Unbundled Legal Services And Ghastly Legal Opinions

Law.com presents an article about a federal magistrate who took umbrage at a lawyer's drafting pleadings for a pro se plaintiff:

Ghostwriting pleadings for a pro se litigant violates a lawyer's ethical duty of candor to the court and may amount to a violation of federal court rules, a U.S. magistrate judge holds in a case of first impression in New Jersey.

Apparently the defense lawyer objected that the pleadings were too good for the pro se litigant to have prepared herself, and when questioned (as instructed by the lawyer who was assisting her) the litigant identified the lawyer who drafted the pleadings. The magistrate made a two-part objection to the lawyer's ghost writing of the pleadings:

First and foremost, she said, courts generally construe pro se litigants' pleadings liberally and are more flexible in applying procedural rules. "Simply stated, courts often act as referees charged with ensuring a fair fight," she said. "This becomes an obvious problem when the Court is giving extra latitude to a purported pro se litigant who is receiving secret professional help."

That's "first and foremost"? It's patently silly. If you assume that a judge is competent to evaluate pleadings, it should follow that the judge will be able to figure out when extra latitude is or is not required.

There's no rule that judges have to give latitude to all pro se litigants, nor is there any rule that all pro se litigants must be treated equally. If I were a pro se litigant, and the judge knew that I was a lawyer, I wouldn't expect any latitude with my pleadings - and the judge wouldn't give me any. The magistrate didn't have to give this pro se litigant any latitude, as the pleadings appear to have been of professional quality. Either the litigant had help, and thus no extra latitude was required, or the litigant was exceptionally capable and, again, no latitude was required. There's not even a claim that extra latitude was given.

Bongiovanni found that undisclosed ghostwriting violates RPC 3.3, which charges lawyers with a duty of candor to the court. Although she found Shapiro advised Delso to answer honestly if questioned about his participation, his failure to affirmatively notify the court of his informal assistance to Delso was "not emblematic of the candid honesty contemplated by RPC 3.3," she wrote.

I again disagree. That rule provides,

RPC 3.3 Candor Toward the Tribunal

(a) A lawyer shall not knowingly:

(1) make a false statement of material fact or law to a tribunal;

(2) fail to disclose a material fact to a tribunal when disclosure is necessary to avoid assisting an illegal, criminal or fraudulent act by the client;

(3) fail to disclose to the tribunal legal authority in the controlling jurisdiction known to the lawyer to be directly adverse to the position of the client and not disclosed by opposing counsel;

(4) offer evidence that the lawyer knows to be false. If a lawyer has offered material evidence and comes to know of its falsity, the lawyer shall take reasonable remedial measures; or

(5) fail to disclose to the tribunal a material fact with knowledge that the tribunal may tend to be misled by such failure.

(b) The duties stated in paragraph (a) continue to the conclusion of the proceeding, and apply even if compliance requires disclosure of information otherwise protected by RPC 1.6.

(c) A lawyer may refuse to offer evidence that the lawyer reasonably believes is false.

(d) In an ex parte proceeding, a lawyer shall inform the tribunal of all relevant facts known to the lawyer that should be disclosed to permit the tribunal to make an informed decision, whether or not the facts are adverse.

Interpreting a similar rule, Arizona applied my preferred "Judges aren't stupid" analysis:

While acknowledging the existence of the above opinions, the Committee finds that disclosure to the court or tribunal of an attorney's assistance with a court filing is not necessary when the pro per client submits the document for filing. The Committee concludes that the submission of ghostwritten documents without informing the court or tribunal does not violate ER 3.3(a)(1) and ER 8.4(c) because the practice is not inherently misleading to the court or tribunal. When presented with a document prepared with the assistance of counsel, the Committee believes that a court or tribunal can generally determine whether that document was written with a lawyer's help. ER 3.3(a)(1) proscribes against an attorney making or failing to correct a false statement of fact or law to the court or tribunal. We do not believe that the omission of an attorney's name from a filed document is a false statement of fact or law that is either made or needs to be corrected. Because the disclosure of an attorney's assistance with court filings is not obligatory under the ethical rules, by deduction, the submission of ghostwritten materials by a pro per client does not contravene ER 8.4(a)'s prohibition against violating the ethical rules through the acts of another, such as the attorney's client.

Some courts and ethics committees have evidenced disfavor with lawyers ghostwriting court documents because they believe the practice provides an unfair advantage in that courts are willing to afford more leeway to pro per clients. ... The authorities argue that a pro per party who is actually receiving the services of a lawyer thus receives the benefits of legal assistance and special treatment by the court at the same time. Another view is that it interferes with a court's ability to superintend the conduct of counsel and parties during litigation. ... Notwithstanding these arguments, courts are usually able to correctly assess when to afford pro per litigants appropriate latitude and when these litigants are being given the benefit of assistance of counsel. For case management purposes, a court can confirm the existence of assisting counsel by directly asking the pro per litigant if the issue becomes important to the resolution of the case.

I also agree with the Arizona opinion's sentiment that where no rule of disclosure exists, judges shouldn't fabricate one ("Imposing this type of disclosure rule, however, exceeds the scope of our authority.")

Bongiovanni further found that undisclosed ghostwriting violates the spirit, if not the letter, of Federal Rule of Civil Procedure 11 and Local Civil Rule 11.1, which require attorneys to certify and sign their submissions to a court. Some federal courts have found ghostwriting a per se Rule 11 violation, but Bongiovanni declined to go that far.

FRCP 11 provides,

Rule 11. Signing of Pleadings, Motions, and Other Papers; Representations to Court; Sanctions

(a) Signature.

Every pleading, written motion, and other paper shall be signed by at least one attorney of record in the attorney's individual name, or, if the party is not represented by an attorney, shall be signed by the party. Each paper shall state the signer's address and telephone number, if any. Except when otherwise specifically provided by rule or statute, pleadings need not be verified or accompanied by affidavit. An unsigned paper shall be stricken unless omission of the signature is corrected promptly after being called to the attention of attorney or party.

Here there was no attorney of record, and there is no claim that the individual litigant did not sign the pleading. I think it is an unjustifiably attenuated reading of "if the party is not represented by an attorney" to rewrite the rule to require a counsel not of record to sign a ghost-written pleading. The local rule seems to apply a common sense reading:

Civ. Rule 11.1 Signing of Pleadings

In each case, the attorney of record who is a member of the bar of this Court shall personally sign all papers submitted to the Court or filed with the Clerk.

The attorney was not of record.

Further, if the problem is that the judge needs to know who is ghost-writing briefs such that she does not grant a pro se litigant extra latitude (even though it is obvious none is needed), why this remedy?

Bongiovanni ordered that Shapiro enter an appearance by March 30 if he wants to represent Delso, or else cease communicating with her about the case.

Why not just concoct the rule that the ghost-writing lawyer must be identified as the author of the pleading?

This type of ruling puts the pro se litigant in the position of being able to get some (but quite possibly an inadequate amount of) help from a lawyer, or to hire a lawyer. If we're going to accept that judges have so much concern for pro se litigants that they will bend the rules of civil procedure to assist them in the presentation of their cases, why simultaneously leave them in a situation where they likely cannot get the amount of outside legal assistance they need, because they either cannot find a lawyer who will take their case or cannot afford to retain a lawyer to represent them in court, as opposed to drafting the pleadings they require?

"Trust Me"

What a generous offer....

The White House says it will make Karl Rove and former counsel Harriet Miers available to testify — but not under oath — about the dismissal of eight U.S. attorneys in 2006.

How could anybody look that gift horse in the mouth....

From Where Should We Expect Better Iraq Policy?

A couple of days ago in The Long Exit David "Babbling" Brooks attacked those who suggest that Iraq's government is shirking its duties. You know, the liberal democrats who say things like this:

Iraqi leaders must step up to achieve key political and security milestones on which they have agreed.

Or the weak-kneed, cut-and-run liberals who say things like "There is no military solution to a problem like that in Iraq, to the insurgency of Iraq." Apparently only Democrats like Carl Levin would say such absurd things:

The essential Levin argument was that the Iraqi leaders have been shirking their duties and it’s time to force them to get serious. “It is time for Congress to explain to the Iraqis that it is your country,” Levin declared. It is time to shift responsibility for Iraq firmly onto Iraqi shoulders, and give them the incentives they need to make the tough choices. The Democratic timetable resolution, Levin concluded, “will deliver a cold dose of reality to Iraqi leaders.”

But does anybody think that Iraqi leaders, many of whom have seen their brothers and children gunned down, need a cold dose of reality delivered from the U.S. Congress

Right, David... Surely no Iraqi leader would welcome troop withdrawal as a wake-up call to his countrymen.

People who criticize bloggers as reactive, with the majority doing no real reporting and simply commenting on events they read or see in the news, take note: At least, unlike David Brooks, they are taking the time to keep up with the news.

There is some merit to Brooks' criticism of Democrats as not wanting to join either of the two sides of the Iraq war debate - those who argue for withdrawal on the basis that"the place is headed for civil war, there’s nothing we can do to stop it, and we certainly don’t want to get caught in the middle,", or those who assert " We have to do everything we can to head off catastrophe ... We should perhaps build on the promise of the surge with regional diplomacy or a soft partition, but we certainly should not set timetables for withdrawal." But at the same time he paints a false dichotomy in order to contain the Democrats in the middle - there are other political, diplomatic and military options which could be pursued, but won't as long as Bush is in the White House. It might be nice in some respects if the Democrats were more forceful, but Brooks has to know that its not entirely honest to criticize them for disfavoring what could be a disasterous short-term pull-out while refusing to endorse Bush's continued wholesale ineptitude.

Say what you will about President Bush, when he thinks a policy is right, like the surge, he supports it, even if it’s going to be unpopular. The Democratic leaders, accustomed to the irresponsibility of opposition, show no such guts.

But Bush doesn't refuse to change his mind on bad policy because he's unafraid of the polls. He refuses to change bad policy because he's stubborn, and pathologically afraid of admitting that he has made mistakes.

Bill Kristol noted about four years ago that Bush had driven the nation into a ditch with his incompetent Iraq policy. Kristol does not seem so sure any more, recently writing "It should be obvious that 'staying the course" is a recipe for failure.'" But Brooks delights in riding shotgun with a President who, four years later, insists that he knew what he was doing when he drove into the ditch and, if he just keeps on doing exactly the same thing over and over again... well, he's not even promising that he'll get us out of the ditch. He's going to leave that job to the next President.

Is the surge, of itself, enough to get us out of the ditch? As I noted at the outset, albeit while forcing those who haven't been following the news to follow a link to get the whole story, the guy in charge of the surge, General Petraeus, doesn't think so. So when Brooks writes,

Liberals recognize the cynicism of it all. Republicans know the difference between principled opposition and unprincipled posturing.

Is he describing what he anticipates to be the reaction to his column? If Brooks had a backbone, perhaps he would choose which side he's on, then (assuming he's every bit the keyboard commando he appears to be) start describing concrete policy changes which will be necesseary to achieve success, and the measurable, sustained improvements that will serve as signs that we are, in fact, succeeding.

Google and Privacy

I think they could go a bit further without losing valuable data, but it's a start.

The search engine ... said it would destroy huge tracts of identifying information it holds on internet searches. Information such as who made what search and when is kept "for as long as useful" but under the new policy, all identifying data will be erased after 18-24 months.

Sweep It All Under The Carpet

That's the Washington Post's advice to a prosecutor who, while finding that there is not a makeable case for the criminal conduct under investigation, finds that witnesses have lied to him and intentionally obstructed the progress of his investigation.

The fall of this skilled and long-respected public servant is particularly sobering because it arose from a Washington scandal remarkable for its lack of substance. It was propelled not by actual wrongdoing but by inflated and frequently false claims, and by the aggressive and occasionally reckless response of senior Bush administration officials -- culminating in Mr. Libby's perjury.

Most people don't commit perjury unless they fear that something substantive will be revealed if they were to tell the truth. (Should I say "All"?) So let me register my disagreement: If you lie to a grand jury, you deserve to be indicted. No more substance is required.

Believe It Or Not, This Story Ends With The Issuance Of Several Tickets

A driver recounts,

I stopped at a red light two lanes one way two lanes the other. the light went green and i accelerated a normal rate of speed. A police car pulled out in front of me from a parking lot (maybe 50 yards from the light) and almost stopped in my lane. He was heading across two lanes and going into the other two lanes heading the other way. I proceeded towards him at about 25 mph (the speed limit) and honked to get him to move out of my way.

But That Was Different

Andrew Sullivan explains why it was "high camp" to call Al Gore a "total fag", but wrong to call John Edwards a "faggot":

My only response to my reader is that seeing her live in front of a young, cheering crowd made me feel a lot less complacent. Being a gay man in a crowd that cheers a woman denigrating someone for being a "faggot" is an educative experience.

That unfortunate laugh track....

Seeing college kids line up to worship her tore me up. These kids deserve better. They're young and smart enough to be interested in conservatism - and this is what they are getting?

They're young, of average intelligence as compared to their peers, and they're interested in Ann Coulter. The rest is wishful thinking.

It Was Funny When It Was Said By A Talking Doll, But....

I gave up on Townhall.com a long time ago, as you rarely learn anything from one of its screeds that you can't discern from the headline and byline. Daniel Larison apparently has a greater tolerance for palaver than I, and he brought my attention to Mary Katharine Ham's reaction to Coulter's "faggot" joke.

Point being, I had a soft spot for Ann. When I left N.C. to move to D.C. a couple years ago, a friend gave me one of those talking Ann Coulter dolls, which I immediately set about hiding in my liberal editor's office, rigged to squawk about liberalism every 10 minutes. Heh. Luckily, he was a good-humored man.

Oh, tee hee. What sort of things does that doll say?

"Liberals hate America, they hate flag-wavers, they hate abortion opponents, they hate all religions except Islam, post 9/11. Even Islamic terrorists don't hate America like Liberals do. They don't have the energy. If they had that much energy, they'd have indoor plumbing by now."

Oh, how hilarious. I mean, how unfunny. As Ms. Ham says,

I, for one, am proud that there are Middle Easterners, gay men and women, and other minorities for whom conservatism is an ideology that empowers. Don't they get enough crap from our lefty colleagues for "leaving the plantation?" Why should they be subjected to more from one of their supposed allies?

Am I wrong to infer that she intends that comment to include followers of Islam?

So the "joke" that was funny (or at least not inappropriate) when originally made by Ann Coulter, and which was funny when repeated by an Ann Coulter doll in her (good natured, tolerant) liberal editor's office, would have been horribly inappropriate if repeated years later at the CPAC event?

Why am I still left thinking that the real problem was the laugh track.

Ann Coulter's Inappropriate Laugh Track

Through Lawyers, Guns & Money, I was introduced to a piece of ambush journalism from CPAC which starts with Michelle Malkin refusing to sign a photograph of Japanese Americans, interned during WWII, and closes with Ann Coulter's now infamous "faggot" joke. I'm not a huge fan of ambush journalism, but I'll leave that topic for another day. I did appreciate the opportunity to see Ann Coulter make her joke, and to get a better impression of why it flopped.

The problem isn't that it was different or more inflammatory than her past rhetoric. It wasn't.

The problem is that she had a laugh track.

In fairness to the CPAC audience, the laughs were far from uniformly appreciative of the joke. There's enough groaning and surprise mixed with the laughter to let you know that many people were reacting to the outrageousness of the statement, which was probably Ann Coulter's expectation - this is her M.O. Does anybody contend that she truly believes John Edwards to be gay? There's nothing clever about a third grade insult like, "He's gay", but Ann Coulter has built her career largely on similarly childish insults.

The problem this time is that there was obviously a significant percentage of her audience who found her funny. Had she made the same comment on a show like Real Time With Bill Maher{, the audience would have... oh, how did Hitchens put it... they would have made "booing and mooing noises". Ann Coulter would have displayed her trademark smug smile and said something derisive about the audience (like, they're so PC they'll want to send her to rehab for making that joke). And everything would have carried on as usual.

The problem here isn't that Ann Coulter did something more outrageous than she's done before. The problem isn't that she embarrassed herself - to the extent that she ever had any shame, she gave it up a long time ago in pursuit of riches. The problem is that this time she got a large number of self-described conservatives at a major conservative event to embarrass themselves. Ann Coulter did what a good speaker does - she knew her audience, she spoke to her audience, she connected with her audience, and she told a joke that worked with her audience. The conservative horror, be it feigned or real, is not a reaction to what she revealed about herself, but is to what she revealed about a large percentage of self-described modern conservatives.

Another Reason Not To Use ATM-Style Voting Machines

A number of arguments have been made about electronic voting machines, the lack of a paper trail, the potential lack of security in the software, the fact that the source code is not public, potential for switching or erasing memory cards, etc. But there's another reason why governments should be careful about investing heavily in these machines, over cheaper or mechanical alternatives. If you're paying $3,000, $4,000, $5,000 or more per machine, for how many elections are you expecting to use the machines? What if you find yourself suddenly unable to get software patches, replacement parts, or repair services?

Diebold Inc. saw great potential in the modernization of elections equipment. Now, analysts say, executives may be angling for ways to dump its e-voting subsidiary that's widely seen as tarnishing the company's reputation.

* * *

Might Diebold choose to keep the voting business and grow it?

"It's a possibility, but I'd assign it a very low probability," Luria said.

Sure, they may sell their voting machine division, but then there are issues about who's buying it and why. If it's a private equity firm, which the article suggests as a possibility, who will they sell it to? What company with a good reputation in this type of manufacture will look at Diebold's experience and not be concerned about its own reputation?

There's no scandal in scantron voting systems - you have paper ballots, accurate counts, easy recounts, fewer machines per polling station, easier setup.... Maybe it's time for our nation's politicians to stop gushing, "Oooooh, shiny..." every time they see a costly high-tech gadget they can buy with taxpayer money.

Is It Truly That Bad?

The London Guardian opines,

An elite team of officers advising the US commander, General David Petraeus, in Baghdad has concluded that they have six months to win the war in Iraq - or face a Vietnam-style collapse in political and public support that could force the military into a hasty retreat.

* * *

Possibly the biggest longer term concern of Gen Petraeus's team is that political will in Washington may collapse just as the military is on the point of making a counter-insurgency breakthrough. According to a senior administration official, speaking this week, this is precisely what happened in the final year of the Vietnam war. Steven Simon, the national security council's senior director for transnational threats during the Clinton administration, said a final meltdown in political and public backing was likely if the new strategy was not seen to be working quickly.

A Grammar Lesson Best Left To A Later Date

After a trip to the home of indoor playgrounds, games, and something that they claim is pizza....

Emma: My Chucky Cheese.
Mommy: No, my Chucky Cheese.
Emma: My Chucky Cheese.
Mommy: Okay, your Chucky Cheese.
Emma: No, I'm Emma.

(I know your/you're is a grammar pet peeve for many people, but for a two-year-old I think we can forgive the confusion.)

Teaching People To "Think Like Lawyers

Behind the firewall, today's New York Times prints "A Skull Full of Mush" from Ann Althouse. (Er... I mean it prints an editorial called "A Skull Full Of Mush"....)

Professor Althouse reminds us of the fictional Professor Kingsfield of The Paper Chase who defends his law school teaching methods by declaring "You come in here with a skull full of mush, and you leave thinking like a lawyer." She relates this in the context of a conference in which the author of that book rejected the Kingsfield approach to legal education in favor of one which allows students to develop their own narrative. (I'm not sure what that means and Althouse doesn't explain; I suspect she chose to use that particular phrase without providing any context because, standing alone, it sounds so wishy-washy. If that's the case, though, what can I say? She's "thinking like a lawyer.")

We law professors tend to worry about seeming like Professor Kingsfield. But we ought to worry less about that prospect and more about preserving and respecting our own tradition of teaching from the cases.

The students who come into our law schools are adults who have decided that they are ready to spend a tremendous amount of time and money preparing to enter a profession. We show the greatest respect for their individual autonomy if we deny ourselves the comfort of trying to make them happy and teach them what they came to learn: how to think like lawyers.

One of the best student experiences I had in law school was being taught by J.J. White, who was probably the most like Professor Kingsfield of any professor at UM. He knew his material cold, and I had the impression that he spent more time reviewing cases and preparing for each class than did most of his students. He did instill some fear, because you knew that if he called on you and you were not prepared (or were wildly off the mark) you were likely to experience some embarrassment. Some students hated him, but I doubt that there was one who wasn't inspired to work hard and think hard. His politics were obvious, but they didn't factor into his grading.

Had every professor at UM been like him, I would have had to work a lot harder and I would have learned a lot more. Instead, I found that he represented a certain class of older professor who had high expectations for students, had a tremendous amount of knowledge and self-discipline, and wished to impart knowledge of the law. Perhaps some of the more socratically-inclined younger professors eventually develop a similar set of teaching skills, but I was left with the impression that for many of the younger set the term "socratic method" was shorthand for "I don't have to have a lesson plan or prepare for class because I can fill an hour by lobbing questions at students". Some were all about ideology, caring a lot less about whether students came to learn the material than if the students ended up sharing their perspective on the material. Which isn't to say that they're necessarily dishonest - I suspect that they believed their positions to be correct, even if the nation's legislatures and courts hadn't (and still haven't, and aren't ever likely to) come to their senses.

Is there is a sense in which learning to write for such a professor is learning to "think like a lawyer"? You either develop skill in fashioning an argument you don't agree with or you get a lower grade - and is it not true that at times lawyers have to raise potentially meritorious arguments that they don't personally agree with in order to protect the interests of a client? (See? Skip over the "potentially meritorious" part, and it's an important lesson in "thinking like a lawyer.") Well, you might be able to make that argument if the professor is intentionally grading down correct answers on the basis of ideology which, Supreme Court advocacy aside, isn't an approach particularly compatible with "thinking like a lawyer". Maybe it's a lesson in "writing for your audience" - also an important legal skill? Er, maybe I shouldn't have to work this hard to make excuses for bad, lazy teaching. In these cases it wasn't the student who had the "skull full of mush".

In retrospect, when I look at what taught me to write like a lawyer, it wasn't the wretched student-led writing program that UM then inflicted upon its 1L's. It was a clinical class in criminal appellate advocacy, taught by a practitioner. The instructor opened the first session by telling us that whatever we had been led to think constituted "good legal writing" by virtue of law school instruction was largely incorrect, and over the course of a semester demonstrated that he knew what he was talking about. It's much harder to pinpoint how I learned to "think like a lawyer", although I can assure you that not every law professor I had contributed to that process (save, perhaps, as sardonically noted above).

I'm not going to argue that "thinking like a lawyer" means you have to shut up if you don't know what you're talking about. But knowing when to sit down and shut up is a part of good advocacy - whether because you've won the point and continuing would be beating a dead horse, because you risk exposing the weaknesses of your argument if you continue speaking, or because you're starting to sound like you're being arrogant or bullying. (At the same time, sometimes being provocative is a good way to induce your opponent into overplaying his hand.) When I post here, I rarely get a good back-and-forth in the comments, but I enjoy that as an opportunity to improve my knowledge and the way I think about the issues under discussion. (Yes, folks, all rumors to the contrary aside, lawyers tend to be more argumentative than the average person, and to approach debate as something to enjoy, not something to dread. That's not something you learn in law school, but it is something that helps take you there.)

I am not sure that J.J. White ever told my class that he was going to make us "think like lawyers". (He did tell us that law firms regarded us as fungible, and he also correctly forecast that most of my classmates on the political left would prove to be "limousine liberals", casting aside plans for careers in public service for a six figure law firm salary. He was right on both counts.) Had he done so, I would have believed him. But the professors I recall hearing that from, usually as a defense of their dubious teaching methods, didn't have a clue how lawyers think. They knew how to think like a law professor, and perhaps even to think like a Supreme Court Justice they once clerked for, but that was about it. For somebody who admitted hating practice, being unsuccessful in practice, and having a whopping two years of law firm experience in which he admitted the closest he got to courtroom advocacy was literally carrying bags for a partner, to tell me he can teach me to "think like a lawyer"? That's a joke. (And, of course, it happened.)

For the most part the claim, "You're learning how to think like a lawyer," is a cop-out. It's a cover for bad teaching that can't be defended in concrete terms. My challenge for Professor Althouse: Please provide a clear definition of what it means to "think like a lawyer," and which law school teaching methods have been legitimately established to establish those skills.

Noteworthy Observations from Eunomia

Daniel Larison has made a couple of observations recently that, in my current state of blogging lethargy, I'll pass off as a blog post.

On conservatives who advocated for war in Iraq under the apparent or professed belief that reinventing that country as a liberal democracy would be easy:

People are mostly skeptical of social engineering efforts and jaundiced about revolutionaries who promise to herald a new dawn. Iraq has revealed what human beings do without a strong order-imposing state. ~David Brooks

Well, if by “people” Brooks means “people who didn’t buy into the crazy revolutionary rhetoric of the Second Inaugural,” this is true. If by “people” he means “everybody, especially including me, David Brooks,” I will have to disagree, and not for the first time. As we were reminded just the other day, those who were jaundiced about a promise of a new dawn in Iraq (or was that the ”birth pangs of a new Middle East”?) were accused more or less openly of various horrible moral and political evils, including racism, treason and support for despotism. How could we doubt that Iraqis could pick up in a matter of a few years political institutions and habits that took us centuries to develop? We were accused of a lack of confidence in the universality of “freedom and democracy” and were mocked for doubting the equality of man. Why? Well, we were under the funny impression that abiding cultural and religious identities would trump vague appeals to “freedom and democracy” every time and that a people’s particular history was far more relevant to its political constitution than vacuous bromides about how freedom is God’s gift to mankind. Brooks and company took the other view. Now they would like to rush back and claim the mantle of traditional conservative wisdom that they threw into the gutter and spat upon. I, for one, am sick of this.

On conservatives who try to depict Democrats as "the real racists":

When you grow up reading a lot of conservative commentary as I did during the ’90s, you find that the ever-so-cute and amusing attempts to show that Democrats and liberals are the “real” racists got old about ten years ago. It served the purpose of trying to hoist the race-hustlers and exploiters by their own petard, but it was, had to be, purely tactical and a way to puncture liberal claims to moral authority on these things. As of five years ago, they became really tiresome, because you began to sense that some of these people were deadly serious. “No, really, we’re the true anti-racists! I’m so not racist, you can hardly believe it!” Now I consider them an embarrassment of sorts, a kind of irrepressible tick that conservative writers feel the need to express every once in a while to get it out of their system.

Obama on Bipartisanship

Yes, he calls for bipartisanship, and that pitch still sells, but does he mean it?

The last guy who ran on a platform of bipartisan cooperation and ended up in the White House... what was his name again? All I really remember now is that he was a "uniter", not a "divider".

Another Reason To Be Careful With Your Law Firm URL

I have previously mentioned my belief that law firms should take care about who owns the URL for the firm's website (or sites), and what happens to the URL in the event that the firm name changes or a partner leaves the firm. But here's another wrinkle.

Let's say you have been using a URL for a number of years, or even just a few months, and have advertised it, incuded it on your letterhead and business cards, or otherwise publicized the URL. The firm decides to change the URL for the website, a partner who owns the URL's registration leaves the firm, or the hosting company never transfers the URL to your firm and either goes out of business or won't release the URL to you when you switch hosts.

Within a short amount of time, you may find that all of that promotional material which continues to associate your firm's name with the defunct URL now points to a site owned by a competitor or, much more likely in the event that you had any appreciable traffic, a company which will "park" the domain and serve up ads to anybody who comes to it. If you're really unlucky it may end up owned by somebody who hates your firm and puts up a website describing how awful you are.

Go to a site such as domaintools.com and see... who does own your URL, and is it time for you to renew your registration?

But As A Business Model, It's Scary....

Steve Jobs has replied to European regulators, investigating whether Apple should be ordered to license its digital rights management software to its competitors, by suggesting that record companies "should consider dropping the anti-piracy restrictions they impose on music downloads."

"If the big four music companies would license Apple their music without the requirement that it be protected with a DRM, we would switch to selling only DRM-free music on our iTunes store. Every iPod ever made will play this DRM-free music.

I suspect that he's correct, and that sales of DRM-free music would significantly exceed current music sales levels. While some would abuse the system, I would expect music industry profits to nonetheless increase due to the higher levels of sales.

Accuracy and Police Lineups

Many years ago a drunken houseguest of a homeowner down the block from my father's house went down the streets trying doorknobs, and stole items from houses which he discovered to be unlocked. He entered my father's house and came face-to-face with my brother. He fled, but was quickly picked up by the police with a significant number of stolen items.

On the date of his preliminary examination, my brother was asked to show up early and speak to the detective in charge of the case. I was asked to come in as well, as some of my belongings had been stolen. My brother was told that he might be asked to identify the defendant from a line-up. The detective asked my brother a series of questions about the defendant's appearance, and seemed to grow slightly more exasperated with each answer. He left for a few minutes then came back and informed my brother that the defendant had agreed to enter into a plea deal, and that no line-up would occur.

As we were leaving the detective's office we saw a man being taken to court in a jail jumpsuit. My brother said, "That's him." I looked at him and said, "He doesn't look anything like you said he looked." My brother replied, "I know. But it's him."

I remembered that story when reading TalkLeft's post about the Innocence Project's proposals to make line-ups more accurate. One aspect of the proposal:

Selecting lineup fillers according to the witness’s description of the perpetrator as opposed to based on their similarity to the police suspect, thereby lessening the chances that the suspect will stand out.

Had that been done in my brother's situation, the defendant would have stuck out like a sore thumb.

I think this highlights something that the proponents of this idea have overlooked, or perhaps have chosen to overlook. People are pretty good at recognizing faces that they have seen before. But that doesn't mean that they are particularly good at describing what somebody looked like. While a defense lawyer may have had fun with a description from my brother, and might have even been able to use it to impeach the line-up, that would not have made the defendant any less guilty. Realistically, it would probably have caused the police to cancel the line-up... which happened anyway. But, given that my brother was in fact able to accurately identify the defendant when he saw him, would that in fact benefit an innocent defendant?

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.