that preparation was crucial and that he must not agonize over his decisions. One seasoned judge had advised: “Rule and roll.” Be decisive. Don’t second-guess yourself.

Few paragraphs about judicial decision-making are as illuminating and fear-inducing than this one.  We would never give children a loaded gun, yet we give people with “little experience in criminal law,” which may well over-state Judge Chin’s experience, the power to put human beings in prison for decades, with the admonishment to “rule and roll.”

This isn’t to say that Judge Chin took the task lightly.

“It is just not a natural or everyday thing to do,” Judge Chin explained, “to pass judgment on people, to send them to prison or not.”

“I mean, there is so much at stake,” he added, “and there are so many different considerations that come into play.”

Fair enough, but what little comfort comes from the seriousness with which he undertakes this task is subject to the interpretation of his words.  What to some reads as empathy for the defendant to others may signify a stoic concern for the victims.  Which it is can only be ascertained from how it’s played out.

One thing to bear in mind is that Judge Chin’s sentencing experience has to be viewed in light of pre-Booker mandatory sentencing guidelines, where draconian a sentencing regime was not merely the norm, but required.  For a judge without experience in criminal law, his on the job “education” came from a grid that mandated imprisonment of extraordinary length, with essentially no break for all the things that reasonable people would think should factor into the equation.

Aside: In the post-Booker, non-mandatory guidelines world, where consideration of 18 USC §3551 is permitted, consider that most sitting federal judges, who came from a world where “criminal law” was never uttered, spent their career imposing sentences mandated by the Sentencing Guidelines, are now authorized to impose a sentence that is no greater than needed. What meets that criterion, however, is informed by their tenure under the Guidelines, as they have no other experience from which to draw.

The articles goes on to offer some examples of sentences imposed by Judge Chin, together with his rationale for his decisions.

Her lawyer, though, was asking the judge to sentence her only to home confinement, because she was raising five children who ranged in age from 5 to 13, and also caring for her 14-year-old sister, as their own mother had been a crack-cocaine addict. He had said that sending Ms. Kidd to prison would almost certainly result in her children being placed in foster care, destroying what was left of the family.

His arguments gave Judge Chin pause.

Empathy?

“The report cards had an impact on me,” Judge Chin recalled in a recent interview. “She was getting them out to school every day, and they were holding their own. I was impressed by this.” Ms. Kidd, who had also apologized for her crime in a letter to the judge, was “a decent mother,” he concluded. Moreover, one of his law clerks had shown him a news report on the terrible conditions in foster homes and facilities for children in New Jersey, where the children would most likely be sent.

Concern for the hugely destructive collateral damage to innocent children?

But the robbery had been violent, with one robber killed in a police shootout. And the judge was seldom persuaded to grant leniency because of family circumstances — it was, after all, the defendants’ crimes, not the sentence, that caused hardships for families.

In the end, he decided that Ms. Kidd had to go to prison, but he imposed only a 30-month sentence. “I cared very much about the future of the children,” Judge Chin recalled, “but I was willing to take the risk that they would be sent to foster care, even with a shorter sentence.” His decision involved weighing conflicting concerns and interests, he said, “something we have to do all the time.”

It would seem that this example, at the front of the article, is offered to show the terrible choices a judge faces in imposing sentence.  If so, it fails to satisfy.  Neither the generic “a crime is a crime,” nor the omnipresent facile argument that the defendant should have thought about her kids before committing the crime (as most crack-addled defendants give serious consideration to collateral consequences before making choices) explains this sentence.  While 30 months is a break, no doubt, the harm to the children is done.  That Judge Chin may be “willing to take the risk,” one can’t help but recognize that he’s taking the risk with someone else’s children.  Rule and roll.

Another case mentioned in the article involves a criminal defense lawyer, Pat Stiso.  Just so it’s clear, Pat was a good friend of mine. Still is, even though almost every other criminal defense lawyer ran from him the minute his indictment was announced.  He was a good lawyer, which is how he ended up in a bad situation.

Unlike commentary based on media accounts, I have intimate knowledge of Patsy’s case.  This is how the Times describes it:

If Judge Chin believed that some defendants deserved leniency because of their otherwise unblemished history, in his eyes others forfeited their right to a break.

Such was the case with Pat V. Stiso, a Bronx lawyer, who had pleaded guilty to narcotics conspiracy and obstructing justice after being accused of, among other things, hiding money for the leader of a drug gang. He faced a guideline range of 70 to 87 months, for a possible term of more than seven years.

While true, it fails to capture Pat’s downfall.  By doing what almost every lawyer does, trying to keep his client happy and on board, he ended up making some monumentally dumb decisions.  At the time, they hardly seemed to lead inexorably to his sliding into the fringes of a conspiracy, but when his client flipped, that’s where he found himself.  He didn’t want to be there, and tried to get out, but the stupid decision, innocuous at the time, left him in an untenable situation.  And so he pled out.

He said Mr. Stiso’s supporters had not seen his other side, which had allowed him to accept “tens of thousands of dollars in cash in grocery bags, money that was earned from the sale of heroin.” Defense lawyers had to do their jobs, he said, “but this is not a case about the blurring of a line. This case doesn’t even come close.” He sentenced Mr. Stiso to 87 months.

I was one of those supporters. I wrote a letter on Patsy’s behalf.  I knew all about the grocery bags of money, “earned from sale of heroin.”  To read that quoted phrase makes me cringe, as if criminal defendants’ invariably paid out of their Nobel Prize winnings.

Judge Chin was shocked and outraged by this, enough to whack Pat with the maximum sentence.  As it turned out, he served it under BOP constraints that largely prohibited him from outside contact, including speaking to his wife and children.

According to the article, Judge Chin estimates his handiwork at 1100 sentences.  If you do something enough, you come to believe you do it well.

“What did I learn?” Judge Chin recalled 15 years later. “I learned that this was going to be hard.” But he said he had gained confidence, and did not agonize over the decision. “I felt I had done the right thing.”

While Judge Chin’s sentencing legacy will surely be the 150 years imposed on Bernie Madoff, in anticipation of a miraculous medical breakthrough, my memory hangs on his sentence of Pat Stiso, a ” case [that] doesn’t even come close.”  It comes far too close for me.

My favorite marketing philosopher, Seth Godin, asks a question, and being the kind, gentle, helpful soul that I am, the least I can do is offer an answer.  The query:

Which are you?

…competent, inspiring, passionate, obsessed, provocative, impatient, hungry, driven, adoring, inspired, an artist, a genius, someone who cares…?

With all these remarkable, powerful, important options available to each of us, why do so many of us default to competent?

Here are the organization’s revenues for recent years (amounts in dollars):

And here’s how much they actually spent on “death benefits” for families of dead troopers over the same period:

Assholes. How is it that the IRS, the Department of Justice or the Texas Attorney General hasn’t pulled the plug on this scam and others like it long ago? As, Grits wrote in August “This group is about as much about helping troopers as buzzards are about helping roadkill.”

But they’re driven and passionate, even if they took in $2.4 million in 2005 and didn’t pay out a dime.  It can be expensive to be driven and passionate, you know.

Today is Columbus Day, when courts and markets are closed.  While I have no horse in the Columbus Day debate, closed courts and markets are always a good thing.  They may not be able to do any good when closed, but they can’t do any bad either. 

I was reminded of the controversy when I saw Jon Katz’s  Underdog post that his office will be open today because “Columbus did not discover America.”

We will be open today, October 11. I do not agree with the holiday, particularly when no federal holiday exists to remember the Native Americans who suffered tremendously from the lengthy brutal and unjust treatment that followed over the years and centuries after Columbus’s arrival in the Western Hemisphere.  

Well, he’s got a point.  It’s pretty clear that Columbus didn’t “discovery” America, a holiday characterized as going to somebody else’s house and telling them that you’re moving in.  And there is no Native American Day, although I’m not sure that lumping all the tribes into one holiday makes any more sense than Columbus Day.

But then, Marco Randazza at  The Legal Satyricon has staked out a different view.

This is COLUMBUS DAY.

I’d like to invite anyone whose name ends with a vowel (Persians excluded) to raise their hands, extend their middle fingers, and flip off the Native Americans, the hippies, and everyone else in the International Association of Crybabies who has a piss and a moan about Christopher Columbus.

This is not “indigenous people’s day,” it is not “la dia de la raza” and it isn’t frigging “wear a beret, listen to Joni Mitchell, and wear patchoulli day.”

It’s unclear to me how Joni Mitchell got into this mess, but Randazza isn’t about to let anyone take away this day.  It’s not that he’s entirely unsympathetic to the Native American’s plight.

You want a holiday? Be my guest. Pick any day on the calendar except October 31, February 14, March 17, January 1, or July 4. I don’t even care if you want Christmas, but picking THAT will be a marketing nightmare.

You know which day would be an awesome Indigenous People’s Day? How about the Friday after Thanksgiving? Most of us have the day off anyhow. The pilgrims wouldn’t have survived without your help. So, the day after Thanksgiving, as we’re all resting up and glad that we have four days in a row off, we can thank you. Thank you for saving the Pilgrims’ asses.

Just not today.  And in honor of Columbus Day, Randazza-style, a song.

In our hearts, we hoped it was just a fiction, an interesting concept for the movie “Minority Report” that no one in a position of governmental power would ever take seriously.  In our minds, we knew someone would eventually do it. And they have.

Via Wired’s Threat Level, an  internal Department of Homeland Security document was disclosed, or more precisely, revealed in response to a freedom of information demand by EPIC, the Electronic Privacy Information Center, revealing a program called FAST, Future Attribute Screening Technology.  As explained at CNET :

Josh King, Avvo’s general counsel, watched as OccupySeattle, the north-left coast version of OccupyWallStreet, parked itself across the street from his office.  He wasn’t thrilled.

“Occupy Seattle”, a thinly-attended offshoot of Occupy Wall Street, has been going on across the street from my office this last week. What do the “occupiers” want? If you view this rant narrated by Keith Olbermann (shredding whatever scraps of integrity he might have left), they want America to know that corporations are evil.



Don’t get me wrong – I like a good protest. Lock yourself to the gates of nuclear plant, protest the war, demand equal rights, whatever. But here are the problems I have with this protest:

Me, I’m going with the gouging angle. The revenue that Bank of America, and many other banks, is seeking to replace with its new fees is lucre that a more honorable profession would never have touched in the first place. Indeed, 30 years ago, banks themselves would have turned their backs on it. Of course, back then, banks viewed customers as people to be helped, not marks to be taken advantage of.

It was, to be sure, a different world then, with regulated interest rates, the Glass-Steagall Act preventing banks from getting into lucrative trading and a sleepy business model that valued a steady dividend over a highflying stock price. As interest rates were deregulated, Glass-Steagall abolished and investors demanding that bank stocks perform like Internet stocks, that ethos changed. Banks began looking in some dark corners for new revenue; this is when hidden fees began to creep into credit-card agreements, for instance.

We need banks.  Banks are a wonderful thing, as Jimmy Stewart explained.  But while we still call them banks, that wonderful “sleepy” business ended years ago, replaced by financial institutions.  What Nocera is saying is that banks don’t want to be banks anymore, as banks don’t make the big bucks that financial institutions make.  

Banks gouge because they couldn’t care less if you use them as banks.  And they gouge and gouge and gouge, and couldn’t care less if you go elsewhere, as if there was a bank that didn’t gouge.  If they can’t gouge you, they aren’t interested in doing the bank thing.  There’s nothing in it for them.

But we need banks.  It’s not like we can go back to using cash (that’s the paper and coin stuff your parents keep in their pockets and wallet, for you digital natives).  The government has made cash illegal and proof that you are aiding the terrorists.  You don’t want to get put on a cash watch list, do you?

There are many things we need in modern society that don’t provide as big a payback as our need would would seem to justify.  We desperately need someone to remove the garbage we create, yet aren’t prepared to pay garbagemen their due in proportion to our need for their services.  And we aren’t prepared to pay Bank of America $5 for the pleasure of using a debit card to access our money.  And BoA doesn’t care.

One suspects that these new fees will only generate more anger, for they will make plain what has long been hidden: that, fundamentally, retail banking makes its money by gouging the have-nots. Post-financial crisis, the essence of big banking has not changed. It’s just become more obvious.

If you put aside some of the sillier nuts and bolts demands of the Occupy wherever, and focus instead on the core of the anger and frustration, it’s pretty hard to disagree with the protesters. Indeed, it’s hard not to respect their views, grudgingly or not.  The balance of power has gotten out of whack, it seems, and the gouging is out of control.

Some will argue that market forces will eventually smack down the gougers and crush the excessively greedy.  Market forces, of course, is another word for people, us, consumers unwilling to take what they’re dishing out.  These protestors are market forces.  All of us are market forces.  Josh is a market force, as am I. Alone, we may not have an impact, but when enough of us say no, it adds up.  Kinda like a million here, a million there, pretty soon you’re talking about real money market force.

Like Josh, not all the demands strike me as something I can get behind.  In fact, many of them aren’t my issue at all, and I don’t support them. But I do support activism, and some of the demands are right on the money. 

It’s no surprise that this mash of anger and frustration is going to bring up a laundry list of horribles, and overstate the evil of corporate American without recognition of our need for a viable economic existence.  But we have to take the good with the bad.  I won’t pay anybody for a debit card. Heck, I won’t even pay anybody for a credit card. And if somebody rips me off, I’m not going silently into the night. But I’m fond of some modern conveniences and realize that they wouldn’t exist without corporations big enough to develop, produce and distribute them.  And I’m fond of the people who work for them and earn a living so that they can enjoy them too.

As the balance of power is out of whack, it needs to be reined in. We are the market forces capable of doing so. But it’s about giving corporations a damn good smack to remind them who pays the money that creates the revenues that pay the salaries and dividends.  And we need to remember that we need them too, even if not as much as they think we do.

As many readers know, and as has been discussed here in relation to matters of greater importance, I’ve been enjoying an ongoing twitter “conversation” with the social media team at KitchenAid over problems with a  built-in refrigerator purchased at ridiculous expense.  I’ve kept this completely transparent, all on public twitter, refusing their invitation to discuss this via “DMs” (direct messages) so that it’s out there for all to see and enjoy.

One the one hand, this has been great fun, providing hours of #brandfail and general hilarity, as @KitchenAidUSA trips over itself in its effort to explain away incompetence at every turn.  On the other, this serves as a reminder to lawyers that dealing with corporate masters, as run through the hands of children charged with maintaining a happy “customer experience,” is what normal folks suffer regularly without the benefit of being a lawyer.

Matters came to something of a boil yesterday, as the social media team, Kyle, Mandy and Rachel (and, I was told, their supervisor, Mitzy), hit the wall.  Having a subcontracted tech show up, putatively to fix the problems but in reality to observe and report back, the bent frame of the fridge was quickly and easily fixed, but meant that the built-in fridge (question: why does a built-in fridge cost 4-5 times the price of a stand-alone fridge? No answer from KitchenAid) had to be reinstalled, or more accurately, installed correctly.

The reaction from KitchenAid was as expected. They had contracted out the delivery and installation to a logistics company called Optima Solutions out of Georgia, who subcontracts the actual work to trucking companies elsewhere.  Optima Solutions had few options available to it, as they apparently had but one sub in the New York area, which I’ve dubbed Moe & Larry’s Movers.  They are less than optimal, being the same guys who did the terrible installation in the first place, and then failed to show for the reinstall last Monday, as I sat there awaiting their arrival.

This is where Rachel at KitchenAid made a crucial error, attempting to  lie her way out of things by twitting that their “records show that 1 service call was canceled by you on 10/4.”  She immediately back off when called on it, but falsus in unum, falsus in omnibus.  As anticipated, KitchenAid sought the path of least resistance, throwing the problem back to Moe & Larry, Optima’s subcontractor, by trying to dictate the solution, a great solution for KitchenAid but a worthless response for the consumer.

@scottgreenfield They will be the ones who will correct the installation of the refrigerator. -Rachel

No Rachel, @KitchenAidUSA They won’t. They blew it. They failed to show. They are not coming back. They were a total screw-up, never again.

Over at PrawfsBlawg, Debbie Borman has raised an interesting question, with some even more curious corollary issues, about Dougie Howser, Esq., the brilliant but underage lawyer.  She prefaces her query with a bit of hyperbole that only a lawprof could offer with a straight face:

Law education is not as easy as it used to be. (Wait – was it ever easy? I’ll start again). Because of the legal market, the economy, for many reasons schools place greater emphasis than ever before on teaching ethics, professionalism, client interviewing, counseling and negotiation (and I am not talking about third year electives, I am talking about first year, first semester) than in the past. Schools focus hotly on practice skills so that students can straight into practice after graduation: “practice ready.”

So with all of this in mind, practice-ready emphasis, teaching advanced skills, I wonder: is there an age that is too young for a law student? I ask because I have had students who are under the generally-recognized drinking age and I can identify emotional maturity issues in these (obviously smart, they skipped whole school years) students that, in my opinion, do not “play” well either in the classroom or in the workplace.

There is good reason for some skepticism about the notion that there’s a big difference between young law students and law students of a more ordinary age, in general. Maybe in some individual cases (like I said, I think there was in mine), but not as a whole. Why? Well, for one, 18 isn’t all that different from 22, and a quick perusal of any of the more notorious internet sites for law student misbehavior or its reporting (autoadmit, abovethelaw.com, etc.) will provide all the evidence one might need that law students in general can say and do some incredibly stupid things.

In my experience, more pre-law real-world experience does not equal better lawyering or better law students. At my regional school, older law students were never at the top of the class. Now, the people who were non-traditional law students are not the ones I would send clients to. Years of experience thinking like a lawyer matter, not years of experience thinking like a scientist or a sales manager.

The tale of judge against former judge, not to mention judges behaving badly, all about whether Queens Acting Supreme Court Justice Joel Blumenfeld is permitted to consider the ethics of former Judge, now Queens District Attorney, Richard Brown’s scheme to add his own spin right to Miranda warning right before arraignment and provision of counsel, is over.
 
Brown’s writ of prohibition is denied. Blumenfeld can judge.

This should be a huge win, a great day for judicial independence.  Yet it doesn’t feel right.

First, another description of the prosecution’s scheme to undermine Miranda, just because it’s always fun to spread the word:

Under the Program, the District Attorney’s ADAs and DIs interview individuals awaiting arraignment on felony charges, in a room equipped with visible videotaping equipment. An ADA or DI reads the arrestee a preprinted “Interview Form,” which has been completed to be specific to the arrestee’s case. The arrestee is told the date and time, that he or she is “in the interview room of the Queens County District Attorney’s office in Central Booking, Queens,” the names of the other people in the room, and their status as ADAs or DIs from the District Attorney’s Office. The arrestee is then told that he or she has been charged with certain specified crimes, as well as the dates, times, and locations of those crimes.

The defendant is then told the following:

“In a few moments I will be reading you your rights. After that, you will be given an opportunity to explain what you did and what occurred on (date) at (time) at (location) , in Queens County.

“If you have an alibi, please give us as much information as you can, including the names of any people you were with.

“If your version of the events of that day differs from what we have heard, this is your opportunity to tell us your story.

“If there is something you would like us to investigate concerning this incident, you must tell us now so that we can look into it.

“Even if you have already spoken to someone else, you do not have to talk to me.

“This will be the only opportunity you will have to talk to me prior to your arraignment on these charges.

“This entire interview is being recorded with both video and sound.”

Cool, right?  And effective too.  And outrageous?  Well, there’s the problem.  While the Appellate Division, Second Department, in an unusual signed decision by Justice Ruth Balkin, denied Get Down Brown’s petition, it wasn’t because Justice Blumenfeld is fully entitled to consider whatever shenanigans Brown’s pulling to coerce confessions or undermine Miranda.  Nope, the decision is procedural, that

Although the Court of Appeals has declined to detail the several categories of excesses of jurisdiction and power arising in criminal actions that merit the “abrupt intervention of prohibition” (Matter of State of New York v King, 36 NY2d at 64), that Court has observed that those categories always “invoke . . . unlawful use or abuse of the entire action” or proceeding (id.), and “implicate the legality of the entire proceeding” (Matter of Rush v Mordue, 68 NY2d 348, 353). This situation is to be “distinguished from an unlawful procedure or error in” the action or proceeding “itself related to the proper purpose of” the action or proceeding (Matter of State of New York v King, 36 NY2d at 64; see Matter of Johnson v Torres, 259 AD2d 370).

Furthermore, prohibition is never available merely to correct or prevent a mistake, error in procedure, or error in substantive law (see Matter of Oglesby v McKinney, 7 NY3d at 565; Matter of Morgenthau v Altman, 58 NY2d at 1058), even when such errors may be “grievous” (La Rocca v Lane, 37 NY2d at 579), or “egregious” (Matter of State of New York v King, 36 NY2d at 62). The orderly administration of justice requires that correction of litigation errors be left to the ordinary channels of appeal or review (see La Rocca v Lane, 37 NY2d at 579).

Deeply moving stuff, right?  Legally correct, for sure, but somewhat less than inspirational.  And then there’s this:

Inasmuch as we conclude that prohibition does not lie, we need not address the second tier of the analysis, namely, whether prohibition should be granted as a discretionary matter. Nonetheless, we find it appropriate to note that the District Attorney is, of course, legitimately concerned with the reputations of his office and the public servants who are his ADAs, and the extent to which any ruling Justice Blumenfeld may eventually make might affect those reputations.

No doubt you are as moved as I am by the court’s concern for the reputation of public servants who are ethically challenged by their office’s effort to snag them moments before they can see a lawyer for the first time.  Who wouldn’t be concerned?

Then again, I might also be concerned about the defendants whose constitutional right to remain silent, to counsel, and those other cool technicalities, are protected.  Maybe even more concerned than I am about the prosecutors’ reputations.

Still, Justice Joel Blumenfeld is now free to rule, and I can only hope that his decision will do what Justice Balkin’s doesn’t do well enough: Support and defend the Constitution.