Immensely Wrong Proposed Legal Ethics Opinion: "Replying All to an Email when the Opposing Party is Copied"
BY JOHN CROUCH
My comments to the state bar ethics committee about their proposed advisory opinion which said that if a lawyer emails you and cc's his or her client, it's OK for you to "reply all" because the cc gives you "implied consent" to communicate with the opposing client. The opinion was later issued, with some changes but the same bottom line, by the Virginia Supreme Court.
Draft LEO 1897’s reasons for having a bright-line rule about replying-all to opposing clients are excellent, and well put. But the bright-line rule should be against communicating with represented opposing parties, not for it: Simply “reply” instead of “reply all.” And “consent … means actual consent.” (Kentucky Bar Association Ethics Opinion KBA E-442 (2017), citing New York City LEO 2009-1 (2009)).
The purpose of the Rule 4.2 is protecting clients, not lawyers. The question is not whether opposing counsel is negligent in cc’ing a client. The question is whether the consent exception to Rule 4.2 applies: can a lawyer reasonably assume consent to her communicating directly with the opposing party if she receives an email from opposing counsel that ccs opposing counsel’s client?
We work every day under the assumption that lawyers have not authorized us to communicate with their clients, except when they have explicitly said so, in which case they have usually limited the contexts, topics, time, and/or manner of such communication. (And conversely, that we have not authorized opposing counsel to do so.)
We may also assume their consent if they communicate in a situation that makes it obvious and unavoidable, such as proposing a four-way meeting, Zoom or conference call, or discussing the case with us in the courthouse hallway with the client standing right there. In those implied-consent situations, the lawyers are continuously present and are able to pause or end the conversation at any time, and to tell clients when to speak and when not to. If I am in a deposition or a four-way collaborative divorce meeting, and the other lawyer leaves the room for a few minutes, I know that her permission to communicate about the case does not apply in her absence, and I must chat with the clients about the weather or sports or something.
Those implied-consent situations involve everyone being present (electronically or physically) at the same time. (In California, the first circumstance that may indicate implied consent is whether the other attorney is present. California LEO 2011-181 (2011)). I cannot envision any situation where an e-mail would reasonably be implied consent.
How many of us have ever tried to start a free-for-all open discussion of the case between all counsel and parties, by sending an email? Who would do that in such an uncontrolled, asynchronous, and easily-misunderstood medium as email? Who would want such a freeferall to include her own client, but not the other client? So how is it reasonable to assume that other lawyers are consenting to all that?
MISUNDERSTANDING THE TECHNOLOGY
The Opinion characterizes the contrary opinions from other states as imposing a burden on a lawyer to “review the list of recipients and remove the opposing party from his response.” The situation does not actually require any such thing. To comply with Rule 4.2, all that a lawyer needs to do is to not “reply all,” and instead, to just “reply,” which is easier and is the normal, reflexive way of answering an email. In contrast, there are media in which reply-all is the default, and difficult to avoid, such as text messaging apps and social media, and 20th-century chat rooms. Those media also lack cc and bcc functions. They are usually lighter in tone and topic. Not coincidentally, lawyers do not use those media for negotiations with opposing counsel.
Even aside from Rule 4.2 considerations, it seems sloppy and dangerous to send any email about one of your cases without taking reasonable care to see who you are sending it to. If you just hit “reply,” you know who you are sending it to. If you then deliberately add people to the cc line, you know who you’re adding. If you choose to “reply all” and there is a “recipient list,” you had better examine it to see who you are broadcasting to.
Some other states’ opinions say there is “a duty to inquire whether the opposing counsel’s client should be included in the reply.” But there is no need for that. If the other lawyer wants her client to see your reply, she’ll forward it to him. If there’s some extraordinary reason why she needs him to see your reply before she can do that, she’ll ask you to reply-all. If you still want to inquire, you can inquire – it’s easier than running through a multifactor balancing test, and 100% more accurate.
“Even though we conclude that consent ... may be implied, we do not mean to suggest that the consent requirement of the rule be taken lightly nor that it is appropriate for attorneys to stretch improperly to find implied consent. Further, even where consent may be implied, it is good practice to expressly confirm the existence of the other attorney’s consent, and to do so in writing.”
California LEO 2011-181 (2011), FN 4
CUSTOM AND USAGE IN THE INDUSTRY
The New Jersey opinion (ACPE Opinion 739 (2021)) describes emails with ccs as “group emails.” That may be consistent with “the customary usages of that technology” in New Jersey, but to apply that description to communication between Virginia opposing attorneys is anachronistic. There are a few areas of life that still include somewhat informal and group-based email communication, but our work for our clients is not one of them. The New Jersey opinion indicates that lawyers there include so many people in email negotiations that “parsing through the group’s email recipients” is onerous. But here in Virginia, we do not resolve cases by consulting large, radically communal, semi-anonymous collective groups of people on the internet in freewheeling bull sessions.
Once upon a time, e-mail was predominantly considered an informal medium. When many of us first heard of it in the 1990s, its early adopters were computer professionals who had participated in dial-in BBSes (Bulletin Board Systems) and narrowly topical Usenet chat forums. Some of their folkways, netiquette and jargon were passed on to new email users. Much early email use by lawyers was on Listservs, which, like BBS and Usenet, were open discussions where all messages and replies went to the entire group, including many strangers. And in those days, when e-mail was considered informal, very few lawyers thought it was an appropriate way to communicate professionally with opposing counsel.
That changed very early in the 2000s. In my field, family law, Virginia lawyers began using email to communicate with opposing counsel. But in doing so, they intentionally retained many of the formal constraints of paper communication. Some firms preferred to send old-fashioned letters as attachments to e-mails. And in e-mails to opposing counsel that our clients are going to see, it is not considered wise to do anything informal, except for being sort of professionally “business-casual” by dispensing with extra window-dressing verbiage and getting straight to the point. But being snarky, or flippant, cursing, typing “LOL” or “ROFL,” and allusions to off-the-court friendship or enmity, are avoided even more than they were in paper letters, because we know e-mail facilitates hair-trigger responses. This formality is not some hidebound relic; it is essential armor for modern communication.
In the Collaborative Law community, which is based on transparent communications, we quickly learned that e-mails among both lawyers and both clients were a horrible way to do business, and we stopped, especially for any substantive discussions.
E-mail is now so far from informality that many courts use it as the only method for some crucial notices and service of pleadings to attorneys -- including U.S. District Court; the Court of Appeals of Virginia; and Circuit Courts in cases where attorneys use truefiling.com. The “informal” frontier of internet communication long ago moved on to text messaging, social media, and other ills that we know not of.
With the cc line, as with most things, we owe its users “such a deference ... as not to suppose they acted wholly without consideration,” as Blackstone put it. If a lawyer puts a client, and, say, a paralegal, on the cc line, shouldn’t we assume there is some reason for making them mere ccs, and not the named addressees of the email? Especially if the email includes a salutation indicating whom it is speaking to, as emails between lawyers generally do? Why would a lawyer be using the cc line, other than for its traditional purpose?
At some point I stopped ccing or even bccing clients. But my concern was that a client might inadvisedly, and probably deliberately, reply-all. I never really considered that a lawyer might do that. And nobody told me to stop ccing; it was my own idea. Looking back through my emails from opposing counsels, there are not many who cced their clients in recent years, but those who did are lawyers who are models of professionalism, toughness, advocacy and competence. I never even considered that it would be OK with them for me to include their clients in my replies.
THE PURPOSE OF RULE 4.2
Although Virginia has not adopted the ABA Comments on the Rule’s purposes, it has addressed them in LEO 1890, a Compendium Opinion on the Rule:
“The purpose of the no-contact rule is to protect a represented person from “the danger of being ‘tricked’ into giving his case away by opposing counsel's artfully crafted questions,” United States v. Jamil, 707 F.2d 638, 646 (2d Cir. 1983), and to help prevent opposing counsel from “driving a wedge between the opposing attorney and that attorney's client.” Polycast Tech. Corp. v. Uniroyal, Inc., 129 F.R.D. 621, 625 (S.D.N.Y. 1990). The presence of a person's lawyer “theoretically neutralizes” any undue influence or encroachment by opposing counsel. Univ. Patents, Inc. v. Kligman, 737 F. Supp. 325, 327 (E.D. Pa. 1990).
“Authorities recognize that the no-contact rule contributes to the proper functioning of the legal system by (1) preserving the integrity of the attorney-client relationship; (2) protecting the client from the uncounseled disclosure of privileged or other damaging information relating to the representation; (3) facilitating the settlement of disputes by channeling them through dispassionate experts; (4) maintaining a lawyer's ability to monitor the case and effectively represent the client; and (5) providing parties with the rule that most would choose to follow anyway.”
The proposed Opinion undermines all of the above purposes, because, with multi-party e-mail, both attorneys’ continuous presence in the communication — which would neutralize “any undue influence or encroachment by opposing counsel” — is not guaranteed. In fact, it's extremely unlikely, often impossible. E-mail is asynchronous.
INFERRING AND INTERPRETING CONSENT
So, if I receive an email from opposing counsel with her client on the cc line, is it reasonable for me to assume she is asking us to start a three-way discussion of the case? If so, is her consent contingent on the assumption that I will add my own client to the conversation, to level the playing field? How far does her consent extend?
Chances are, her client is not as busy as either of the lawyers. If the first reply to her email is from her client, has she consented to my reading it? Has she consented to me replying to it? Chances are, when I first see any of these emails, she might be in court or depositions or doing something other than sitting on the edge of her seat waiting for answers to her email. How many times can her client and I go back and forth in our nominally three-way negotiation without waiting for her to check her email and catch up with what we have worked out?
This is not a bright-line rule. This is “If You Give a Mouse a Cookie …”. The Opinion just gives us the cookie, saying we can “reply all,” and is silent about how far we can go with it before the trap is sprung.
Some people have a tendency to “reply all” thoughtlessly. That may mean that it’s somewhat negligent to cc or bcc one’s client. It may mean that the Bar should be merciful to lawyers who thereby violate Rule 4.2. But there is no way that that makes it O.K. to do so.
UPDATE: March 25, 2022: Update: The ethics committee has now voted to table the proposal.
Joint custody: Generations of "overwhelmingly consistent" expert research, reviewed by two of the wisest people I know
"These are social scientists who have devoted entire careers to exploring that question. Many of the authors of the studies we will reference have been publishing research results since the 1990’s. Some of them have followed the same families for 25 years in an effort to draw valid and trustworthy conclusions."
"... shared parenting couples are not an exceptional, rare group among divorced parents ..."
"Misconception: 'Joint Physical Custody is a “grand experiment” being conducted without our knowing the impact on children and without the support of a full body of research.' In fact, Sole Physical Custody has been shown to have strong correlations to emotional and behavioral problems in children of all ages in many countries and yet has been codified in most states. There is a large body of research indicating repeatedly that families in which there are absent fathers, or minimally involved fathers produce children with the worst outcomes of adjustment. There is, in fact, a paucity of data in favor of Sole Physical Custody. There is a plethora of data in favor of Joint Physical custody."
"The social science evidence on the development of healthy parent–child relationships, and the long term benefits of healthy parent–child relationships, supports the view that shared parenting should be the norm for parenting plans for children of all ages, including very young children. . . . In general the results of the studies reviewed in this document are favorable to parenting plans that more evenly balance young children’s time between two homes. Child developmental theory and data show that babies normally form attachments to both parents and that a parent’s absence for long periods of time jeopardizes the security of these attachments. Evidence regarding the amount of parenting time in intact families and regarding the impact of daycare demonstrates that spending half time with infants and toddlers is more than sufficient to support children’s needs. Thus, to maximize children’s chances of having a good and secure relationship with each parent, we encourage both parents to maximize the time they spend with their children. . . . Research on children’s overnights with fathers favors allowing children under four to be cared for at night by each parent rather than spending every night in the same home.” (Quoting Warshak, 2017)
"Children in [joint physical custody] report no weaker attachment to Mothers than do children in [primary physical custody]. (Kelly, 2012; Fabricius 2012; Sokol, 2014; Warshak 2016)"
Children in [joint physical custody] look more similar to children in intact families on various measures of psychological and physical health than they look to children in [primary physical custody]. (Bergström, 2017; Fransson et al., 2016)
"With less access, fathers tend to have [even] less contact with children over time ..."
" When young adults are surveyed or interviewed about their own perspectives on the custody arrangements their parents had created for them, a significant majority report they did not see their fathers enough, and felt - as college students - that an equal division of time between their parents would have been their top preference. Most subjects in these studies perceived that their mothers were satisfied with the status quo while their fathers wished for more custodial time. Children as young as 3 years old have reported in some studies that they want more time with their fathers. (Kelly, 2012; Warshak, 2016)"
"No one in this field of study is suggesting that joint physical custody would be beneficial to children when a family does have a history of domestic violence."
"In each study that shows the best outcomes for children in joint physical custody are in families where parenting conflict is low, the only reporters were mothers. No study that has found conflict to be a significant variable modulating outcome ... has included the perspectives of both parents and the children. (Fabricius et al., 2018; Berman and Daneback, 2020; Pruett et al., 2012; Steinbach and Augustijn, 2021)
"When young adults are surveyed or interviewed about their own perspectives on the custody arrangements their parents had created for them, a significant majority report they did not see their fathers enough, and felt - as college students - that an equal division of time between their parents would have been their top preference. Most subjects in these studies perceived that their mothers were satisfied with the status quo while their fathers wished for more custodial time."
"Studies of JPC and SPC receive careful scrutiny by all journals considering their inclusion and these scholars are considered to be leaders in their field."
"Scholars who support JPC universally acknowledged that symmetrical arrangements are not always best for families, and that JPC is not necessarily a 50-50 division of time. Researchers generally define JPC as providing each parent with a minimum of 35% of parenting time."
"Co-parent relationships are more cooperative over time when fathers are more engaged with their children and coparent from early on. This suggests that father engagement positively contributes to positive parent cooperation and counters the argument that only parents who are cooperative from the get-go ultimately find ways to keep both parents involved. This study also found that covert conflict in the early months after a divorce predicts later overt conflict. The authors suggest that when there are custodial arrangements that enable fathers to remain centrally involved in children’s lives, conflict over time may be mitigated."
"Virtually all studies to date support the idea that JPC is correlated with more positive outcomes for children even when one parent opposes it. ... Even when parents are in conflict, and JPC is assigned by a Court, outcomes appear to be better for the children in those families."
... President Putin and I had a — share a unique responsibility to manage the relationship between two powerful and proud countries — a relationship that has to be stable and predictable. And it should be able to — we should be able to cooperate where it’s in our mutual interests.
And where we have differences, I wanted President Putin to understand why I say what I say and why I do what I do, and how we’ll respond to specific kinds of actions that harm America’s interests.
Now, I told President Putin my agenda is not against Russia or anyone else; it’s for the American people: fighting COVID-19; rebuilding our economy; reestablishing our relationships around the world with our allies and friends; and protecting our people. That’s my responsibility as President.
I also told him that no President of the United States could keep faith with the American people if they did not speak out to defend our democratic values, to stand up for the universal rights and fundamental freedoms that all men and women have, in our view. That’s just part of the DNA of our country.
So, human rights is going to always be on the table, I told him. It’s not about just going after Russia when they violate human rights; it’s about who we are. How could I be the President of the United States of America and not speak out against the violation of human rights?
I told him that, unlike other countries, including Russia, we’re uniquely a product of an idea. You’ve heard me say this before, again and again, but I’m going to keep saying it. What’s that idea? We don’t derive our rights from the government; we possess them because we’re born — period. And we yield them to a government.
And so, at the forum, I pointed out to him that that’s why we’re going raise our concerns about cases like Aleksey Navalny. I made it clear to President Putin that we’ll continue to raise issues of fundamental human rights because that’s what we are, that’s who we are. The idea is: “We hold these truths self-evident that all men and women…” We haven’t lived up to it completely, but we’ve always widened the arc of commitment and included more and more people.
And I raised the case of two wrongfully imprisoned American citizens: Paul Whelan and Trevor Reed.
I also raised the ability of Radio Free Europe and Radio Liberty to operate, and the importance of a free press and freedom of speech.
I made it clear that we will not tolerate attempts to violate our democratic sovereignty or destabilize our democratic elections, and we would respond.
The bottom line is, I told President Putin that we need to have some basic rules of the road that we can all abide by.
I also said there are areas where there’s a mutual interest for us to cooperate, for our people — Russian and American people — but also for the benefit of the world and the security of the world. One of those areas is strategic stability.
You asked me many times what was I going to discuss with Putin. Before I came, I told you I only negotiate with the individual. And now I can tell you what I was intending to do all along, and that is to discuss and raise the issue of strategic stability and try to set up a mechanism whereby we dealt with it.
. . .
I talked about the proposition that certain critical infrastructure should be off limits to attack — period — by cyber or any other means. I gave them a list, if I’m not mistaken — I don’t have it in front of me — 16 specific entities; 16 defined as critical infrastructure under U.S. policy, from the energy sector to our water systems.
Of course, the principle is one thing. It has to be backed up by practice. Responsible countries need to take action against criminals who conduct ransomware activities on their territory.
So we agreed to task experts in both our — both our countries to work on specific understandings about what’s off limits and to follow up on specific cases that originate in other countries — either of our countries.
There is a long list of other issues we spent time on, from the urgent need to preserve and reopen the humanitarian corridors in Syria so that we can get food — just simple food and basic necessities to people who are starving to death; how to build it and how it is in the interest of both Russia and the United States to ensure that Iran — Iran — does not acquire nuclear weapons. We agreed to work together there because it’s as much interest — Russia’s interest as ours. And to how we can ensure the Arctic remains a region of cooperation rather than conflict.
. . .
There are also areas that are more challenging. I communicated the United States’ unwavering commitment to the sovereignty and territorial integrity of Ukraine.
. . .
It was important to meet in person so there can be no mistake about or misrepresentations about what I wanted to communicate.
I did what I came to do: Number one, identify areas of practical work our two countries can do to advance our mutual interests and also benefit the world.
Two, communicate directly — directly — that the United States will respond to actions that impair our vital interests or those of our allies.
And three, to clearly lay out our country’s priorities and our values so he heard it straight from me.
. . .
We’ll find out within the next six months to a year whether or not we actually have a strategic dialogue that matters. We’ll find out whether we work to deal with everything from release of people in Russian prisons or not. We’ll find out whether we have a cybersecurity arrangement that begins to bring some order.
Because, look, the countries that most are likely to be damaged — failure to do that — are the major countries. For example, when I talked about the pipeline that cyber hit for $5 million — that ransomware hit in the United States, I looked at him and I said, “Well, how would you feel if ransomware took on the pipelines from your oil fields?” He said it would matter.
This is not about just our self-interest; it’s about a mutual self-interest.
. . .
Look, guys, I know we make foreign policy out to be this great, great skill that somehow is, sort of, like a secret code. All foreign policy is, is a logical extension of personal relationships. It’s the way human nature functions.
And understand, when you run a country that does not abide by international norms, and yet you need those international norms to be somehow managed so that you can participate in the benefits that flow from them, it hurts you.
. . .
I pointed out to him that we have significant cyber capability. And he knows it. He doesn’t know exactly what it is, but it’s significant. And if, in fact, they violate these basic norms, we will respond with cyber. He knows.
. . .
This is not a ‘kumbaya’ moment, as you used to say back in the ’60s in the United States, like, ‘Let’s hug and love each other.’ But it’s clearly not in anybody’s interest — your country’s or mine — for us to be in a situation where we’re in a new Cold War.” And I truly believe he thinks that — he understands that.
But that does not mean he’s ready to, quote, figuratively speaking, “lay down his arms,” and say, “Come on.” He still, I believe, is concerned about being, quote, “encircled.” He still is concerned that we, in fact, are looking to take him down, et cetera. He still has those concerns, but I don’t think they are the driving force as to the kind of relationship he’s looking for with the United States.
. . .
What is going to happen next is we’re going to be able to look back — look ahead in three to six months, and say, “Did the things we agreed to sit down and try to work out, did it work? Do we — are we closer to a major strategic stability talks and progress? Are we further along in terms of…” — and go down the line. That’s going to be the test.
I’m not sitting here saying because the President and I agreed that we would do these things, that all of a sudden, it’s going to work. I’m not saying that. What I’m saying is I think there’s a genuine prospect to significantly improve relations between our two countries without us giving up a single, solitary thing based on principle and/or values.
. . .
Look, this is not about trust; this is about self-interest and verification of self-interest. That’s what it’s about. So, I — virtually almost — almost anyone that I would work out an agreement with that affected the American people’s interests, I don’t say, “Well, I trust you. No problem.” Let’s see what happens.
You know, as that old expression goes, “The proof of the pudding is in the eating.” We’re going to know shortly.
. . .
Let’s get something straight. We know each other well; we’re not old friends. It’s just pure business.
. . .
I’m not confident he’ll change his behavior. ... What will change their behavior is if the rest of world reacts to them and it diminishes their standing in the world. ... If you don’t understand that, you’re in the wrong business.
'... Lawyer Bruce Christensen confirmed that the author has never met the boy, but denied that the youngster has expressed an interest in seeing his dad or is suffering from his absence.
“This is the first time I’m hearing about this,” Christensen said. “When a child never had a father, how would he know what to miss?
“This is no different from the hundreds of thousands of other children who have to live without a parent.”'
"Examples of settlements facing tax on 100% include recoveries ... from your ex-spouse for claims related to your divorce or children," tax lawyer Robert Wood wrote in Forbes recently. "Defamation, financial fraud, divorce, malpractice, false imprisonment — clients will be paying taxes on 100 percent of their recovery on all of these." -- Joe Patrice blogged at Above the Law.
Nope. What you get in a divorce is not taxable as income, and that is absolutely unchanged in the new tax act. Tax Code Sections 102 and 1041 ensure that. They do so by treating a divorce settlement as a "gift", which is mostly wrong, archaic, and insulting to women, but it gets the job done. As the IRS's guide to all things divorce-related, Publication 504, puts it,
"Property you receive from your spouse (or former spouse, if the transfer is incident to your divorce) is treated as acquired by gift for income tax purposes. Its value isn’t taxable to you."
The latest edition of Publication 504 is from before the 2017 tax reforms, but again, the relevant parts of tax law weren't changed at all.
By Robert W. Wood in Forbes
Judicial independence is threatened because self-satisfied courts & lawyers don't listen, don't explain, don't adapt to public's needs
So says Jesse Rutledge of the National Center for State Courts in Williamsburg, Virginia, based on the Center's annual surveys of public opinion about the courts, and decades of working on how the courts interact with the population:
"It’s really easy to blame efforts to erode the independence of our courts exclusively on shrill politicians or the fragmented news media. ... With all this outside pressure, is it any wonder that public trust in the courts—the stock and trade that underpins the ability of the courts to be independent—continues to erode?
"Unfortunately, those of us on the inside of the system may have myopia. ... The data shows that Americans who have had direct interactions with courts trust the judiciary less than those who haven’t. Put differently, those who come to our courthouses aren’t as impressed with what they see as we are with ourselves.
"... Courts must take swift action to improve customer service, simplify forms and processes, and move as much of their routine business online as is practicable for their community. Americans perceive judges and the lawyers who appear in their courtroom as sharing an interest in delay, and at the same time an increasing number feel they are being shut out of the legal system entirely. Simplifying byzantine forms and procedures could go a long way to allowing more people to help themselves. ...
"Americans are sending a clear message about their courts. They don’t need another lecture on the virtues of jury service. Instead, they want courts that are accountable, connected to their communities in meaningful ways, and where they are able to take care of routine business expeditiously. Court users—whether they are litigants, jurors, or those seeking to pay for a traffic infraction or to file a simple form at a clerk’s window—should be placed in the middle of every equation, not treated as an afterthought."
Divorce/separation not affordable for Bay-area lawyers, other professionals, so here's what they do:
Bay area couples who separate or divorce are increasingly sharing a home for economic reasons, Amy Graff writes in SFGATE. The example she leads with includes a lawyer in private practice. For actual separation to be affordable, at least one parent would have to move so far away that caring for, and transporting, the children would be unworkable. And this arrangement is actually optimal for the children, when the parents can remain civil with each other, she says after looking at several couples who are doing this.
SF Gate, May 8, 2018
Shocked by cheerfully ignorant, arrogant decision-making? Not if you've seen a judge learn family law on the job.
There was a lot of interest on social media in Jesse Singal's analysis of how President Trump deals quickly and authoritatively with issues he admittedly knows nothing about. Singal was thunderstruck at how monstrously dangerous it was to have major decisions made in cheerfully-admitted ignorance, by what the decision-maker thinks is simple common sense. But as a family law attorney, I really couldn't tell any difference between the President's performance and watching a judge who's new to Family Law, trying to puzzle out why the law seems to want both parents involved in a child's life after a breakup, why unwed fathers have the few rights they do have, etc. Or what the Hague Convention on child abduction is for, and what in the world is wrong with a mom taking her children halfway around the world just to get them far away from the father. Or the times I've watched Supreme Court Justices do the same thing as they debate the Hague Convention, or paternity law, assume the validity of wildly wrong speculations about what happens in custody litigation, and snort with equal contempt at the parents in these cases and the Congress that passed such seemingly pointless laws and treaties. Even experienced trial judges sometimes just reinforce their bias and irrational rules-of-thumb over time.
Here's the Trump version of this routine:
SHERIFF AUBREY: And the other thing is asset forfeiture. People want to say we’re taking money and without due process. That’s not true. We take money from dope dealers —
THE PRESIDENT: So you’re saying – okay, so you’re saying the asset-taking you used to do, and it had an impact, right? And you’re not allowed to do it now?
SHERIFF AUBREY: No, they have curtailed it a little bit. And I’m sure the folks are —
THE PRESIDENT: And that’s for legal reasons? Or just political reasons?
SHERIFF AUBREY: They make it political and they make it – they make up stories. All you’ve got to do —
THE PRESIDENT: I’d like to look into that, okay? There’s no reason for that. Dana, do you think there’s any reason for that? Are you aware of this?
[Then-acting Attorney General Dana Boente]: I am aware of that, Mr. President. And we have gotten a great deal of criticism for the asset forfeiture, which, as the sheriff said, frequently was taking narcotics proceeds and other proceeds of crime. But there has been a lot of pressure on the department to curtail some of that.
THE PRESIDENT: So what do you do? So in other words, they have a huge stash of drugs. So in the old days, you take it. Now we’re criticized if we take it. So who gets it? What happens to it? Tell them to keep it?
MR. BOENTE: Well, we have what is called equitable sharing, where we usually share it with the local police departments for whatever portion that they worked on the case. And it was a very successful program, very popular with the law enforcement community.
THE PRESIDENT: And now what happens?
MR. BOENTE: Well, now we’ve just been given – there’s been a lot of pressure not to forfeit, in some cases.
THE PRESIDENT: Who would want that pressure, other than, like, bad people, right? But who would want that pressure? You would think they’d want this stuff taken away.
SHERIFF AUBREY: You have to be careful how you speak, I guess. But a lot of pressure is coming out of – was coming out of Congress. I don’t know that that will continue now or not.
THE PRESIDENT: I think less so. I think Congress is going to get beat up really badly by the voters because they’ve let this happen. And I think badly. I think you’ll be back in shape. So, asset forfeiture, we’re going to go back on, okay? I mean, how simple can anything be? You all agree with that, I assume, right?
See also, for example,
- Study: Judges interpret legal precedent mostly based on parties' personalities, & won't admit it.
- How Bias Actually Works -- Everywhere, Even in Family Courts
- Supreme Court silently ignores clear text of Indian Child Welfare Act, "needlessly demeans parenthood"
- On First Looking Into Posner's Opinions, and Finding One Where He Didn't Exactly Hit a Homer