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 opinion 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.”

Vampires and cops

In my second book I asked: What’s the difference between a vampire and a cop?  Answer: A vampire has to be invited into your home before entering; a cop only has to say he was invited in and the judge will believe him.  And now, it turns out that cops don’t even have to do that much.  In State v. Parisi the cops had “probable cause” to believe that Ms. Parisi was smoking some weed inside her home.  Probable cause is an incredibly low level of proof, but it allows the cops to do a lot of things — except enter her home.  For that, the general rule is that they need an invitation or a judicially-signed search warrant.  (Admittedly, warrants are nearly always rubber-stamped and are nothing more than Fourth Amendment symbolism; worse yet, they sometimes fail to serve even that limited purpose.)

Lawyers, throw away your computers!

I just read an article that annoyed me more than listening to a podcast where the guest starts every sentence with the word “so.”  Apparently there is a group of “young lawyers” who are trying to “shake up [the] legal profession with mobile apps.”  (I hated the expression “apps” when restaurants were using it, and it’s even more annoying when techies use it.  Aren’t the words “appetizers” and “applications” short enough?)  According to the article, this entrepreneurial group may have developed some new software programs that sound potentially useful for certain legal practice areas — kudos if that is, in fact, the case.  But the gist of the article is that the legal profession’s goal should be “to remove computers from the equation and build complex legal documents through mobile devices.”

The problem with continuing legal education (and how to fix it)

I recently attended a day-long continuing legal education (CLE) program as part of my 30 CLE hours that are required every two-year reporting period. It may have been the "longest" eight hours I've experienced since becoming a lawyer — although one speaker’s informative, dynamic, and even inspiring presentation on defending domestic violence cases salvaged the day from complete and utter disaster. Many of the remaining presentations, however, fell into one of the following categories:

The lawyer job market (revisited)

I recently wrote about an advertisement for a Racine County advocate counsel position.  Essentially, the job would require the victim newly hired attorney to handle as many as 80 case appointments, including the defense of serious felonies, for $25,000 per year without benefits or even expense reimbursement.  I suppose that I knew this was outrageous, or I wouldn’t have written about it in the first place.  But as a criminal defense lawyer for the last twelve years, I’ve kind of become immune to governmental and bureaucratic outrageousness, so I didn’t expect that the post would garner such national attention. 

The lawyer job market

The scam blog and law school transparency movements have exposed the JD as a flat-out bad decision for many (if not most) would-be law students.  That is, many graduates won’t find lawyer jobs, and those who do might not be able to pay back the debt they had to incur to graduate.  That will lead many new law grads to consider hanging out their own shingle, i.e., self-employment.  And most of these new solo practitioners will have to take whatever work that comes through the door, which typically includes criminal defense, juvenile, and traffic cases.  (Sorry, new solos: maritime law, sports law, space law, and international law will be nothing more than fond law school memories.)  But how lucrative is this bread-and-butter type of work?  To answer that question, I will quote an email I recently received advertising an “advocate counsel” position in Racine County, Wisconsin (located between Milwaukee and Chicago and just north of where I practice).  Here’s the scoop:

Improving law school without changing it (too much)

With very few lawyer jobs available for their armies of graduates, many law schools are trying to “innovate” and make their curriculum “practice ready” to give their new grads a leg up in the job market. Aside from whether today’s law schools are capable of such genuine curriculum redesign, one prof recently wrote that law schools should simply stop such efforts, and instead “change the conversation.” This prof argues that attempts to innovate are essentially admissions that the traditional law school approach — reading case law — is no longer valuable. Instead, he argues, law schools should market / sell / discuss what they’re good at: “teaching students how to read cases with the requisite degree of care.” Now, while I suspect that many of today’s practice-ready reform efforts are just marketing campaigns designed to compete for a shrinking number of law school applicants, the prof’s defense of the status quo also has some flaws — though they could easily be corrected.

Giles was right

One day in the fall of 1997 during my first semester of law school, I was standing in my parents’ kitchen while taking a break from reading casebooks. I was channel surfing on a small television that my mom kept in the cabinet above the refrigerator, and stumbled upon the show that Entertainment Weekly would soon label the best on television: Buffy the Vampire Slayer. (DVDs available here.) Back in 1997, the internet was just coming into its own, and the episode’s subtext was a debate between the stuffy, stuck-in-his-ways school librarian Mr. Giles, and the hip, sexy computer science teacher Ms. Calendar. Ms. Calendar was trying to convince Giles that books were a thing of the distant past and that information shouldn’t be bound-up, but instead should be virtual. Giles disagreed. 

“The law professor priss factor”

A few years ago I interviewed for a law professor job at a Chicago law school.  During the interview, the panel brought up my “unique background.”  Typically, law professors graduated from one of only three schools (my alma mater is not among them), clerked for a federal judge for a year (I didn’t do that), and then practiced law in a rarefied setting for no more than two years (I had practiced on my own for a decade and had nearly thirty jury trials under my belt).  To make matters worse, the ideal (rather than typical) candidate for a law professor gig actually skipped the one to two years of legal practice altogether, and instead earned a Ph.D. in economics (I hadn’t done that, either).  I assured the hiring committee, however, that my actual trial experience would not be a drawback, and could even be a plus when it came to teaching law.  I also addressed the other elephant in the room:  although I did not go to a “top US News-ranked school” — I intentionally used that phrase instead of “Ivy League school” in order to avoid offending any Stanford grads that might be on the panel — I assured them that I made up for it with a lengthy and high-quality publication record.  Big mistake.

Legal education and sloppy thinking

For the first few years of my law practice, I was amazed at how emotional prosecutors and judges could be.  That’s not to say that these two groups yell and scream in court — well, they often do, but that’s not my point.  Rather, what I mean is that they decide ahead of time what they want, and then will offend logic and reason, and even ignore basic facts and law, in reaching their predetermined outcome.  When the prosecutor does this, it’s just bad argument from an overzealous advocate hell-bent on winning at all costs; when the judge does this — well, I don’t know what you’d call it, but it’s even more offensive.  In any case, I’ve often said that the willingness and ability to function this way flows naturally from law school — the place where, in most classes, there is never a wrong answer and every point of view, no matter how absurd, is treated as equally valid.  And I just love it when law school deans say things that prove my point.

Law school puffery and the last minute grab for students

If memory serves, first-year contract law teaches that specific, factual misrepresentations are bad and legally actionable, whereas mere “puffery” (e.g., “We are the world’s best; hurry and come to us before it’s too late!”) is just bad.  I even remember one law school professor wryly telling the class that daytime television ads by personal injury lawyers were “quite unsettling.”  Yet, despite this anti-puffery attitude inside the classroom, law schools are among the biggest puffers when it comes to selling their own services.

California State Bar Serves Up Delicious Irony

"This is delicious!"

Lawyer ethics rules — particularly those regarding confidentiality — are supposed to protect clients.  But sometimes the bureaucrats are so obsessed with giving the impression that they are protecting the public that they actually lose sight of that goal.  For example, when doing research for a new law review article, I came across several articles discussing the California Bar’s “Formal Opinion 1986-87.”  This opinion is now quite old, but it is so absurd that it is still being discussed and debated in legal publications as recently as 2013.  In short, the opinion deals with California’s version of the bizarre ethics rule that prohibits an attorney from revealing any information relating to the representation of a client.  And the word “information” includes not only confidential client communications and other secrets, but all information, including information that is widely and publicly available.  (If you are a Wisconsin lawyer and think this is ridiculous, you might be surprised to learn that we, along with most states, have similarly absurd rules in the form of SCRs 1.6 and 1.9.)

“You’re not killing me properly” and other legal news

I’ve often criticized government officials for completely botching nearly every aspect of the criminal justice system.  (Until my recent spate of legal education-related posts, government-bashing is pretty much what this blog has been about since I took to the keyboard with the inaugural post on judicial incompetence in 2010.)  If fact, the negligence, complete ineptitude, and even intentional wrongdoing of many police, prosecutors, and judges makes for a compelling argument against the death penalty.  But now there is a better argument: government officials aren’t even capable of killing someone properly.

Summer hiatus (and good links)

Knightly and I are on summer break, where we're alternating naps and research for a new law review article.  In the meantime, checkout these blog posts for some interesting goings on.  First, and most significantly, there is good news for practicing lawyers: law school enrollments will be down yet again this fall.  If these declines continue, eventually the huge backlog of unemployed lawyers (and the massive numbers of underemployed lawyers) might be able to find suitable work -- though we are a long way off from that utopia.

This graph nicely illustrates the dipping  plummeting applications over the past decade.  This post at Third Tier Reality (a great blog, but not for the law professor or the overly sensitive) discusses how this fall's entering class of law students will likely be the smallest since 1974, even though we now have dozens more law schools than when Steely Dan was making magic.

Bad Business

TV viewing with Knight

Some marketing campaigns are so bad or so embarrassing that you wonder how they ever got off the ground.  One ad that makes me flat-out angry every time I see it is the Time Warner Cable series, where former football coach Bill Cowher walks into a family’s home and just starts talking to them about TWC’s services.  In one commercial, the marketing geniuses behind the ad actually have the nerve to make Cowher read this line: “You shouldn’t have to buy what you don’t want.”  This from the company that makes me buy an entire package of cable channels just so I can get ESPN and FX.

Big Ten conference to dissolve, Rose Bowl to terminate, sky to fall

"Really, Jim?"

A group of college football players at Northwestern recently won the right to unionize and negotiate for better working conditions, health insurance, scholarship terms, and other forms of pay and benefits.  Essentially, the athletes were deemed to be “employees.” This makes sense, of course, as they are under the university’s control, provide a service to the university, produce millions of dollars in revenue for the university, and receive benefits, including tuition and books, in return.  (The fact that they’re paid in goods and services, instead of cash, shouldn’t turn them into non-employees.)  According to this ESPN report, however, the Big Ten’s Jim Delany says that if the schools actually have to pay their athletes, the conference will dissolve and it will also bring an end to the traditional Rose Bowl matchup between the Big Ten and Pac 12 champions.  Really, Jim?

Work experience: Northwestern Law School’s double standard?

I recently read an interview of Northwestern Law School’s Daniel Rodriguez.  In it, he said that Northwestern Law has taken a page from the business schools and requires—or, more accurately, strongly prefers—that its incoming law students have two years of work experience before reentering academia’s bubble.  A double check on the school’s website confirms this: ninety percent of the incoming students have worked at least one year, and more than seventy percent have worked at least two years.  Fair enough.  But then I wondered: does Northwestern Law School impose a comparable, two-year legal work experience preference on its law professors?

Associate’s degree in law?

Attorney Jeff Winger got caught.  After he graduated from law school, passed the bar exam, and launched a successful career at a law firm, the Colorado Bar Association found out about his fake bachelor’s degree.  The punishment: disbarment.  The light at the end of the tunnel: go back to college and earn a post-J.D. bachelor’s degree and be readmitted to the bar.

When Winger arrived on campus, one of the professors—a former drunk-driving client of Winger’s—asked: “I thought you had a bachelor’s from Columbia?”  Winger responded: “And now I have to get one from America.  And it can’t be an email attachment.”

Jeff Winger is just a fictional character on NBC’s amazing but recently canceled television show Community (DVDs available here), but his situation got me thinking: aren’t law degrees really just associate’s degrees? 

The Law: “Jealous Mistress” or Ignored Spouse?

Back in the Paper Chase era, law school deans would tell their incoming classes: “Look to your left, look to your right—one of you won’t be here next year.”  Along with this scare tactic came the now-famous warning that “the law is a jealous mistress,” and will require nearly all of a student’s time and attention if he or she hopes to graduate from law school.  Oh, how times have changed.  And for proof, look no further than the University of Texas Law School.    

Legal education potluck: judges, lawyers, law schools, law profs, and law reviews

I can’t quite explain my morbid fascination with the state of legal education — well, maybe I could, but it would take too long and require way too much introspection.  In any case, I’ve often blamed law schools for judges’ lack of understanding of basic legal principles.  But that’s not to say that practicing lawyers, on average, know the law any better than the judges.  It’s just that lawyers’ ignorance of the law is not as obvious to me.  For example, when a prosecutor misstates the law, there is no way to know if: (1) he/she really doesn’t understand the law; or (2) he/she is intentionally misstating the law to try to trick the judge — something I’ve suspected, and prosecutors have even gleefully confessed to me, on several occasions.  But regardless, the point remains: the judiciary’s utter indifference to the rule of law is still traceable to the law school industrial complex.  And a recent article by law school prof (and law school-basher) Paul Campos may have identified some root causes within the law schools.

When it comes to privacy, NSA is only part of the problem

A single, now-famous whistleblower and countless journalists have exposed widespread NSA operations that invade our privacy and violate the Fourth Amendment.  But the NSA, the police, and other government agents are only part of the problem.  The bigger problem is that the judiciary—the supposedly neutral and detached group to whom we look for protection from the NSA and its ilk—has reduced the Fourth Amendment to meaningless jargon.  In reality, every day in nearly every city and state across the country, state-court judges are allowing government agents to violate the Fourth Amendment’s warrant requirement at the expense of our privacy rights.

The law school student loan mess

The government has done it again.  It all began innocently enough when the government got into the student loan business.  But the educational industrial complex knew a sucker when it saw one, so schools started raising tuition to get more of that guaranteed government cheese.  And law schools were the worst offenders.  Even though the study of law requires only a casebook (or an internet connection), a pencil, and a notepad -- the Socratic method hasn’t changed much since the days of Socrates -- law schools still raised tuition quite dramatically each year.  In fact, they raised it faster than inflation, faster than college-level tuition, and even faster than medical school tuition -- even though colleges and medical schools require expensive equipment and other facilities that law schools do not.  But the government asked no questions.  It could have asked, for example, “Why, law school, do you need a double-digit annual tuition increase when technology is driving costs down and your professors are already being paid triple of what college professors earn, even though they teach fewer classes?” 

Drugs, plea deals, snitches, trials, and hung juries

Yours truly and T. Rose
Photo by Leo Martin

Defense attorney Terry Rose (pictured on right) just conducted some sharp cross-examination and delivered a cut-to-the-chase closing argument to get a hung jury in a drug delivery case. His trial raises several points. First, our legislature is crazy. (More on that below.) Second, a substance that is allegedly delivered to an undercover snitch should not increase in weight after the government uses up a portion of it for chemical testing. And third, government witnesses who hope to work off their own charges by testifying and burying the defendant are motivated to lie, much like a salesman is motivated to sell. 

Introducing Peter Morici

Whenever I come across great authors, I like to share them with The Dog’s readers. (I consider this a form of public service.) In the past I’ve doled out praise for:

Matthew Stewart (on business, history, and philosophy);

Paul Campos (on legal education);

The Popehat (on free speech);

The Irreverent Lawyer (on state bars and the legal profession);

Michael O’Hear (on sentencing law and policy); and, of course

Christopher Hitchens (on religion and, well, nearly everything).

And now it’s time to introduce an absolute gem named Peter Morici, a straight-talking, pull-no-punches, tell-it-as-it-is author, economist, and political commentator. I came across Morici in a podcast called Business Matters from the BBC. Here is a summary of some of his arguments that ring true louder than a church bell, and also debunk some often unquestioned conventional wisdom:

State Bar Associations: Everything to Everyone?

I wrote in an earlier post how I never really gave much thought to our state’s mandatory bar association. All I really knew was that I had to cut them a pretty big check each year in order to keep my law license. Sure, I realized that I wasn’t getting anything of value for the payout, but I really didn’t care enough to give it a second thought—until I started reading The Irreverent Lawyer, a blog that places state bar associations, mandatory CLEs, and related topics squarely within its crosshairs of criticism. And because of this, I’m now far more sensitive to the absurdity that is our state bar association.

The dogs have their day

Knightly (pictured) wears his Husky hat while watching Monday night's NCAA championship game. Knightly's dogs (the UConn Huskies) beat Kentucky's Wild Cats in an exciting, fairly well-officiated game. Congrats to the Huskies on another championship -- a championship won largely because their fast, aggressive, and undersized guards controlled the game. Guard Shabazz Napier, who won the tourney MVP in Kemba-Walker fashion, then stuck it to the NCAA in post-game comments. Fight the man!

In related news, the only thing certain about the now-famous $1 billion dollar bracket challenge from Warren Buffet was that no one would win it. However, there were still several $100,000 prizes given out to the top brackets. (You don't have to run faster than the bear; you just have to run faster than the other guy who is also running from the bear.) I entered a bracket, but didn't come close to winning one of those prizes. But when I filled out my bracket, I distinctly remember thinking: "This is odd. Did my bracket 'take'? Why is the program not confirming whether my bracket is complete?" And now, one Husky fan might have missed out on a $100,000 prize for this very reason: he allegedly didn't complete his bracket, and left the championship game undecided after picking the Final 4 and then the final two.  He could very well have run into the same problem I ran into. (It didn't matter for me, as I was never close to a prize.)  If Buffet is wise, he'll use this as a marketing opportunity for his company and add an extra $100,000 prize for this guy. The advertising and goodwill it would generate would pay for the extra $100,000 in mere seconds.    

The “public service” mantra

I try to remain ignorant about local politics, happenings, goings on, news, and events of every kind.  Normally, this is easily accomplished by substituting a national newspaper for the local rag.  But despite my modest efforts, I’ve been subjected to a lot of chatter recently about who is going to be running for Kenosha circuit court judge when one of the sitting judges retires.  And when election time rolls around – actually, I suspect that it’s always election time for those with a political bent – the voters will be hearing a lot of talk about why the candidates want the job.  I can predict that every candidate’s answer will be that he or she wants the job to “serve the public,” or “serve the community,” or some variation of that phrase.  My advice to the voters: don’t buy it.  Most (if not all) candidates want the job for the huge pay raise that comes with it.  Let’s take a look at the numbers:

The State of Legal Education: Are Law Profs Really to Blame?

I enjoy a good professor-bashing blog post as much as the next guy—especially when the targeted profs have said, done, or written silly things.  But today, many people like to blame law profs for the abysmal state of legal education—especially graduates’ staggering debt loads and inability to perform even basic legal tasks.  This blame comes in many forms, but a common criticism is that profs earn way too much money for publishing useless law review articles and, to compound the problem, their schools spend even more money shipping them to pricey, tuition-funded conferences to present their articles to other profs.  This, in turn, drives up the price of legal education and, worse yet, marginalizes (or displaces) real training in legal practice and legal theory.  As it turns out, however, the current state of affairs in legal academia is exactly what students have (unwittingly) asked for. 

Observations on March Madness

Marquette could have used me this year.

The month-long celebration of college basketball is here.  Conference regular season champions have been crowned, conference tourneys are wrapping up, and tomorrow is Selection Sunday for the NCAA tourney.  It’s the time of year where giants are humbled, where 5-seeds come out of nowhere to become Horizon League champs and crash the Big Dance (congrats Milwaukee Panthers), and where Bill Raftery yells things like “organize the puppies – nylon delivery!”  But even the most wonderful time of the year can be improved.  Below are some thoughts for fans, coaches, players, and especially the zebras. 

NCAA disbands selection committee, defers to Joe Lunardi

For its 2014 men’s college basketball tournament, also known as “March Madness,” the NCAA has announced a major change in its selection and seeding process.  Philip Timmerman, the NCAA’s Director of Tournament Seeding, stated that this year “the selection committee will be disbanded, and the NCAA will simply defer to the selection, seeding, and placement decisions of Joe Lunardi.”

Joe Lunardi is an ESPN analyst who, in recent years, has predicted the tournament field with surprising accuracy.  “In most years, Lunardi was already predicting 63 or 64 teams of the then 65-team field, and was also amazingly accurate on both seeding and geographic placement of those teams,” Timmerman stated.  “It doesn’t make sense for the selection committee to continue to meet in a small conference room year after year, just to keep reinventing the wheel.  We always end up doing what Lunardi recommends anyway.  Or maybe it was like he was reading our minds and just beating us to the punch.  Regardless, this change will streamline the entire selection and seeding process.”

Law schools implement the mirror test

In the early 2000s, the real estate industry was booming and money was cheap and easy.  In some cases, a prospective buyer could even qualify for a “no doc loan” without giving proof of stable employment.  During these boom years the mortgage brokers joked (as they raked in their commissions and led us to a housing bubble) that a buyer only had to pass the mirror test: if they stuck a mirror in your face and you could fog it up, then you would get the mortgage.  And now it looks like the mirror test has jumped industries and made its way to law school admissions offices across the country. 

French-poetry reading pig seeks employment in large, national law firm

Most law school courses test only two things: a student’s ability to spot legal issues and then apply the relevant law. Granted, the “relevant law” in law school is usually fictional, i.e., an impractical mishmash of case law drawn from numerous states and collected in overpriced casebooks. But at least students are tested on spotting real legal issues and then applying a body of law. And what law schools are really good at is ranking students according to their ability to do this. In addition to a GPA, schools also give out class ranks. And when students apply for law firm jobs this information is placed front and center on the resume. Are you first, second, or third in your class? Are you in the top ten percent? How about the top quarter?

The sequel is better than the original: Lower court overturns higher court so it can affirm conviction (again)

Back in July, 2013 I wrote about State v. Copeland, a case where, due to a United States Supreme Court decision, the Wisconsin appellate court had no choice but to admit that the police did, in fact, violate the defendant’s rights when they attached a GPS device to his car without a warrant.  But despite this, the defendant in Copeland was still out of luck.  The Wisconsin court relied on the so-called “good faith exception" and held that the police who attached the GPS device were relying on the law at that time, and the U.S. Supreme Court decision (holding that GPS searches required a warrant) was decided later.  But there was one major problem with the Wisconsin court’s reasoning excuse-making.

Introducing The Irreverent Lawyer

I am pleased to introduce Legal Watchdog readers to The Irreverent Lawyer—a gun-slinging civil attorney out west who brilliantly criticizes, among other things, mandatory state bar associations and continuing legal education (CLE) requirements.  (And he does it with wonderfully illustrated posts.)  Now, I always knew that, notwithstanding my state bar’s hyper-positive spin, I wasn’t getting anything for my nearly-$500 check that I sign every year.  And I always knew that after taking most CLEs I was frustrated and drained of money, time, and energy.  But I was never angry about any of this until I started reading some of his posts. 

Knightly welcomes the students of Columbus State Community College!

Knightly (pictured) takes a break from his legal research to welcome Professor Cathy Ritterbusch's students to The Legal Watchdog. Cathy's class, Criminal Law & Procedure in the paralegal program, will be splitting time between substantive criminal law and criminal procedure. After the jump are some recommended posts to get the ball rolling. The posts are organized by substantive law and procedural law, although in practice, the two areas often overlap and are difficult to separate.  In any case, enjoy!

Why isn’t there a major in “college athletics”?

I’m kind of torn on the so-called student-athlete.  On the one hand, I like to joke about the title — for the most part, we all know that they’re athletes and not really students, right?  But on the other hand, the student-athlete probably isn’t much worse than the typical student at many schools.  (It’s just that non-athlete students aren’t thrust in front of the camera every Saturday afternoon after the game, so we don’t get to see and hear them.)  And then, when I saw an article about what some kids are able to study in order to earn a degree, I started to appreciate the student-athlete even more.

Breaking the bank: JP Morgan Chase needs to stop paying off the government

JP Morgan Chase just agreed to pay another $1.7 billion to the government as part of a criminal settlement agreement.  So what was Chase’s alleged crime this time around?  The government alleges Chase violated the Bank Secrecy Act by failing to file a “suspicious activity report” for certain “suspicious transactions” in Bernie Madoff’s bank account. (Source: WSJ.)  I find this absolutely hilarious, given that the Securities and Exchange Commission (SEC) did absolutely nothing to stop Madoff, even though a Wall Street Analyst named Harry Markopolos did all of the SEC’s work for it, mathematically proved that Madoff was running a ponzi scheme, notified the SEC repeatedly in writing, and begged the SEC to put a stop Madoff’s then ongoing crimes.