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

September 26, 2007

bar admission: kinky discipline and a new dvd

Filed under: Haiku or Senryu,lawyer news or ethics — David Giacalone @ 9:33 am
  • update (Sept. 27, 2007): Nobody in the blawgisphere covers spanking by the bench and bar like David Lat at Above the Law. Today, he continues his coverage of the Spanking Judge, Herman Thomas of Mobile County, Alabama, including links to a couple of songs about the good judge — “Hand me the Paddle” and “Spank Me” — by former paralegal Jolene Roxbury. Judge Thomas is alleged to have “periodically removed prisoners from Mobile County Metro Jail and spanked them in a room at the courthouse.” You can get the details from Lat, with links to Mainstream Media sources.
    • blue heron
      all paddles
      at rest
    • autumn colors
      we paddle closer
      to the mountain

    ……………………………………………………….. by Yu Chang . .
    “blue heron” – Shiki Haikusphere 10th Anniversary Anthology (2007)
    “autumn colors” – Frogpond (Winter 2007)

Is the Ex-Spanker-Ex-Priest Fit to be a Lawyer? Way back in 2004, ethicalEsq spent some time wondering about the possible effects of bankruptcy and substance abuse on a law student’s admission to the Bar, and got spanked by some testy and touchy recent law grads. ( See this post, where I coined the aphorism “sometimes, silence isn’t golden, it’s yellow“). A decision by the Iowa Supreme Court last week (via Mike Frisch at the Legal Profession Blog), raised a different issue concerning the character/fitness requirement for becoming a lawyer:

Does conduct that took place 17 years or more ago, on trips with teen-agers, such as “[bare-bottom] spankings, tickling, push-ups and sit-ups as disciplinary techniques” (and finagling neck and foot massages out of teen-agers under his supervision), which might be considered child sexual abuse today, and resulted in the expulsion from the Catholic priesthood many years later, but not criminal conviction, disqualify the bar applicant from taking the bar exam on the basis of inappropriate character? In Iowa (with similar requirements in all states), “Those who apply for admission to the bar must demonstrate their honesty, integrity, and trustworthiness. . . . because attorneys are put in a position of considerable influence over their clients, whose trust in them must remain inviolate.”

Iowa’s Bar Examiners concluded that the abuses of parishioners’ trust “were so serious that Nash remains unfit to practice law notwithstanding his completion of a treatment program, his many subsequent years of appropriate priest-parishioner trust relationships, and his apology to those harmed by his earlier actions.”

In the Matter of MICHAEL PATRICK NASH, (Supt. Ct. Iowa, No. 102 / 07-0286, September 21, 2007; 51-page decision, pdf., including a dissent) Mr Nash was granted permission to take the State bar examination, after the Court disagreed with the State Board of Bar Examiners, and concluded that Nash had “satisfied his burden to demonstrate his good moral character and fitness to practice law.” The Court stated:

“While we certainly do not condone Nash’s disciplinary techniques, we do not believe such non-criminal acts from seventeen (or more) years ago reflect poorly on his present moral character and fitness to practice law. Nash utilized the techniques when he was a relatively young and inexperienced priest dealing with misbehaving teenagers in remote logging camps of southeast Alaska in the 1980s. While those methods of discipline would certainly be considered inappropriate by today’s standards, when viewed in the social and historical context in which they were applied, they appear significantly less sinister.”

Mr. Nash has consistently denied that there was any sexual context to the discipline or massages (admittedly, it is difficult for me to find that assertion credible). However, he did admit that such conduct might indeed be deemed child sexual abuse in 2007. Based on that fact, and failure to submit to extensive observation and evaluation, one justice dissented.

me in one hand
a belt in the other
dad sings a lullaby

…………………….. by roberta beary -from Taboo Haiku

I’m not sure how I would have voted. For the past few months (starting here), I’ve been writing about sex offender residency restrictions. Very few people want a sex offender living next door (or even a thousand feet away), even when the crime happened many years ago and the offender has led an admirable life ever since. I imagine that many members of the public would also shy away from hiring a lawyer who was an ex-priest defrocked for kinky discipline procedures with adolescents — but that really isn’t the proper test. Although I am strongly against imposing residency restrictions on sex offenders, I do believe that violations of professional trust in a law graduate’s past need to be given close scrutiny. Here is more of the Iowa Supreme Court’s reasoning in its Nash decision:

“We believe Nash’s conduct over the past seventeen years is the best indicator of his present moral character and fitness to practice law. While passage of time between an act of misconduct and submission of an application for admission to the bar alone will usually not be sufficient evidence of present good moral character, see In re King, 136 P.3d 878, 885 (Ariz. 2006), we are convinced Nash came to understand certain disciplinary techniques crossed appropriate pastoral boundaries. Following his treatment experience, Nash voluntarily avoided one-on-one interactions with parish children to avoid the appearance of impropriety. In 2006, as soon as the Catholic Church allowed him to speak with anyone involved in its investigation, Nash issued a written apology to the children whom he had improperly disciplined. He has earned and maintained the support, admiration, and trust of nearly eighty individuals who testified and wrote letters supporting his admission to the bar.”

The priest-parishioner relationship, especially with children, is certainly even more “sacred” than the lawyer-client relationship. Violations committed while a priest are quite telling when asking whether a person can be trusted to properly treat and protect a client. On the other hand, 17 years of good conduct and respected positions certainly do mean something. I’d like to hear your thoughts, and any additional questions or procedures you would require Mr. Nash to face prior to being granted admission to the Bar.

Another case handled the same day by the Iowa Supreme Court was a lot easier. In Disciplinary Board v. Blazek ( No. 107 / 07-0507, September 21, 2007), Michael Blazek had been convicted of: (1) attempted enticement of a minor for sex, (2) traveling in interstate commerce to engage in sex with a minor, (3) receipt of visual depictions of minors engaging in sexually explicit conduct, and (4) possession of visual depictions of minors engaging in sexually explicit conduct. He clearly deserved to be disbarred. What surprised me was learning that Blazek had pled guilty in 1997 to “a felony charge of knowingly engaging in sexual contact with a child under twelve.” That incident “stemmed from a family reunion on a cruise ship where Blazek sexually assaulted his eleven-year-old nephew by fondling the boy’s bare buttocks and genitals.” Remarkably, in 1997, the Court had merely “suspended Blazek’s law license indefinitely with no possibility of reinstatement for two years.” Thirty months later, he was allowed to resume practicing law. They sure were a lot more lenient in Iowa than I would have been with the first-time sex offender Blazek.

A Movie, Not Just a Joke: “A Lawyer Walks Into a Bar . . . “ I haven’t yet seen the documentary A Lawyer Walks Into a Bar . . . , but I want to, after hearing about it from the likes of weblawyer Robert Ambrogi [at both his Lawsites weblog (Sept. 21, 2007) and LegalBlogWatch (Feb. 22, 2007)] and the anonymously-omnipresent Blawg Review Editor. Bob told us over the weekend that A Lawyer Walks Into A Bar, which is directed by Eric Chaikin (who gave us the entertaining 2005 film “Word Wars – Tiles and Tribulations on the Scrabble Game Circuit“) is now available on dvd (e.g., at Amazon.com). Here’s a summary of the New York Times review:

Writer-director Eric Chaikin’s feature-length documentary A Lawyer Walks Into A Bar. . . offers a witty, seriocomic look at myriad aspects of the American legal process and judicial system. It hones in on six individuals, all prospective attorneys at the time of the film’s production, and follows them through trials and travails as they approach and take the formidable bar. Chaikin then uses the subjects’ stories as springboards to broader digressions on U.S. litigation. The film features a myriad of celebrity guest appearances, from both well-respected attorneys and entertainers. Participants include: attorneys Alan Dershowitz, Mark Lanier and Joe Jamail; comics Eddie Griffin and Michael Ian Black; TV commentators John Stossel and Nancy Grace, and many others.

Click for the trailer and select clips, a synopsis of the film, a glimpse of the six bar applicants, and the related weblog. I’d like to see non-lawyer Chaikin’s perspective on the legal system, lawyers and the bar examination process. And, whether out of empathy or schadenfreude, I’m curious about the exam travails of the six main characters (four of whom are women). It’s been 31 years since I took the District of Columbia bar exam and was waiting for the results. Despite telling myself that I’d never be in the bottom 40 percent of any group taking any test, it was a stress-inducing process. On the other hand, I expect the experience of watching A Lawyer Walks Into A Bar to be enjoyable and cathartic. Naturally, I’ll tell you its grade after I see it. And, I’m going to ask my public library to purchase a few copies.

Like atheists in fox holes, a lot of rather non-religious law students seem to turn to the heavens for assistance when taking the bar exam. Although I’m not a believer in divine intervention (for baseball batters, Emmy nominees, or test takers), I tried to help the prayer-inclined back in 2005, with my post “wanted a law school exam prayer.” You might want to check it out (no guarantee of results, of course).

today
even the pigeon
says a prayer

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

silent prayer–
the quiet humming
of the ceiling fan

…………………….. by Lee Gurga – – Fresh Scent

long winter –
prayer bundles sway
in the cedars
…………………….. by Billie Wilson

Speaking of Spanking (and silly geese, but not bar admissions): Yesterday’s Overlawyered.com Roundup (Sept. 25, 2007) pointed to the farmer who filed a lawsuit over the use of his picture, with a goose, on an irreverent greetings card. Click to see the cover of the card from Roanoke.com and read the story. The card’s message: “Since it’s your birthday, you decide — Would you rather get spanked . . . [inside the card] or goosed.”

According ot the Roanoke Times, “In Virginia, using an image for advertising or trade requires a signed release.” The issue is whether poultry farmer Andrew Marsinko gave permission for the taking and use of the photo, which was snapped at the 1996 State Fair of Virginia, by Washington, D.C., photographer John Burwell, who had been hired to take promotional photos for the fair. Marsinko is seeking $7.5 million in damages from Burwell and the companies that used the image. [Walter Olsen has collected other links to lawsuits brought by unwilling photographees, here.]

I have no legal insights into Marsinko’s case or the policy issues. Nonetheless, I’ve been rather goose-silly lately over at the MagnaPoets Japanese Form group weblog. See there and here for poems, and here for the prose-with-poem haibun “bad for the gander.” Here are just a few of the resulting haiku:

the power boat’s wake —
a pair of ducks
gets goosed

holidaytrafficjam
– goslings goose gander
glide under the bridge

honking out my window –
geese above
cabbie below

…………………………… by david giacalone, a/k/a dagosan

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