Saturday, February 28, 2015

State Bar and Public Defender Bureaucracies: Obvious Conflicts of Interest?

Throughout my legal career — including at Quarles & Brady, as a solo practitioner, and especially as a writer — I’ve pondered a wide variety of “conflict of interest” scenarios.  And while attorneys are conditioned to run scared from any situation that could conceivably be construed as a conflict, there are two huge conflicts of interest sitting right under our noses.  First, let’s begin with state bar associations.

The mandatory, integrated state bar is such an obvious conflict that it needs little explanation.  In a nutshell, the bar forces attorneys to become members, takes their dues money, and then actively works for “the public” and against its membership.  Some state bar associations still pretend to serve their membership, when actually they are nothing more than Great Public Protection Perpetual Motion Machines: “The [attorney] members of the State Bar might still be stakeholders in the discipline system but that stake has shrunk to the size of the steak you order in a trendy restaurant, the one hiding under a stalk of asparagus.”  But as the Irreverent Lawyer informs us, some state bars might do away with this pretense altogether.  The State Bar of Arizona, for example, proposes clarifying the issue as follows: You, attorney, must join our ranks and pay your annual dues, and we will serve you only if it doesn’t conflict with our “mission . . . primarily to protect and to serve the public[.]”  (For all of the Irreverent Lawyer’s posts on “your friendly state bar,” click here.)

Friday, February 20, 2015

Podcast: Episode 4: Liar Liar

Welcome to episode four of The Legal Watchdog Podcast.

In part one we discuss the case of State v. Charles C.S., Jr., where the appellate court lowers the boom on a cop who gave false testimony and the prosecutor who let it happen.  For the first (and possibly last) time ever, Cicchini has some sympathy for the prosecutor.  Perz and Kushner, on the other hand, remind him of the prosecutor's "minister of justice" role and are quite pleased with the force of the court's scolding.

In part two we once again discuss free speech and the Madison, Wisconsin "sing-along" protests -- this time State v. Gruber.  Unlike State v. Crute, though, the government charged Gruber with disorderly conduct -- something we wondered about in our earlier sing-along podcast debate.

To meet your podcast hosts, click here.

Our funky, jazzy theme song ("Cold Hurt") and our cool intermission song ("Rational") were generously provided by David Pizarro.  To hear more of David's music you can listen to his philosophy-psychology podcast Very Bad Wizards, or go directly to his SoundCloud page.

Finally, here is the podcast:


Thursday, February 12, 2015

On the absurdity of law schools and law reviews

I’ve written several times about the low hours and great pay enjoyed by law professors (many of whom can’t appreciate their situation because they’ve never experienced the intense stress, crazy hours, and low pay enjoyed by most lawyers).  Add on the usual law prof benefits (e.g., health insurance, sabbaticals, summers off, research stipends, etc.) and its no wonder that “law professor” has appeared near the top of several “best-jobs” lists.  And I’ve also written about how some profs launched themselves into the financial stratosphere with creative benefits called “forgivable loans.”  But there’s yet another benefit that, although I had never heard of it, turns out to be relatively common for those in the academy: spousal hiring.

Monday, February 9, 2015

A new feature on The Dog

Check out the right side of the blog under "Labels," and now you can find blog posts organized by topic!  (The labels list doesn't include all topics; for example, the odd posts on college sports or science are not included, but you can still find those by scrolling through the blog or by searching on Google.)  Just click on the topic of interest, e.g., "Legal education," and all of those posts will appear.  This organization scheme isn't perfect, but it's a nice way to narrow down the old posts to try and find what you're looking for.  And if you want all of the podcast episodes, you can click the "Podcast" label, or just click the picture of the microphone, right about the list of labels.

Friday, February 6, 2015

Podcast: Episode 3: The sing-along

Welcome to episode three of The Legal Watchdog Podcast.

In part one we discuss a criminal defendant's right to file a substitution against the judge assigned to his case -- and the trial judge that wouldn't let him do it.  The case is State v. Harrison.  We had no choice but to analogize to Buffy the Vampire Slayer's Doppelgangland episode, though I think Matt might have been a bit lost in that part of the discussion.

In part two we discuss free speech and the Madison, Wisconsin "sing-along" protests.  (On this topic, Matt redeems himself.)  Learn how "The Man" tried to silence the citizenry, and why it didn't work, in State v. Crute.  (And for anyone interested in free speech issues on our college campuses, check out the Foundation for Individual Rights in Education.  Spoiler alert: academic bureaucracies don't like free speech and will go to great lengths to silence students and professors.)

To meet your podcast hosts, click here.

Our funky, jazzy theme song ("Cold Hurt") and our cool intermission song ("Murgatroyd") were generously provided by David Pizarro.  To hear more of David's music you can listen to his philosophy-psychology podcast Very Bad Wizards, or go directly to his SoundCloud page.

Finally, here is the podcast:

Tuesday, February 3, 2015

Legal news from around the world wide web

The legal profession is rife with nonsense, and I can't possibly write about all of it.  So here are some great posts from around the www to keep The Dog's readers up to date.

First, prosecutor misconduct.  For me, outside of not-guilty verdicts, some of the sweetest moments in law practice came when prosecutors hid evidence, but then accidentally disclosed it anyway.  (One example is the smoking-gun memo that gets mistakenly placed in my discovery packet.)  But prosecutor misconduct is a serious problem, and we can't always count on their ineptitude to serve as a self-correcting mechanism.  For a great post on prosecutor misconduct (with courtroom video at the bottom), check out The Irreverent Lawyer.

Second, law school shenanigans.  Sure, law profs make a lot of money for a short work year and a 3-4 class per year workload.  That's no longer shocking.  For shocking, visit Outside the Law School Scam to learn how an unkempt dude who went straight from law school to a professorship, and then to a deanship, collected hundreds upon hundreds of thousands of dollars in salary and other creative payments like "forgivable loans," and then still kept his professor job (though not the deanship) when it all came unglued.  

And third, law review publishing.  I once wrote a law review article with about 100 footnotes.  Then the editors sent it back and wanted 200 footnotes, including footnotes for sentences so basic they required no citation.  For example, if I write that "sometimes defendants will defend battery cases claiming self-defense," I don't need a footnote because the claim is obvious and undisputed.  After much battling of our own, we ended up settling on about 150 footnotes.  For more on the intricacies of law review publishing, including how the journals select their articles -- finally, an explanation for why the Harvard L. Rev. has thus far refused to publish my work -- visit Class Bias in Higher Education.  

Enjoy! 

Monday, February 2, 2015

Knock-knock game replaces warrant requirement

I don’t know how, logistically, this would work, but someone needs to put the Fourth Amendment out of its misery.  Actually, it’s too late for that.  It is already dead.  We just need to bury it and quit talking about it as if it still exists. 

I’ve been down this road before, but let’s briefly recap.  Assume the police believe that you smoked pot in your home, or possessed a medication that wasn’t prescribed to you, or visited an illegal website from your computer, or owned a pornographic video to which a child was exposed, etc.  Further assume the police claim their belief is based on “probable cause” (e.g., an accusation by your neighbor that he smelled pot smoke coming from your apartment, an accusation by your kid’s friend that he saw “naked people” on your TV when he slept over, etc.). 

Sunday, January 18, 2015

Another gem from the state bar

The state bar has been serving up a lot of softballs.  Its most recent came in the form of an email, asking me to donate thirty minutes of my time for its latest dues-funded project: a survey on how to improve law schools.  “This survey,” the bar promises me, will “undoubtedly advance the profession.”  That’s a bold claim, and one that I seriously doubt.  But I might have participated were it not for an even bolder claim: the bar tells me to donate my time because “educating tomorrow’s lawyers is a shared responsibility.”

I’m pretty sure that’s not true.  Instead, I’m pretty sure that law professors are responsible for “educating tomorrow’s lawyers.”  Let’s take a look at some numbers to support my novel claim: 

Thursday, January 15, 2015

Podcast: Episode 2: Your home is your castle (unless you rent)

Welcome to episode two of The Legal Watchdog Podcast!

In part one of the podcast we discuss the fourth amendment and your right to privacy in your own home and its attached garage.  Spoiler alert: if you live in an apartment or condo, the news is not good!  If you want to read the case before listening to the podcast, you can find it here: State v. Dumstrey.

In part two of the podcast we discuss the community caretaker exception to the fourth amendment.  If you want to read that case, you can find it here: State v. Matalonis.

To meet your podcast hosts, click here.

Our funky, jazzy theme song ("Cold Hurt") and our cool intermission song ("Murgatroyd") were generously provided by David Pizarro.  To hear more of David's music, you can listen to his philosophy-psychology podcast Very Bad Wizards, or go directly to his SoundCloud page.

This podcast is not legal advice.  Read our full disclaimer to the right, or above (click here).

Finally, here is the podcast:

Wednesday, January 7, 2015

False confessions

Dr. Larry White, my coauthor on two articles and a psychology professor at Beloit College, recently gave a great presentation on false confessions.  The presentation should appear below; if it doesn't, you can find it on Youtube by clicking here.  You can also click these links for our article on Miranda and our article on false confessions.  (Click this link for my solo article on Miranda.)


Tuesday, January 6, 2015

Podcast: Episode 1: "Ignorance of the Law"

Welcome to the first episode of The Legal Watchdog Podcast!  In the first half of the podcast we discuss two Fourth Amendment cases.  If you want to read up (so you know what we're talking about and can post comments correcting or criticizing us), you can find the cases at these links:

Heien v. North Carolina  and

State v. Cobbs.

And here's an article (as promised in the podcast) that makes the distinction between the Fourth Amendment (the right) and the exclusion of evidence (the remedy):  An Economics Perspective on the Exclusionary Rule and Deterrence.

In part two of the podcast, we discuss 2014's two Wisconsin expunction cases.  You can find the cases at these links:

State v. Hemp (Hemp I) and

State v. Hemp (Hemp II).

Our funky, jazzy theme song ("Cold Hurt") and our hip-hoppy intermission song ("Rational") were generously provided by David Pizarro.  You can find all of David's music at SoundCloud.

And finally, here is the podcast:


Monday, January 5, 2015

Expunction junction, what’s your function?

There were two Wisconsin cases this past year – Hemp I and Hemp II – on expunction of criminal records for young people convicted of relatively minor crimes.  Aside from the substance of those cases, Hemp II may have put to bed a debate that my colleague Terry Rose and I were having against the director of state courts back in 2010.  In a nutshell, the director put out a pamphlet stating that, even after expunction, “If you are asked if you have ever been convicted of a crime, such as on a job application, you must answer ‘Yes.’ ”  We disagreed.

Friday, January 2, 2015

"Invisible airwaves crackle with life"

Coming soon, to an air wave near you: The Legal Watchdog podcast!  We hope to have our first episode posted on the blog sometime on January 6th (barring technological issues beyond my already limited capabilities and control).  To learn more about the podcast, go to the "about the podcast" page, above.  To learn about your podcast hosts, go to the "about your hosts" page, also above.  And then check back here on January 6th!

Wednesday, December 31, 2014

Wisconsin state bar discourages free speech

I was just thinking that I haven’t written a judge-bashing blog post in quite a while.  And then, out of the blue, I got a call from criminal defense lawyer and free speech advocate Terry W. Rose, telling me about an outrageous opinion piece in the November issue of Wisconsin’s state bar magazine.  This piece, subtitled “never provide information in blog posts . . . that criticizes judges,” is especially alarming because it was written by a lawyer and, worse yet, the vice chair of our state bar professional ethics committee.  Essentially, the piece makes two claims.  Its first claim pertains to lawyers discussing cases in which they are, or have been, involved as counsel.  (I’ve already written about that tandem of bizarre ethics rules in an earlier blog post and in a forthcoming law review article.)  And its second claim — the claim I want to address in this post — is that ethics rules 20:8.2 and 20:8.4(c) “make it very clear that a lawyer may not criticize a judge in most circumstances and doing so could result in significant sanctions.”

Sunday, December 7, 2014

How Wisconsin saved the Big Ten (and more college football madness)

By losing 59-0 to Ohio State, the Badgers made the Buckeyes look so good that “the committee” leapfrogged them over TCU and into college football’s field of four “playoff” teams.  Meanwhile, both TCU and Baylor — the so-called “co-champs” of the Big 12 — got left out of college football’s “little dance.”  In some sense this is unjust, given that the Big 12 is a stronger conference than both the Big 10 and the ACC.  But in addition to blaming Wisconsin, the two Texas teams from the Big 12 can also blame their own conference.