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

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:

campfire…
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

“thirty-five.”
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.

(more…)

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.

Thanks!

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

sunrise
I forget my side
of the argument

……………………………………….. by George Swede – Almost 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 _____?”

blossoms
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.

August 23, 2007

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.

(more…)

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 Clausen – Upstate 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.

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

words
are a waste of time…
poppies

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.

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August 13, 2007

new Schenectady sex offender law proposal

Filed under: lawyer news or ethics — David Giacalone @ 10:47 pm

     update (Aug. 15, 2007): As expected, the Schenectady County Legislature voted last night to hold a public hearing on Wednesday Aug. 22 on a resolution to rescind the law that would require forced relocation of sex offenders from “exclusions zones” as of October 1st, and to amend the main sex offender residency restriction [SORR] law by removing Level One offenders and “permitting” other local governments to impose greater restrictions. They also agreed to vote the very next day (Aug. 23) on the measures. Except for getting the important date of the public hearing wrong, today’s Daily Gazette does a good job covering last night’s action. See “Changes looming for sex offender laws,” and “Town awaits action on offender law“; click for related video from FoxNews 23.

Dem. Mike Eidens and Rep. Carolina Lazzari, who both voted against the two original sex offender laws, stated that they would prefer to repeal both of them and not merely the forced relocation law. Lazzari lamented the fact that there was no practical way for her to get the option to repeal both SORR laws before the Legislature (other than the good will of the majority). The very popular option of wiping the books clean and starting over will, therefore, not be on the table when the Legislature votes next Thursday night, despite the fact that they will surely hear calls for total repeal from Town Supervisors, and many citizens and experts at the public hearing.

  The Legislature’s Chair, Dem. Susan Savage, proclaims “We think we’re meeting the majority of the concerns” and we’re “meeting them half way,” but it is very discouraging that she has presented amendments that specifically encourage the City of Schenectady, the towns and the villages of the County to consider passing laws more restrictive than the revised laws. When the problem with the SORR law is that it does not serve its intended purpose and is very likely to be held unconstitutional, “half way” is an asinine, hypocritical position to take. And, inserting “permission” for more restrictive laws by the smaller governmental units is gallingly politcial, when they already have that power. [See the discussion of preemption by the County below.] Having Rep. Minority Leader Robert Farley braying on in support of increasing the exclusion zones underscores their pandering to those who irrationally believe banishing sex offenders is an effective solution. Farley and other legislators also stressed the importance of listening to the public. But, I must wonder just when these leaders will start to take seriously their own responsibility to tell the public the truth about the efficacy and wisdom of residency restrictions. Leaders can have empathy for the fears of their constituencies without enacting worthless and counter-productive laws.

For drama and substance, the presentation of Duanesburg Supervisor Rene Merrihew was the highlight of last night’s legislative meeting. The Albany Times Union captured it in today’s article “Lawmakers re-think sex offender bill: Schenectady County Democrats lead move to tone down legislation” (Aug. 15, 2007; reprinted):

The lone person to address the county panel Tuesday during its regular meeting was Duanesburg Supervisor Rene Merrihew. She repeatedly called the measure ill-conceived and thoughtless.

Merrihew also came armed with petitions from “750 angry people in District 4” and said she received 60 more letters from Princetown residents.

“We’re angry at the total disregard for us and our children,” said Merrihew, who punctuated her comments by saying she and fellow supervisors remained committed to having both laws rescinded.

p.s. To Susan Savage: When your honesty and political savvy are already in question, you really should refrain from remarks such as those reported in the TU article, concerning whether your sex offender laws brought out the many voters who caused Ed Kosiur’s defeat in the Aug. 31 special election for the Assembly:

“Savage has insisted the turnout wasn’t a sign that the legislation was a political miscalculation. ‘There were really other (things) that were (to blame) such as the misrepresentation of (Kosiur’s) tax record,’ she said earlier in the day.”

update (1 PM Aug. 14, 2007): Earlier today, I suggested below that Schenectady County should explicitly inform the local units within its borders (the City, town, and villages) that it would consider any sex offender law that fails to grandfather in existing residences or that covers Level One offenders to be inconsistent with the proposed County Law. It appears, however, that declaring such inconsistency would not mean that the County has pre-empted those issues and could therefore stop the local units from passing more restrictive SORR provisions. See County Preemption of Local Laws in NYS, where I have compiled (with the help of attorney Arthur J. Giacalone of East Aurora, NY) what I believe to be the most relevant portions of the state constitution and municipal law. Note, for instance, that NYS Const., Art. IX, § 2(d) includes a provision that states: “A local government shall not have power to adopt local laws which impair the powers of any other local government.”

We can ask the County to urge restraint on the part of the other local units, but each can decide for itself how it wants to manage sex offenders within its borders, subject only to state law (and the federal constitution). Should the proposed bill pass the County Legislature next week, lobbying efforts will thereafter need to be focused on the City of Schenectady, the towns and the villages.

At tomorrow’s monthly meeting (7 PM, Aug. 14, 2007), the Schenectady County Legislature will call for a special public hearing to be held on Aug. 22nd, with a vote to be taken on Aug. 23, in order to consider major amendments to its Sex Offender Residency Restrictions. (prior posting here, here and there) Click SchdyCountyProposedSOLawAug07, 9-pp pdf., to see a draft of the proposed legislation as of Aug. 13, 2007.

erasingS One new bill would repeal Local Law 04-07, which currently requires sex offenders to relocate if they reside within 2000 feet of a school, playground or day care facility on or after October 1, 2007. Thus, the bill would effectively “grandfather in” the current residences of sex offenders, removing a major complaint about the current law.

In addition, proposed Local Law 07-07 would remove Level One offenders (those considered by a court to be the least at risk to re-offend) from Local Law 03-07, and add a new section Section 4, explicitly granting town, village or city government the right to pass more restrictive residency laws for sex offenders (i.e., no-reside zones greater than 2000 feet):

Section 4. This local law permits a town, village or city located within Schenectady County, in order to provide further protection and safety for its residents, to enact local legislation that is more restrictive in nature and that meets the specific needs of a locality, including, but not limited to, local legislation that increases the measurement of the residency restriction beyond two thousand feet or that prohibits loitering for the purposes of engaging in illegal conduct.

Also, a proposed RESOLUTION declares, among other things:

WHEREAS, this Governing Body finds that the New York State Legislature should introduce and approve legislation that would: (i) develop comprehensive statewide management policies for persons who have been convicted of certain sex-related offenses; (ii) increase sentences and sanctions for convicted sex offenders; and (iii) implement a statewide program for the monitoring of convicted sex offenders using GPS technology; and

WHEREAS, this Governing Body encourages all county governments to consider enacting residency restrictions for persons who have been convicted of certain sex-related offenses;

The Resolution also directs the County Manager to do a Report on improved monitoring of sex offenders, and designate a person to help local communities by providing random residency checks of sex offenders. In addition, the Sheriff is to assign a person to develop methods of “intercepting and catching online sexual predators.”

umpireS Susan Savage, Chair of the County Legislature, issued a statement saying: “”[T]he laws adopted in June were intended to protect children throughout Schenectady County and to place our community on a level playing field. Some concerns were raised. We listened to those concerns and think this proposal addresses many of them while providing a level of protection to our community.” As reported by CapitalNews9, “County will revise sex offender law” (Aug. 13, 2007), “With tighter restrictions in Saratoga, Albany and now Schenectady county, many think sex offenders will have to move west. That has some in neighboring Montgomery County worried.” You can find comments from the Schenectady internet community by scrolling down the page at The Unadulterated Schenectady.

update & afterthoughts (9 AM Aug. 14, 2007): I believe, at a minimum, that the County should make it clear that any law by the smaller units of government that includes Level Ones or requires relocation (failing to include a grandfather clause) would be inconsistent with the intended scope of the County law. By “encouraging” balkanization and having towns, villages and the City play Whack-the-SO and Up-the-Ante over distances, the County is encouraging preemption litigation (and making the preemption case significantly stronger), and just pushing all of the Constitutional issues downstream, to governments that will surely have to hire expensive outside counsel to defend themselves. Making clear what kinds of laws are inconsistent will take weapons out of the hands of the SOBashers and the PanderPols and help wiser minds to prevail, while reasonable comprehensive plans at the County, regional or state level are developed, enacted and implemented. .

August 11, 2007

after Alexander v. Cahill, where does NYSBA stand on lawyer advertising?

Filed under: lawyer news or ethics,viewpoint — David Giacalone @ 2:08 pm

Thoughtful observers must have been surprised on July 24th, when Kathryn Grant Madigan, the new President of the New York State Bar Association (the nation’s largest voluntary bar group, with 72,000 members) issued a press release saying “we are in agreement with the Court’s decision” in Alexander v. Cahill. At her NYSBA President’s Blog, Madigan confirmed her concurrence with Judge Scullin’s Alexander opinion, saying it “validated the measured and sensible approach of the [NYSBA Advertising] Task Force.” See “Striking a Balance on Lawyer Advertising” (July 26, 2007). Like other Bar leaders (see ABAJournal and NYLJ), she also pointed out that the invalid provisions regulating the content of ads were not Task Force proposals, but had been added by the Presiding Justices.

Alexander is the federal district court case that struck down numerous sections of the State’s new attorney advertising rules as unconstitutional restrictions on non-deceptive forms of commercial speech (see our prior post). The Alexander court enjoined enforcement of provisions that would “prohibit attorney advertisements from containing endorsements and testimonials about matters still pending, portrayals of judges, techniques to obtain attention that lack relevance to selecting counsel, portrayals of attorneys with characteristics unrelated to legal competence, and use of a nickname, moniker, motto, or trade name that implies an ability to obtain results in a matter.” It also struck down a ban on pop-up and pop-under internet ads, and held that the rules would not be construed to apply to non-commercial speech (by not-for-profit attorneys).

umpireS In Alexander, Senior Federal District Judge Frederick J. Scullin, Jr., specifically rejected New York’s bald assertion that it “could ban attorney advertising that was ‘irrelevant, unverifiable, [and] non-informational’” without reference to the Supreme Court’s Central Hudson test for the regulation of commercial speech.

The New York Bar Association had played a major role shaping and promoting the new advertising regulations, which went into effect on Feb. 1, 2007, after adoption by the State judiciary. In fact, the group’s leaders have been at war with lawyer advertising for quite a few years. See, e.g., our posting “New York Bar disses lawyer advertising” (Nov. 18, 2005), where we quoted from an Association “public education” radio spot and noted that the NYSBA would like consumers to ignore lawyer advertising.

In early 2005, A. Vincent Buzard had pushed a draconian scheme of advertising oversight and censorship through the Monroe County [Rochester] Bar Association (see prior post); the MCBA plan was aborted very quickly, when the State Bar Grievance Committee complained that the enforcement process interfered with official disciplinary procedures. However, immediately upon elevation as NYSBA’s 108th President in June 2005, Buzard appointed an advertising Committee/Task Force, hoping that it would improve the “public perception” of lawyers by helping to eliminate ads that he deemed to be inappropriate and unprofessional, and to educate the public as to which lawyer ads were “ethical” and “appropriate.” According to the Task Force’s final Report, it was established “as a result of increasing concern over lawyer advertising as contributing to the lack of public understanding about lawyer marketing,” with the “expressed concern that the State Bar… has a duty to protect the public and advance the legitimate interests of our profession concerning the subject of lawyer advertising.” Buzard’s inaugural press release explains that the advertising Committee was expected to achieve its goals by developing “rules, standards and mechanisms aimed at limiting lawyer advertising to the fullest extent permitted, within the limitations of the First Amendment.”

The Task Force’s 129-page Report was released in November 2005 and was to play a big role in shaping the controversial new advertising rules for New York. The Presiding Justices initially adopted the basic approach and most of the proposals of the Task Force — including its surprising declaration that websites and weblogs by lawyers are advertising, and the shocking proposal that the sponsor of a website or weblog must file every material change in the website with a central authority. The resulting uproar in the legal blogisphere and media garnered far more attention and opposition for the proposed new rules than had been originally anticipated, necessitating an extended comment period and extensive re-writing of the rules.

erasingS When the final rules were announced by the New York State Unified Court System, the Bar Association took credit for the more balanced (less rabid) revisions. (press release, Jan. 4, 2007) The then-current Bar Asociation president, Mark H. Alcott, boasted that the final provisions ”reflect extensive consultations that the Association had with the Presiding Justices after the initial proposals were issued last fall.” There was none of the distancing that we now see by President Madigan in the wake of Alexander v. Cahill — no complaints about direct regulation of content and no suggestion that Task Force over-reaching had led the Justices astray.

If we want to discern the current attitude of the New York State Bar Association toward lawyer advertising we need to look a bit closer at Madigan’s reaction to Alexander v. Cahill and then at what its Task Force actually did and said. In her President’s Blog piece on July 26, Madigan made the following relevant points:

  1. “[T]he decision comports with the Task Force’s effort to strike a balance between an attorney’s right to advertise his or her services and protecting the public from advertising that is false and/or misleading.”
  2. “I believe that most of us would agree 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.”
  3. “Unfortunately, efforts to restrict the content of lawyer advertising that is not false or misleading have not passed constitutional muster.”
  4. “Notably, this decision referenced the expert analysis provided by our Task Force in a number of respects and we are indebted to the Task Force for their dedication and commitment to this important issue.”

Recall that the Alexander decision strongly rejected regulations aimed at ‘irrelevant, unverifiable, [and] non-informational’” ads and insisted that the courts and bar respect free speech rights despite their finding some presentations distasteful. In that context, it is not surprising that Bar President Madigan would try to downplay the Association’s role in shaping the provisions that were struck down in Alexander, and to avoid embarrassing prior Bar leaders. It is surprising, however, that she would claim to agree with the Alexander decision, while nonetheless 1) demonstrating the continuing wish that the profession could ban advertising that “is not false or misleading,” in order to promote “dignified and balanced” advertising; 2) stressing support for the 2005 Task Force Report; and 3) praising the “expert analysis” of the Task Force which — as prominent first amendment lawyer Floyd Abrams has correctly pointed out — appears to provide us with “almost no empiric basis for the adoption of almost any of these rules.” [Below the fold in this post, I have repeated my discussion in Nov. 2005 of the weak proof of actual consumer harm in the Task Force Report]

This seeming inconsistency stems from the very nature of the 2005 Task Force Report — which is a prime example of what can happen when a policy statement is written by a large committee and “overlawyered”: It attempts to use wordplay to appease many interests and appear reasonable, without abandoning its mission and preordained conclusions. Clearly, some Task Force members had a more sensitive approach to Free Speech and antitrust issues, and the fear of defamation suits, than did Pres. Buzard. Thus, for example, the Report states (at 2):

erasingS “The Committee was also cognizant that further content-based restrictions have the potential to run afoul of constitutional rights and we agreed at the outset to deal in practical solutions (i.e., generally strengthening existing disclaimers and requiring further disclosures) without adding content-based restrictions.”

The Report also makes it clear that the fear of antitrust liability (as well as meritless antitrust claims and defamation charges by targeted lawyers) kept the members from recommending any active enforcement role by the Bar Association and any statement of principles as to appropriate advertising that would be deemed binding on Association members. And yet, the Task Force would not abandon its primary mission — “improving” lawyer advertising in the hope of improving the public perception of lawyers. It therefore decided, rather than directly proposing rules embodying its notion of “dignified and balanced” advertising, to adopt “Guidelines” and use them to educate the bar and the public about what kinds of ads were “appropriate or inappropriate.” As a result the Task Force made the following recommendations [at 11]:

  1. “Adopt the recommendation that the Monroe County Bar Association guidelines regarding advertising as the official advertising guidelines and policy of the State Bar.”
  2. “Adopt the recommendation that the State Bar use the guidelines for public dissemination in a State Bar media program which will be designed to serve as a model for educating lawyers including but not limited to dissemination at the time of admission to the Bar.”
  3. …. “develop the proposed booklet for educating consumers about advertising.”

umpireS Once the above recommendations were approved by the NYSBA’s full House of Delegates, the two-page MCBA Advertising Guidelines became “the official advertising guidelines and policy of the State Bar.” [see our description of the MCBA rules; also here] Therefore, 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.” [Below the fold, I have reprinted the MCBA /NYSBA definitions of “fair,” “rational” and “relevant”.]

To avoid antitrust problems, the Task Force reluctantly gave up the Monroe County enforcement scheme, but it whole-heartedly joined its Dignity Posse in calling for lawyers and the public to reject ad content that was “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.” Indeed, despite having apparent expertise with the concept of consumer deception, and in matters of professional responsibility and legal ethics, the Task Force declared [at 74]:

  • “[V]irtually all, if not all of the guidelines, solely restrict misleading or deceptive advertising.” [The only possible exception acknowledged by the Task Force was the 15-day moratorium on advertising to disaster victims.]
  • “The Guidelines themselves were not intended to break new ground; they are a plain language, straightforward articulation of the Code of Professional Responsibility provisions on advertising.”

Adoption of the MCBA Guidelines by the Task Force and the Bar Association helps explain why NYSBA did not complain earlier this year when the Unified Court System unveiled content-based advertising rules, along with procedures that could significantly chill much advertising in print, broadcast or internet form. (They were hoping that the courts could achieve what a voluntary bar association could not.) It may also explain why the Presiding Justices thought they had a legal basis for regulating ‘irrelevant, unverifiable, [and] non-informational’” ads as false or misleading.

It seems to this observer (who spent much of his decade at the Federal Trade Commission looking at antitrust and consumer protection issues rising from advertising restrictions imposed by professional associations) that NYSBA cannot both agree with the Alexander decision and actively advocate the implementation of the MCBA advertising guidelines. After reading Kathryn Madigan’s reaction to the Alexander decision, I left a comment at ABAJournal website:

If Bar president Madigan really means “we went too far and our initial proposals were unconstitutional, unnecessary, and insulting to the intelligence of the public and the integrity of the profession,” she should say so, rather than merely trying to cover the Association’s rear end.

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? Or, do they trust the intelligence of consumers, the integrity of lawyers, and the benefits of free speech and vigorous competition sufficiently to disband their Dignity Posse and turn their energy to efforts that will help improve the quality and value of the services lawyers provide?

———————–

update (Aug. 14, 2007; 9 AM): Right after I wrote this piece on Saturday afternoon, Aug. 11, I left a comment at Pres. Madigan’s weblog, saying that I had written about this issue and that I hope she would respond. So far, the Comment has not been approved and does not appear at the site. No response has been posted at the weblog nor received by me answering the issues raised here. update (Aug. 15, 2007; 9 AM): My comment is now up at the NYSBA President’s Blog. Now, I hope we’ll get a thoughtful, frank reply. No spin needed.

update (Aug. 20, 2007):  As promised, Bar President Madigan has responded at her weblog to this posting.  See “Lawyer Advertising II” (Aug. 20, 2007).  Naturally, f/k/a replies in “Madigan responds on NYSBA advertising position.”

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August 7, 2007

NYCLU Letter threatens lawsuit over Schenectady County sex offender law

Filed under: lawyer news or ethics — David Giacalone @ 6:14 pm

erasingS   update (Aug. 14, 2007):  See our posting “new Schenectady sex offender proposal,” for a description of the bills proposed for a public hearing on Aug. 22, 2007.  Click SchdyCountyProposedSOLawAug07, 9-pp pdf., to see the proposed legislation.

update (Aug. 11, 2007): Jim Murphy has an excellent letter to the editor in the Daily Gazette today, “County should look at Iowa’s model for help with sex offender law.” update (Aug. 10, 2007): According to an article in today’s Schenectady Daily Gazette, “Towns mull initiative on offender issues,” a majority of town supervisors oppose proposed changes” to the County’s SORR and are “considering their own initiatives.” It quotes Glenville Supervisor Frank Quinn saying the five supervisors are “gagging on” the proposals, which are “[not] really getting at the issue and managing it better.” Quinn argues that the “real answer is to get people who do this for a living to come up with recommendations on how to deal with all the issues.” Niskayuna Supervisor Luke Smith wants a comprehensive approach and says “Don’t put nine politicians in a room to find answers.” Rotterdam Supervisor Steven Tommasone said “Drawing circles on the map does not help anyone.” He wants the state to do more, with stricter laws, better enforcement. [Ed. note: It appears that the town supervisors have learned from the mistakes made at the County level — wanting effective answers to the concerns of parents and politicians, not symbolic, “feel-good” laws that bash “predators” without making children safer or respecting the Constitution.] The article has a Sidebar comparing sex offender laws in Schenectady, Saratoga, Albany and Rensselaer Counties.

update (Aug. 9, 2007): See “Dems to alter offender laws: Legislators cite concerns of town supervisors,” Daily Gazette, Aug. 9, 2007, which reports that likely changes would be repealing the law requiring relocation, exempting Level 1 offenders from the SORR, and “allowing towns to adopt more restrictive provisions if they choose” [Ed note: town laws would raise serious state pre-emption issues]; “Residency law faces possible challenge,” Albany Times Union (Aug. 9, 2007; reprinted); and also Carl Strock, “Schenectady’s imaginary predators,” Schenectady Daily Gazette, Aug. 9, 2007, which is covered this morning in a separate posting.

update (6 PM): WTEN.com News just told viewers about the NYCLU’s Letter, and quotes Legislative Chair Susan Savage saying that the Legislature is considering making major changes to its sex offender residency restriction [SORR] laws. Savage insists the changes have been under consideration and are in no way a reaction to the NYCLU lawsuit threat. Note, however, that Savage is quoted in yesterday’s Schenectady Daily Gazette (Aug. 7, 2007) insisting that “There is no change in the law that I anticipate.” Channel 10 was not able to get any other County legislator to discuss SORR on camera. [WNYT, Channel 13, had a similar story on its 6 o’clock news; at 10PM, FoxNews23, ran “NYCLU Threatens Legal Action against Schenectady County” (Aug. 8, 2007); and CapitalNews9 updated its story “Lawsuit could be filed over sex offender laws,” to discuss possible changes in the law.] I’d bet that a combination of Ed Kosiur’s stunning SORR-related political defeat and the looming reality of incurring large legal expenses in a losing cause made Ms. Savage and her Posse see the light.

11 PM update: WNYT13 reported that the Legislature is considering removing Level One offenders from the law, and grandfathering-in those living within the no-reside zones at the time the law was passed. That confirms my own information. I’m not sure this will satisfy the outlying Towns or remove the pre-emption issue, but it would eliminate two of the most troublesome aspects of the Schenectady County SORR.

In a four-page letter joined by three area lawyers, the Capital Region Chapter of the New York Civil Liberties Union advises each member of Schenectady County‘s Democratic-controlled Legislature that the sex offender residency restrictions [SORR] enacted by the County on June 12, 2007 are unconstitutional and will be challenged in a lawsuit, if not immediately rescinded or drastically revised. (see Agenda, at pp 68 – 74, for text of the law) The Letter declares: “it should be clear to all that this legislation was passed in haste, without careful attention either to New York state law or to constitutional protections.”

Dated and mailed Aug. 7, 2007, the Letter is signed by Melanie Trimble, Executive Director of the Capital Region Chapter, and by Albany lawyers Terry Kindlon and Kathy Manley, of Kindlon Shanks & Associates, and myself, David Giacalone, of Schenectady. Kindlon is a well-known criminal defense lawyer and Manley is experienced in appellate and civil liberty litigation.

In his recent unsuccessful special election campaign for State Assembly, County Legislator Edward Kosiur, primary sponsor of the County’s sex offender residency law, proudly boasted that it is the “toughest sex predator law in New York State” (see our July 30 posting “stop Kosiur“). In a detailed discussion at the time it was passed, we described the most outrageous features of the new law:

It requires sex offenders — at every level — to leave their homes starting Oct. 1, should they reside within 2,000 feet of public parks, pools and playgrounds, as well as schools, day care and youth facilities. In addition, should such facilities at any time in the future by located within 2000 feet of a sex offender’s residence, he or she has 90 days to relocate outside of the forbidden zone. The restrictions effectively ban sex offenders from living in the city of Schenectady and its close-in suburbs, and are therefor likely to cause relocation and future location of sex offender residences in more rural parts of Schenectady County and into Montgomery County.

The NYCLU Press Release (Aug. 7, 2007) describes the Letter, which:

  • details the deficiencies in the county’s sex-offender laws, threatening legal action if the laws are not repealed or drastically revised to conform with state standards.
  • lays out the overwhelming legal case against the laws and marshals the large body of social science evidence which shows how such laws are more likely to cause problems than to solve them.
  • notes that, in the recent 105th Assembly District special election, voters “have sent a strong message that these laws, in their current form, are invidious.” And “The Schenectady County Legislature should listen to the voices of its constituents.” [see the update to “stop Kosiur“]
  • states that “New York state law already puts severe but carefully-thought-out restrictions on those who have been convicted of sexual offenses,” and explains how the Schenectady laws violate state pre-emption principles that prohibit local governments from exercising authority in a manner inconsistent with state law and policy; and
  • ExitSignArrow shows how the residency restrictions — which amount to banishment and require the eviction of law-abiding citizens — also run afoul of the prohibition on ex-post facto laws by increasing punishment for a crime after it has been committed. Noting that no case has been found upholding an SORR imposed without “grandfathering” current residents to allow them to stay, the Letter stresses: “It is shocking to think that the County Legislature would force people who already have paid for any crime they may have committed to uproot or abandon their families, to break leases with landlords, and to forsake communities where they may have lived in peace for decades.”

The Letter also points out that the laws place an undue burden on surrounding communities to which sex offenders might be forced to migrate. Recent studies indicate that such laws may actually correlate with increased recidivism and cause former offenders to stop registering with law-enforcement authorities and to abandon the community support services that may actually inhibit them from re-offending. “There is no evidence,” Trimble observes, “that invoking residency restrictions around schools has any effect at all on rates of sexual offense.” (for example, see Statement on Sex Offender Residency Restrictions in Iowa, by the Iowa County Attorney Association, Feb. 2006)

The Letter concludes with a plea and a warning:

“We strongly urge the Schenectady County Legislature to reconsider its actions and rescind these onerous, unjust and unconstitutional laws. If you should persist in enforcing these laws, we would be left with no other option but to pursue litigation with all the attendant legal costs to the county which that implies. “

SchdyCountySeal p.s. I have no idea whether our Letter will help Susan Savage, Chair of the County Legislature (who hand-picked Ed Kosiur to run for the 105th District Assembly seat and foolishly rushed through the SORR to aid his campaign and advance her personal crusade against “sexual predators”), and County Attorney Chris Gardner (who apparently believes the law is unconstitutional as written) to come to their senses. They should know that a lawsuit challenging this unwise and unconstitutional law is a certainty, should they fail to void or totally revamp the SORR in the next week or so. Wasting tax dollars on an expensive defense of a fatally deficient law is intolerable, as is leaving the families of sex offenders in an anxious limbo with the October 1 relocation date a mere 7 weeks away. As a lawyer, I am aghast at their embracing a law that has no redeeming value. As a registered Democrat, I can assure Ms. Savage and other Party leaders that their actions have made myself and many fellow Democrats in this County angry and ashamed — and in no mood to permit our Party to be destroyed by arrogant and foolish leaders, either now or in future elections.

eviction notice —
a moth ricochets
in the lampshade

. ……………. by Alice Frampton — The Heron’s Nest (March 2004)

autumn wind —
a leaf and homeless man
cross paths

……………………….. by Andrew Riutta exitSignN

July 28, 2007

heavy hitters back on deck

Filed under: Haiku or Senryu,lawyer news or ethics — David Giacalone @ 1:27 pm

at bat neg With Barry Bonds hitting home run No. 754 yesterday (one shy of Hank Aaron’s record), and A-Rod swatting #499 on Wednesday, sports fans around the nation are thinking about round-trippers and Big Bats. Nonetheless, while some weblogging lawyers may be interested in sluggers (in pinstripes), most are still concentrating on the law, rather than the game. Indeed, after many of New York State’s recently-adopted lawyer-ad-rules–on-steroids were struck down earlier this week, in Alexander v. Cahill (USNDNY, Dkt. 5:07-CV-117, July 20, 2007; see our prior post, and Consumer Law & Policy Blog, July 23, 2007), many lawyers are wondering just when the profession’s own Heavy Hitters will be back in the line-up in tv, radio, yellow-pages and billboard advertising. You see, the Alexander court struck down a provision banning use of “a nickname, moniker, motto, or trade name that imples an ability to obtain results in a matter.”

law firm picnic
the ump consults
his Blackberry

…………………………… by david giacalone – Baseball Haiku (2007)

The winning plaintiffs in Alexander v. Cahill were the Syracuse law firm Alexander & Catalano. Their hometown Syracuse Post-Standard reported earlier this week that “The Heavy Hitters are back in the game. And they can be as funny and irreverent as they choose in advertising their legal services.” “‘Heavy Hitters’ knock down rules on lawyer ads,” July 24, 2007. According to Newsday/AP, “‘The Heavy Hitters’ can’t start hitting home runs again just yet, but at least they’ve reached base.” “Heavy hitters get past first base, must wait for state appeal” (July 24, 2007) The article quotes plaintiff James L. Alexander:

“Being a lawyer, I respect the system, but we agree with the judge’s decision,” Alexander said. “For the state’s rules to survive, there would be sterile advertising, unappealing advertising, and ineffective advertising. We don’t want to reverse 30 years of jurisprudence.

umpireS “We don’t want to stick this in anybody’s face,” Alexander said. “It affects lawyers throughout the state, but more than lawyers it protects the public to get uncensored information. The public is used to seeing advertising that is entertaining, and they can make their own decisions. They’re not being brainwashed. The public doesn’t need the protection. They’ve been dealing with it for decades.”

Alexander & Catalano had billed itself in most of its advertisements as “The Heavy Hitters.” The firm abandoned the motto for fear of running afoul of the new rules’ prohibition against implying the ability to obtain results.

Both dollars and principle are involved when it comes to the use of the Heavy Hitter moniker, however, so it is no surprise that Alexander & Catalano already has commercials in the can and ready to roll reprising their motto. As the New York Law Journal reported on July 27, the firm:

“has just taped ads featuring testimonials from clients and will begin airing them on Monday, with the nickname ‘heavy hitters’ back as a tagline.“

Only a last-minute order staying Judge Scullin’s permanent injunction on the enforcement of the nickname rule and other affected provisions, will delay the return of the Heavy Hitter motif this week. Here in the NY Capitol Region, the law firm Martin Harding & Mazzotti had been using the Heavy Hitter slogan for over five years, but dropped in when the new rules went into effect on February 1st. According to NYLJ, “Partner Paul B. Harding said Thursday that after Scullin’s ruling, the firm was trying to decide between again being ‘heavy hitters” or to use another nickname: ‘Team 24/7’.” The article continues:

HeavyHittersCoverG [full-size phone book ad]

The “heavy hitters” tagline “did stick a lot more than we thought it would,” Harding said. “We used it for about five years and I am not sure people actually realized we stopped using it. Our numbers [of calls] didn’t fall off.”

The f/k/a Gang has often assailed the silly nickname bans, see, e.g., here and there. [And see MyShingle.] They are a brand of regulatory overkill that has nothing to do with protecting consumers. Instead, they are aimed at protecting the image of lawyers, while avoiding the competition that comes from effective advertising. We will be quite pleased when the Alexander opinion is affirmed and adopted by courts everywhere.

Ted hits another homer
a seagull high over right field
gets out of the way

after the grand slam
the umpire busy
with his whisk broom

under the lights
hitting it out of the park
and into the night

BaseballHaikuCover…………. by Cor van den Heuval – orig. pub. Play Ball (1999); from from Baseball Haiku (edited, with translations, by Cor van den Heuvel and Nanae Tamura, W.W. Norton Press, April 2007)

last day of school . . .
the crack of a bat
through an open window

………… by Randy Brooks – Baseball Haiku (2007)

bases loaded
a full moon clears
the right field fence

………………………………. by Tom Painting from Baseball Haiku; and “piano practice“

Louisville Slugger
the boy’s fingertips caress
the trademark

…………………………………. by Lee Gurga – Baseball Haiku (2007)

infielderG p.s. As noted at ABA Journal’s Law News Now, NYSBA bar president Kathryn Grant Madigan is trying to escape blame for the unlawfully-restrictive advertising rules that were struck down this week. Here’s the Comment that I left at the ABA site:

The New York State Bar Association attempt to distance itself from the unconstitutional ad rules that it inspired is misleading and cowardly. In 2005, NYSBA declared war on lawyer advertising in the name of the image/dignity of the profession. (See, e.g., our post “NYBar disses lawyer advertising“). In 2006, its Advertising Task Force called for far more restrictive rules than were eventually adopted by the NYS Judiciary — demanding that ads not only be “true, accurate and clear”, but also “fair,” “rational” and “relevant to the thoughtful selection of counsel.” In a press release dated Jan. 4, 2007, NYSBA tried to take credit for the toned-down final version of the rules. (see our discussion of the rules) If Bar president Madigan really means “we went too far and our initial proposals were unconstitutional, unnecessary, and insulting to the intelligence of the public and the integrity of the profession,” she should say so, rather than merely trying to cover the Association’s rear end.

Prominent first amendment lawyer Floyd Abrams has correctly pointed out that the Alexander decision “exposes the reality that there appears to have been almost no empiric basis for the adoption of almost any of these rules.” NYSBA knew there was no proof when they proposed sweeping new restrictions on lawyer advertising. Perhaps their folly will embarrass other state regulators into backing off the foolish crusade to blame lawyer advertising for the sorry state of the bar’s image.

crack of the bat
the outfielder circles under
the full moon

……………… by George Swede – Baseball Haiku (2007)

Seattle sunset at bat neg
Ichiro sends one
toward the Sea of Japan

distant thunder
the home run hitter
drops a bunt

……….. by Ed Markowski

July 23, 2007

federal court decimates NY lawyer ad rules

Filed under: Haiku or Senryu,lawyer news or ethics — David Giacalone @ 4:31 pm

We interrupt our punditry hiatus momentarily to report that Public Citizen has achieved a major victory against the stupendously silly and over-reaching New York state lawyer advertising rules, which went into effect on Feb. 1, 2007 (see our prior post for a description of the rules and links). In Alexander v. Cahill (Mem. Decision & Order, 30-pp, pdf., USNDNY, Dkt. 5:07-CV-117, July 20, 2007), Senior Federal District Judge Frederick J. Scullin, Jr., specifically rejected New York’s bald assertion that it “could ban attorney advertising that was ‘irrelevant, unverifiable, [and] non-informational'” without reference to the Supreme Court’s Central Hudson test for the regulation of commercial speech.

honest! The Alexander court enjoined enforcement of provisions that would “prohibit attorney advertisements from containing endorsements and testimonials about matters still pending, portrayals of judges, techniques to obtain attention that lack relevance to selecting counsel, portrayals of attorneys with characteristics unrelated to legal competence, and use of a nickname, moniker, motto, or trade name that implies an ability to obtain results in a matter.” It also struck down a ban on pop-up and pop-under internet ads, and held that the rules would not be construed to apply to non-commercial speech (by not-for-profit attorneys).

Congratulations to the Public Citizen team, which included Brian Wolfman, Gregory Beck and Scott Nelson. Beck reports on the victory this afternoon at Consumer Law & Policy Blog. Let’s hope the many other states (see our post) that have been racing toward indiscriminate bans on lawyer advertising that is deemed undignified will take note of Judge Scullin’s advice that lawyer ad regulation must be “accomplished in a manner consistent with established First Amendment jurisprudence.”

p.s. I am a bit disappointed that Judge Scullin repeats the unproven assertion that “the public perception of the legal profession has been greatly diminished” by ads deemed “tasteless” or “obnoxious.” If the NY Bar Dignity Police are feeling unappreciated after the decision in Alexander v. Cahill, they should consider moving to France, where the new government is looking for people who do less thinking. See “New Leaders Say Pensive French Think Too Much,” New York Times, July 22, 2007. Update: See Nicole Black’s thoughtful column in the Daily Record, “Lawyer Advertising — The Great Debate,” which is reproduced at her weblog Sui Generis (July 31, 2007).

update (July 24, 2007): See Law.com‘s news coverage, in “N.Y. Federal Judge Strikes Down Many New Attorney Ad Rules: Finds state failed to prove that ban on certain content advanced goal of protecting public from misleading ads,” New York Law Journal (July 24, 2007), which explains:

The four presiding justices of New York’s Appellate Division, who are charged with overseeing attorney discipline, first unveiled proposed restrictions on attorney advertising last June to address concern that outrageous and aggressive lawyer ads were misleading the public as well as harming the image of the profession.

But Northern District of New York Judge Frederick J. Scullin ruled that the state had largely failed to show that its wholesale prohibitions of certain kinds of content had advanced its interest in protecting the public from misleading lawyer advertisements. Moreover, he said, the state had failed to show less onerous means could not achieve the same ends.

“Defendants have failed to produce any evidence that measures short of categorical bans would not have sufficed to remedy the perceived risks of such advertising being misleading,” the judge wrote in Alexander & Catalano v. Cahill, 07 Civ. 117. “There is nothing in the record to suggest that a disclaimer would have been ineffective.”

 update (Aug. 11, 2007): NYSBA President Kathryn Madigan says she agrees with the Alexander decision.  Should we believe her?   See “after Alexander v. Cahill, where does NYSBA stand on lawyer advertising?“.

mountain butterfly
from her boulder
to mine

moonrise . . .
cattle single file through
the narrow pasture gate

early morning cool
men in hard hats gather
on the last patch of grass

tongue out
the boy guides a new airplane
round and round

thunder . . . erasingS
little leaguers chatter
silenced

baseball
rolls into the mud —
painted lady flutters up

……………………. by Randy Brooks
“early morning cool” – the loose thread: rma 2001; Modern Haiku XXXII:1;
“moonrise . . .” – the loose thread: rma 2001; tundra 2
“mountain butterfly” – a glimpse of red: RMA 2000; Modern Haiku XXXI:2

“tongue out” – The Heron’s Nest VIII (2006)
“thunder” & “baseball” – Baseball Haiku (2007)

June 15, 2007

you want to build what? where?

Filed under: Haiku or Senryu,lawyer news or ethics — David Giacalone @ 1:11 pm

BigStore I’ve let my twin brother (and haiga collaborator), Arthur Giacalone, do the legal heavy-lifting in our family for the past decade. Arthur has a solo law practice in western New York State, where he specializes in zoning/development law, focusing on the representation of homeowners (usually in opposition to environmentally harmful projects). Today, he shared his experience at an Erie County Bar Association CLE program entitled “You Want to Build What? Where?: Public Input in Private Development” (June 15, 2007), which focused on “issues confronted in the development process, including wetlands, zoning, the Brownfield Cleanup Program, and organized opposition by citizen groups.” Although the thickly annotated, 5-page outline that Arthur prepared for the seminar relates to development and environmental law in New York State, I think the information and insights deserve a wider audience. Therefore, I’ve posted it here at f/k/a: see Zoning Challenges: Overcoming Obstacles (by Arthur J. Giacalone, June 15, 2007; also available as a Word Document, with working footnote links).

road crew –
bright orange jackets
circle the old tree

……………………………… by Hilary Tann from Upstate Dim Sum

bulldozer In the Zoning Challenges outline, you’ll find citations to the most relevant laws and court opinions. The major points Arthur makes in the seminar materials include:

  1. Contrary to the complaints one often hears from developers and their counsel, residents concerned about projects proposed for their communities have always faced an uneven playing field. The obstacles are political, legal, bureaucratic, financial, etc.
  2. An increasingly hostile legal system, political climate and media have contributed to an environment where protection of the interests of residents becomes a more challenging task each year.

Giacalone says an Atmosphere of Intimidation has been created to discourage residents from asserting their rights and interests: “Some advocates of so-called ‘progress’, including some developers, public officials and members of the media, are engaged in a concerted effort to belittle and silence neighborhood residents who dare to speak out against a proposed project. The residents are castigated as obstructionists, labeled NIMBYs (Not In My Back Yard), and even called ‘Un-American’. Developers are portrayed as saints, residents as villains.” Meanwhile,

WorkAreaAhead “It seems that developers and property owners are frequently threatening to sue municipalities and/or government officials for money damages if their proposed projects are denied. They claim ‘regulatory takings’, violations of ‘vested rights’, due process violations, etc. Such threats are intended to have a ‘chilling effect’ on local officials.

Given the level of hostility exhibited towards residents, Giacalone says “it is fortunate that both the State Legislature and the courts have taken steps to protect their rights to petition their government and to express their opinions.” If you’re interested in issues raised when development is proposed near residential neighborhoods or environmentally-sensitive areas, I recommend that you read Zoning Challenges: Overcoming Obstacles, by East Aurora attorney Arthur J. Giacalone, as a starting point.

March wind —
more garbage
in the trees

bulldozer

construction crew
the blackbird
relocates

10:01 PM
the mall fountain
falls silent

intersection ExpectDelaysN
a chance to view
distant mountains

traffic jam
the man ahead
raises his cup

……………………………………. by Hilary Tann from Upstate Dim Sum

nplantriver p.s. If you’re looking for haiku relating to fathers, check out our postings from 2005: “a haiku father’s day” (with poems from several of our Honored Guests) and “glimpses of fatherhood” (featuring poems from Tom Clausen‘s classic collection Homework)

June 13, 2007

Schenectady’s PanderPols vote to evict sex offenders

Filed under: Haiku or Senryu,lawyer news or ethics,Schenectady Synecdoche,viewpoint — David Giacalone @ 8:50 am

follow-up (March 27, 2010): 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.

ExitSignArrow Talk about child abuse. More than a dozen Schenectady County high school students were “shadowing” our county legislators at a public meeting last night, and they got an unsavory and unvarnished civics lesson. Not only were the youth kept in their seats for four hours, but they had to witness both the ugly refusal by the Chair (Susan E. Savage) to permit debate on what is surely the most controversial piece of local legislation this year, and the nasty sight of posturing and pandering politicians, who “did something to protect children” by passing a means-pirited, shoddily-drafted and predictably ineffective set of residency restrictions on sex offenders. (see a FoxNews23 video covering the story) As today’s Albany Times Union explains, in “Law aims to shield kids: Schenectady County passes housing rules for sex convicts (June 13, 2007), under County of Schenectady Local Law No. 03-07 & 04-07, no matter what their risk level, the age of their victims, or the nature of their crimes, sex offenders may no longer reside near places where children congregate (that is, any elementary, middle or high school, child care facility, public park, playground or swimming pool, or youth center). Not only are they prohibited from moving to a residence within 2000 feet of such places, but:

“The change requires sex offenders — at every level — to leave their homes starting Oct. 1, should they reside within 2,000 feet of public parks, pools and playgrounds, as well as schools, day care and youth facilities.” (emphasis added)

Indeed, if any of those facilities are built, relocated, or licensed within 2000 feet of the residence of a sex offender at any future time, he or she must move within ninety days. These draconian restrictions were passed yesterday by an 11 to 3 vote of the county legislature, with only former judge Michael Eidens, former Schenectady mayor Karen B. Johnson, and Carolina M. Lazzari voting “no.” The legislators who voted “yes” knew two things: (1) many aroused voter-citizens, who are fearful for their children and angry over having sex offenders live near them, want the County to do something; and (2) there is absolutely no evidence that proximity restrictions in any way reduce recidivism, and much research and expert advice that says they are likely to make things worse (by destabilizing the offenders, removing social networks, and making it harder to locate them). Despite the latter fact, the politicians decided to bow to the politically-urgent former one.

SchdyCountySeal In case you’re thinking “they surely aren’t doing this for political advantage,” let me point out that the nine co-sponsors are all Democrats, who would not permit any Republicans to co-sponsor the bill — not even Joseph Suhrada, who had first proposed the restrictions two years ago. (The procedural bullying done by my party, now that they have local and federal legislative majorities, often embarrasses me). The Democratic legislators only became aware of the importance and urgency of the problem when a sex offender moved on the block of one of them, and the folk in one town got very loud in their demands for action. Frank Quinn, a town supervisor (who spoke for four others whose towns would likely be the destination of many offenders displaced from the more populous parts of the County) complained they were never consulted, and said last night: “There’s no reason to do this tonight. . . The problem of how to effectively manage sex offenders has been around for thousands of years.” As the TU reported, he added, “This legislation is really designed to influence upcoming county elections by pandering to selected voters and their fears.” [also see CapitalNews9, “Schenectady County legislature considers sex offender legislation,” June 12, 2007]

eviction notice —
a moth ricochets
in the lampshade

. . . by Alice Frampton — The Heron’s Nest (March 2004)

When I first wrote about sex offender residency limits in April 2005 (and the related Halloween Political Tricks), I had no idea that my little County would be passing the most restrictive laws of any of the jurisdictions in our region. In 2005, there was a spurt of activity by politicians in many states and localities rushing to out-do each other in being tough on sexual predators — by pretending to do something that would actually make a difference and protect children. One spur was the Doe V. Miller decision by the 8th Circuit federal appellate court, which upheld the residency restrictions in Iowa against constitutional challenges. Since then other states have upheld similar laws, but not laws that failed to grandfather in current residences or forced offenders to move if a children’s facility moved near them. The restrictions (with or without grandfather clauses) have not been tested in New York Courts. I believe they should be struck down as violations of important civil liberties. As the Associated Press reported on May 30, 2007, a Missouri circuit court judge has struck down the retroactivity feature of a Missouri residency law [in the case rel L. v. Dept. of Corrections]. “Missouri judge tosses part of law keeping sex offenders away from schools, ” KansasCity.com/AP (via the Sex Crimes weblog)

moving day– exitSign
warm rain
on cardboard

………………….. by Alice Frampton – New Resonance 3 & The Heron’s Nest (2002)

Many viewpoints were expressed at least night’s public meeting. Having represented many children in abuse cases, I believe sex abuse is a serious and terrible crime. I told the County Legislature, however, that they ordinance was not a serious attempt to solve the problem and was terrible policy. I’m sympathetic with the fear of so many parents, but I believe they must be told that there are better alternatives for dealing with this problem and residency restrictions will only produce a false sense of protection. The TU article describes the message of “David Hess, a registered Level 1, or ‘low-risk,’ sex offender — and now a minister from Henrietta in Monroe County.” Hess warned that the changes would cause sex offenders to move underground and commit more offenses. The TU continued:

He noted nothing keeps them from visiting locations they will no longer be permitted to live. “This law says sex offenders cannot spend their nights where children spend their days,” he said.

now with homeless eyes
I see it…
blossoming spring

…. by Issa, translated by David G. Lanoue

You can find a very good discussion of issues presented by the residency restrictions on sex offenders by Lior Strahilevitz and many commentors at PrawfsBlawg‘s “Sex Offender Residency Restrictions and the Right to Live Where You Want,” Aug. 3, 2005, and Michael Cernovich reviews many of the relevant legal issues at Crime & Federalsim, in his posting Doe v. Miller: The Legal Theories. Residency restrictions have been in the news a lot recently, and have been covered well by Corey Rayburn Yung at Sex Crimes (e.g., here), and by Prof. Douglas A. Berman, at Sentencing Law and Policy weblog. Last year, Prof. Berman pointed to “A potent and important prosecutorial statement against sex offender residency restrictions” (Feb. 9, 2006). The document was released by the Iowa County Attorneys Association, an organization of county prosecutors seeking “to promote the uniform and efficient administration of the criminal justice system.” In its five-page statement ICAA explains that Iowa’s broad sex offender residency restriction “does not provide the protection that was originally intended and that the cost of enforcing the requirement and the unintended effects on families of offenders warrant replacing the restriction with more effective protective measure.”

deep
in the scent of summer
a homeless man

autumn wind—
a leaf and homeless man
cross paths

……………………….. by Andrew Riutta
“deep” – Roadrunner (Winter 2005)

WrongWayN For further reading on this topic, I suggest:

  1. An important amicus brief to the Ohio Supreme Court, which is quoted at length in the Sex Crimes posting “Amicus Brief in Challenge to Ohio Residency Restrictions” (June 5, 2007). Among many cogent points, the brief argues that “the Ohio statute may increase the risk of recidivism by forcing many sex offenders to move from supportive environments that reduce the offenders’ risk of re-offending. See, e.g., JOAN PETERSILIA, WHEN PRISONERS COME HOME: PAROLE AND PRISONER REENTRY (2003) (concluding that positive social support is critical to the success of released offenders.).”
  2. The Sun Sentinel article “Offender fights Palm Beach County ordinance: Tough laws limit where they can live, but critics doubt their effectiveness (June 3, 2007).
  3. The Newsday story, “Residency laws for sex offenders under microscope:
    Restrictions aim to prevent repeat crimes, but critics say all laws do is prevent offenders from rebuilding lives,” Dec. 2, 2006.
  4. “More limits on sex offenders won’t help, advocate tells board,” St. Louis Post-Dispatch, June 7, 2007, covering the consideration of residency restrictions in Wentzville, MO.
  5. [update: June 14, 2007] “Patchwork of sex offender laws leads to confusion,” CapitalNews 9 [Albany, NY], June 13, 2007.
  6. “Montgomery County reacting to Schenectady sex offender restrictions,” WNYT.com, June 14, 2007. [“We’ll take a look at what we have here on the books already, do an assessment in order to keep them from making a mass exodus from Schenectady County or any other county into our county,” said Tom DiMezza, chairman of the Board of Supervisors.] And, “Sex offender says he has no place left to go,” WNYT.com, June 14, 2007 (focus on Richard Matthews, a registered sex offender living in Scotia, NY).

I believe the policy issues presented by sex offender residence restrictions are important for the integrity of our society. Notwithstanding the example of the current Administration in Washington, we cannot react to fear (especially exaggerated fear) by unduly restricting the civil liberties of an undesirable or unpopular class of people. The issues are important enough, that I told the County Legislature last night that I would come out of retirement to help bring a declaratory judgment suit or other challenge to their actions (that really brought them to their senses). Since I’m a bit rusty (as well as under the weather a lot), I would appreciate any volunteer assistance in this battle. If you don’t know how to contact me, just leave a Comment below.

StrockCarl Carl Strock

update (June 14, 2007): Columnist Carl Strock, of the Schenectady Gazette (which is only available online by subscription), continued his excellent coverage of sex-offender issues today — attempting to focus on facts and reason in the face of hysteria and political pandering. We’ve mentioned Carl at f/k/a before (e.g., here, there). In my own quixotic role of self-appointed Ethics Advisor to the legal profession, I often feel kinship with Carl. As a journalist with an opinion and sharp pen, he must enjoy having targets like our local politicians, who are so often engaged in easy-to-lampoon behavior. As a citizen, however, Carl must feel very frustrated by the futility of his mission. In a column titled “Sch’dy law speaks to primal fears” (June 14, 2007), Carl exercises his “customary restraint” and calls Tuesday’s meeting of the Schenectady County Legislature “one of the most shameful displays of pandering that I have ever seen in a lawmaking body.” Carl asks “Pandering to what?” and replies:

“To the deep primal fear that your child or mine might be raped and murdered by some slavering, out-of-control, subhuman monster. . . . “

Noting that sex offenders are officially called “predators” and “have become in the popular imagination a separate category of human beings,” Strock shows that the idea of a lurking bogeyman has captured the public and left our Legislature beyond caring about facts and reason. They have passed a law that is very likely to make things worse but don’t care. “They have spit in the eye of the bogeyman, and that’s enough.” On the Gazette‘s opinion page today, the lead editorial, “Lousy laws on sex offenders,” also gets it right, saying that the new legislation “not only plays to public hysteria, but promotes it.”

What makes this law so despicable to me is the fact that our legislators do know better. They’re not overwhelmed by the fear of the bogeyman. They are instead willing to exploit those fears for political advantage.

Personally, I have no problem having a sex offender who is struggling to straighten out his life living on my block. Right now, I’m more worried about the power and bad example of our pandering politicians. I’m relieved that I don’t live within 2000 feet of Ed Kosiur, Bob Farley, Sue Savage, Tony Jasenski, Vince DiCerbo, Mike Petta, Gary Hughes, Philip Fields, Brian Gordon, and Judy Dagostino. Please warn me if any of them move to my neighborhood. [Update: July 18, 2007: For a recent, well-written, 36-page opinion, from the Kenton District Court, refusing to enforce Kentucky’s SORR (which also has no grandfather clause) and declaring it to be unconstitutional ex-post facto punishment, read Kentucky v. Baker, Case Number, 07-M-00604, etc., Martin J. Sheehan, District Judge (via David Hess at The Parson.net).]

update (July 30, 2007) See stop kosiur: my first single-issue election (July 31, 2007)

update (Aug. 8, 2007): See our post “NYCLU Letter threatens lawsuit over Schenectady County sex offender law” (Aug. 7, 2007)

update (Aug. 9, 2007): see “not one repeat child-molesting stranger: Strock,” covering Carl Strock’s findings about child molestation cases in Schenectady County over the past two years.

update (Aug. 23, 2007): “Schenectady’s (d)evolving sex offender laws“. And see

Sex Offenders: A Flawed Law: from Gatehouse News Service.

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