The Absurdity Of Lawyer Codes of Ethics

Over at Crime and Federalism, Mike and Norm have shared comments on how new ethics rules in Connecticut create a significant burden for small firm lawyers, and will make many lawyers think twice before agreeing to represent a difficult client. Mike writes

Connecticut has recently adopted new rules of professional conduct. These new rules, according to legal ethics experts, require lawyers to obtain a client's permission before withdrawing a frivolous claim. If the client refuses to withdraw a frivolous claim, the lawyer's only recourse is to withdraw from representation. Under the new rules, lawyers will also be required to explain (in painstaking detail) every routine decision made in the client's case.

Norm explains,

The old rules required mere reasonable communications, giving lawyers some breathing room. Under the new rule, however, you are tethered to a client's needs. Thus, a client in a habeas case will write asking why it is not a conflict of interest for a lawyer to represent another client at the same time. Why is this not a conflict? Or try explaining to an angry client in an employment case why they must answer interrogatories -- for the second, third, or fourth time.

A lawyer notes in a comment,

First, for hourly/monthly firms, especially insurance defense firms, this is the lawyer's equivalent of Sarbox for accountants---make work on a massive scale. Now, every insurance defense lawyer will need to have a million conversations with the insured, for which the insurer will have to pay. I have been watching this in action in another state where I am co-counsel. Simple issues require a fortune to resolve.

As the posts suggest, ethics rules are often created by people who have no experience in legal practice, or whose experience is limited and probably does not involve work as a small firm practitioner or solo. They hear client complaints which usually revolve around legal fees and communication, and try to come up with rules which will minimize the number of future complaints. They cannot change the behavior of clients, so they focus on the lawyers.

A "reasonableness" standard may in fact be the most appropriate standard - was the lawyer's effort to communicate with the client reasonable under the circumstances - but to apply that rule somebody needs to examine the facts of the case and determine whether the lawyer's actions were in fact reasonable. Judgment? Discretion? That sounds time-consuming. So why not take away a lawyer's discretion, require clear, written communication of everything, and hold the lawyer responsible if a client complains (however unreasonably) and the paper trail is incomplete?

I once had a client complain bitterly about her trial lawyer, as she unpacked stacks of papers from a bag, that he sent her "everything", and that she found it overwhelming and confusing to receive so much correspondence. These rules don't seem to contemplate that they may not only create undue expense, but they may make things even more confusing for a client.

The Michigan Attorney Grievance Commission for years has played a game of "hide the ball" on attorney legal fees. You can read all of the Michigan Rules of Professional Conduct, read all of the formal and informal ethics rulings interpreting those rules, write a retainer agreement that appears to be 100% compliant with the rules, and still be told that your fee agreement is not ethical. ICLE, Michigan's non-profit legal publisher and CLE provider, tried to step in by having lawyers submit standard fee agreements, vetted for ethical compliance, edited by lawyers, and published in a convenient soft-bound book. It was discontinued after the AGC indicated that it had problems with the fee agreements in the book. At legal seminars where fee agreements are discussed, it is not unusual for a lawyer to submit a standard fee agreement, and then to have that fee agreement taken to pieces by an AGC lawyer. I saw this happen to a highly experienced, highly competent large firm family lawyer a couple of years ago. Ask the AGC to provide samples of fee agreements it would deem entirely ethical? The loudest thing you'll hear is the sound of crickets.

One consistent thing you will note about the rules of ethics is that they are structured to favor large firm practice. The billing systems used by large firms, no matter how inappropriate or unfair they would be to an individual client, are deemed ethical. There is no question but that you can ethically bill in minimum time increments, as long as you indicate how that will occur in the retainer agreement, such that a one minute phone call can be billed as a quarter hour of work. Had that system of billing been pioneered by small firms as opposed to large, I doubt that any state would deem it ethical.

One of my favorites: The AGC permits engagement fees (a fee charged by a law firm to take on a new client, and guarantee that it will allocate sufficient resources to handle the client's case) and has no problem with them as long as the client gets no further benefit from the engagement fee. But if the lawyer who charged the engagement fee gives the client credit against the engagement fee for any work performed, whatever the terms of the engagement fee contract, they will recharacterize the fee as a retainer fee. What if your impoverished client has a change of heart about litigating and, as it is early in the process, you decide that it is only fair if you give a partial refund of an engagement fee his mother obtained for him by mortgaging her house? Oops - if you give a partial refund, once again the ACG will recharacterize the engagement fee as a retainer, entitling the client to a much larger refund and subjecting you to possible penalties if you don't comply. The "ethical" approach is to tell the client, "Too bad, so sad."

Informally, I heard an AGC lawyer propose a compromise for smaller firms - charge the engagement fee, but instead of giving the client credit against it charge a lower hourly rate for subsequent work. Nothing in the Michigan Rules of Professional Conduct would support the distinction whereby the former approach was "unethical" and the latter approach "ethcial." Why in the world should it be more "ethical" to fudge the numbers to create a fee agreement satisfactory to the AGC, as opposed to simply putting down in writing a clear understanding betwen the lawyer and the client which is acceptable to both of them, is consistent with the actual text of the rules of professional conduct, and results in roughly the same amount being billed? How is the client exploited by the honest fee agreement, but not by one which is designed to circumvent (unpublished) restrictions on how clients are to be billed?

Meanwhile, in some rather cutthroat circles, lawyers have been known to advise clients to threaten grievances against their former lawyers in order to squeeze refunds out of them. Often this seems to be done in the context of a client who wishes to switch to a different lawyer, but who lacks funds for a retainer the new lawyer deems sufficient. Some heavy users of legal services have figured out, perhaps after receiving such instruction, that they can use threats of grievances or actual grievances as a weapon against their former lawyers, demanding refunds of well-earned legal fees. I am aware of a client who grieved six different lawyers in his criminal case - before the case even got to trial.

I personally believe that ethics codes should be drafted with the concept of providing a minimum framework of rules with a maximum benefit to clients. The drafters of the rules seem instead to look at those areas which generate the greatest number of client complaints, and creating new rules or applying new interpretations of those rules in a manner which they believe will minimize their work in reviewing complaints against lawyers, or if that's not possible to make it easier to resolve the complaint by pointing to a bright line rule that the lawyer violated. I am not sure if that approach will actually reduce the work of grievance panels, but to the extent that it increases costs to the client, or results in a confusing deluge of paperwork on a client who feels perfectly informed by existing "reasonable" communication, I think it is misguided. Ethics codes should reflect ethics, not a byzantine system of "gotchas" for lawyers who act ethically and responsibly except in their failure to meet arbitrary and artificial standards of conduct. I oppose any ethics rule which necessitates the interjection of dishonesty into the lawyer-client relationship, even if passed with the best of intentions.

It's Reasonable To Want Dangerous Tasks To Be Performed By Skilled Professionals

Today's Guardian presents an editorial describing three lessons from Iraq, which the neocons are alleged not to have learned:

• American military doctrine has emphasised the use of overwhelming force, applied suddenly and decisively, to defeat the enemy. But in a world where insurgents and militias deploy invisibly among civilian populations, overwhelming force is almost always counterproductive: it alienates precisely those people who have to make a break with the hardcore fighters and deny them the ability to operate freely....
• A second lesson that should have been drawn from the past five years is that preventive war cannot be the basis of a long-term US nonproliferation strategy....
• A final lesson that should have been drawn from the Iraq war is that the current US government has demonstrated great incompetence in its day-to-day management of policy.

And oh, that incompetence....

A few days ago at Eunomia, Daniel Larison wrote:

[T]he more obvious and depressing reason why liberal interventionists oppose some allegedly “self-interested” wars of intervention is that they only oppose these when a member of the other party is in the White House. The Clinton administration, and many liberal interventionists at the time along with it, obviously never had any problems with the idea of regime change in the name of national and regional security. They discovered their opposition to regime change in Iraq (oh, sorry, I mean “disarmament and enforcing U.N. resolutions”) when someone else was running the operation.

We're painting with a broad brush here, but let's assume that a "liberal interventionist" is somebody who favors the use of military force to stop an injustice from occurring, and thus would favor interventions in places like the former Yugoslavia, Rwanda, Darfur, Afghanistan, and Saddam Hussein's Iraq. Such an individual would likely have been disappointed by the Clinton administration's inaction in Rwanda, and may well have supported a humanitarian intervention in Iraq to depose Hussein. But is it truly fair to suggest that, for those who opposed Bush's war in Iraq, support or opposition to such intervention turns only on who is in the White House? If that were the case, why was support for intervention in Afghanistan so high among the same population of "liberal interventionists" who were wary of going into Iraq?

Perhaps we should revisit the subject of incompetence. The Bush Administration was not doing well, even in terms of domestic policy, prior to 9/11. This followed a campaign in which Bush had effectively conceded that he was a foreign relations tenderfoot, during the course of his campaign unable to name the leaders of such minor [cough] states as Pakistan - the country, in Bush's words, where the "Pakis" come from. Don't worry, though, we were told - he has "grown-ups" like Cheney and Rumsfeld who are familiar with foreign relations and will guide him through the difficult decisions. I know Bush is legendary about his ability to sleep at night, starting at 10 PM, even on the day of a national crisis. But something about Bush leading the nation into wars of choice, even if good could potentially come from intervention, should have given anybody pause.

Much of the liberal opposition, when it was not completely opportunistic and partisan, focused on Mr. Bush’s mistakes in how he was launching an aggressive war, and did not really claim that he was doing anything inherently wrong or unjustified. Many of the opponents on the left, or at least on the center-left, did not even object to the goal of regime change as presented by Mr. Bush, but wanted it to go through the proper channels with all of the appropriate institutional stamps of approval.

This comment commingles two separate groups - those who opposed the war, and argued for following procees in order to impede Bush, and those who supported the war but still believed it best to follow proper process before going to war.

It's odd, in a sense, to hear the argument that it was liberals arguing for form over substance, as the opposite is often the case in our legal system. In law, the political left is associated with calls for substantive due process - did the process lead to the correct result - whereas the political right is associated with finality arising from procedural due process - right or wrong, if all of the rules were followed along the way the outcome should be allowed to stand.

Opponents of the war recognized pretty early that the odds of the Bush Administration getting a clear authorization for military intervention from the United Nations were poor. But even the Bush Administration wanted enough of a UN fig leaf that they pressed and lobbied for a resolution they could deem to amount to an authorization for use of force. It is possible that the Bush Administration would have been able to get a better resolution given more time, but it was generally recongized that the window of opportunity for war was closing. The primary reason for a proponent of the war to have called for greater adherence to procedure would have been to facilitate the building of a true international consensus for war, and a much broader military alliance with which to invade and occupy Iraq.

Something that is often forgotten when slogging through procedures and safeguards which seem cumbersome and anachronistic is that they were put into place for a reason. Sure, sometimes the reasons don't apply, and it can be wise to periodically re-examine old procedures to see if they need to be supplemented, revised or repealed. The Bush Administration likes to complain about the rules, but its apparent complete disinterest in creating a new set of rules to govern international conduct suggests that its primary motivation in criticizing the existing system is that it doesn't want any international oversight on its actions, or to be expected to adhere to any form of international law or custom. A liberal interventionist who highly desired the removal of Saddam Hussein might still be given pause by an approach to international law which would free other nations - whatever their actual motives - to declare and act on a "right" to engage in preventive and preemptive wars and "humanitarian" interventions against their neighbors. As Larison notes, it is easy to characterize those who call for adherence to international procedure as silly or unpatriotic.

The ”debate” over Iraq was unfortunately carried on primarily between liberals of the “yes, Hussein should be disarmed and/or overthrown, but…” view and the supporters of Mr. Bush’s invasion. (The non-liberal antiwar dissenters were constantly making their arguments, and were routinely making better ones than many on the left, but these dissenters were unfortunately never really in the main debate.)

I disagree with that, in the sense that it was almost impossible for anybody involved in the public debate to avoid the "Hussein should be removed" trap. The technique is simple - get the anti-war individual to admit that Hussein's a horrible tyrant, then ask, "Wouldn't the world be better off if he were removed?" Or limit the scope of the question to the Middle East, or just to the people of Iraq. If you consistently say "no", you can be made to look every bit as ridiculous as somebody who supposedly favors the war but only if we jump through a succession of intricate procedural hoops.

Larison argues that true liberal interventionisms is potentially a greater danger to this nation than conservative interventionism "because there are no obvious limits to where American soldiers will be sent." Fortunately (or for liberal interventionists, unfortunately) there are not sufficient numbers of liberal interventionists to transform U.S. foreign policy, nor are there sufficient numbers of U.S. troops (make that, troops in the world) to make it a reality. Whatever the potential of liberal interventionism, to me interventionism packaged dishonestly in terms of self-interest seems to be the most dangerous, as it is the most likely to result in military action which proves counter-productive to U.S. and world interests.

Harrumph!

Doesn't that pretty much say it all?

Most opinions, however, don't really need to be written down at all. They can be replaced by a sound effect - the audible equivalent of an internet frowny-face. Imagine a sort of world-weary harrumph accompanied by the faintest glimmer of a self-satisfied sneer. That's 90% of all human opinion on everything, right there. Internet debates would be far more efficient if everyone just sat at their keyboards hitting the "harrumph" key over and over again. A herd of people mooing their heads off. Welcome to 2007.

It's Unbridled Activism May Not Get Much Attention....

... But the Michigan Supreme Court's continuing problems with civility are getting quite a bit of attention.

Hate Versus Rage

Over at Eunomia, Daniel Larison comments on anger in politics.

While there is the real danger that inflamed political passions can be blinding and irrational (for a good example, see the near-insane hysteria of war supporters in the months leading up to the invasion of Iraq), the alternative that these sages propose is one of living death in which we watch as our country, Constitution and Republic are savaged, mistreated and insulted by treacherous villains with a mild equanimity. Apparently, we must never get upset about even the most appalling crimes and wrongdoing. The irascible aspect of the soul should not go to excess, but there is something vicious and strange in the failure to get angry at gross injustice and criminal misrule. Many of the people who are angry at or even hate Mr. Bush have very good reasons, and they are not making arguments for anger but are making impassioned arguments against an abominable and awful administration.

He further comments,

Conservatives once found liberals’ habit of dismissing every legitimate defense conservatives made against the latest social or cultural outrage of the left as “hate” to be intellectually vacuous and insulting. Now some on the right would apparently like nothing more than to adopt this pose of righteous calm (righteous indignation being so very culturally destructive) at the very moment when liberal rage is likely to diminish and moderate with the Democratic takeover of Congress. There has been the tendency on the part of liberals to reduce an opponent’s entire position to being nothing than ”hate,” as if no one could oppose rampant immorality, racial preferences or intrusive government, to name just a few things, without hating other people. Alongside this, though, there was real hatred of a terrible President in Clinton, whose administration only appears relatively decent today because of the hideousness of his successor’s policies.

Clinton-hatred was frankly a major part of the glue that held conservatives together despite differences among ourselves. Oddly enough, without a Democrat in the White House to serve as a hate-figure against which all conservatives could rally, all those who call themselves conservative have (re)discovered that they haven’t had a lot in common with each other for a very long time.

I think he's addressing two different concepts of "hate". "Hate or hatred is an emotion of intense revulsion, distaste, enmity, or antipathy for a person, thing, or phenomenon; a desire to avoid, restrict, remove, or destroy its object." The first type of hatred is that which he identifies as being directed at Clinton, and encompasses the full spectrum of that definition - revulsion, distates, enmity and antipathy. The second conceptualization, the one used for example to describe the propensity of certain factions on the political right to "hate" homosexuals and minorities, focuses primarily upon antipathy, while being exemplified by the overt statements and conduct of specific individuals and groups. While certainly, those on the left who perceive right-wing antipathy toward minorities or homosexuals as being largely irrational, there is nothing within the context of hatred or antipathy which requires that the motivation for such feelings be irrational. You can intensely dislike somebody for perfectly good reasons. But perhaps more to the point when hatred reaches beyond an individual to encompass an entire group of people, experience suggests that the "perfectly good reasons" will usually be rationalizations, and perhaps entirely logically unsound.

Larison also uses a self-serving characterization of the left's targets: "rampant immorality, racial preferences or intrusive government". The political right doesn't "hate fags", it opposes "rampant immorality". What sane person wouldn't at least frown at "rampant immorality", if not adamantly oppose it? The right doesn't hate minorities - it opposes "racial preferences." It doesn't oppose preferences based upon other factors, such as those given by colleges to the children of alumni, or the benefits enjoyed by those who can exploit a "good old boys" network or nepotism, but you shouldn't infer anything from that even though those benefits inure largely to the majority, and even more directly to the wealthy.

It opposes "intrusive government" and... Okay, I'm having a hard time thinking of how this one ties into hatred. Or, for that matter, reality - the various anti-gay ballot initiatives, national restrictions on abortion rights, the Defense of Marriage Act, various security-related laws both at the state and federal level... all advanced by the political right, and all leading to government being more intrusive.

And then things really get interesting:

It was Chilton Williamson, I believe, who proposed in the pages of Chronicles that an important distinction between right and left was the difference between hatred of those things that threaten and endanger what you love and an aimless, insatiable rage that simply seeks new things about which one can be enraged. The former is not only sometimes necessary but is actually the mark of sanity, whereas the latter is a consuming, demonic force that devours those who participate in it.

If he's speaking of this article, it's laughable. Larison's a bright guy, so I hope that the Chronicles piece he recalls was superior.

Now, Larison doesn't express which political group "hates" and which one "rages", although context makes that clear (as does the reference to Williamson). But the absurdity of that assertion should be evident on its face. The right hates things that threaten and endanger it, while the left acts on aimless insatiable rage? The country largely supported the invasion of Afghanistan as a response to something which threatened and endangered us. The political right then took us into a war of choice in Iraq, despite that nation's having nothing to do with 9/11 and posing no imminent (or realistic) threat to us. We are to believe that the left is "raging" at this ill-begotten war of choice? And those who led us into the war are demonstrating the mark of sanity? If all war opponents "rage", then Larison himself "rages" - he opposed, and continues to oppose, the Iraq war. If we're in fact talking about a tiny subset of people on the left - extremists if you will - then the distinction is useless, as there are frothing, raging lunatics on the political right. (Just listen to a right-wing call-in show - if the host doesn't convince you of that, the callers will.)

Obviously the assertion can be flipped on its head. The left largely supported the war in Afghanistan because it correctly identified something that threatened and endangered us. The right, in a surge of hatred, engaged in an aimless expansion of the war which has ultimately undermined both its goals and the gains we made in Afghanistan. But this depiction of "hate" and "rage" is no more accurate a depiction of the political left and right than the one favored by Larison - its simply the result of framing an argument in a manner which facilitates the smearing of your political opponent.

Moving on to the Chilton Williamson piece....

Rage and hate both are aspects of anger. They are not, however, the equivalent of one another. "I love a good hater," said Samuel Johnson. He meant that hate implies a corresponding love, which responds reactively to its threatened opposite. For a man to hate, he must first love; as he who loves, inevitably hates. Hate is a directed thing, focused like a laser beam. By comparison, rage is undirected, unfocused, generalized, indiscriminate: an adult tantrum. "Rage," Ernst von Feuchtersleben thought, "is a vulgar passion with vulgar ends." Thus it is with good reason, if poor judgment, that the Left boasts of the "rage" it nurtures in its bosom, while denouncing the "hate" it relentlessly discovers on the Right.

Ah, the soul of a poet... To hate, you must first love. So to hate African-Americans you must first love... what? Certainly not African-Americans. Perhaps white people? Hm. But he does seem to be right in terms of overt political association. How many identifiable hate groups are associated with left-wing politics, as opposed to right-wing politics? What are the odds that [a 21st Century] David Duke would ever have tried [try] to run for office as a Democrat?

Apparently because Samuel Johnson didn't comment on the matter, it logically follows that while you have to love before you can hate, you don't have to feel a thing before you experience rage. Funny, though, people who actually demonstrate rage seem to be expressing a form of anger, and the targets of that rage tend to be people they "hate". Here we can also make an interesting observation that Williamson would apparently classify the authoring of books or articles, the lobbying of government, or the expression of condemnatory words as "raging", but where a lynch mob randomly grabs somebody on the basis of sexual orientation or skin color, then beats or kills that person, it's a much superior, much preferable, love-driven expression of "hate".

He gets sillier:

Joe Sobran, with cutting characteristic clarity, has observed that one can't "tolerate" what one likes, but only what one dislikes. In demanding toleration for everything, the Left assumes on the Right's part a cultivated dislike for almost everything. Since, for the Left, majoritarian distaste or even want of sympathy for minorities (e.g. immigrants, homosexuals, feminists, Muslims, Jews, blacks, etc.) is always the equivalent of "hate," for Leftists hate necessarily appears as the universal reality stretching like an arid and infinite plain beyond the shining walls and towers of the New Jerusalem.

This call for tolerance seems to be what Williamson perceives as the most overt example of "rage" by the political left. Here, Williamson apparently believes that the left never targets itself when it campaigns for tolerance. That is, he seems to picture those on the left as pure souls, untouched by dislikes and even hatreds of their own, and thus motivated exclusively by the desire to restrict those on the political right from acting on their dislikes and hatreds. Further, he is simply wrong. Most on the political left will agree that there are some things which should never be tolerated. And it is implicit within his argument that he, himself, is demanding tolerance of what he believes to be a justifiable expression of intolerance, so where does that leave us?

But what really struck me about this passage was that, where Larison reframed the issues in order to avoid directly addressing racism, sexism, and other forms of bigotry, Williamson dares speak their name. He doesn't hide behind words like "preferences" and "government intrustion" - he's willing to admit that the "intolerance" the left wishes to limit is that directed toward "immigrants, homosexuals, feminists, Muslims, Jews, blacks, etc".

What leftists decry as conservative "hate" is actually resentment of, and resistance to, the intrusion of the alien and the displacement of the familiar by the unfamiliar, the old by the new, the traditional by the untraditional, the proximate by the distant, the particular by the universal.

Ah, I see... So it's not so much that people like Williamson hate "immigrants, homosexuals, feminists, Muslims, Jews, [and] blacks" - they just haven't had enough time to get used to them.

As I previously mentioned, this is not so much an honest argument as it is an effort to use semantics to reframe the positions of political opponents as being lesser, unworthy, even silly. But such a weak effort....

n.b. - Don't take this as a criticism extending to Larison's other posts or his blog as a whole. Check it out.

The Government We Deserve?

On NPR yesterday I heard part of an interview with the new Senate Minority Leader, Mitch McConnell, which included an exchange to the effect of,

Q. Would you support ending subsidies for big oil?

A. I oppose any tax increase.

That exchange could inspire a lot of discussions... The compliance of the media, and why politicians aren't called on their deceptive and misleading answers, or their nonanswers to simple questions. Whether lying with a straight face is a talent politicians learn on the job, or if politics is a world of sociopathy. Or (perhaps) less cynically, why anybody would call for the Democratic Party to try to reduce the Bush deficit when his party cannot be honest about our situation or what we would have to do to correct it.

David Ignatius writes,

The Democrats have to decide whether on economics, they want to be (forgive the sexist term) the "Daddy Party" of fiscal responsibility. Unless politicians find the courage to trim entitlement spending to what the country can afford, the projections are scary.

By Mitch McConnell's reasoning, isn't Ignatius calling for the balancing of the budget on the basis of a tax increase on the poor?

McConnell offers more words of wisdom....

Earlier on the Senate floor, McConnell said he'd fight attempts by Democrats to end the Bush administration's warrantless domestic-spying program and any attempts to roll back Medicare prescription-drug benefits.

Because, darn it all, the President needs to be above the law. And it's always the Democrats who want to scale back programs like Medicare.

Is McConnell actually saying that he will oppose any effort to bring common sense into the Medicare prescription benefit? That he will oppose efforts to eliminate the "donut hole" in prescription coverage, to allow Medicare to compete directly with private insurers to offer the benefit, or to permit Medicare to negotiate discounts with pharmaceutical companies? That he will misrepresent efforts to improve the benefit while lessening its costs as a "roll back"? Or is he simply delusional?

This represents the Republican concept of "a restoration of civility and common purpose"?

Bush's "Hail Mary"

Eugene Robinson writes,

Not once has Bush given the slightest indication that he intends any significant change of course in Iraq. Quite the contrary: The expectation in Washington is that soon he will announce an escalation of the war -- increasing troop levels but calling the increase a "surge" and giving the impression that it's a short-term measure. Don't be fooled by the focus-group word "surge," because a two- or three-month increase in troop levels makes no military sense. If and when the president sends more troops to Iraq, they will not soon come home.

With all due respect to the idea that this is solely a public relations move, it's more than that:

Interestingly enough, one administration official admitted to us today that this surge option is more of a political decision than a military one because the American people have run out of patience and President Bush is running out of time to achieve some kind of success in Iraq.

It is a given at this point that the public is not going to give any administration unlimited time to demonstrate progress in Iraq, and Bush has only two years remaining in which he can either maintain an unacceptable status quo that has no chance of success, draw down forces and admit failure (like that'll happen), or throw a Hail Mary pass. The fact that it's a long shot does not mean it's just a public relations ploy - if anything, it highlights how bad things are in Iraq and how few options remain available. I don't know if even Bush expects it to work, but he seems to view a surge as his best (and probably only) shot.

Given that the Democratic Party's fortunes keep rising as Bush sinks deeper into the Iraq quagmire, political expediency might tempt the new leadership in Congress to let the president have his way and reap the rewards in 2008. But that would be wrong. Democrats can't give speeches saying that sending more troops to Iraq without a viable mission is nothing more than a futile sacrifice of young American lives -- and then limit their dispute with Bush to whether he gets to send 3,000 more troops or 30,000.

If the Democratic Party attempts to negotiate over the number of troops sent to Iraq, it will find out pretty quickly how its powers on that issue compare to those of the Commander in Chief. As Mr. Robinson notes, there is no present possibility that Congress will cut off funding for the war - an action which would instantly shift responsibility for the bad outcome in Iraq from Bush to the Democratic Party. Mr. Robinson's time would be better spent focusing the spotlight on Bush, as the decision for a troop surge is not one that Congress is going to be able to change.

Why Search Engines Annoy Me

Don't get me wrong - I use search engines a lot, and find them invaluable for navigating the Web. But for finding new sites whose owners don't have the resources to launch an advertising or public relations campaign? They're not so good any more.

An oversimplified history: It wasn't so long ago that if you put up a website and worked to develop it, it could become an authority site. People relied heavily on directories to locate sites, listings were free, and search engines focused to a significant degree on page content when determining relevance. Then came the rise of "pay for inclusion" coupled with Google. Directories became less and less important to traffic, while search engines became dominant. Initially this didn't make much difference, as Google's big advance over other search engines was its analysis of linking between sites and pages. That type of weighting was emulated by other sites. But problems developed for the smaller webmaster.

First, as search engines became dominant, the proliferation of "links pages" and small directories that used to be found all over the Internet started to diminish, and their owners became less interested in maintaining pages of links, making it harder to develop "natural" links. Second, many of what were once common mechanisms for building links (e.g., trading links with another webmaster) are automatically suspect and likely to be devalued by search engines, as they are so easily abused. From a webmaster's perspective, the best links are one-way links from topically relevant pages of popular sites.

For a new site, no matter how good, the owner usually faces the conundrum that the site lacks sufficient links to rise to the top of search engine results pages, and as nobody is finding the site through search engines it isn't developing "natural" links... and thus languishes in obscurity. The response you often hear from representatives of the search engines is that quality sites will develop links over time - but from what I have seen, that's usually not the case. When it is the case it is often because the site has invested in a link development service, which charges an hourly or "per link obtained" fee to obtain one-way links to the new website.

Oh, how painful it can be watching a lousy website float at the top of the SERPs, like a turd in a septic tank, just because "they got there first".

Blogging to some extent revived natural linking - bloggers link to other weblogs that they like, usually whether or not they get a link back. Many early weblogs gained lots of links, thus being classified as "important" by search engines. Newer bloggers face the problem that many established bloggers neglect or simply choose not to update or expand their "blogrolls", and from the fact that no matter how good their content there are now usually other blogs which address the same topic reasonably well, making it harder for them to stand out. Also, blog searches have to a significant degree been shifted from regular search engine results to dedicated blog search interfaces, making it less likely that a new blogger will be found through a standard search engine.

Until the next big thing comes along, and you can again get in on the ground floor, the status quo makes it difficult to develop traffic to a new site. The work-around, perhaps, is to find an on-topic site with a reasonable URL and to try to acquire it from its current owner. (Anticipate, though, that the current owner will believe that a site that hasn't been updated in five years, and which looks like it was designed by a color-blind eight-year-old, will insist that the site is worth a small fortune.) But given the cost of generating similar traffic through advertising, on may commercial subjects they may be right.

When Everybody Wants To Work For You....

There's no way to sort out the applications without being arbitrary.

TalkLeft observes that Google is (as usual) hiring, but sets very high standards for applicants.

Memo to Google: Think outside the box. Rather than look for people who can sell your product, look for people who can enhance your product.

What you need are people who can separate the wheat from the chaff and find the best, not the most, of the web. Don't ask people to apply for specific jobs. Just let them take the test and then devise an algorithm to decide which job they're most suited for. The results would probably astound you.

Do people still "think outside the box"? (It was at least six years ago that I heard somebody quip that anybody who describes themselves as 'thinking outside the box' is certain to be stuck way inside the box.) But enough about boxes... she has a point. But it probably doesn't matter.

Google seems to pride itself on its highly degreed workforce, and that's not likely to change. Holding an advanced degree is not incompatible with being creative, and to the extent that Google values creativity it should be able to find many creative individuals within its applicant pool despite requiring advanced degrees and experience.

But there is still something to be said for recognizing that there are other valuable aspects to job applicants, beyond their academic credentials, and that sometimes those other factors should take a more prominent role in the hiring process. That's not just true for Google, but for pretty much any employer. Often the academic credential is used as an artificial means of narrowing a candidate pool, simply because there would otherwise be too many job applications to reasonably process. But it seems rare for companies to question if those academic qualifications are truly the best measure of qualification for the job.

Young Lawyers Fleeing From Big Firms To...

The New York Post suggests that big law firms are being abandoned by young lawyers who don't believe that a large paycheck is worth the sacrifice of a personal life.

Young, Gen-X lawyers in their third to fifth year in the business are walking away from their $200,000-a-year positions in record numbers - at times without another job in view.

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The big-firm brain drain is also giving partners a major case of agita - forcing them to do the yeoman grunt work usually assigned to associates. In addition, the firms are being forced to scramble to fill the mid-level talent void. Some are even doing the previously unheard of - hiring from second-tier law schools.

John, a fifth year associate at a prominent Wall Street firm, is, like many young lawyers, walking out the door. He is leaving for a coveted in-house position at an investment bank. "I'm just waiting for my bonus," the 31-year-old says.

The author of the piece doesn't describe her own experience, but her byline suggests that she quit a law firm in order to write a book. John is the only specific example she provides in the article, and let's just say it doesn't look like he's walking away from a six figure paycheck. The other lawyer mentioned, Tagg Grant, appears to be preparing to practice under his own shingle. (Is this the same guy enjoying an earlier fifteen minutes of fame?)

I suspect that most of the associates who are leaving are doing so in the same manner as John - they're either finding alternatives that pay very well but allow more personal time, or they're finding alternatives which pay even better whether or not they provide for more personal time. The problem for partners:

"You should see the partners," John says. "They're doing the work of mid-levels to pick up the slack. And even though they make over $1 million, they never see their family. There's little reward in that for me."

That's the problem with a business model based on selling time - there are only so many hours in the day, and if you can't find somebody else's time to sell you're stuck selling your own. It's no small wonder that many young lawyers look at that future and think about the alternatives.