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Pro Bono rule light on substance, heavy on compliance, penalties, lengthy definitions

What's going on in Virginia's pro-bono-reporting controversy was illuminated for me by a recent interview with law professor Richard Epstein, known for many things but first for his monumental works on Strict Liability and Eminent Domain.

"... We're now entering into a compliance culture, where if you do something wrong, the sanctions are always draconian. So you (A) have to have somebody to fix it so you don't get punished. And (B) you have to have all your ducks in order so that if something goes wrong you have all sorts of defenses ... So the compliance culture essentially requires industry concentration ... If you double the size of a firm, you don't double the size of your compliance costs. And so one of the things that Obamacare has done is that it has led to a wave of hospital and industry mergers in an effort to minimize compliance costs thereby creating higher levels of market concentration, which leads to monopoly power."

    Maybe that's why Virginia Lawyers Weekly reports that of the public comments the state bar received on mandatory pro bono reporting, the favorable majority overwhelmingly came from lawyers at big firms and legal aid agencies. I don't mean that this is big-firm lawyers' motive, but it's why the load of compliance isn't an issue for them, and is a big issue for small-firm and solo lawyers. Also, the rule lets firms concentrate their pro bono time in a few lawyers, so they can undertake big, time-consuming cases for the poor. That's a very worthy adaptation to the rule, IF there should even be a rule in the first place. And I suspect many bigger firms already keep track of all their lawyers' pro bono and extracurricular time, so they can put the results in press releases.

The proposed change only requires lawyers to fill in a number in a "How many hours" blank once a year when renewing their membership and paying their dues to the mandatory Virginia State Bar, which licenses and regulates lawyers. There's a lot more that advocates for the poor's legal needs might want to know to make the information more useful -- what kinds of law do you practice? Which of the many kinds of work listed in the Definitions section do you do? Do you do the pro bono through other institutions or just through your law firm? What needs do you think are out there? Any other ways you could work to meet them? What gets in the way of doing that? 

So the Bar only asks lawyers this one short, innocent question, about your free-will offering of humanitarian good works, where the only wrong answer is no answer. (Or an answer that's not a number of hours.) But it makes lawyers awfully apprehensive when it shows up asking that little question but loaded for bear, bristling with hooks, nets, expulsion devices, license-grabbers, long lists and cross-references. Not in a survey like the ones the Supreme Court and Bar already send out, but as part of membership renewal, in a list of questions that gravely affect one's permission to practice law: have you been conflicted of a felony, been disciplined by another state's bar, do you have liability insurance ... ? If lawyers wonder exactly what hours they should include in the number, they need to look up the lists of definitions and alternative means of compliance (which the proposed change will lengthen) in Professional Responsibility Rule 6.1 and, especially in its Commentary. To find out the rules and penalties for not reporting or late reporting, they must look at Bar Organization Rule "19. Procedure for the Administrative Suspension of a Member."  And it does it, not in a survey like the ones the Supreme Court already sends out, but as part of membership renewal and in a list of questions that gravely affect one's permission to practice law: have you been conflicted of a felony, been disciplined by another state's bar, do you have liability insurance ... ?

Just another cumulative annoyance in the process of what Virginia's great writer Florence King called being "nibbled to death by a bureaucratic duck". 

Quotation is from Page 2 of 

Richard Epstein: Why Obamacare Is Collapsing and He's Not Voting for Trump, Hillary, *or* Johnson

Q&A with the great libertarian law professor on cigarettes, global warming, foreign policy, and much, much more.


If presidential perjurers don't get charged, will anyone be afraid to lie in court?

In the Clinton impeachment we decided that perjury isn't an impeachable offense, at least when it's basically about a president's private life and not the essential parts of his job, treason, murder, rape, subverting democratic elections, corruption ... .

But what about plain old criminal prosecutions? if presidents and candidates don't get prosecuted for obvious perjury either, then that tells everyone else to disregard that lying when testifying it's illegal and dangerous. And it gives lawyers and judges another reason not to believe what anyone says. Testifying to a court -- whether on the witness stand, in a deposition, or a written, notarized affidavit -- is under oath and "under penalty of perjury."

Newsweek has published clear proof that Donald Trump either: (a) lied in a deposition in a case against an ex-employee, about a failed attempt to bribe Florida Gov. Jeb Bush, or (b) lied about it to Bush's face in the second debate. Or both. (Even if bribe is the wrong word, that doesn't affect the specific question that the lie and contradiction were about: Whether Trump was trying to get Bush to reverse his opposition to casino gambling when he hired the Defendant to get Florida to allow him to build a casino and hosted a fundraising event for Bush.)

The lawsuit was in Broward County, Florida. Perjury in a deposition is a third-degree felony under Florida law, and can mean up to five years in prison. I haven't yet found out whether Trump was in Florida or another state when he gave his deposition testimony, and whether that would keep Florida from prosecuting him. But the head prosecutor in Broward County, and/or the county where Trump testified, needs to decide whether to pursue a perjury investigation and prosecution, preferably before the election. 

DONALD TRUMP EITHER LIED TO THE REPUBLICANS OR BROKE THE LAW (EXCLUSIVE)


Defending marriage vs. unwanted dissolution, turning weakness into strength: Tim Kaine's first cases

"Diane married James against [her] guardian’s wishes and [the guardian] wanted to get the marriage annulled. Kaine represented Diane in a lawsuit to preserve her marriage. He fought the guardian and won, learning that the guardian wanted Diane’s dis­ability checks.

“'What started off as a marriage case in Richmond Juvenile and Domestic Relations Court ended up as a criminal trial against the guardian in federal court,' he said.

"Kaine said, 'I learned a lot from Di­ane.' including the responsibility of law practice and that what a lawyer does really mat­ters.

“'And I also learned a critical lesson that served me well through­out my career— whatever the is­sue seems to be at first, look deeper. The marriage law­suit, ostensibly filed to protect a mentally disabled person, was really the guardian’s effort to continue the subjugation of Diane and the theft of her disability payments,' he said.

From "The Education of Tim Kaine", by  in Virginia Lawyers' Weekly, May 27, 2016, p. 3.  Also available on Sen. Kaine's web site.

The article, about Kaine's talk at William & Mary's law school graduation, also includes some vital advice for lawyers and pretty much everyone else:

At one point Kaine said he sat at his computer with a mental block. Then he recalled a line from Second Corinthians, “in my weakness is my strength.” He said he understood then that “you can’t flee from your weak­nesses but have to embrace and own them as a natural part of being hu­man. I was afraid. But somehow, just admitting that to myself helped me jump back into the work and crank out all the pleadings and advocate at all the hearings right up to the last day.”

Kaine said, “This is a lesson that I come back to again and again in my life. Fleeing from your weaknesses or pretending that you don’t have them makes you weak. But acknowledging your weaknesses, which can be very hard to do, in one of life’s great mys­teries, can make you strong.”

He closed his remarks with a prom­ise to the new grads: “My clients taught me lessons that I still reflect on today, long after I gave up law practice because of the demands of full time public service. They changed me as a lawyer and they changed me as a per­son. And they will change you too,” he said.

 


Law schools' focus on case-law makes the law & lawyers elitist, undemocratic, bad at their most important job

Larry Gaughan, an elder statesman of family law and mediation in Northern Virginia, recently reflected on the legal profession's excessive focus on case-law, and the attitude that law isn't real until it has been applied in a published appeals court case. Besides the way it poisons lawyers' ability to help their clients, which he so eloquently illustrates, I think there's even more:

  1. It makes young lawyers ridiculously elitist and contentious -- they model themselves on bow-tied Supreme Court Justices hurling pompous insults at each other and at the people involved in their cases, and not on real lawyers working in the trial courts, lawyers who work to resolve disputes before they become trials, and lawyers who try to draft contracts and statutes so well that people won't even have legal disputes about them, and won't have to go to lawyers to know what they mean.
  2. It's anti-democratic: As Larry points out, major new legislation in our field -- even something as basic as letting divorce courts divide property --  is often not understood, and not really recognized, until there is case law saying what it means. And Virginia's appeals courts sometimes take the attitude that revising the details of divorce-related law is only their business, and when the legislature tries to meddle in it or to undo the effects of an appeals court decision, they seem to do their best to frustrate the legislature's aims or use the new statutes to reach absurd and unintended results, as if to say, 'see what a mess you make when you meddle in the affairs of divorce courts!' In Constitutional law, the Third Amendment and, until recent decades, the Second Amendment, are often described as a dead letter because there were no court case opinions 'making them real.'

Larry writes:

"In 1890 American law schools began to switch to the study of appellate cases as the primary means of legal education.  ...  Given that so few law graduates now wind up as litigators, that approach makes less sense with every passing year.  Almost by its very nature, the case system teaches us to look backwards and to think of law as litigation. ...

"The case system made more sense when most law graduates wound up as lawyers whose practices included litigation.  Even [for them], law schools were not great in teaching statutory interpretation.  I remember vividly the problems many Virginia lawyers had in figuring out how to interpret the new equitable distribution statute as first enacted in 1982.  To many lawyers, the new statute really only started to have meaning after the appellate cases started to come into play. ...

"We must recognize that most legal disputes are not resolved by courts, that statutes have meaning even before courts interpret them, and that more law school graduates will pursue careers that require some knowledge of the legal framework, but also the ability to quickly learn and assimilate other kinds of expertise."

Like most lawyers, I have good and bad recollections of my own legal education.  I remember the popular law professor who taught commercial law courses, and the skepticism about another professor who taught criminal procedure.  The former taught us “the law” from uniform statues that were already in the process of major revisions.  The latter was a theorist whose courses accurately predicted every one of the major reforms of the Warren court.

-- Mediator and lawyer Larry Gaughan in "An Improper Focus for Legal Education", The Divorce Agreement Newsletter, No. 53 – July 6, 2016


Pro bono work sharply decreased in most states that mandated pro bono reporting

The ABA reports that mandatory pro bono reporting policies, in states that had recently enacted them, were followed by sharp decreases in four states, and a slight increase in one state, from 2009 to 2013. In the states that had already had the policies for several years, one state saw a slight increase and the other showed no change.  Here's a summary. Much more info on policies and statistics is at the ABA's page, Pro Bono Reporting: State Reporting Policies.

State Year imposed 2009 Participation 2013 Participation
 Florida  1993  51%  51%
 Hawaii  2007  50%  41%
 Illinois  2007  32%  34%
 Maryland  2002  54%  57%
 Mississippi  2007  53%  40% *
 Nevada  2007  43%  33%
 New Mexico  2008  67%  57%

 * Mississippi stopped  reporting percentages in 2012, but I computed the number by looking at the numbers on hours worked and hours per lawyer, and comparing with those numbers from the last year a percentage was reported.

(2009's total hours divided by hours per lawyer =8745=44%, so total lawyers = 19875
2012-13 total hours divided by hours per lawyer =8031, which is 40.4% of 19875.)