f/k/a archives . . . real opinions & real haiku

August 30, 2007

Mt. Upton acts up against sex offenders

Filed under: lawyer news or ethics — David Giacalone @ 2:15 pm

– lawn sign in Mt. Upton, NY [News10Now]

– “Mt. Upton is United: Sex Offenders Get Out !… & Stay Out !…

An ugly sign of the times got the spotlight yesterday in a tv news report that focused on rural Chenango County, New York. (News10Now [Syracuse], “Chenango County sex offender law under consideration,” by Dana Hendrickson, Aug. 29, 2007; video included). Hundreds of lawns and shops in the tiny hamlet of Mt. Upton, NY, are sporting a red-on-white version of the sign pictured above, in a new campaign to persuade sex offenders to leave and stay out of their community. And see “Hamlet opposes offenders” (The Daily Star [Oneonta, NY], Aug. 29, 2007) Apparently, Chenango County Sheriff Thomas J. Loughren, whose website prominently features its Offender Watch program, is “pursuin” a county-wide sex offender residency law. The Daily Star reports:

“A group of people submitted a petition to the Guilford Town Board to make it illegal for sex offenders to live close to certain areas where there may be more children. That includes places like schools, bus stops and playgrounds

“The Chenango County Sheriff said because more than one town supervisor has contacted him about the same idea, he was motivated to think about a county-wide law instead.”

With a little Googling, I learned today that Mt. Upton is part of the Town of Guilford, which has a population around 3,100. Chenango County’s total population is about 51,000. Although Chenango’s county-seat, Norwich, is less than 80 miles from Schenectady, its politicians and citizenry have apparently not learned anything from the painful ongoing battle over sex offender residency restrictions [SORR] here in Schenectady County. (see the list of our prior posts on this topic below, especially “Schenectady’s (d)evolving Sex Offender Law“, Aug. 23, 2007). I wonder which towns and villages will feel victimized when exclusion zones leave their community open to sex offenders who are pushed out from the more populated areas of Chenagno County.

.. Is this logo about to get a big footnote?

Of course, I continue to empathize with the concerns of parents who worry over the safety of their children (having, for example, represented children who were victims of sex abuse by family members), but I must point out again that there is no reason to believe the laws they are pushing will be effective, but many reasons to suspect they will be counterproductive, extremely expensive to enforce, and unconsitutional.

Carrieann Heath, the Mount Upton mother who started the sign campaign after learning that “four or five” sex offenders were living in her hamlet (News 10 found 3 on the registry), is quoted saying they are not vigilantes (see the enlightening video) and told the Daily Star:

“There’s no lynch-mob mentality here, it’s more about protecting the kids.”

Supporters of the signs and the proposed laws don’t seem to realize that lynch-mobs and vigilantes always purport to act for some great, sacrosanct principle — such as protecting children, or the honor of white women, or the inviolability of property rights or union-free factories. When Chenango County’s politicians meet in Norwich to consider passing sex offender residency laws, I hope they will not take the city’s motto — “Where the 19th Century Meets the 21st” — too seriously. There are some forms of community action that are best left in the 19th Century.

According to the Daily Star, Carrieann Heath said she has been told most of the offenders in Mount Upon are not from the area, but may have been released by the New York State Center for Intensive Treatment in Norwich. A spokeswoman for the state agency that operates the Center says, however, “No one is released from the CIT into surrounding communities.” Inmates who do well there are transferred to less-restrictive state facilities, not released to live on their own. Of course, it is always easier to attack outsiders and — as we learned here in Schenectady County — to stampede politicians with slogans that decry being made a “dumping ground.”

wrong way smN I hope the leaders and residents of Chenango County will take a good look at the Gatehouse News report “Sex Offenders: A Flawed Law” when considering whether to pass a sex offender residency law. They might want to pay particular attention to the piece “Costs mounts to support sex offender laws” (MetroWestDailyNews, Framingham MA, Aug. 26, 2007) and — if they need examples of political courage in the face of “squeaky wheels” and popular demands to “do something” — to “Political Pressure: Legislators quick to target sex offenders,” (MetroWest Daily News, Aug. 27, 2007).

The arguments and developments relating to Schenectady County’s SORR laws should also be instructive for the people of Chenango County. f/k/a‘s coverage, with links to many relevant materials, can be found in the following postings:

ExitSignArrow One final point for now: I hope Chenango County’s leaders will seek out experts in the area of sex offender management. For example, see the New York State Alliance of Sex Offender Service Providers. Much helpful information is also available at The Parson, website of Rev. David Ness. It’s possible that useful contacts might also be available locally through the Guilford Press, a major publisher of psychological text books. In fact, the revised edition of “Principles and Practice of Psychiatric Rehabilitation: An Empirical Approach” is being published by Guilford Press in September 2007, and its authors may be able to offer considerable assistance in coming up with far more effective solutions than the use of residency restrictions.

new kids
move in next store –
withholding a smile

………………………………… by dagosan

August 29, 2007

NOLA after Hurricane Katrina: two years treading water

Filed under: Haiku or Senryu,q.s. quickies — David Giacalone @ 7:45 pm

Two years ago today, Hurricane Katrina struck the Gulf Coast, including the City of New Orleans, Louisiana. Americans have found many ways to remember our nation’s worst natural disaster and the bureaucratic, municipal and personal disasters that continue in its wake, as the rest of us continue our lives.If you’re looking for some thoughtful commentary and coverage of the two-year anniversary, you might try National Public Radio’s week-long series, “The Katrina Effect,Two Years Later: Katrian’s Legacy“,” where “NPR reports on the state of efforts to rebuild homes, towns and lives.” Interesting features include:

  • New Orleans Suffers Crisis in Mental Health Care“from All Things Considered. (did you know New Orleans Parish had 240 hospital psychiatric beds before Katrina, and only 30 now?)
  • President Bush Marks Hurricane Katrina Anniversary” (Aug. 29, 2007) – shall we say, not without controversy?
  • Has America ‘Abandoned’ New Orleans?” At Talk of the Nation, August 29, 2007, people are focusing on historian Douglas Brinkley’s op/ed piece, “Reckless Abandonment” (Washington Post, Aug. 26, 2007) explains why he feels that New Orleans is a case of “reckless abandonment.” Brinkley argues that the government’s “policy of inaction” may set a dangerous precedent for future disasters, saying: “Let’s, for once, put New Orleans on the front burner. After all, Katrina exposed all the ills of urban America — endemic poverty, institutionalized racism, failing public schools and much more. New Orleans is just a microcosm of Newark and Detroit and hundreds of other troubled urban locales. How we deal with New Orleans’ future will tell us a lot about our nation’s future.”

For lots more on this topic, read Brinkley’s book “The Great Deluge: Hurricane Katrina, New Orleans and the Mississippi Gulf Coast.”

  • At Blog of the Nation, you can join the talk on whether we’re/they’re “Running in Place in NOLA” (At Blog of the Nation (Aug 29, 2007), in the efforts to rebuild New Orleans.

This morning, a tanka (5-line Japanese-form poem) by Janet Lynn Davis at Magnapoets JF weblog, reminded me that I really wanted to recall what I was feeling two years ago as the Katrina disaster unfolded. Re-posting some of the poems I wrote at the time was an eye-opener, but reading my weblog commentary was even more of a reminder of shared humanity and disappointment in our government. I’m going to reprint my posting of September 1, 2007 again today, together with a happier one that featured the words and poems of Prof. David G. Lanoue of Xavier University of New Orleans, talking of his return to his home in February 2006. David Lanoue is one of our Honored Guest Poets, and is much-acclaimed for the 8000 translations he has made of the poems of Japanese Haiku Master Kobayashi Issa.

GW: “the check’s in the mael(strom)” (originally published Sept. 1, 2005)

Haiku is rarely about politics or anger (on the surface at least). Neither is its cousin senryu, which focuses on human nature. Usually, that’s fine with me, but today it leaves me frustrated, as I put together this pre-holiday weblog posting. (“Death and Lawlessness Grip New Orleans,” NYT, Sept. 2, 2005)


Like Prof. Althouse, I try to be evenhanded, even when looking at people whose politics are far different from my own. Of course, evacuation and rescue could not have been performed in a day. But, I must say that those who want us to believe that this Administration simply has a public relations problem with the Katrina Aftermath — that the President simply hasn’t found the right words yet — are cutting Mr. Bush far too much slack.


Unfortunately, I believe that the President’s response to Katrina shows all to well both his willingness to mistake his intended outcomes for reality and his tendency to use wishful thinking and rosy scenarios instead of the truth when speaking to the American people. More important, I believe the lack of sufficient planning to deal with unevacuated New Orleans residents who happen to be very poor and also black shows an inability to empathize with their plight (in normal times or times of crisis). (See NYT,A Can’t-Do-Government,” by Paul Krugman, Sept. 2, 2005).



waving from rooftops –
another party
in the French Quarter?

convention center —
potty parity
in New Orleans

two days
after the hurricane –
tears for strangers

treading water:
“keep your chin up”
the President says

[Sept. 2, 2005]



I wish a safe and pleasant Labor Day weekend to all of f/k/a’s friends and visitors — but I hope that Katrina Fatigue won’t put its victims out of the minds of the lucky ones who only know the aftermath from tv or the internet. Everything should look at little different this year.

LanoueSelf one haijin’s return to New Orleans: David Lanoue” (originally published, Feb. 17, 2006)

Yesterday, I asked professorpoetauthortranslator David Lanoue if he would share his reactions to returning to New Orleans with us. Here, unedited, is his reply, including a few haiku/senryu on the subject:

From David Lanoue, Feb. 15, 2006:

her pen dries up
she blames

New Orleans is a tale of two cities. I live Uptown, which didn’t flood seriously for the most part and is now a thriving area. The main signs of Katrina are the absence of the St. Charles streetcar (expected to be back in service by this December), the absense of many trees (the shady avenue isn’t as shady as it once was), and the presence of legions of Mexicans pounding on rooftops and hauling trash. I’m getting plenty of practice speaking Spanish.

after the hurricane
the shady avenue

My worst Katrina complaint is that my landlady raised our rent +$500. But I
count myself very, very lucky. I have friends and colleagues who lost jobs
possessions, and homes.

The other city is grim indeed: vast swaths of neighborhoods lie vacant, trashed, molding, unlivable. I have friends living in FEMA trailers and holing up in the upstairs rooms of houses with gutted first floors. The feeling in those neighborhoods is depressing, desolate. And the looting continues.


One of my friends was all set to move into her new FEMA trailer yesterday, when she discovered that someone had stolen the electric meter (with no neighbors around, it’s hard for the first returners to get a foothold). But she’s happy to “have” a trailer. Months ago, one was put in her yard by a FEMA contractor, and the trailor was stolen before she ever saw it. (Or, the contractor lied about delivering it; you decide who to believe.)

the city recovers
by restaurant

The most hopeful sign of life and rebuilding is the return of the university students: to Tulane, Xavier (where I teach), Loyola, SUNO… With their return–blessed legions of kids with backpacks on bicycles–more restaurants are reopening; more coffee houses are extending their hours. The students are consumers and they supply the workforce of waiters and dish washers (which, by the way, is a high-paying job these days, given the labor shortage).


Everyone’s hoping for a monumental Mardi Gras. Having lived here 25 years,
I’d grown jaded to Carnival in recent years, seizing the opportunity of days
off to travel elsewhere. This year’s different. I plan to attend every parade; to party in the French Quarter till dawn; to shake the hands of, or plant a kiss on, every out-of-towner I can grab. The City of New Orleans is open for business. Come on down!

blown away by the hurricane
every stripper
I knew

– all poems by David G. Lanoue

tiny check His coverage of Hurricane Katrina and its aftermath in New Orleans has made Ernie the Attorney Svenson and his weblog even more renown. Here’s my plea to David Lanoue to put up a weblog and regularly share his thoughts and poetry on the rebirth of New Orleans with his friends and fans in the haijin community.

Let me leave you on this two-year anniversary of Hurricane Katrina with three poems by Master Issa, translated by David G. Lanoue:

in the mud
after the flood, one rose
of Sharon

in the flood
its karma is strong…
flying locust


evening moon– katydid
surviving the flood
a katydid


update: Aug. 30, 20007: Today’s article by Adam Nossiter for the New York Times article, “Commemorations for a City 2 Years After Storm” (NYT, Aug. 30, 2007), dated-lined New Orleans, begins “This city remembered Hurricane Katrina’s second anniversary Wednesday with sadness, hurt and flashes of anger over a recovery that has returned it to only a portion of its former self.” It captures a variety of moods with brief quotes from many residents of New Orleans.

See Shane Gilreath‘s commemorative Katrina haiga at MagnaPoetsJF.  



why do lawyers lie (about contingency fees)?

Filed under: Haiku or Senryu,lawyer news or ethics,viewpoint — David Giacalone @ 12:22 am

The two-person Austin, Texas, law firm Perlmutter & Schuelke, LLC offers a free copy of partner Mark L. Perlmutter‘s 1998 book “Why Lawyers (and the rest of us) Lie and Engage in Other Repugnant Behavior,” at its civtrial.com website. Here’s what the publisher and P&S say about the book:

Why Lawyers (and the rest of us) Lie & Engage in Other Repugnant Behavior, takes on our bashing, adversarial culture, epitomized by the Americal Civil Justice system. As readers explore its unremitting hostility and deception, they learn that the legal system itself is merely an exemplar of a profound defect in our national character — a lack of courage to confront the dark side that exists in all of us. Unchecked, this dark side runs amok, embroiling us in shrill, unproductive conflict, which in turn creates a spiral of alienation and distrust. But Why Lawyers Lie does not just identify the problem; with humor and insight it unearths the underlying causes and provides solutions. It is a book for anyone weary of unproductive conflict, be they litigants, lawyers, professionals, or observers and participants in politics and business.

At Amazon.com (where you could pay over $12 for a used copy of the book), the Publisher describes author Perlmutter as “a leading authority on ethics and professionalism. His philosophies have been embraced by the Texas Bar Association and numerous professional groups interested in learning how to solve disputes honestly and ethically.” The P&S firm site says “Mark trains other lawyers and law students in persuasion, trial tactics, and professional ethics.” He’s also an adjunct professor at U. Texas law school.

After reading the above information about lawyer Perlmutter and his war against deception, hostility and “unproductive conflict,” I must admit that I’m surprised by the content of the first post I’ve ever read at the P&S weblog: “In Defense of the Contingent Fee” (Aug. 20, 2007). I found the posting yesterday, when D. Todd Smith, who is hosting Blawg Review #123 at the Texas Appellate Law Blog this week, pointed to it, saying that the “Blog ruminates on contingent fees as a form of value billing.” Of course, the ethics of contingency fees and value billing are often on my mind, as evidenced by the content of this weblog.

Below the fold (click “More“), you’ll find one version of a disclaimer I often must use when talking about the ethics and economics of contingency fees. It’s meant to anticipate the usual reaction of p/i lawyers, who dismiss all criticism of contingency fee practices as the spawn of evil, anti-consumer, pro-business, tort reformists. For the record: I am a client’s rights and competition advocate, and neither a tort reformer nor insurance industry puppet.

My beef is not with the concept of the contingency fee (“no fee unless we win”), which has many useful purposes and is not inherently unfair to the client, but with the use of a “standard” contingency fee percentage by a law firm or within a community for virtually all clients, with no connection between the fee level and the actual risk in a particular case that the lawyer will work without adequate compensation. Furthermore, my focus is on the average, unsophisticated, “everyday” personal injury client, not on complex class actions, novel product liability cases, or commercial lawsuits taken on a contingency basis.

I don’t know whether it was Mark Perlmutter or his partner Brooks Schuelke who penned “In Defense of the Contingent Fee,” or if they write the weblog pieces jointly. I do know that “In Defense of the Contingent Fee,” is typical of the highly defensive, self-serving, and misleading propaganda spread by the plaintiff’s personal injury bar (who variously call themselves “trial,” or “justice,” or “consumer” lawyers), whenever a question is raised about the ethics or wisdom of contingency fees.

P&S make two major erroneous points in their posting:

  1. they equate contingency fees with the currently fashionable concept of “value billing;” and
  2. they insist that the personal-injury plaintiff has the bargaining power needed to avoid unfairly high fees.

Contingency Fees & Value Billing: Perlmutter & Schuelke explain that “a new wave of attorneys are practicing value billing; setting a fee arrangement up front that is not based on the time spent on a project, but on the value that the attorney brings to the client.” (emphasis added) They quote Enrico Schaefer of The Greatest American Lawyer weblog, saying “The best part about value billing is that it requires the lawyer to think strategically, offensively and proactively every single day.” P&S then assert:

“But value billing isn’t new. Personal injury lawyers (and many other plaintiff’s lawyers) have been value billing for years through the use of contingent fee agreements. . . . And the contingent fee has all the strategic benefits mentioned by Mr. Schaefer; the personal injury lawyer has an incentive to think through the case and push it to resolution as efficiently as possible.”

There are a number of problems with equating contingency fees with value billing. Briefly, they include:

  • Very few clients play any role in setting the contingency fee, making it incongruous to say that the fee reflects the client’s valuation. There is no discussion or negotiation. The client rarely is given essential information (such as the likelihood of success, the probable size of a recovery, and the amount of time and money that is likely to be invested by the lawyer) that would allow him or her to place a value on the lawyer’s participation. The contingency fee percentage is merely the lawyer’s valuation of his or her efforts — the price to hire the firm’s services. And, it is presented to most clients on a take-it-or-leave-it basis.
  • tiny check More important, the application of a “standard” percentage fee to the entire amount won by the client– usually 33.3% or 40% — cannot possibly measure with any precision “the value that the attorney brings to the client” — especially when the same fee level is used by almost all lawyers in town, regardless of their skill and experience, and applied to almost all clients, no matter how risky or risk-free the particular case. But, the client with a meritorious case walks into the door of a law firm with a cause of action that already has significant worth/value (like bringing an uncut diamond to a jeweler) — and, the typical contingency fee collected by a lawyer applies the stated percentage of winnings whether the lawyer has achieved, diminished or increased the value of the client’s “gem.”
    • Although a contingency fee that is “stepped” to reflect the stage in the proceedings when a resolution is reached (e.g., 25 – 33 – 40 – 50%) has the potential to better reflect value received by the client, doing so requires knowing whether the net return to the client actually increased by going forward rather than settling earlier, whether the end result was more than the initial estimated worth of the case, and whether a more skilled lawyer could have achieved a similar result at an earlier stage.
  • Furthermore, there is no particular reason to assume that working on a contingency basis achieves “efficiency benefits” for the client (even if we assume that typical value billing does have such benefits). P&S claim that “the personal injury lawyer has an incentive to think through the case and push it to resolution as efficiently as possible.” What is “efficient” for the lawyer — bringing the case to a resolution that produces an adequate fee as quickly as possible and with a minimum effort — may have little or no relationship with achieving the maximum net return for the client. When a law firm has a constant stream of cases that keeps each lawyer fully occupied, the incentives under a contingency fee agreement tend toward pushing to have each case “cashed out” as soon as possible, without worrying about marginal return on efforts that might increase the client’s take.

winter thaw
the little white lies
that won’t fade away

………………………………….. ed markowski

white lie
the mirror doubles
the white chrysanthemum

………………………………..……… Roberta Beary
“white lie” – bottle rockets #12; fish in love: HSA Anthology 2007

SoapBox The Client’s bargaining power vs. p/i lawyers. After condemning Tort Reformers for attacking contingency fees while purportedly embracing value billing, Perlmutter & Schuekle get a little shrill and disingenuous:

“And the arguments against the contingent fee are ridiculous. The major criticism is that plaintiffs do not have any bargaining power and thus, unfair fee agreements might lead to a windfall for plaintiffs’ attorneys. . . . the premise that the plaintiff doesn’t have any bargaining power is simply false.”

What is the basis for the bargaining power claim?

“For example, if you do a Google search for “Austin personal injury lawyer” you receive 2,150,000 results. While there are obviously not that many personal injury lawyers in Austin, the point is clear that the potential plaintiff has the ability to shop around.” (emphasis added)

Now, I understand. After decades convincing the public that a “standard contingency fee” exists (and might even be required by law), while adopting a de facto Advertising Rule of Omerta over Fee Levels, and presenting virtually every client that walks in the door with a fee agreement that already has that standard percentage filled in, without stating a willingness to negotiate that fee, Perlmutter and Schuelke want us to believe that the unsophisticated injured party can readily threaten to “shop around” for a lower rate and thereby avoid being stuck with an unreasonably high fee. In effect, we’re supposed to believe that every year tens of thousands of p/i clients who have bargaining leverage never use it — instead, they choose to passively and unnecessarily hand over a large chunk of their damages to their lawyer. [see our essay do “standard” fees still exist? (April 5, 2006)]

Of course, that isn’t how the real world of p/i lawyers and clients works — despite the existence of thousands of p/i lawyers rabidly seeking injured clients. Ask any adult member of the general public what the contingency fee is in their community [they will readily give you a number] and whether they are allowed to negotiate for a lower percentage [they will be confused or bemused by the question]. Or, as we suggested in an essay last year that describes and explains the market failure and lack of price competition in personal injury cases [contingency fees (part 1 of 4): market failure (April 2, 2006)]:

Pick up your local Yellow Pages. Check out all of the many full-page and block ads by p/i lawyers. Can you find even one that mentions an actual fee level, much less a willingness (a) to charge less than the local customary percentage or (b) to negotiate the fee? If you do, please let me know. [Note: It’s been 16 months, and no one has sent us an example.]

Similarly, former Harvard Law School Dean Derek Bok also described the strange market failure in the p/i litigation field in his landmark 1993 book The Cost of Talent (1993), at 139 to 140. His analysis begins:

“The world of plaintiffs’ litigation would seem competitive enough to satisfy the most zealous free market economists. [with yellow pages and billboards filled with smiling lawyers willing to take your p/i case] . . . Curiously, however, the crowded market for legal services turns out to work quite differently from anything described in an economics textbook. . . .

ooh “There is little bargaining over the terms of the contingent fee. Most plaintiffs do not know whether they have a strong case, and rare is the lawyer who will inform them (and agree to a lower percentage of the take) when they happen to have an extremely high probability of winning. In most instances, therefore, the contingent fee is a standard rate that seldom varies with the size of the likely settlement or the odds of prevailing in court.”

“. . . Instead of perfect competition, then, the world of plaintiffs’ litigation is a much more haphazard place where ignorance and luck play prominent roles in shaping the fortunes of attorneys.”

The best P&S can do is to argue that “for the exceptional case . . . personal injury lawyers are often willing to negotiate the fee.” Well, if true, “often for the exceptional case” simply won’t suffice for meeting the ethical duty of each p/i lawyer to each client.

As I wrote last year [in contingency fees (part 4 of 4): ethical duties (April 7, 2006)], after fully exploring the ethical and fiduciary duties of lawyers entering into contingency agreements:

The lawyer must (1) fully inform the client of all relevant factors, so that agreements can be entered into knowingly and intelligently; and (2) treat each case and client separately, when deciding on the appropriateness of the arrangement and the reasonableness of the agreed-upon fee.

tiny check The ethical expectation is that the lawyer will make a good faith, professionally-informed estimate of his or her anticipated effort and risk (of non–recovery or inadequate compensation), and explain that evaluation to the client, prior to their coming to an agreement on a contingency fee. The lawyer will offer the client a reasonable fee (one reasonably related to the perceived risk), rather than automatically requesting the maximum percentage permitted in their jurisdiction, and hoping the client will passively accept it. Only when the client is brought into the discussion, fully informed of the lawyer’s good-faith evaluation of the case, and told of the right to negotiate, can we begin to rely on the reasonableness of the resulting contingency fee.

Why do lawyers lie about contingency fees? Frankly, they’ve put on ethical blinders, and live in deep denial about the fairness of using standard contingency fees, because their little racket is just too good to jeopardize by treating each client and case individually and fairly. If you want to know the facts about a lawyer’s duties relating to contingency fees, and the client’s rights when entering into such agreements, we suggest you read:

with each fresh log
the old man’s fish grows longer

family photo
my very best
or else smile

crescent moon
the ex-con’s
friendly smile

the caricature artist lengthens his nose

lunar eclipse umpireS
i fall for
the hidden ball trick

……………………………………………. ed markowski
“campfire” – Modern Haiku (Autumn 2006); “lunar eclipse” tinywords (Aug. 29, 2007)

No Lie: Many thanks and much appreciation goes out to friend and haijin Ed “Prolificus Maximus” Markowski, for coming out of haikai retirement today to pen a passel of pithy poems on falsehood and deception, in a matter of a couple of hours.


August 26, 2007

an unthemely response (and sexy antitrust models, too)

Filed under: lawyer news or ethics,viewpoint — David Giacalone @ 4:33 pm

H-H-H August weather may not be adequate justification for this mostly-frivolous and slightly soggy Saturday Sunday posting, but it’s the only excuse I have.

Above the Crowd?: The 600-lawyer firm Nixon Peabody [NP] just wanted to celebrate it’s inclusion in the Forbes 2007 list of 100 Best Companies to Work For, when it commissioned the (tacky-dorky) commemorative song, “Everyone’s A Winner At Nixon Peabody“. But, when the music video appeared at YouTube and on the legal tabloid Above the Law, NP quickly showed it doesn’t play well with others, nor have a corporate sense of humor, or any PR common sense. As a result, Nixon Peabody has brought a ton of e-shame, infamy and ridicule upon itself in the space of a mere two days. You can recapture David Lat’s unfolding story at Above the Law: “Someone Deserves To Be Shot Over This” (Aug. 23, 2007); “Nixon Peabody: This Is Not a Love Theme Song” (Aug. 23, 2007).

microphoneG NP came down hard on Lat, crying that the song [which got 10,000 listens in 12 hours] was never meant to be public, is certainly not a “theme song” nor advertising subject to ethics rules, was obtained illegitimately by Lat, and must be taken down. Lat complied, but don’t fear:

The story and Nixon Peabody’s diminished reputation spread rapidly across the blawigverse: see, e.g., Orin Kerr at Volokh Conspiracy, asking what NP should have done in “Law Firms, the Blogosphere, and Unexpected Attention;” Denise Howell at Bag and Baggage, who wonders why NP isn’t simply “celebrating the high camp and silliness;” and Carolyn Elefant at LegalBlogWatch, who noted that “Nixon Peabody reacted the way any humorless, stuffed-shirt stereotype of a BigLaw firm would.” Lat is compiling a LinkWrap of posts about the story.

SoapBox Too Low for Above the Law? [update: 8:30 PM: David Lat has graciously contacted me about the problem I had getting my Comments accepted at his weblog. He said:

Hi David. I have no idea as to why your comment didn’t appear — I certainly didn’t censor or unpublish it, and it didn’t show up in the Spam comment filter either (which I check periodically to publish comments that erroneously get marked as spam).

Lately we’ve been having some problems with comments disappearing. Maybe try posting again? And if you ever have a comment problem, just email me to let me know.


As far as I’m concerned, that answers my questions satisfactorily, and I am going to remove my whiny complaint from this posting. I’m pleased to know that David is not censoring [my] Comments. I’ve written about this issue before (e.g., here and here, and there); the proprietor of a weblog has every “right” to disallow particular Comments or trackbacks, but I expect successful, high-profile webloggers to have sufficient self-confidence to be able to take civilized, good faith, non-defamatory disagreement or kidding. Meanwhile, if you haven’t read Lat’s “Biglaw Perk Watch: Nap Rooms?” and my reaction, “nap room ethics for lawyers” (Aug. 22, 2007), check them out.

the son who
argues everything
I study his face in a puddle

I forget my side
of the argument

……………………………………….. by George SwedeAlmost Unseen

antitrustDVD Competitive Humor. Nobody expected Antitrust: the Movie (2001) to be a comedy; and, if you watch AAI’s antitrust primer “Fair Fight in the Marketplace,” today on WETA in D.C., you won’t get many belly laughs. But, that sad reality did not deter me from trying to motivate my blog-buddies Hanno Kaiser, David Fischer and Manfred Gabriel at the excellent “Antitrust Review” weblog to help spread a little antitrust (or even competition policy) humor across cyberspace.

My crusade was spurred by an entry on this website’s SlimStat page that showed a visitor had Googled <lawyer jokes antitrust> on Friday morning. While the first substantive result went to an f/k/a posting from April 1, 2006 (featuring a tale about the American Antitrust Institute), I thoroughly searched the first three pages of Google results and Antitrust Review was nowhere to be found.

That brought me to write to Hanno, David and Manfred (no jokes about humorous names please!) in an email note that urged them to assert their rightful place in the annals of antitrust humor. You’ll have to tell me whether my efforts were successful. Yesterday, the following post appeared at Antitrust Review, with the title “Antitrust Humor, Lawyer Jokes and Sex” (Aug. 25, 2007):

“In an doomed effort to one-up Antitrust Review, long-time and good friend of Antitrust Review David Giacalone recently bragged that a Google search for antitrust and lawyer jokes reveals that his (excellent) website is number one (substantively) while Antitrust Review is nowhere to be found (despite posts involving Stephan Colbert and April Fools Day).

“We’re happy for f/k/a … Seriously we are. Because we are first in antitrust and sexy (as if you didn’t already know that).

“To paraphrase Right Said Fred: Antitrust Review is too sexy for this blog, too sexy for this blog, so sexy it hurts.”

The f/k/a Gang admits that the posting “Hot Sexy Models“, which propelled Antitrust Review to the top of Google’s <antitrust sexy>search results is impressive. (And, yes, we lingered a bit longer than usual at their site that day, and emailed the URL more than is our custom.) But, with insight gained from spending my late 20’s through late 30’s in the Bureau of Competition of the Federal Trade Commission, I repeat my advice to David, Hanno and Manfred:

“Male antitrust lawyers need all the help they can get on the social scene. Women greatly prefer men with a sense of humor over men who ogle over and/or post photos of sexy women on their websites.”

one button undone
in the clerk’s blouse I let her
steal my change

peering into
the deep well, two boys
talk about girls

A sigh from her
then one from me —
two pages turn

………………………………………………………… by George Swede
“one button undone” – Almost Unseen (2000)
“A sigh from her” – Frogpond XX/2
“peering into” – The Heron¹s Nest

Let’s hope the Antitrust Review collaborators will soon conspire to keep us all in stitches. For now, you might go to Daryl Cagle’s Political Cartoon Directory to find humor on your favorite antitrust or competition case or subject. Here at f/k/a, we get a lot of smiles from the search engine queries that bring visitors to this weblog, and we used to regularly share discovered gems with our readers through the Inadvertent Searchee pages. Our little correspondence with the Antitrust Review editors this weekend, inspired me to update some of those Google and Yahoo search results to see how f/k/a is doing these days (with no SEO manipulations, I might add) on the search engine results front.

Here are some of the results. An f/k/a post is the:

one glass of wine –
Google keeps asking
“Did you mean _____?”

past their peak –
boomers’ first date
…………………………… by dagosan

The beetle I righted
flies straight into
a cobweb

…………………………………. by George Swede

Editor’s note & update (Aug. 27, 2007), 8 AM: I just reGoogled <antitrust sexy> and got a very big surprise, and smile; the post you are reading right now is the:

update (11 AM, Aug. 26): Well, my campaign to move Antitrust Review to the top of the heap for matters of antitrust humor has been remarkably successful. As of 11 AM this morning, Antitrust Review holds the #1 spot for Google search results for both <antitrust lawyer jokes> and <antitrust humor>, while f/k/a is still on top for <antitrust and sexy>. David Fischer and his joint venturers may have to change their tune about sex vs. humor. The mystery of the Google Search Algorithm continues.

DriveNowTalkLaterN    But, seriously: Driving While Phoning Is Stupid: We interrupt this unserious post for a quick reminder of one of our society’s most irresponsible cardinal sins –DWP, Driving While Phoning. It does not happen often enough but.,law enforcement agencies across New York State (which bans the use of hand-held cellphones while driving) will “enforce the law against driving and using a cell phone from Sunday through Friday next week as part of the ‘Taking Action Against Driver Distraction’ campaign.” See, e.g., “Unsafe at any speed — for all drivers: Chemung County, Elmira officers to set example on cell phone use while driving” (Elmira Star-Gazette, Aug. 24, 2007). Columnist Jim Pfiffer explains:

“Most people acknowledge that driver distractions, from dialing a phone to putting on makeup in the rearview mirror, are dangerous. Cell phones are one of the biggest distractions. Here’s proof: In 2003, the National Highway Traffic Safety Administration estimated that driver inattention led to 25 percent of reported crashes. Three years later, as cell phone use increased tenfold, that number jumped to 80 percent.”

And, this makes great sense: “Elmira police officers and Chemung County Sheriff’s Department have told their officers to pull over to the side of the road when using cell phones for non-emergency purposes. It’s not safe, and it’s a public relations nightmare.” And, see “No typing, talking behind the wheel? Bill would restrict cell phone use” (The Ann-Arbor News, Aug. 22, 2007), which has this amazing statistic (about adults!!):

‘A recent AAA “poll indicated that two out of three adults who drive a car and have used text messaging had read text messages or e-mails while they were driving, and 57 percent said they have sent text messages or e-mails from behind the wheel’.”

Click to get Car Talk‘s Talk Later bumper sticker.DriveNowTalkLaterG

dagSicilianAfro Are Law Firms Cooler & More Tolerant Than the Fashion World? You decide, after a fashion expert from Glamour magazine advised black lawyers at Cleary Gottlieb not to wear afros or dreadlocks: See “Bloggers Fan the Fury Over Hairstyle Advice to Cleary’s African-American Lawyers” (Aug. 27, 2007); “Cleary Gottlieb Has a Bad Hair Day: Talk about a fashion don’t” (Aug. 1, 2007), both from The American Lawyer/Law.com, by Vivia Chen. Of course, some lawyers have spent decades being cool — such as Yolo County (California) Public Defender Barry Melton, formerly of Country Joe & the Fish (via Arbitrary & Capricious; hat tip again to the Edster). But, I have one final, shocking confession to close out this post: despite the Sicilian ‘Fro of his youth (see 1971 mug shot), Your Editor was never really very cool.


rain on
my bald spot —
recalling dry-scalp Aprils

. . . ……………. . by david giacalone (a/k/a dagosan), photo by Mama G.

See original, enlarged image haiga at MagnaPoets Japanese Form.

courageous mayor vetoed flawed sex offender laws

Filed under: viewpoint — David Giacalone @ 11:26 am

  Metro West Daily News of Framingham, Mass., had an excellent editorial last December, on the subject of sex offender “exclusion-zone” laws, which I wish I had known about in time to submit to the Schenectady County Legislature this past week (or sooner). See “Wise veto of a flawed law” (Dec. 4 , 2006; erroneously dated Aug. 26, 2007, in the first version of this post – – sorry for any confuseion) The editorial starts with the politically-obvious, “Everyone hates sex offenders, especially those that prey on children. People want them kept as far away as possible, and they’ll welcome any government action that promises to do that.” It notes that the City of Marlborough “is the first MetroWest community to jump on this bandwagon,” and explains:

“Its City Council last month approved an ordinance that would prohibit those convicted of sexual offenses against children from living within a half-mile of any school, day care or recreational place — a zone that ends up covering at least 95 percent of the city. Those offenders also could not visit parks, playgrounds or other recreational places where children congregate. Offenders who own homes could stay, but renters would have to leave town, either now or when their leases run out.”

The reasoning is so good and universally-applicable, that I am going to reprint most of the rest of the editorial here, and hope that you will click the link and read the entire piece:

“The proposal is politically popular but, as we’ve argued in this space, impractical and misguided. While the city’s police chief and solicitor raised objections during the council debates, Mayor Nancy Stevens was quiet — until Thursday, when she wisely vetoed the measure.

” ‘I am concerned about the constitutionality about it,’ Stevens said at a press conference. ‘I believe this particular piece of legislation will give people a false sense of security.’

“She’s right, on both counts. Similar ordinances are being challenged in what The New York Times this week called “a national wave of litigation.” Marlborough’s law is vulnerable on several grounds. Because its restricted zones cover so much territory, it amounts to banishing offenders from the city. It imposes a new penalty on those who have already served their sentences, without affording them due process. The exemption for homeowners and those whose offenses were against adults, could be ruled discriminatory.

“Marlborough is still smarting from a lawsuit filed by a man who served 10 years in prison for a rape he didn’t commit. Taxpayers can’t afford to spend years and thousands of dollars defending a faulty law.

“Defending a law that won’t work is especially wasteful. . . . Do people really think child predators will steer clear of Marlborough just because of this ordinance?

“Law enforcement experts even believe such ordinances can make matters worse. . . . If they cannot find a place where they can legally live, they will just go underground. . . .. “We congratulate Stevens on having the courage to question this popular, but misguided, ordinance, and urge City Council to sustain her veto.”

While the Schenectady County Legislature was voting to reaffirm its unwise sex offender residency law (prior post), I wish they had the example of Marlborough’s Mayor Nancy Stevens in mind. Mayor Stevens had the courage to veto the politically-popular sex offender law sent to her by the City Council.

A few days ago, we told you below the fold about the excellent report from Gatehouse News Service, titled “Sex Offenders: A Flawed Law,” which we hoped would be picked up by newspapers across the country. I’m pleased to say that a group of Gatehouse newspapers in the Greater-Boston area of Western Massachusetts (covering Brockton, Fall River, Framingham, Milford, Quincy, Taunton, Waltham, and more), and including the Quincy Patriot Ledger, ran the first of the two-part series today, with “Sex Offender: A Flawed Law – Right Next Door” (and see MetroNewsWest.com, Framingham, MA, Aug. 26, 2007). The feature also includes “Costs mounts to support sex offender laws,” and “Violent sex attacks led to tough laws.” I urge you to take a look. [update (Aug. 27, 2007): You can see installments of Part II of this series at MetroWest Daily News, by going to “Political Pressure: Legislators quick to target sex offenders,” and “If sex offender laws don’t work, what does?” (Aug. 27, 2007)]

update (1:30 PM, Aug. 26): My guardian angel at Blawg Review saw this posting and immediately wrote to tell me about Dunan Riley’s post yesterday at TechCrunch, “See all sex offenders in your neighborhood” (Aug. 25, 2007). Riley describes a free “Peace of Mind” [POM] service from Vision 20/20 that lets you pinpoint on a map all sex offenders living near any U.S. location. He explains, “Users simply add their address, city and/ or zip code to the Vision 20/20 site, and then the locations of sex offenders in the immediate vicinity are displayed over a map. Clicking on each sex offender leads to a profile which includes the name, address, and crimes of the sex offender, as well as a mug shot.” I just went to Vision 20/20’s POM Locate Sex Offender page, and was amazed by the speed and thoroughness of the service. It is interesting to see where that SOs are clustered in our County.

According to Vision 20/20, “You can also register with POM Offender Locator to receive an alert the moment any new offender moves into your neighborhood. It’s a Free service!” Sort of makes you wish that our laws motivated every sex offender to continuously and accurately report his or her actual residence.

update: Aug. 27, 2007: In an editorial called “Drawing Lines,” the Syracuse Post Standard (Aug. 26, 2007) raises important issues that a community should address before imposing sex offender residency restrictions. It focuses on the impact of the Cicero, NY’s SORR on one offender who would be forced to move from a home he has owned since 1991. The editorial begins:

“The case of the 49-year-old registered sex offender, who may be forced
to move from the home he has owned for 16 years in the town of Cicero,
illustrates the complexity and sometimes shortsightedness of laws
designed to act as buffers between dangerous sex offenders and a
vulnerable public.

“The Cicero statute, passed last year, prohibits Level 2 and 3 sex
offenders from living within one mile of a school or day-care center
entrance or 1,500 feet of a playground or park entrance. The Cicero man
it is now being applied to (he was not identified in court papers) was=
convicted of first-degree sexual abuse in 1991 and given five years
probation. He has undergone counseling, attended an alcoholic treatment
program and has not been in trouble since his conviction. He is suing
the town for the right to remain in his home. He should have that

After discussing issues and research, the editorial concludes:

“Communities considering sex offender residency restrictions must ask the
question: Do such laws truly make their communities safer? Or are there
more effective ways – electronic monitoring systems or safety zones, for
example – of keeping a watchful eye on the offenders most likely to
strike again?”

August 24, 2007

tardy quickies

Filed under: Haiku or Senryu,q.s. quickies — David Giacalone @ 10:09 am

These q.s. quickies never got out of the typewriter yesterday. Was it worth the wait?

Agita Avoidance from Overlawyered.com: I learned this week that Ted Frank can be quite considerate, even when engaging in his customary brand of hyperbolic (or even less-than-fully-thoughtful) pro-se bashing. Several times last year (while authoring the SHLEP weblog), I took Ted and his Overlawyered.com teammate Walter Olson to task for exaggerating the problem of frivolous pro se lawsuits and dredging up stale examples of loony lawyerless litigants. See,”like a regifted fruitcake,” “pro se recycling goes over and above,” and “are housing courts really too tenant-friendly?“. It made me smile a couple days ago, therefore, when Ed at Blawg Review sent me a head’s-up about Ted’s posting “Forbes on pro se cases” (Aug. 20, 2007).

“Before David Giacalone jumps down my throat, let me say that I had a lengthy interview with Falkenberg, detailing my views on pro se litigation, but only the throw-away anecdote about Roy Pearson’s pants suit made it in. (Interestingly, the Supreme Court’s decision this spring in Bell Atlantic v. Twombly helps resolve the problem I complained about in that December post.)”

Of course, Mama G. brought me up right, and it is rare that I go around jumping down throats. But, I am grateful that Ted wanted to spare me the aggravation and agita of thinking he was a repeat offender. On the other hand, I think I will need more than one dose of Maximum Strength Cyber-Zantac to get through an entire helping of Ted’s article yesterday in The American, “Pro Se’s Outlandish Menu” (Aug. 23, 2007). Meanwhile, in case you feel lucky and click on his article anyway, go here for some tips from WebMD on preventing heartburn.

at the height
of the argument the old couple
pour each other tea

I put the pillow
on my head . . .now my thoughts
are too loud

……………………………………………………. by George Swede
“at the height” – from Almost Unseen (2000, Brooks Books)
“I put the pillow” – from Simply Haiku Journal (Dec. 2006)

[ Me Ne Frego] Chinglish and Chin-Flicks: An op/ed piece in Wednesday’s New York Times made me think of Supreme Court Justice Antonin Scalia’s infamous “chin-flick” episode, outside a Boston church, along with his apparent contempt for the judicial custom of avoiding the appearance of impropriety. There was no subject matter connection between Scalia and the article “In Beijing, Orwell Goes to the Olympics” (New York Times, by Ross Terrill, Aug. 22, 2007), but, I always like to tweak the good Justice and put in a good word for Judicial Probity. The link was the article’s discussion of “Chinglish” and the campaign by Chinese political leaders to look good at the Olympics next year by assuring that the English of their citizens sounds good:

“The penalty for “Chinglish” is usually humiliation, not incarceration. Still, citizens are asked to snitch, Mao-era style, on people who shame China with their shaky English. An outfit called the Beijing Speaks Foreign Languages Program issues prefabricated foreign phrases to workers who cannot converse in any foreign tongue. The Olympics have become one more tool in the authoritarian state’s box of tricks.”
. . .

“Yes, curbing Chinglish — along with current efforts to eliminate spitting, littering and pushing to enter a bus or train — shows the better side of authoritarianism. . . .

“Correct language, like a gold medal, is desirable in itself. But neither guarantees glory for a state that pursues them for political ends (ask the Soviet Union). Sport should just be sport. The democracies should insist on that and leave political manipulation to the dictatorships.”

Of course, we mostly-monolingual Americans need to squelch our own habit of being annoyed whenever a foreigner (or American) speaks English poorly or with a thick accent. We certainly don’t have to worry about a lot of Americans speaking Mandarin poorly — but, not for the right reasons.

winter sunset
buttoning mother’s coat
up to her chin

the um in her voice
before offering me
the senior discount

…………………. by Carolyn Hall
“the um” – A New Resonance 2; Frogpond XXIII:2
“winter sunset” – Frogpond XXVIII: 3

treading water:
“keep your chin up”
he says
………………………………. by dagosan

Bench Blogging: Speaking of judges, both May It Please the Court and Blawg Review pointed yesterday to an interesting article in Case in Point, the National Judicial College magazine, titled “Are You Out There? Blogging On The Bench” (Spring/Summer 2007). As BR explains, “The article features blogs that judges write, and blogs that judges read.” It also goes into the ethics and etiquette of judges, court staff and lawyers writing weblogs. The Blawg Review editor continues:

And, if any judges are reading Blawg Review for this editor’s personal recommendations of more blawgs that judges might find especially interesting, here’s a list of law blogs also worthy of judicial notice.

Balkinization – “an unanticipated consequence of Jack M. Balkin “

Concurring Opinions – “the Law, the Universe, and Everything “

Deliberations – “Law, news, and thoughts on juries and jury trials”

QuizLaw – “a free and easy to use resource for finding understandable legal information without all the “legalese.” “

f/k/a – “the home of ‘breathless punditry’ and ‘one-breath poetry'”

Above the Law – “A legal tabloid”

Since no one is more widely-read when it comes to the blawgiverse than Ed, Blawg Review‘s anonymous Editor, we recommend that judges and our readers check out his selections. After all, a man who gives f/k/a a Creative Lawyer Blog award in 2005, and names shlep: the Self-Help Law ExPress “The Best Weblog in the Public Interest” in 2006, has very good taste, indeed.

Drive-By News Consumption: The August 2007 edition of the Harvard Monthly e-newsletter links to an interview titled “Thomas Patterson on Young People and News“. Patterson is the Bradlee Professor of Government and the Press at the Kennedy School, and he gives his perspectives on the recent Shorenstein Center Report on Young People’s Daily News Consumption, Young People and News. Patterson says:

“What we found in our study is that young people are about half as attentive to daily news as older adults . . . “

“I think the big difference between younger Americans and older Americans in news use is that for a lot of older Americans news is a daily appointment. You wake up in the morning, you go to the door, you pickup your newspaper, you read your newspaper while you have a cup of coffee, at six-thirty in the evening you turn on the evening newscast. That’s been the pattern for older Americans for fifty years, news as an appointment.”

“For young Americans, most of them do not make any appointment with the daily news, but it doesn’t mean that they don’t have some exposure to it. They are so media connected that it’s really difficult for them or anyone else in this society to not have some news exposure, but they essentially don’t put part of their day aside to partake of the news.”

winter solstice
adolescent wiccans
flunk a spelling test

………………………………………. by dagosan

complaint billFN Outsourced & Overcharged, LLC: Two years ago, Carolyn Elefant wrote a piece at MyShingle asking whether lawyers should “Pass On Cost Savings from Outsourcing?” “. Today she has continued that topic at Law.com‘s LegalBlogWatch, in a posting called “A Post About Ethics Rules, Offshoring and Mark-Ups on Contract Attorney Fees” (Aug. 22, 2007). This time, Carolyn discusses a Bloomberg article on Jones Day and other firms offshoring legal research services, explains differences between using foreign and domestic lawyers relating to having to inform the client of the markup of costs, and asks “when does a mark-up become unreasonable within the meaning of the Code of Professional Responsibility’s requirement that lawyers charge ‘reasonable fees’?”

For all the reasons we gave in our posting of June 28, 2005, the f/k/a Gang agrees with George Washington University law professor Thomas Morgan that ethics rules require law firms to pass on to clients cost savings from outsourcing, and we believe that “when outsourcing, the ethical law firm just passes on the cost.” Indeed, it seems appropriate to ask the ethical law firm to seek out low-cost options and give the client a choice — and, ethically necessary to fully inform clients when outsourcing (at home or abroad is done).

Color Me Supreme: Thanks to her sidekick Tyler (the Blawgiverse’s Most Famous Fetus and Baggage), award-winning weblogger Denise Howell knows a thing or two about coloring books. Last week, she used her bloggy pulpit at Bag-and-Baggage to tell us about the ABA’s “U.S. Supreme Court Coloring and Activity Book” (Crayons Included!). Here’s the low-keyed spiel from the ABA book store:

Have fun and learn about the Supreme Court! It’s a coloring book with a surprising educational twist. This 32-page coloring book features expertly rendered illustrations depicting significant Supreme Court Justices of the United States to color in–including all current sitting Justices.

The U.S. Supreme Court Coloring and Activity Book is perfect for the children of lawyers and judges, or for teachers looking for a new resource for Law Day or Constitution Day. Law Firms will want to purchase to book in bulk for their employees–especially for “Take Your Child to Work Day”!

The book also includes Supreme Court related activities and puzzles such as, matching, word-search, and connect-the-dots games for slightly older children. Suitable for all ages, this book is perfect for teachers and young children, law firms and lawyers looking for client or visitor give-aways, and makes a great gift, too!

If you want to learn some law while doing your coloring (and not spend any money for the book), we suggest “Law & Order: An adventure to color ” from Brandon Bird, which we told you about in “our kind of law book” (April 30, 2004).

a child’s painting
bleeds into itself
summer rain

………………………. by Matt Morden – from A New Resonance 2: Emerging Voices

Sex Obsession & Sex Offenders: We’ve been writing a lot about sex offenders lately here at this weblog. Niki Black of Sui Generis presents her own thoughts on the subject in a recent article, “Youth Obsession and Offenders.” For example:

“As a mother, I am disgusted and deeply disturbed by any form of child abuse and will do everything within my power to protect my children from predators. But I cannot ignore the conflicting messages with which our culture is bombarded regarding the connection between sexual desire and youthfulness. . . .

“Our youth-obsessed culture created and supports these undesirable desires. To permanently demonize those who simply parrot that which they see constantly in the media, or to permanently imprison those who are unable to restrain themselves from acting on the desires and ideals actively espoused by our culture is, in my opinion, nothing short of hypocritical.”

hugSmallN Heads up Walter & Ted: As we first exclaimed two years ago, August 31 is Love Litigating Lawyers Day. Click that link to find some great quotes about lawyers and litigation. And, go here for a selection of lawyer haiku and senryu. What more can we say? (LLL Day was created by the folk at WellCat.com)

long deposition–
the lawyer’s
“at the risk of repeating myself”

………………………………………………………… by Barry George, Esq.

Considering the agita I have gotten from certain “plaintiff’s lawyers,” a/k/a Justice Lawyers or Consumer Lawyers, who do not like my client-advocate’s approach to the ethics of contingency fees [see, e.g., “contingency fees (part 4): ethical duties”], it is rather ironic that two of the first three Yahoo Search results for “Love Litigating Lawyers Day” bring the querists to this weblog.

DisgruntledEsq: It was most kind of Jay Shepherd of Gruntled Employees to point to my recent piece on the need to consider the ethics of some forms of alternative billing. But, I must say that I am not impressed by the reasoning he uses in declaring “Hourly Billing: Presumed Unethical” (Aug. 22, 2007). Calling it reasoning is being too kind. Perhaps all the Dignity Police who care so much about the Image of the Profession should take a little time off from their campaign against such dreadful scourges as pit bull logos and heavy-hitter nicknames, and do a little jawboning about the lawyers who keep claiming (often for self-serving financial reasons) that 90% of the profession is acting unethical merely by billing by the hour. [see our post “presumed ignorant” (July 26, 2007)] Talk about giving me agita.

TrustBusterTeddyS p.s. If you live in the DC Metro area, you can finally see the American Antitrust Institute’s award-winning (and surprising entertaining and informative) documentary on the history and benefits of the antitrust laws, “Fair Fight in the Marketplace,” on WETA Channel, this weekend, August 26th at 4 p.m. and midnight. The film has already aired on 75 PBS stations around the country to date. We wrote about the video and its needlessly controversial genesis in “Antitrust: the movie.” You can always see it online at the Fair Fight website, which includes a special edition for high schoolers (and a 30-second trailer).

afternoon nap
i fall asleep
in a dream

skid row
on every bar napkin
a lighthearted joke

…………. by ed markowski (2006)

August 23, 2007

a riutta interlude

Filed under: Haiku or Senryu — David Giacalone @ 3:06 pm

  I just can’t seem to get my punditry act together this afternoon.  However, my day was brightened by a quick trip to Tinywords.com, where I discovered this little gem by Andrew Riutta:

morning fog
a midwife wipes the eyes
of a newborn

That provided me with the perfect excuse for a little more pundit procrastination, while reminding me that it has been far too long since I shared Andrew with my f/k/a friends.  Here are a trio with brio for a summer afternoon:

loose change . . .
my savings for
a view of the stars

the glow of summer
between a woman’s legs

in the scent of summer
a homeless man

 …………. by Andrew Riutta
“morning fog” – Tinywords.com (Aug. 23, 2007)
“deep” – Haiku Harvest (Fall-Winter 2005)

Schenectady’s (d)evolving Sex Offender Law

Filed under: lawyer news or ethics,viewpoint — David Giacalone @ 9:35 am

update (Aug. 26, 2007): Carl Strock, the Schenectady Daily/Sunday Gazette‘s “The View from Here” columnist continues his insightful/inciteful commentary on the County’s sex offender law today in a piece titled “Legislators scramble on sex offenders” (Aug. 26, 2007, p. B1). I suggest you click and read the entire column. Carl attended the Legislative Meeting on Thursday, and says “I don’t know when I have seen such frenetic back-pedaling. . .. It was like a rugby scrum in reverse.” He also writes:

  • “So the legislators tugged and grappled, and in the end they come up with a tangled mess, which is, however, better than what they began with. I’ll give them that.”
  • “. . .[Republican Legislator] Bob Farley . . . voted with [Chair Susan] Savage to keep [the authority to evict sex offenders] in place. Why? “There were many citizens in Scotia who asked me to do that, and I agreed to do that.’ he told me after the meeting. (I’m glad there weren’t many citizens in Scotia who asked him to jump off the Western Gateway Bridge.)”
  • “The advisory board . . . are to study such innovations as a ‘secure housing facility’ for sex offenders in Schenectady and other matters too fanciful to enumerate.” [Editor’s note: Imagine the NIMBY fights when a zoning variance is needed to build such a facility.]
  • “If you repeat a lie often enough, it does get around, I grant that. Witness the headline the next day in this newspaper: “Law to protect kids is altered.” Not a scintilla of evidence that residency restrictions protect children was even offered, much less confirmed. They just kept repeating it, like an incantation.”

At The Schenectady Internet Virtual Community, “Hardcore Conservative,” business owner Joe Mack disagrees with Strock’s jab at Farley, saying “Carl – newsflash for ya… Legislators are voted into office to speak as a representative FOR THE PEOPLE they represent. Listening to constituents is what they’re SUPPOSED to do. Having done any less and we’d ALL be voting him out of office.” I’m sorry, Joe, but when a relatively small number of citizens ask you to create a law that is unwise and unconstitutional, the wise and responsible legislator might empathize with their concerns, but politely and strongly declines to act.

As I hope to write about in detail later today, the Quincy, Massachusetts, Patriot Ledger, has started the Gatehouse series we featured below in this post, with “Sex Offender: A Flawed Law – Right Next Door” (Aug. 26, 2007, pt. one of two).  See also, Massachusetts’ Metro West Daily News, which has an excellent editorial “Wise veto of a flawed law” (Dec. 4, 2006), that declares “The proposal [which would ban sex offenders from 95% of the City of Marlborough] is politically popular but, as we’ve argued in this space, impractical and misguided. While the city’s police chief and solicitor raised objections during the council debates, Mayor Nancy Stevens was quiet — until Thursday, when she wisely vetoed the measure” as unconstitutional and likely to give the public a false sense of security.

update (Aug. 25, 2007): Today’s lead editorial at the Schenectady Daily Gazette, “How now on Schenectady County sex offender law?” (Aug. 25, 2007), asks “Is this any way to pass legislation that could substantially affect constituents’ lives?” And answers, ” Of course not”. It continues:

“Legislative leaders finally realized how flawed their law was . . . The smartest thing would have been to startover: Create a committee, give it a reasonable length of time to look into the issue, make some recommendations that could then be discussed in the community before a law was finalized and a vote taken. Instead, the Legislature decided to keep half of the law in effect . . .

“Meanwhile, the committee it did create seems excessively large [41 members]. How will this many people ever find the time to meet, discuss and form some decent recommendations with the next three months?

“Was this just an exercise in futility concocted by the legislative majority as window dressing, to get Republicans, town supervisors and other critics off its back? Minority Leader Robert Farley was certainly stunned when the Democrats adopted his party’s plan.”

update (Aug. 24, 2007): For a very good summary of last night’s Schenectady County Legislature Meeting, see “Law to protect kids is altered” (Schenectady Daily Gazette, by Kathleen Moore, Aug. 24, 2007), which lists the many potential pieces of legislation a special council on sex offenders is expected to consider (some of which seem glaringly unconstitutional to Your Editor); it also has post-Meeting reactions from Duanesburg’s Supervisor Rene Merrihew, who would have preferred repealing the residency restrictions and letting the newly-established Council recommend a package of actions. The Albany Times Union covers the Meeting this morning in “Sex offender residency rules eased” (Jimmy Vielkind, Aug. 24, 2007; text reprinted here). Scroll down for our late-night summary of the Meeting.

Quickie Editorial: The altered SORR is obviously an improvement over the original “evict-’em-all” version. Nonetheless, it’s is discouraging that so many “leaders” voted to keep in place 2000–feet residence exclusion zones that they believe make for bad policy and they know are highly unlikely to protect children from “predators”. There is no emergency (no rash of repeat sex offences and no statistics about actual “dumping” of offenders from other counties) requiring this “pass-the-law-first and then study the problem” approach, and no reason to believe the highhanded Chair of the Legislature will allow repeal of the residency restrictions to be a permissible option for the final report of the Special Council.

follow-up (March 27, 2010):  Despite the amendments described above, the Schenectady County sex offender residency law was voided yesterday by State Supreme Court Justice Barry Kramer, who held that the law was pre-empted by New York State laws covering restrictions on where sex offenders may live. See “Sex offender law tossed out” (Albany Times Union, March 27, 2010).  The case was brought pro bono by the Albany law firm of [Terence] Kindlon Shanks & Associates, which has successfully challenged similar laws in Albany, Resselaer and Washington Counties.  Attorney Kathy Manley handled the Schenectady County case for the Kindlon law firm.

It is particularly sad that the often-thoughtful Vince DiCerbo placed such emphasis on the appearance of Albany Legislator Christine Benedict at the public hearing for his decision to back residency restrictions. Benedict came to the hearing hoping to score political points with her own voters; she asked the Schenectady Legislature not to continue the restrictions, pointing out that they were much more severe than Albany’s. The fact that she voted for Albany’s residency zones is no excuse for Schenectady’s legislators to impose more draconian restrictions. The Albany law sets up 1000-feet exclusion zones around schools and day care facilities, but not public parks, pools and playgrounds. When I asked Vince whether the Albany exclusion zones would keep sex offenders from living anywhere in that City, he said he did not know. So, one Albany politician’s political posturing provoked a Schenectady politician to change position and vote for a law that he admits is bad in theory. A sad example for our children, and for impressionable adults. [The Schenectady Daily Gazette printed this “mini-editorial” as a Letter to the Editor, on Sept. 5, 2007.]

update (10 PM, Aug. 23, 2007): Here is a quick and dirty summary of what happened at tonight’s Legislative Special Meeting to consider changes to the Schenectady County sex offender residency laws. See FoxNews23.com, “Sex offender law revised,” Aug. 23, 2007. (I reserve the right to rewrite this in the morning):

The Legislature’s meeting started 80 minutes late, as both parties worked to make amendments to the second of the resolutions that were going to be considered tonight. The Relocation Law was repealed, with only Leg. Chair Susan Savage and Legislator Farley voting against it.

The Legislature then passed the second resolution (Law 07-2007) to remove Level One offenders from the basic residency law. The new feature in the resolution was appointing a 41-member committee that would work for 90 days and come back with recommendations, with the Legislature then having 30 days to act upon the recommendations. [Unfortunately, I do not have a copy of the legislation and cannot go into great detail.] The Committee will be made up of lots of office holders, including the Town Supervisors, three members of the Legislature, the Mayor, Police Chiefs, heads of Probation and other departments, some public members, and other stakeholders. The mandate of the Committee includes considering many measures suggested by Legislator Farley (such as having secured housing facilities. GPS tracking for all, etc.)

Only Mike Eidens voted against the second resolution. He said it did a lot of good things but was doing things backwards by ratifying restrictions on Level 2’s and 3’s and then studying the issues — this would make it very difficult to undo the residency restrictions already in place.

Leg. Farley thanked the Chair for accepting the minority’s amendment to have the Committee. He gave special thanks to Legislators Lazzari and Eidens. He explained his vote against repeal of the relocation law, by saying “There were many citizens in Scotia who asked me to do that, and I agreed to do that.”

Leg. Suhrada wished they would repeal and really start fresh, but would support the measure and work together.

Leg. Hughes said we’ve been told to listen to the stakeholders and the children are the primary stakeholders. He said sex crimes are crimes of opportunity and having the restrictions will reduce the offender’s chances of contact with victims

Leg. DiCerbo said he had been leaning toward rescinding both laws and, at first, the public hearing affirmed that position, but his mind was changed when Albany Legislator Christine Benedict took the floor and said she did not want Schenectady to send offenders back into her district. In theory, these laws don’t work, but in practice we need exclusion zones when other Counties have them. Wishes other Counties would come together and repeal all residency restrictions. But, if we don’t keep this law, we will be “the hole in the donut.”

Leg. Gordon stressed that “our underlying theme” is having the children’s interests at heart. He stressed that 13 counties in the State have residency restrictions and that could lead to having people placed in our community “that we do not want here.”

Legislator Kosiur spoke briefly, stressing that Dr. Hamill never told the Legislature that he did a study showing that 85% of SOs failed polygraph tests as to whether they had violated parole restrictions. He said this law would ultimately make our County and children safer.

Leg. D’Agostino stressed that “we have learned to listen to eachother” and pointed out that the resolutions allows the towns to pass more restrictive laws (so, we listened to them).

ooh Susan Savage gave a rather arrogant and ungracious explanation of her vote for the 2d resolution. She stressed that we have to act to keep Schenectady from being a dumping ground, since 13 other counties have residency restrictions. Savage (like DiCerbo) said Albany legislator Christine Benedict swayed anyone on the fence when she hypocritically said they did not want Schenectady to send offenders back to Albany, which has a 1000-foot restriction. Savage said Schenectady’s law is in the middle and not as draconian as some counties (which, e.g., bar living and working within 1000 feet). She said the NYCLU should do some research and pick better counties to sue. She told Town Supervisors, “the ball is in your court” and go ahead and start your own sex offender programs if you want to. She said she appointed a committee two years ago, headed by Eidens, and it never reported back to her. She also stressed that we can’t wait for the State to act to solve our problems — that “kids and families have to depend on us.”

Sex Offenders: A Flawed Law: Gatehouse News Service has just released a study that shows that “The correlation between residency requirements for registered sex offenders and the number of sex crimes — both new and recidivist — indicates that bans on sex offenders don’t actually keep children safe.” The project is meant to run as a two-day series in newspapers (embargoed until Aug. 25 – 26, 2007; find it, e.g., in the Patriot Ledger of Quincy, MA — Part One and Part Two)). Please contact your local newspaper and ask them to consider running this important story. Below the fold, you can find links to the various articles and charts, covering “hysteria costs,” “absurdity breakout,” “civil lawsuits,” “what works,” “political pressure,” etc., and an accompanying video. [thanks to Rev. David “the parson” Hess for the tip.]

erasingS Tonight at 7 P.M. (Aug. 23, 2007), the members of the Schenectady County Legislature will vote on two resolutions that would change the laws they passed on June 12, 2007, which currently — by banning registered sex offenders from living withing 2000 feet of schools, playgrounds and day care facilities and requiring relocation of RSOs already living in the exclusion zones — constitute the State’s toughest sex offender residency restrictions [SORR]. After a surprise defeat in a special election at the end of June, the Democratic majority decided it had to change the laws. In the posting “New Schenectady sex offender law proposal” (Aug. 13, 2007), I described the proposed changes, which most importantly would remove Level One offenders from the scope of the laws and rescind the forced-relocation law. The proposals would, however, keep the rest of the restrictions on the books, and encourage smaller local units to consider passing more restrictive laws, while setting up addition monitoring systems in the County.

You can read the text of the Resolutions under consideration by clicking SchdyCountyProposedSOLawAug07 . I’ll be grouping my coverage of the changes in those laws and the process leading to it in this post, updating it over the next fews days. My prior coverage of the Schenectady sex offender laws can be found primarily in the following postings:

The Public Hearing on Changing Schenectady’s SORR Laws: There was a two-and-a-half-hour public meeting last night (Aug. 22) on the proposed changes. Most speakers asked the Legislators to rescind both parts of its sex offender laws, not merely the forced relocation portion, and to step back and actually study the complicated issue, with meaningful input from experts and “stakeholders.” The Schenectady Daily Gazette‘s Kathleen Moore has a good, lengthy report on the meeting in her article “Citizens speak on sex offender laws” (Aug. 23, 2007 ), which notes:

“More than a dozen speakers told the Schenectady County Legislature Wednesday to throw out both of its sex offender laws and start over with local experts who would actually research the issue. But it is not clear whether those speakers persuaded the legislators, none of whom spoke during the session.” . . .

“But two residents [Bill Marincic of Schenectady’s Vale Village and Jeff Parry of Scotia] urged the Legislature to stand its ground.” . . .

“. .. most speakers, including [Brad Littlefield of Delanson] said the Legislature could find a local solution if it acted slowly. They urged the legislators to contact the many local officials in charge of counseling, supervising and punishing sex offenders and ask them what legislation would help them do their jobs better.”

ooh Mr. Marincic spoke passionately in favor of the current laws, saying “My 15-year-old daughter [who accompanied him] is a prisoner in her own home,” and “I’m tired of all these do-gooders that want to destroy the fabric of our country.” When Marincic directly and forcefully confronted Albany Law School Professor Stephen E. Gottlieb, who came as a representative of the NYCLU, the Chair should have sternly reminded him to address the Legislature, not the audience, but Ms. Savage said nothing. Marincic said that 7 convicted Level Three sex offenders live within one block of his house. Littlefield urged the Legislators to “be heroes” and take the time to come up with comprehensive and effective solutions that could be a model for communities across the nation.

The Albany Times Union quotes a number of the speakers in the article “Schenectady sex offender law rapped,” by Paul Nelson (Aug. 23, 2007), and notes:

“Most of the speakers criticizing the proposal were municipal officials and homeowners from Duanesburg. Many argued the proposed amendments are not nearly enough and instead demanded politicians delay action until the topic is better researched. A New York State Civil Liberties Union representative said more needs to be done to stave off a threatened lawsuit.” . . .

“Richard Hamill, a mental health expert who said he works with both sex offenders and victims told the panel they need to consider bringing law enforcement, treatment providers, victim advocates and prosecutors to the table.

“We don’t want you to be the experts, we just expect that you will ask the people who have the expertise,” he said. “There has to be a regional approach.”

. . . “But if there was one issue that forces for and against the issue could agree on: it was that New York needs to pass statewide legislation.”

When I had my chance to speak, I hoped to reassure worried parents like Marincic and Legislators who felt they were letting such constituents down, by reading a few sentences from Residential Proximity & Sex Offense Recidivism in Minnesota (Minnesota Department of Corrections, April 2007):

“even when offenders established direct contact with victims, they were unlikely to do so close to where they lived. This may be due mostly to the fact that offenders are more likely to be recognized within their own neighborhoods. As a result, when direct contact offenders look for a victim, they are more likely to go to an area relatively close to home (i.e. within 20 miles of their residence), but still far enough away (i.e., more than one mile) to decrease the chances of being recognized.”

I also opined that (when concerned parents voiced their fears about living near sex offenders and insisted they be removed from their neighborhoods), the Legislators should have showed sympathy for the fears, but insisted that the laws they wanted would be “ineffective, counterproductive, and unAmerican.” I thanked the Legislature for teaching me to pay attention to what is happening here locally and to be diligent in preserving our civil liberties, and the proper relationship of the government to the people — no matter which party is in control (I remain embarrassed that Democrats spawned this legislation and are still playing politics).

The County Legislature has turned us all into amateur psychologists and political strategists — wondering constantly “what were they thinking?!” and trying to imagine what a brainstorming session must be like within the Democratic Caucus. This rush to vote immediately today on the proposed changes — with no opportunity to vote to rescind both portions of the law — again suggests that politics is more important to the Legislative leaders than getting this right.

They do need to act quickly to reassure sex offenders and their families who are worried about having to move by October 1st, when the laws go into effect. And removing Level One offenders from the law is also important. However, those goals could have been accomplished by a public announcement of a moratorium/ postponement on enforcing those provisions.

The mixed message of removing two odious aspects of the law, while otherwise maintaining the poorly-conceived legislation, and “permitting” the City and towns to pass more restrictive measures [powers that they already have] simply looks like more political posturing.

This evening, I hope to hear from Susan Savage that she is delaying enforcement of the entire sex offender law until at least Jan. 1, 2008. At a minimum, I hope legislators from both parties will voice their support for such a moratorium. That will allow time for a genuine effort to study the problems and come up with a meaningful, comprehensive and hopefully effective plan to address legitimate concerns of the people of Schenectady County.

ooh p.s. On a somewhat related subject, I want to point out that I just learned via Google that there is a Level 3 Sex Offender living in Malden, Massachusetts, who is named David E. Giacalone. He is 42 years old. I do not know Mr. Giacalone, did not know he existed until two minutes ago, and have no reason to believe that we are related. (The fact that he is 6 feet tall, weighs 214 pounds, and has a relatively small forehead, suggests we have no blood relationship.) David E. was convicted of aggravated rape in 1985.  Of course, if he has been law-abiding since committing his serious sex crime, and is in good faith pursuing a program to manage any antisocial tendencies, I would have no problem residing in the same community as he.


August 22, 2007

nap room ethics for lawyers

Filed under: Haiku or Senryu,lawyer news or ethics — David Giacalone @ 5:09 pm

    We’ve got too much to do today to delve into anything at great length (yes, a bonus for our long-suffering readership). So, here’s a sleeper of a post, and we hope to have a few more of our q.s. quickies later tonight:

     David Lat of Above the Law learned about corporate napping in the recent NYT article “That Yawn After Lunch Is Perfectly Normal” (New York Times, Aug. 19, 2007), and asks “Biglaw Perk Watch: Nap Rooms?” (Aug. 22, 2007; hat tip to “Ed” at Blawg Review). Lat wonders

“Does anyone know of a law firm with a “nap room”? . . . If medical residents who are on-call get nap rooms, why can’t Biglaw lawyers?”

The usual AtL comment rabble respond, in their customary hypo-edifying style, but they missed — as the young and unseasoned often do — a  very important aspect of the fight for more law firm nap rooms:

napHammock With the snowballing Graying of the Bar, and the ethical duty of law firms to protect clients by putting into place procedures that will help compensate for the age-related physical and mental problems of older lawyers [see my article “No Senior Discount at the Ethics Bar” (The Complete Lawyer, Vol. 3 #4, July-August 2007)], it appears to be an ethical violation not to furnish nap rooms for attorneys at any firm with Boomers and other Geezers on the roster. Throw in Americans with Disabilities Act arguments, and age discrimination/EEOC issues, and we have the makings of a great cross-generational campaign to make sure lawyers can nap in comfort and without stigma in law firms across the nation.  So, get to it Lat et al, your elders are here with moral support and all the mentoring you need (right after our afternoon nap, of course).

Discovery channel –
an older male vanquished
heads for the hills

within the red wine
a nap in my chair

……………………. Tom ClausenUpstate Dim Sum (2003/II)

a noon nap napperPark
on a good day…
first rainbow

his quick nap
is just pretend…
hermit crab
…………………. by Kobayashi Issa, translated by David G. Lanoue — Find more nap haiku and senryu in our posting of June 6, 2007 on horizontal punditry.

August 20, 2007

Madigan responds to f/k/a on NYSBA’s advertising position

Filed under: lawyer news or ethics — David Giacalone @ 5:41 pm

update (Aug. 22, 2007): NYSBA President Madigan has continued our discussion about the Association’s position on lawyer advertising. She begins a lengthy comment at her weblog with ” Au contraire, reader Giacalone, my response, and a careful review of our Task Force on Advertising Report, does indeed respond to the concerns articulated in your blog entry.” She also states that “The consumer is better served by the personal or professional referral” to a lawyer than by “choos[ing] to make decisions based upon print or broadcast advertising.” Well, I am pretty sure I have read both Ms. Madigan’s statements and the Task Force Report quite carefully, and I’m still less than clear on the NYSBA policy. Here is the rebuttal Comment that I left at her weblog yesterday evening:

David Giacalone Comment at the NYSBAPresident’s Blog: Thanks for the further clarification. Let me explain why I am still a bit uncertain of your position. The Task Force, and then the House of Delegates by approving the Task Force Report, did two things: (1) stated that they did not support “adding content-based restrictions” to the Advertising Rules; but (2) adopted “the Monroe County Bar Association guidelines regarding advertising as the official advertising guidelines and policy of the State Bar.”

The MCBA Guidelines — which are still the official NYSBA Advertising Policy and Guidelines — do contain content restrictions (indeed, vague ones that are far too subjective and difficult to follow or apply). As I have argued at my weblog, quoting those Guidelines, they call for lawyers and the public to reject ad content that is “irrational” or not “relevant to the thoughtful selection of counsel,” or that might offend a segment of the community, or “foster disrespect for . . . the legal profession.”

umpireS Your own weblog discussion after the Alexander Case continues to muddy the waters. While it declares agreement with the court decision (agreeing, I guess, that the Court correctly applied First Amendment law), your posting (a) embraces the Task Force approach; (b) declares that “attorney advertising SHOULD be done in a manner that is dignified and balanced, enabling the consumer to make informed decisions about securing quality legal representation.”; and (c) bemoans the fact that “Unfortunately, efforts to restrict the content of lawyer advertising that is not false or misleading have not passed constitutional muster.”

So, we have a powerful bar association reluctantly agreeing that the State cannot ban content that is neither false nor misleading, but giving clear signals that ads “should” be relevant and dignified to be ethical. At best, this is a mixed message. It suggests that non-decepetive ads that the Bar’s “Dignity Police” have been complaining about for years (including the innocuous “Heavy Hitters” ads) are still deemed inappropriate, or somehow less than fully ethical, in the eyes of NYSBA, because they are not sufficiently relevant or dignified, and purportedly hurt the reputation of the Bar.

Finally, I think you are being a bit too dismissive of consumers who use ads to assist in choosing a lawyer. As I discuss here, many average consumers have no family lawyer to ask for a recommendation and have no way to judge how trustworthy a friend’s recommendation may be, or how objective a lawyer’s referral may be. Also, for the reasons stated here, Lawyer Referral Programs are only slightly better, in many instances, than using the Lawyers by Practice Area section of the Yellow Pages.

The New York State Bar Association and Pres. Madigan can help clear this up by officially declaring that the MCBA Advertising Guidelines are no longer the “official guidelines and policy” of NYSBA. At the very least, the portions of the Guidelines captioned “Rational” and “Relevant” should be deleted.

Our post on Aug. 11, 2007 asked “after Alexander v. Cahill, where does NYSBA stand on lawyer advertising?“. We took a look at activity of the Bar Association since 2005 concerning the regulation of lawyer ads, and quoted from a press release and a weblog posting by NYSBA President Kathryn Grant Madigan. This afternoon, at the NYSBAPresident’s Blog, Ms. Madigan graciously responded to our posting, in a piece entitled “Law Advertising II” (Aug. 20, 2007). “For openers” she explains:

“[T]he State Bar’s position on lawyer advertising has not wavered. Since issuance of the Task Force on Lawyer Advertising in October, 2005, the State Bar has undertaken its mission to provide guidance to the legal profession on this important issue that goes to the heart of the profession.”

She closes by saying:

“I did not and do not downplay the role of the State Bar. Indeed I applaud it.

“Finally, let me reiterate what I stated in my initial blog post on this issue. Going forward, we welcome the opportunity to continue to work with the Appellate Divisions to review and develop rules that strike an appropriate balance within the constitutional framework.”

Unfortunately, neither those statements nor the rest of Madigan’s post answers my substantive questions from Aug. 11th, when I inquired:

dagOct04sg In the wake of the decision in Alexander, and with her embrace of the 2005 Advertising Task Force Report, we need to know the position of Pres. Madigan and her Bar Association on lawyer advertising and free speech. Do they still equate “irrelevant” with deceptive? Do they plan to step up their misleading “educational” campaign to convince the public and lawyers that there is something unethical or inappropriate about advertising that is truthful but somehow deemed to be insufficiently dignified or relevant?

While I can readily believe that the State Bar’s unwavering position is “to provide guidance” about legal advertising, I was hoping to find out just what that guidance is after Alexander.

erasingS I accept Pres. Madigan’s correction to my assertion that former NYSBA President A. Vincent Buzard was active in passing the Monroe County Bar Association guidelines. However, I want to point out that Mr. Buzard is a former president of MCBA. Moreover, just one day before he became the NYSBA president and announced his intention to establish an Advertising Task Force, he is quoted in the Rochester Democrat and Chronicle explaining that he supported having a State Bar program like the Monroe Country Bar Association’s ad guidelines. (Democrat & Chronicle, “Bar leader is advocate for lawyers,” May 30, 2005; link is no longer active) Although the MCBA Guidelines’ enforcement regime had already been aborted by MCBA, and despite the fact that much of the Guidelines was aimed at the content of ads, the NYSBA Task Force adopted them “as the official policy of the State Bar.”

What I would like to know, therefore, is whether NYSBA continues to endorse the two-page MCBA Guidelines.

As I noted on Aug. 11, by adopting the MCBA Guidelines, the official position of the NYSBA is that lawyer advertising, to be fully ethical, must not only be “true, accurate and clear,” but also “fair,” “rational” and “relevant to the thoughtful selection of counsel.” Therefore, despite Fn. 1 in Pres. Madigan’s posting today, it appears that the Task Force and NYSBA do indeed favor what the Alexander court described as the banning of “irrelevant, unverifiable and non-informational ads.” Similarly, I continue to believe that the Task Force misinterpreted either the Guidelines or the Code of Ethics when it asserted that the MCBA Guidelines “are a plain language, straightforward articulation of the existing Code of Professional Responsibility Rules concerning advertising.” Madigan made the same assertion today. So, I ask again: does NYSBA believe that an ad must be dignified and “relevant to the thoughtful selection of counsel” to be considered ethical?

Finally, Ms. Madigan tells us that “the State Bar agreed that ‘to the extent that the MCBA guidelines were consistent with the proposed rules’ they would be adopted, but otherwise, ‘they were to be amended and supplemented’ .” She has not suggested that the Bar Association believes the Guidelines to be inconsistent with the final rules, nor with Alexander v. Cahill. Further clarification would be helpful. And, perhaps it will be forthcoming, as Ms. Madigan noted in today’s posting that:

“The State Bar is the drafter of the Ethical Considerations that accompany all of the disciplinary rules. For this reason, you should all watch for the final Official Commentary/Ethical Considerations to the rules that will be considered by the House of Delegates at its next meeting on November 3rd, which are being drafted by members of the Task Force and the Committee on Standards of Attorney Conduct.”

I’m grateful Bar President Madigan was willing to take the time to respond, and to use her weblog to answer my inquiries. It would be great to hear more about the Bar’s actual substantive positions on what does and does not constitute deceptive, misleading, or otherwise unethical advertising.

a toast to LifeStraw®

Filed under: Haiku or Senryu,q.s. quickies — David Giacalone @ 9:02 am

This post about LifeStraw® could save your life.

I was intrigued two years ago when I first heard about LifeStraw® — a 10-inch long plastic tube that turns almost all surface water [including salt water] into potable water. Here’s what Time Magazine said about it, when declaring LifeStraw the best health invention of 2005 [“Best Inventions 2005: Healthy Options“]:

Clear Water Revival
Inventor: Vestergaard Frandsen Group
Availability: Early 2006; $3 and up
To Learn Morelifestraw.com

The price of a caffe latte — about $3 — really can save a life. The LifeStraw, a beefed-up drinking straw designed by the Swiss-based company Vestergaard Frandsen, uses seven types of filters, including mesh, active carbon and iodine, to make 185 gal. of water clean enough to drink. It can prevent waterborne illnesses, such as typhoid and diarrhea, that kill at least 2 million people every year in the developing world. It can also create safe drinking water for victims of hurricanes, earthquakes or other disasters. And finally, it makes a handy accoutrement for the weekend warrior’s back-country hike.

LifeStraw has received a lot more attention in the media this past year (from Fortune, to NewsWeek, to Katie Kouric, who asked if it’s the Invention of the Century), and I finally decided to find out whether it’s available yet to consumers.   I am pleased to say that it is, and you can Buy LifeSraw online (from Sunset Productions Limited) for less than $15 each, plus postage.  Each LifeStraw filters enough water (700 liters) to supply an adult’s drinking needs for a year. At this price, every family should have a supply on hand. (Need I mention what a thoughtful gift it would make for loved ones and friends?)

As explained at the website of LifeStraw’s manufacturer, Vestergaard Frandsen, there is an urgent need to find ways to turn surface water into drinking water.

  • At any given moment, about half of the world’s poor are suffering from water-related diseases, of which over 6,000 – mainly children – die each day by consuming unsafe drinking water.
  • Today, 1.1 billion people are without access to safe drinking water, robbing hundreds of women and girls of dignity, energy and time.

LifeStraw can be made available to those most in need for about $3 per device. You can make a donation to help bring LifeStraw to people for whom it truly is a life-saver every single day of their lives.

You can find much more information on the technical details, testing, and product claims at the manufacturer’s website. Below the fold on this posting, I have includied some of that information. Don’t be surprised if I nag you again in a few months to make a LifeStraw purchase or donation — to save lives and bring the world a bit of peace of mind.

blossoms in the wind-shadow
a hiker stops
to sip his water

……………………………………. by Michael Dylan Welch

fresh straw for the garden–
about ten servants
at work

unaware of the thief’s
eyes, melons
cooling in water

…………… by Kobayashi Issa, translated by David G. Lanoue

whiskey I sip it till I love it .. ..

………………….. by Jim Kacian – World Haiku Ass’n bio/p.2

St. Patrick’s Day –
drawing the
designated-driver straw

unseasonably warm
a puppy laps up
our snow buddha

………………………………………… by dagosan

good friday
the scarecrow gets
a new straw hat

…………………………………………… by ed markowski

dog day afternoon
a lemon seed
up through the straw

………………………………………….. by Carolyn Hall

mops and pails–
the wren goes on singing
with straw in its beak

……………………………………. by peggy lyles

monday morning
a paper cup
with a slow leak

a dry straw
in a dry cup
no last words

don't forget tack ……….. by john stevenson from Upstate Dim Sum (2006/II)

p.s. If you came here today looking for a law-related distraction, let me suggest the “going back to school” edition of Blawg Review, hosted this week by David Gulbransen of Preaching to the Perverted.  David has constructed one of the most palatable theme-based Blawg Reviews yet, with Blawg Review #122: Course Catalog/122.  I’m particularly interested in studying Scott Moss’ “What is your favorite bad legal argument?“, at PrawfsBlawg.


August 18, 2007

broadening the hourly-billing debate — consider yourself, your clients and your ethics

Filed under: lawyer news or ethics,viewpoint — David Giacalone @ 12:43 pm

Yes, I often disagree with those who decry the use of hourly billing by lawyers and make it a scapegoat for all that ails the profession and irks its clients [see, e.g., our prior posts “presumed ignorant” (July 26, 2007); chronomentrophobia (Jan. 7, 2005); and “Value Billing or Venal Bilking?” (Feb. 17, 2004)]. Nonetheless, I’m pleased to see that Scott Turow’s ABA Journal cover article, “The Billable Hour Must Die” (August 2007), has provoked so many webloggers to write about whether or how we can get rid of the billable hour or the billable hour quotas that require unreasonably long work weeks and inspire all the wrong incentives in the lawyer-client relationship.

Participants include Prof. Daniel Solove at Concurring Opinions, Carolyn Elefant at MyShingle, Susan Cartier Liebel at Building a Solo Practice, Andrew Perlman at Legal Ethics Forum, Scott Greefield of Simple Justice, Luke Gilman at Blawgraphy, and many more.

I was especially pleased to see law student Luke Gilman’s follow-up piece yesterday “More on the Billable Hour, Charting Your Own Course” (Aug. 17, 2007) at Blawgraphy, because Luke clearly realizes that whining and opining are not enough: individual lawyers have to take responsibility for the practice setting they choose and its practical and ethical ramifications. He asks “So, law students, what to do?” and suggests:

“First, make yourself aware of the reality of legal practice. You’ve made a tremendous investment in money and time to go to law school. Wouldn’t it be worth investing a little time to figure out what you’ve gotten yourself into? I’m stunned at how much some of my fellow students seem not to know about the practice of law and how little interest they show in learning more.

“Second, know thyself. BigLaw practice isn’t for everybody, but somebody’s got to do it and a lot of those people love it. You might be one of those people. . . . .

“Third, if you do find that it’s not the life for you, figure out your alternatives. There are alternatives.

(1) You might decide to hang out your own shingle. . . . . .

(2) You might choose a practice area with this in mind. ….

(3) Know the culture of the firms you’re interviewing with ahead of time. …. All firms feel the pressure of billable hours, but different firms deal with it differently. Know who you’re getting into bed with. . . . . “

What I am still not seeing enough of, however, is a focus on the ethical and economic realities and pitfalls of the so-called alternative billing mechanisms. From my perspective, although there is great structural ethical peril in the bloated hourly quotas used by most large law firms (see “Sanction This (Firm)!“), there is nothing inherently unethical about billing by the hour. The problems virtually always arise from its abuses, most of which stem from the desire for greater income and profits — a desire that will not go away when you switch to a different method for setting fees. Therefore, if you choose not to bill your clients by the hour, you need to understand the anti-client incentives that inhere in every billing method; and the ethical lawyer and law firm need a theory and game plan that will allow them to avoid economic and ethical traps while setting such fees, and to serve their own legitimate financial needs and the best interests of their clients.

Where is the straight-talk or even sincere musing about the ethics and the practicalities of setting alternative fees — whether they are “flat”, “mixed,” “contingent,” “value-based,” or tied to “discrete tasks”? Lord knows, I have tried to raise the issues and suggest possible solutions at this weblog: See , e.g., “Value Billing and Lawyer Ethics“(Jan. 28, 2004); “Value Billing or Venal Bilking?” (Feb. 17, 2004); “brandLEX” (March 4, 2004); “fee fie foe and fum” (Jan. 5, 2005); chronomentrophobia (Jan. 7, 2005); “LexThink about higher fees (er, value billing)” (April 6, 2005); “ethics aside” (April 8, 2005); “ron baker & price sensitivity” (April 21, 2005); “lawyers and cashews and premium pricing” (May 9, 2006); and “the value-billing babysitter” (March 23, 2006); “contingency fees (part 4): ethical duties”  (April 8, 2006); “presumed ignorant” (July 26, 2007); updates:broadening the billable hours debate” (Aug. 18, 2007); why do lawyers lie (about contingency fees) (Aug. 29, 2007); contingency fees and the clueless fiduciary (Sept.4, 2007); “finally: NLJ on the realities of alternative billing” (Sept. 11, 2007); “time, fees, flu, pumpkins, too” (Oct. 10, 2007), discussing the Boston Globe article “Beat the Clock” and related weblog posts; unconscionable silence over Graubard’s $42 million contingency fee (December 11, 2007);doubts over debt negotiation fees” (July 21, 2008); “ALF#1: other thoughtful voices on the lawyer billing debate” (Feb. 22, 2009)

For a list of the Red Flags that have caused us to worry about the ethical and fiduciary soundness of value billing, see “value pricing by lawyers raises many ethical red flags (Dec. 4, 2008); and, our response to an attack by the so-called Greatest American Lawyer, GAL’s alternative universe” (Feb. 5, 2009)

When will we hear other voices taking these issues seriously? [Below the fold (after the haiku, at the bottom of this post) you will find lengthy excerpts from many of these posts, which I hope will spur a broader debate on alternatives to hourly billing.]

Rather than serious discussion of the ethics of alternative methods of billing, we find sweeping condemnation of hourly billing and blind assertions that value billing is totally ethical. And, in virtually all of the writings (weblogs, articles, books, and seminars) of the gurus and svengalis of Value Billing and Premium Pricing, we find promises that the lawyer who denounces hourly billing and follows their schemes will magically and righteously increase income dramatically, while working less and increasing client value. This posting is a plea that those who sincerely want to fix what is wrong with hourly billing spend some serious time figuring out how the alternatives will result in fees (and a work environment) that are fair to lawyer, law firm and client — and how they will function within an economy that, if working competitively, can be expected to drive prices down to their marginal costs (due to technological breakthroughs and an excess of service providers).

for the fat green frog
crouched on the log
time is flies

……………………………….. by George Swede – from Almost Unseen

complaint bill There are two points that I want to make in closing today, to Lawyers who Complain About the Billable Hour, and I hope they are self-explanatory and persuasive:

  1. If you want to work fewer hours (to bill fewer hours), but are not willing to make a smaller income, you’re part of the problem, not the solution.
  2. If you think the vast majority of clients are willing to pay higher fees in order to be rid of the billable hour, you are greatly mistaken.

update (4 PM Aug. 18): Thanks to Idealawg‘s Stephanie West Allen for pointing me to Gerry Riskin’s post today at Amazing Firms, Amazing Practices, “In Memory of the Billable Hour” (Aug. 18, 2007), which reports on the new National Law Journal/Law.com article “Firm Kills Billable Hour for First-Year Associates” (Aug. 20, 2007), which states:

“Ford & Harrison, a 190-attorney labor and employment firm, has tossed out billable-hour requirements for first-year associates. The program aims to close the practical-skills gap of law school education and increase value to clients. . . . .

“The idea is for associates to spend their time observing depositions and witness interviews and attending hearings and litigation strategy meetings. While the firm has no specific expectations of associates meeting the 1,900 billable hours it previously required from new attorneys, it does anticipate that some of the work they undertake during their first 15 or so months will be valuable enough to bill.”

The NLJ article notes: “Most partners liked the concept, [C. Lash Harrison] said, and saw it as a way to eliminate all the hand-wringing — and time — involved in determining which hours worked by associates are valuable enough to bill. Partners also saw the long-term payoff of training new lawyers to become profitable sooner in their careers, he said.” This sounds like a worthwhile experiment and I’m looking forward to seeing the results and the response of other law firms.

umpireS One Important Quibble from Prof. Yabut: Lawyers are supposed to be good at verbal precision. Is it asking too much for them (and the press covering the legal profession) to differentiate between eliminating “billable hours” and eliminating “billable hour quotas”? Clear language really does encourage clear thinking. [update (8 PM Aug. 18): On a somewhat related note, with today’s selection in my Far Side Gallery 2007 Off-the-Wall Page-a-Day Calendar, Gary Larson shows the power of a well-chosen word (and the wisdom of consulting a dictionary in a timely fashion when meanings are unclear)]

ooh update (Aug. 19, 2007): Victoria Pynchon of Settle It Now Negotiation Blog thinks F&H’s plan is “an idea whose time has come,” but she wants them to go further and not bill clients for anything a first year associate does. Victoria also advises first year associates to use their bargaining power and negotiate for the same deal with their law firms. As an old mediator and Agent of Reality, I have to say that Victoria’s position seems unrealistic and — frankly — silly (not to mention a “zero tolerance” approach to billable hours that suggests an inability to make judgment calls and important distinctions). The notion that nothing a new lawyer does in her or his first year out of school is valuable enough to be billed at any rate makes no sense (ask the solo practitioner just out of law school). One predicted result: a lot of clients will start requesting that Firsties be assigned to their matters — but, good luck convincing them to pay a reasonable fee for work done by a second-year associate. Of course, any individual newbie lawyer who tries to negotiate VP’s idea will definitely have a learning experience.

update: See our post “finally: NLJ on the realities of Alternative Billing” (Sept. 11, 2007)

Meanwhile, Master Japanese haiku poet Kobayshi ISSA had his own ideas about coping with time:

the rooster flaps and crows
“It’s time!”
morning’s charcoal fire

stinging bug
you too someday, some time…
dewy grass

traveling geese
my lake is crossed
in no time

cherry blossoms–
residents of this world
a short time

autumn wind–
he was good-looking too
in olden times

are a waste of time…

going out to fart
about ten times…
a long night

the bill collector
with shoes on steps inside
to the hearth

……………. by Kobayshi ISSA, translated by David G. Lanoue


Below the fold you will find excerpts from ethicalEsq and f/k/a posts dealing with the ethics of alternative billing methods. I hope they will spur the reader to consider the issues and broaden the debate about the billable hour and alternative ways to set lawyer fees.


August 15, 2007

this Scooter was loved

Filed under: Haiku or Senryu,q.s. quickies — David Giacalone @ 4:40 pm

Holy Cow!
the infield chatter

………………………. by dagosan, in mem. Phil “The Scooter” Rizzuto

infielderG The nickname Scooter has been much-defiled this year, but for millions of Yankee fans “The Scooter” is a sobriquet used with love, admiration and affection. Phil Rizzuto, the man known as The Scooter died on Monday at the age of 89. Chicago Sports.com, “Yankee legend Phil Rizzuto dies“; USAToday Obituary and Timeline (Aug. 14, 2007). The Hall of Famer was considered by many to be the best shortstop of his era (the heart of the Yankees while the team won nine pennants in 13 years), and then went on to become a popular Yankee broadcaster for 40 years — with his signature verbal punctuation, “Holy Cow!” As Don Mattingly said yesterday, “Scooter was awesome. It’s a tough day for Yankees fans and the whole organization.” A tough little guy with a lot of heart and great sense of humor.

infielderG late innings
the shortstop backpedals
into fireflies

summer loneliness . . .
dropping the pop up
i toss to myself

. ………………….. . by Ed Markowski . . .
“late innings” – Baseball Haiku (2007)
“summer loneliness” – from the pinch-book pop up (tribe press, 2004)

[photo: Al Bello/Getty]

calm evening
the ballgame play-by-play
across the water

………………………….. by jim kacian OldBallGameLogo

extra innings
a runner’s shadow
down the third base line

…………………………….. by John Stevenson from Quiet Enough (2004), Baseball Haiku (2007)

the smallest boy hits
the game winning homer

………………………. by ed markowski

See the details of Phil Rizzuto’s baseball career, with lots of links, at MLB.com.

new edition of Simply Haiku

Filed under: haijin-haikai news,Haiku or Senryu — David Giacalone @ 9:26 am

No Controvery & No More Waiting: There may be agita and anticipation in Schenectady today over Sex Offender legislation, but there is nothing but joy in the Haiku Community, because the newest edition of Simply Haiku, (Autumn 2007, vol. 5 #3), went online overnight. As usual, in this combination haiku journal and magazine, you will find excellent examples of Japanese short-form poetry (such has haiku, senryu, haibun, renku, and both modern and traditional haiga), along with essays and commentary.

This month, they even presented five poems by dagosan‘s alter ego, including this pair:

first the scent –
lilac bushes
’round the corner

blustery day
one tulip
keeps his head

…………………………………….. by David Giacalone, Simply Haiku, Autumn 2007, vol 5 no 3

You will also find, for example, haibun (prose with a linked poem) by our never-disappointing Roberta Beary, plus the experimental “alphabet jazz‘ by Ed Markowski; haiga (an image with a linked poem) by f/k/a‘s honorary daughter Aurora Antonovic; and five tanka by Tom Clausen, including this pair:

overly familiar
to me now,
this way of seeing people
as being like someone
I’ve known before

I sit on a stool
nursing the furnace
looking into where
our warmth has come
and gone…

…………………………………… by Tom Clausen – Simply Haiku (Autumn 2007)

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