Are you calendar-challenged? You are not alone. Yesterday, I spent the
entire day knowing it was January 30th, and believing today would be the first
day of February. As a self-help measure that I hope will be of assistance
to those similarly afflicted, I found a link today to a rock’n’roll version of
by Jack Hartman.
Like many others, Monica Bay, the Common Scold, was saddened
to learn of Wendy Wasserstein‘s death, at 55, from lymphonia. In
response, Monica wrote a truly moving appreciation, titled “Sweet
Dreams, Sweet Twin.” It concludes, “Yesterday, the lights of Broad-
way dimmed in your memory, but your light will remain fierce in our
In a New York Times op/ed piece today, “28 Days to Save Darfur,”
Kenneth H. Bacon makes a very good recommendation to the U.S.,
as it starts a month at the head of the UN Security Council:
“The United States has a vexing and inconsistent record on
Sudan. Periods of engagement have been followed by longer,
and troubling, periods of inaction. Now, with a month to lead
the Security Council, the United States has a chance to
show the world that we can do more than just talk about
Ever striving to help lawyers provide Perfect Client Service,
Patrick Lamb reminds us that Speed [Is] The Essential Ingredient, when it
comes to answering client email or phone calls. Lamb says:
Clients call when they do for a reason. Its their reason and,
most of the time, it is an important reason. You are the
SERVICE PROVIDER. It is your job to honor their reasons.
Think minutes, not hours and certainly not days
a coyote call
January 31, 2006
Here’s a quick summary of my position against calling law-oriented
weblogs “blawgs“. It now appears at the top of my original piece, the
full-length essay (with updates), “let’s make the term ‘blawg’ obsolete.”
Quick Summary: Lawyers don’t need a special word to
designate their weblogs. Weblog technology is not being
used in any special way at law sites. No other group or
profession has coined a special word for their category
of weblogs. By insisting on using the trivializing, confusing
and too-cute word “blawg,” lawyers appear to be elitist, clan-
nish, or childish (likely, all three). Those who agree can help
stop the terminology from becoming a generally-accepted
part of the English language (and spread worldwide), by not
using the term “blawg” and by declaring their choice publically.
Yes, there are many things I would prefer to be writing right now, and
that you would surely prefer to be reading about – so I hope I can
let the subject percolate on its own for awhile. Before leaving it,
though, I want to say that there was no need for Denise Howell (who
coined “blawg”) to print, and Dennis Kennedy to second, a not-very
veiled insult of anyone who cares about this topic. The insult was com-
pounded by not even bothering to link to the major posts raising the
exactly a minor character on the legal weblog scene. Not linking, of
course, made it harder for their readers to encounter our arguments
and less likely that search engines would find them.
On the bright side, Evan Schaeffer was good enough to point to
Kevin O’Keefe’s post and this one (as well as the defense by the Editor
at Blawg Review (“Who let the blawgs out?“), and to risk being unpopular
by reiterating his position on the word “blawg:”
“Not only does the indiscriminate use of the word “blawg”
lead to obscurity, but it gives readers the unintended impres-
sion that the weblog writer is running a private club.”
He received quite a few dissenting Comments, including one from
the well-known Jargon Sheriff, Monica Bay, who stated:
“. . . i don’t mind blawg.
“Why: because it adds meaning to blog. It accurately
describes a specific thing. You see “blawg” and you
know that it is a law-related blog. It defines, it narrows,
and it doesn’t obfuscate.”
My response at Legal Underground was:
Monica, I don’t agree that “blawg” adds significant meaning.
If your audience already knows the proprietor is in the law
community or the topic is law, it adds nothing. If they don’t
know that, just tell them, rather than using a word that does
confuse the uninitiated, and can refer to anything from the
cultural musing of George Wallace’s “Fool in the Forest,” and
my punditry & poetry weblog, to How Appealing‘s small blurbs,
and the major essays of Judge Posner.
Of course, I should have added that “blawg” is also applied to both the
personal diaries of law students and the topical legal and political
Come back to the fold, Dear Scold.
Again, let me stress that I am not against
new words, nor trying to dictate what others should
Two years ago, I wrote a post pointing out that a
lot of the fun of being in a weblog community was lost
when Comments and Trackbacks are deleted because
the weblog owner disagrees with what was said. Today,
I’m waiting to see if Dennis Kennedy will ever post the
Comment I left at Between Lawyers two days ago, con-
cerning the use of the word “blawg” in Europe. or allow
the related Trackbacks.
update (11 PM, Jan. 31): Last Friday, Dennis Kennedy pointed to a
post by Edwin Jacobs, at his Law & Justice weblog, saying “Interest-
ingly, I noticed in the post that legal blogs are apparently being called
‘blawgs’ around the world.” I’m happy to see that Mr. Jacobs has
now clarified his own feelings about the word “blawg,” in Comments
“Indeed, I prefer to use the term “blawg” to explain it and when
it appears in the name of some site/blog I am citing. Otherwise,
I use “lawyer blogs” or “law-related blogs”. The reason is that it
better says what it really is, I think, i.e. a blog related to law or
made by a lawyer in his capacity of a lawyer, e.g. not about his
pet or hobby or whatever.
“I think it’s a simple matter of communication with the target
audience and I don’t make a big issue about it. I don’t care which
word is used, as long as it is clear what person A is communicating
to person B. But I think in communicating with non-lawyers, or with
non-tech savvy lawyers for that matter, it just makes more sense to
talk about a “law related website, lawblog, …” instead of “blawg”.
Frankly, even using the word “blog” is often complicating things.
So, use whatever you want, but “keep it simple” for your target
the snowplows’ rumble
drifts into town
he changes into play clothes
a fat horse
gallops with the others
a bit behind
the warbler’s song
rises and falls
“a fat horse” & “swaying branch” from
something to sing about, pawEprint 58 (2003)
“heavy clouds” from HSA Members’ Anthology (2003)
“snowmelt” – from Walking the Same Path
The New York Commission on the Future of Indigent Defense, established by Chief
Judge Judith S. Kaye, has unaminously recommended “a single, statewide, state-funded
system for the delivery of indigent defense services.” Judge Kaye will give the details of
her resulting proposals, in her State of the Judiciary address, next Monday, February 6,
2006. (Albany Times Union, Jan. 31, 2006) According to Ray Kelly, president of the state’s
Association of Criminal Defense Lawyers:
“They are talking about setting up a statewide public defender office that would
be responsible for handling 60 percent of the state’s cases. They would then set
up a statewide system of assigned counsel to handle any conflicts.”
Last February, this weblog voiced the opinion that “indigent defendants are far more likely
to receive consistently competent representationin a system with fulltime public defenders
(with statewide monitoring and funding) than from situations that rely heavily on assigned
counsel. (And see, David Feige’s excellent Slate article “Public Offenders,” where he says
that onlya comprehensive public defender system, not one relying heavily on assigned counsel,
will provide adequate service. ) Gideon’s Broken Promise, the ABA 2005 report on indigent
defense, states that national standards for indigent defense favor fulltime public defenders,
whenever the population and caseload can support them.
The New York indigent defense “system” has been organized and funded on the county
level since Gideon v. Wainright. Many private attorneys count heavily on the assigned
counsel cases they received under this system and fought hard for a rate hike, finally
passed in 2004, that brought fees long stuck at $25 to $75 per hour to $60 to $95 dollars
per hour. It is somewhat ironic, but the impetus for this change is reaction of the sixty-two
counties to the rate hike. The TU reports that, without additional State funds to help pay
for the hike:
“They opted instead to set up in-house offices, which were not subject to the
higher rates, to save money. the state’s 62 counties have established more than
122 individualized programs to defend the poor, with no cohesion, unified standards
or consistent format, said Ray Kelly….”
Indeed, just last week, the Schenectady Gazette reported that “Eighteen months after it
began operations, the Schenectady County’s Conflict Defender Office has helped save
taxpayers more than $100,000 in outside attorney fees, a review shows. (Jan. 29, 2006,
Don’t be surprised if this trend spreads across the nation, as more and more assigned
counsel (who are in private practice) push for higher fees. The Bar Advocates in Mass-
achusetts are clearly afraid that the fee hikes they coerced from the Legislature last year
may result in the establishment of public defender offices that will take away work they
consider to be “theirs.” Thus, they adamantly oppose the hiring of more public defenders.
(see our prior post) Perhaps, like auto workers, their organized successes may prove to
be their undoing.
the mountain moon
gives the blossom thief
January 30, 2006
First, two old favorites from Matt Morden:
my daughter tucks me in
for the first time
an old resume
my son colours in
- and two new ones from his Morden Haiku
a compost heap
the sound of worms
sweeping up flies
woken from sleep
“winter sickness” – The Heron’s Nest, (July 2003)
“an old resume” – bio page at World Haiku.
And, three poems that first introduced me
to Alice Frampton:
last goodbye -
scent of his wool coat
deeper into my nose
outside the cancer clinic:
some heads, some tails
of mother’s breath
“last good-bye” – The Heron’s Nest Volume IV No. 2
“wishing fountain” – Frogpond XXV: 1
“morning milking” – Haiku Canada Newsletter XVI: 3
Don’t forget: There is a great
list of daily haiku weblogs at Matt’s Morden Haiku.
One of the best parts of visiting haijin weblogs
is reading the comments on their work.
Never having been a public defender, I’m not a kneejerk hater of prosecutors.
However, I can’t let another day go by without saying that a series of con-
victions overturned due to prosecurtorial misconduct in Rensselaer County
[Troy], New York, is shameful and can only weaken the public’s trust in our
In the latest case, involving defendant Burton Jeffrey Hunter, the district
attorney’s office failed to inform the defense, in an acquaintance rape case,
that then-17-year-old victim had accused another man she knew of rape only
two or three weeks before Hunter’s trial. [That's two such charges within
eleven months. In addition, the "victim's" father testifeid at trial that she had
accused him of rape when he tried to discipline her. Troy Record, Jan. 26,
2006] Hunter was convicted of sodomy, and has spent the past four years
The fact of the second accusation came to light last year,
when Hunter’s trial lawyer, Paul DeVane was working out a
plea bargain for Delbert Parker, a Schenectady man convicted
of armed burglary and charged with rape. Parker told DeVane
that he had been accused of rape just before Hunter’s trial, by
the same young woman.
Current Rensselaer District Attorney Patricia DeAngelis was not D.A.
at the time of the trial, but was an ADA and had presented the case
to the grand jury. “[S]ources familiar with the case say she did most,
if not all, of the pre-trial work and then handed the case over to another
prosecutor.” (WTEN.com, Jan. 25, 2006).
When the issue was raised last year, trial judge Patrick McGrath agreed to
hear arguments for a newtrial, because the prosecution “failed to deny or
admit actual knowledge” of the material that could assist the defense. De-
Angelis was (unsuccessfully) running for county judge at the time and asked
for several extensions to answer the allegation. Not until Dec. 28, a few
days before the argument on the new trial, did she finally fax a stipulation to
Hunter’s counsel, saying that former prosecutor Mark Portin, who succeeded
DeAngelis on the case, never disclosed the victim’s subsequent allegation to
Hunter’s lawyer. (Albany Times Union, Jan. 5, 2006)
At the time of the hearing, I recall DeAngilis telling a tv reporter that
her office considered the fact of the second accusation to be “infor-
mation” but not evidence that had to be disclosed.
Judge McGrath disageed, ruling that Assistant District Attorney Mark Portin
improperly failed to inform Hunter’s attorney of the second accusation. Accord-
ing to the Troy Record (Jan. 26, 2006): Judge McGrath wrote:
“A prosecutor should not intentionally avoid pursuit of evidence
merely because he or she believes it will damage the prosecutor’s
case or aid the accused. . . A prosecutor has a duty to seek justice
and not merely to convict.”
McGrath noted that the “victim” was the only person who had direct knowledge
of the event and that establishing her credibility was paramount to a just verdict.
The Judge continued: “Surely, in the context of this case the People knew the un-
disclosed Brady material would have been useful to the defense. The only reason
not to divulge it would be for the People to gain some tactical and unfair advantage
that clearly violates the People’s professional responsibility.” Therefore, “The People
should be admonished for their failure to disclose the Brady information.”
None of this was persuasive to D.A. DeAngelis, who told the press: “While my
position on this matter has not changed as to our obligation to disclose this information,
the decision of the court is now the law in this county, and obviously we will prosecute
future cases in line with the court’s decision.” Two other sex abuse convictions were
recently overturned due to the misconduct or incompetence of DeAngelis’ office, along
with a fourth major conviction.
An editorial titled “Enough, Ms. DeAngelis” (Jan. 27, 2006), the Albany Times Union
called for the D.A. to step down, saying it quite well:
Justice is a more tenuous concept than ever today in Rensselaer
County, upheld by Judge Patrick McGrath but undermined by District
Attorney Patricia DeAngelis. It’s a familiar but depressing pattern, of
unfair and inept prosecution that requires judges to reverse convictions
obtained by the district attorney’s office or, in the latest such case, to
order a new trial for a man convicted of sodomy after critical evidence
was withheld from his defense lawyer.
When does it end? Only when Ms. DeAngelis steps aside as district
attorney. . . .
… Ms. DeAngelis has quite a bit less to say [than Judge McGrath] about
the denial of such an essential right of Mr. Hunter’s. Just like [tial ADA
Mark ] Portin, she doesn’t think the evidence that was withheld was
relevant to Mr. Hunter’s trial.
Her reaction to the vacating of Mr. Hunter’s conviction amounts to yet
another strike against Ms. DeAngelis and her office’s reckless approach
to criminal prosecution. The Appellate Division of the state Supreme Court
has reversed convictions obtained by Ms. DeAngelis or her colleagues
three times in the past two years for reasons of prosecutorial errors or
How much longer must the people of Rensselaer County put up with such
ignorance of the law in, of all places, the district attorney’s office? The same
voters who so wisely rejected Ms. DeAngelis’ candidacy for a judgeship of
her own last year remain stuck with her as county prosector.
“The prosecution has a duty to seek justice and not merely convict,” notes
Such a reasonable statement, such a far-fetched notion.
I’m not as sure as the TU that the D.A.’s Office has made these mistakes out of
ignorance or incompetence. A former ADA is suing the D.A.’s Office, saying she
was fired for complaining about unethical conduct. Two days after the order was
issued for the new trial, Ms. DeAngelis had this statement:
“My number one responsibility as District Attorney is to ensure that
justice is served. My office has a conviction rate of 98 percent. This
is the result of a talented and dedicated staff who take their duty to
protect the citizens of Rensselaer County seriously.” (Capital9News,
Albany, NY, Jan. 27, 2006)
Justice 101: Convictions do not always equal justice. Overzealousness doesn’t assure justice. Often it prevents it.
After another dreary-gray winter day, I deserve some Tom Painting haiku — and so do you:
the watercolorist works
in shades of grey
paint by number
the child’s river
escapes its bank
she paints her nails
a ruffed grouse drums
the woods awake
a flock of blackbirds
turns inside out
“paint by number” – tug of the current: RMA 2004
“false dawn” – The Heron’s Nest
low-lying clouds —
rest near the glacier
centuries of shale
crunching underfoot —
coots bob offshore
patches of snow-
he walks his first bike
back up the hill
coffee brewing —
the moon and Orion
light the way
except: “patches of snow” Modern Haiku (Spring 2004)
January 29, 2006
The latest edition of Harvard Law Today (Jan. 2006) appeared in my real-world mailbox on Saturday. In it, I learned that HLS Dean Elena Kagan has been assessing “the status of women in law” and is quite concerned that women “still lag behind men in most measures of success.” (see her full remarks in the Leslie H. Arps Memorial Lecture, to ABCNY, Nov. 17, 2005).
Dean Kagan thinks the problem starts in law school, because women law students are less likely to speak in class, or graduate with honors, and give themselves poorer evaluations for the use of legal logic. Then, once they leave law school, Kagan believes that the numbers tell an ominous story:
“While women account for almost 30% of lawyers, they account for only about 15% of general counsels of Fortune 500 companies, 17% of law firm partners, and 23% of federal district and circuit court judges. At law schools, women account for roughly 19% of deans and 25% of tenured professors.” (from ABA 2005 Women at a Glance stats)
Virtually every law student, by the end of their first year, should be able to explain to the Dean why these numbers alone don’t tell even half of the “story.” Kagan says time has shown it is not just a “pipeline” problem – getting enough women into the profession’s pipeline. But, I believe much of the so-called problem is indeed related to how long the female lawyers have been practicing, what areas they have chosen to specialize in, and what other priorities have shaped their career choices and timing.
Many women make choices early in their careers that start them on paths that are far less likely to end up in the CEO’s suite — or the Dean’s chair. Kagan notes that they leave law schools for jobs in non-profits and in government at a higher rate than men. When they do go to law firms, Kagan is concerned that “even just two or three years into practice, women are far more dissatisfied than men with every aspect of their jobs except the work itself.” I say, that’s a healthy sign, in what Professor (and federal court nominee) Patrick J. Schiltz calls our “Unhappy and Unhealthy Profession“ (52 Vand. L. Rev. 871) See our prior post.
Kagan echoes issues raised recently in many parts of the media about whether highly-educated women are “off-ramping” or “opting out”: deciding, once they have children, that they “can’t — or don’t want to — ‘have it all’.”
See Ellen Goodman, “Homemakers, heed opt-out warnings,” Jan.
17, 2006; Boston Globe, “Relaunching Mothers,” by Carol Fishman
Cohen and Vivian Steir Rabin, Jan. 23, 2006; Kansas City Star, “More
women opt out of work, but why?,” by Donna Vestal, Jan. 10, 2006;
Sarah Gilbert at BloggingBaby, the feminist elite talk back, Jan. 25,
However, Dean Kagan points out that Lisa Belkin’s “opt-out revolution” may
be a mirage. Kagan notes that 93 percent of women who leave the general
workforce want to return. She wants law schools to help off-rampers get
back into “successful” career paths, and they surely should. But, I’m
afraid the Dean shares Linda Hirshman’s notion that taking the off-ramp
to raise children (or to take advantage of your spouse’s high income and
the choices it brings) somehow demonstrates that feminism has failed.
Kagan frets that not enough women say that having a “powerful
position” is a worthy career goal. She suggests that the preferences
shown by women may in fact reflect “contingent circumstances”
and “unnecesary structures and constraints that prevent them from
creating the work lives they most desire,” rather than their fully-
informed, mature judgment. She also wonders why so darn many
women go into “public interest” jobs.
My sentiments are far more with “Dani,” an interviewee at Blogging Baby,
who asks: “And how exactly is Hirshman treating women with respect by
accusing them of opting out when they prioritize their families over financial
Dean Kagan points out that many off-ramping lawyers want to go in very
different career directions when returning to work — heading for non-profit,
or solo, or part-time practice. We might suggest that this helps explain,
a least a little, why women as a whole in the legal profession “still lag
behind men in most measures of success” and never seem to quite catch
up after their child-rearing break from the partneship track. (In “Relaunching
Mothers”, Cohen and Rabin point to the improved post-offramping career of
Justice O’Connor as a role model and sign for optimism.)
I’ve been working for equality of the sexes for several decades. If any
real discrimination exists in our profession, it must be eliminated. How-
ever, if women are lucky enough to have, or smart enough to make,
choices that get them out of the most dehumanizing, demoralizing, or
stressful parts of our profession — or out of it completely — I say “bravo.”
If they find their priorities greatly changed — and their willingness to make
tradeoffs increased — once they give birth, we should not devalue their
There are an awful lot of male attorneys who would love to have such
opportunities, such courage, and such common sense.
By the way, over the weekend, J. Andrew Lockhart, a
poet and music teacher, left a Comment at dagosan’s
haiku diary, that said: “p.s. – I used to be an attorney
but left 10 yrs ago after a stroke -best thing that ever
happened to me!
my daughter asks where
we are going …
first snow gone –
this steady need
the three of us
close back then
lingering in bed
has no answers
the deep well, two boys
talk about girls
……………………… by george swede
The Heron’s Nest (Dec. 2005)
January 28, 2006
John Stevenson and Yu Chang introduced me to the poetic genre
of renku today — the short-form Junicho Renku, with twelve stanzas
of linked verses written by a group of poets. Although I literally had
never read an entire renku, Yu and John insisted that I start writing ths
highly-structured, over-regulated (many, many rules) genre over lunch
and, eventually, dinner.
At the bottom of this post, you will find a brief
description of Renku from the Haiku Society of America.
You can find links to sample renku and much information
about the genre at William J. Higginson’s Renku Home.
With sturm und angst (and a Thai dinner in an old German Bierhaus
located in downtown Schenectady), we produced twelve verses that
actually fit together rather well (I am still not at all sure what makes
a renku “good”).. We’re going to do some polishing.
It seems I survived, but I barely got home in time to post some haiku before turning into a pumpkin at midnight.
Here are a pair each from John and Yu, along with my thanks for their guidance and patience:
all the scarecrows
dressed like mom
………………….. by John Stevenson
of your hand
a borrowed coin lands
on the bronze monkey
Happy Chinese New Year! The Year of the Dog!
dog tired –
to rest on
Notes: In Japanese, “renku” is a modern equivalent for haikai no renga. Usually written by two or more people, a renku’s most important features are linking and shifting. “The best English approximation of the verse-rhythm of Japanese renku seems to be a poem . . . beginning with a three-line stanza, followed by a two-line stanza, and alternating three- and two-line stanzas thereafter. This parallels the gentle longer/shorter/longer rhythms basic to renku in Japanese . . . .”
Typical renku consist of eighteen, twenty, thirty-six, or more of these alternating stanzas, though even shorter forms have been popular in recent decades. “Note that the starting verse of a renku is what evolved into the ‘haiku’ as we know it, with its emphasis on the here and now. The remaining stanzas . . . should connect well with their preceding stanzas and provide opportunity for movement in a new direction for those following. . . . A major point of renku writing is to move forward, from stanza to stanza, through a great variety of time, weather, environment, activity,fauna, and flora. . . .
Stanzas focused on human activities and concerns should be balanced throughout with stanzas concentrating on landscapes, animal and plant life, and other subject matter.” (Quoted material from the “Report of the HSA Renku Contest Committee”, published in Frogpond XIII:2, May 1990, which contains more detailed guidelines for traditional-style renku and a bibliography of materials on the subject.)
January 27, 2006
Former judge and retired lawyer Robert H. Rowe is a Member of New Hampshire’s
lower legislative body — and he has some explaining to do. Here’s a description of
“In an outrageous move, Representative Robert H. Rowe introduced
House Bill 1234 to cut in half the current small claims dollar limit
from $5,000 to a mere $2,500, which would be the fourth lowest limit
in the country. No state has ever lowered its dollar limit, and if the bill
were approved it would do serious harm to legal consumers by denying
the remedy of small claims court to all but the most trivial of cases.”
That’s right: while legislatures around the nation are increasing dollar limits
in small claims courts, in reform efforts that would help increase access to
civil justice by making these “peoples’ courts” available for the disputes most
likely to arise in modern consumer and tenant transactions, Rep. Rowe
wants to decrease a dollar limit that is already below the national average
for small claims jurisdiction — the first such rollback in our nation’s history.
Go to HALT’s Small Claims Reform Project for more info
on this important movement, including Report Cards and
background materials on each state. Also, see Your
Editor’s Prairielaw article “Supersize Small Claims” and
a thorough discussion, with relevant links. at Crime &
Federalism, “small claims, big potential,” Jan. 24, 2005).
Rep. Rowe is an author (e.g., Quest for Liberty, a historical novel, and
Walking Tour of Amherst Village.), and he lives in the historic Jones
Tavern in Amherst.
Action Alert: On Feb. 9, 2006, there will be a public
hearing on HB 1234, in Rm. 208, LOB, 10:30 AM,
in Corcord, NH. [directions] You can also write Rep.
Rowe at P.O. Box 1117, Amherst, NH 03031-1117.
I just might try to be there, to hear Mr. Rowe explain his reasoning for
gutting New Hampshire’s small claims courts.
HB 1234 has put me in a sober mood, just right
for some Andrew Riutta poetry:
overlooking the cemetery—
in the scent of summer
a homeless man
cat burial . . .
up to my waist
p.s. Off topic: Is Denise Howell, coiner of “blawg,” right to suggest
it is a waste of time to worry over the use of that term (see her
“I, Sandwich Dominatrix,” Jan. 25, 2006), and/or scroll down to
our response at our original post on making the word “blawg” obsolete.”
January 26, 2006
There is far too much prose at the top of this webpage.
Dr. Bill Owen will cure that problem:
the boy burns a circle
in a leaf
in his face
lifting the hammer
the old carpenter’s hand
after his death
the width of our
“whittling” – lose change (HSA Members’ Antholgy, 2005)
“lifting the hammer” - A New Resonance 2; Mayfly #30 (2000)
“after his death” – Selected Poems of W.F. Owen
“her estate” – The Loose Thread; Modern Haiku XXXII:1;
the spider webs –
again, I spare the cricket
post today dubbed “ADR and George Washington’s Will“. Joel, an estate
planning lawyer, who is training to be a mediator, wants to use those
skills in probate court. He was inspired to learn that the Real GW included
a mandatory “alternate dispute resolution” provision in his will (using the
ancient method of tapping the wisdom of trusted elders). It’s a nice com-
ignored — that they
“Discourage litigation. Persuade your neighbors to compromise whenever you can.”
George and Abe: they warm this old lawyer-mediator’s heart. (see prior post)
If you care about legal ethics and client rights, and can be in Columbus,Ohio, tomorrow afternoon, Jan. 27, please start making plans to be at theheadquarters of The Ohio State Bar Association by 1 P.M. If you can’t bethere — and especially if you are a member or future member of OSBA orthe Ohio Bar — you should also read on, and take action by email or phone,or at your website.As explained below, we believe OSBA is (or is about to be) aprime example of our Bar & Guild Theory: Most bar groupsspend much of their time acting like guilds — promoting theinterests of their members, and “protecting” the public fromcompetition, information, innovation and choice.The Urgency: On Jan. 27, 2006, the OSBA House of Delegateswill consider whether to support a completely revamped setof ethics rules.The two issues I will focus on here are: (1) Should lawyers beallowed to characterize their fees or rates in ads as “discount,”“cut-rate,” “lowest,” or “special,” when the terms are not usedin a false of misleading fashion? (2) Should lawyers be required(for matters bove $500) to communicate in writing with a clientconcerning the scope of engagement and the basis or rate offees and expenses? [You may find other favorite issues thatneed your or our attention.] [UPDATE: Our efforts failed. The Ohio Bar included the ban on advertising discount fees in its recommendations to the Ohio Supreme Court, which then included the provision in the Comment to Rule 7.1, which has been in effect since February 2007.]
After lengthy consideration on how to modernize the current Ohio ethicsto the Model Rules and the current Code) for comment, in October 2005.An OSBA ethics subcommittee has also issued its Bar Recommendations.On Jan. 27, 2006, at 1 p.m., the Council of Delegates will hold aspecial meeting at OSBA Headquarters, 1700 Lake Shore Drive,Columbus, to consider recommendations of the Supreme CourtTask Force on Rules of Professional Conduct.In addition, all members of the Association “have the privilege of thefloor on a parity with delegates. . . [and] Members wishing to addressthis matter at the upcoming Council of Delegates meeting are askedto communicate their interest to Bill Weisenberg in advance sothey can be recognized at the meeting. [you can contact Bill email@example.com; phones: (614) 487-8585; (800) 232-7124;FAX (614) 487-8808]Here’s why I am concerned and am asking for your help:First: As the ABA eJournal reported last week, and Carolyn ElefantBar Won’t Allow Lawyers to Say They Offer Cut Rate Service,” Jan.25, 2006). In Opinion 2005-9, (Dec. 2, 2005), the Bar Ethics Committeeheld that it had no choice but to apply the current Code to the “coupons”in question. Ohio Code DR- 2-101(A) specifies that a lawyer shall notuse any form of publicity that:(5) Contains characterizations of rates or fees chargeable by thelawyer or law firm, such as “cut-rate,” “lowest,” “giveaway,” “belowcost,” “discount,” and “special;” however, use of characterizationsof rates or fees such as “reasonable” and “moderate” is acceptable.Clearly, this antiquated rule, which almost certainly violates 1st Amendmentcommercial speech rights, and would violate antitrust laws if promulgated bythe Association rather than by the Court, deserves to be thrown out. There isnothing inherently misleading about a discount claim — there is, of course,something inherently competitive about them, which might be the rub. Rulessuch as these, which have been eliminated in all but a few jurisdictions, arewrapped in concern for misleading claims, but “belie the legal profession’sbasic dislike of lawyer advertising, competition, and affronts to its bloatedfeelings of self-importance.” (see prior post on the NYSBA war against adver-tising, and a round-up of recent action by the profession’s “dignity police.”They contain excerpts from the ABA and the Federal Trade Commission,on the harm to consumers from broad lawyer advertising bans that are notnarrowly tailored to prevent unfair or deceptive acts or practices.)“Complaint BillF”The Ohio Supreme Court Task Force recommends new Rules 7.1 and 7.2,which largely follow the much-improved ABA Model advertising rules. Theymove many prohibitions “in deference to constitutional concerns about theregulation of commercial speech.” (Task Force Report) The Model Rules banonly a false or misleading communication — that is, one which “contains amaterial misrepresentation of fact or law, or omits a fact necessary to makethe statement considered as a whole not materially misleading.” In aComment to Rule 7.1, there is this appropriate conclusion about fees:“[A]n unsubstantiated comparison of the lawyer’s services or feeswith the services or fees of other lawyers may be misleading ifpresented with such specificity as would lead a reasonable personto conclude that the comparison can be substantiated. The inclusionof an appropriate disclaimer or qualifying language may preclude afinding that a statement is likely to create unjustified expectationsor otherwise mislead a prospective client.”It is unfortunate (and misleading), however, that the Proposed Ohio Rule 7.1removes the ban on terms such as “discount” and “cut-rate” from the bodyof the Rule, but insert the provisions again in Comment  to Rule 7.1, whichstates:4] Characterization of rates or fees chargeable by the lawyer or lawfirm such as “cut-rate,” “lowest,” “giveaway,” “below cost,” “discount,”or “special” is misleading. [emphasis added]It is a per se rule making discount advertising by lawyers unethical. That canonly have one purpose (eliminating or reducing price competition) and oneresult: higher prices for consumers of legal services. The higher price will,of course, mean that more and more Americans will be functionally eliminatedfrom the legal services marketplace, and have their legal needs unmet or metthrough nonlawyer sources.The drafter of the Task Force Report sounds rather unhappy about this result,reading between the lines. And, the OSBA ethics committee could havecorrected it, advocating for the Model Rule version, the First Amendment,and competition. However, it did not. The committee’s Recommendationsadopt the Task Force’s version of the advertising rules in their entirety.The written fee and scope of engagement requirement has a bitof a different posture.The current Code says, in relevant part:
EC 2-18 As soon as feasible after a lawyer has been employed,
it is desirable that he reach a clear agreement with his client as
to the basis of the fee charges to be made. Such a course will
not only prevent later misunderstanding but will also work for
good relations between the lawyer and the client. It is usually
beneficial to reduce to writing the understanding of the parties
regarding the fee, particularly when it is contingent.
Model Rule 1.5 (b) states that the engagement/fee agreement must be
communicated before or within a reasonable time after commencing the
representation, “preferably in writing.” But, the Ohio Task Force decided
to go farther — giving, in reality, both the client and lawyer more protection,
by requiring a written agreement unless the matter is expected to cost less
Rule 1.5 (b) The scope of the representation and the basis or
rate of the fee and expenses for which the client will be responsible
shall be communicated to the client in writing, before or within a
reasonable time after commencing the representation, unless the
lawyer will charge a client whom the lawyer has regularly represented
on the same basis as previously charged or the fee is $500.00 or less.
Any change in the basis or rate of the fee or expenses is subject to
division (a) of this rule and shall also be promptly communicated to
the client in writing.
How did the OSBA “ethics” subcommittee react to this written requirement?
The majority of the members rejected it — with the following eloquent and
thoughtful, but remarkably frank analysis:
“A majority of the subcommittee recommended changing Rule 1.2
to eliminate the writing requirement concerning scope of representation
and fee-and-expense agreements to prevent violations of that requirement
forming the basis of a disciplinary complaint.”
Ironically, the OSBA website has a LawFacts e-pamphlet, titled Lawyers,
“You should ask the lawyer to put into writing fee and billing agreements
to avoid any misunderstanding.”
In a modern, information world — with clients who can almost always read and write
(and with the scope of representation in more flux than ever ) — many of us surely ask
ourselves: “What kind of a lawyer wouldn’t use a written agreement when representing
a client.” My reply: Exactly the type of lawyer who would oppose this Rule and whose
clients most need the in-writing mandate in Rule 1.5(b) for their protection.
“tinyredcheck” Ohio consumers need your voice in support of the proposed
Rule 1.5(b), and to help make it easier for Ohio lawyers to compete
on price (with its resulting benefits in innovation and acces).
In addition to letting the OSBA know how you feel, you can
write the Supreme Court of Ohio, which is seeking comments, until Feb.
15, 2006. Ask them to keep the in-writing requirement and to junk
the ban on discount advertising.
You might also contact OSBA President E. Jane Taylor (click for herfirm profile and email address), or Robert K. Leonard, Chair of OSBA’s LegalEthics and Professional Liability Committee (at 119 N. West, Lima, OH 45801,(419) 228-1020 , (419) 228 5490 Fax.Please excuse the lateness of this alert. Youf humble editorlearned of the OSBA Meeting this morning.
Ohio weblogers (and other concerned citizens), please do whatever you can at
your website to help bring Ohio’s lawyer ethics rules into the 21st Century and the
era of Consumer Sovereignty. How about it, Modern Esquire; Dale Oesterle at
Dan Tokaji of Equal Vote; and Prof. Douglas A. Berman at the award-winning
p.s. In August 2003, in a moment of deep insight and/or cynicism, I
suggested the following Warning be placed on all bar association
Warning: We are a guild, here to serve the economic interests of our
members. We’ll fight (’til your last dollar) to protect you from any legal
adversary and to secure your legal rights. However, when it comes to
your financial interests versus our own, we will put ours first whenever
afterthought (Jan. 27, 2006): Another aspect of the ProposedRule 1.5 bothers me — the Model Rule 1.5‘s ban on “unreasonable”fees or expenses is rejected in favor of keeping the current ban inOhio’s DR 2-106 on “clearly excessive” fees. Furthermore, thefee, to be excessive, under the current and the proposed rule,must leave a “lawyer of ordinary prudence” with “a definite and firmconviction that the fee is in excess of a reasonable fee.” [emphasisadded] (Apparently a layperson on any Ohio grievance committeecannot apply his or her own prudent judgment on the excessivenessof a fee, after studying the circumstances. That’s one more concern)Good lawyers use or choose particular words purposefully. Here,it is hard to avoid the conclusion that merely banning “unreasonable”fees seemed too harsh for Ohio’s lawyers. Indeed, even a ban on“excessive” fees was apparently too draconian — a fee needs to be“clearly” excessive to be unethical.I do not buy the excuse, if offered by theTask Force and the Bar committee, that thebenefits of continuity outweighed adoption ofthe standard used in most jurisdictions. Keepingthe “clearly excessive” standard is a clear signalthat the burden of proof for anyone challenging afee is extremely high — so that few, if any, fees willbe held to be excessive by your peers. If your feeisn’t illegal or fraudulent (e.g., demonstrably padded),you’re safe in Ohio.One final point of irony: The current Ohio Publicity Rule, DR 2-101 (5),prohibits the advertising of fees as being “discount,” but allows you tocall your fees “reasonable” and “moderate.” Comment  to Proposedadvertising rule 7.1, also declares discount claims to be misleadingand therefore banned. Notice how this ties in with the current andproposed ethics rules on fees: any legal fee that is not “clearly exces-sive” is “reasonable” in Ohio. It makes you wonder which is more likelyto mislead the public, a “discount” claim by a lawyer whose fees aregenuinely lower than the local norm, or a “reasonable” claim by anOhio lawyer whose fees are just shy of being “clearly excessive.”
January 25, 2006
Our Referer/Came-from statistics page is always leading us into distraction
of temptation. Yesterday, it led us into some extra-legal bocce fun Some-
body did a Google Blog Search for bocce> and ended up at this website.
We’re delighted to see, only four months after declaring ourselves to be
bocce advocates, that the top three results came from f/k/a.
As is our wont, we checked out some of the other results and want to
share with you some of our findings — which did not necessarily relate to
big balls and little balls.
First, If you are under 20 and over 40 years old, you should probably
stay away form the International League of Extreme Bocce, which
specializes in “Reckless Urban Beyond-Lawn Bowling. “
Second, thanks to Emily Gaston’s weblog, we learned that last
December, Star Wars the Musical was unveiled. One of the tune,
available for MP3 downloading, is “Do You Speak Bocce?” In the
scene, Uncle Owen is looking for a droid that speaks Bocce, and
breaks into song upon examining one unit:
Do you speak Bocce?
Do you speak Bocce -
not Splocce, not Blocce,
Do you speak Bocce?
Do you speak Bocce?
I hope our Fool in the Forest friend will give us a review of the
score and book in the near future.
Last, but far from least, we discovered that Miba Whiber of
To save my weblogging colleagues some time, I’ve compiled
sentences that they might find particularly useful. At the end,
there are some we all may need:
Here are English-to-Bocce phrases for:
George Wallace at Declarations & Exclusions
& Martin Grace at RiskProf:
I do not want the collision insurance and medical coverage.
Noy’meetix goyatoixee he manux ii mediizal.
I have insurance.
Kazz ma kazz.
The payment is in the HoloNet.
Ker pazet on bpnip Holonot.
Evan Schaeffer at The Legal Underground
My program is faster because I have the
Bixtix hit yilly rev moomaws.
My neighbor is spacesick.
Zee dopi peeza peeza.
Scheherazade at Stay of Executiion
What do you do?
Finitez cetex detox?
Are there good drinks on board?
Openex co pakaz di hunhiy?
I’d like to rent a Legion Condor EX.
Kizzee mit rentaz hu Legion Condor EX.
Matt Homann at the [non]billable hour
Can I upgrade to first class?
Keez meeza foy wunclaz?
Benjamin & Mark at Language Log:
Do you speak Basic?
Bazi batza Bazic?
Carolyn Elefant at My Shingle
Can you turn the gravity down a little?
Peez doz gravorti dow pinti?
How do I exit this spaceport?
Deeza va deeza copex?
Ben Cowgill at BC’s Legal Ethics
Can you send a pilot to guide me in?
Mil weez joto ne dimiix?
The Editor at Blawg Review.
What are my coodinates?
Motex coff keez hopiz?
Nancy Stinson in the Stark County Law Library
Will the bill list the title of the holo?
Beetix fo fee fi nototex ge holo?
Walter Olson at Overlawyered.com
Mike Cernovich at Crime & Federalism
When are we going to get there?
Hwen dorix bijunize?
Monica Bay at The Common Scold
Move aside and stop hogging the space lane!
Jeeza goz dobo ipinahex colax!
That _____ is in my seat.
Cee ____ feeth ur nockneez.
Denise, Dennis, Tom,
Marty & Ernie at Between Lawyers:
My droids will talk to your droids.
Keliza l’gik droi to talk droi.
Will we be jumping to hyperspace?
Tuz de ju mugee hyperaaze?
To Paul Caron at TaxProfBlog:
May I have a receipt?
Tirez meez canto ripit?
Another hot towel, please.
Kitex co kopad nikozax, bleeze.
JR at Jeremy Richey‘s weblog:
That scratch was there when I rented the ship.
Zat x’ratch keezo bopaz ha sheep.
The eponymous David Maister,:
I am vice president and systems consultant for
personnel development and managment consulting.
Lyo waza kinateze u kuntatezaz
u pizolooiz un tazax goniteezex.
Lisa Stone at Inside Opinions:
This is ____.
Deemeezz bo treeza ____.
Of course, there are quite a few we could all use:
I will get back to you on that one.
Vitex fo gobaj ka zu zux. I
Where is my luggage?
Infinez topi lopiz?
Where is my seat?
Infinez tope ur nockneez?
Clear the landing zone!
Kiz kiz fee dolomitex!
Can you turn the gravity up a little?
Peez doz gravorti oop pinti?
I am spacesick.
Meez peeza peeza.
I don’t know yet if Hilary Tann speaks bocce,
but I’m hoping she’ll learn soon. Until then,
she sure does speak haiku & senryu:
shadows of the geese
adjusts her hair
my dog’s nose
to the ground
round the ice-fishing hole
first warm day
looking for eagles
and finding the sky
bocce blind date -
she smashes into
my male ego
January 24, 2006
This morning, at Language Log, linguist Benjamin Zimmer from,
UPenn, posted “Blawgs, phonolawgically speaking” as a
follow-up to Mark Liberman’s piece at the same weblog “Who
use of “blawg” terminology and the defense of its usage by
the Editor of Blawg Review. Zimmer takes a look at what
makes “blawg” such an interesting portmanteau or “blend
word,” with special emphasis on the morphophonological
aspects of the word.
For an interesting peek at another profession that is (literally)
focused on parsing words and making fine distinctions, law-
types could not do better than checking out Zimmer’s post
bisecting the blog-law-blawg portmanteau.
For example, he explains that one type of blended word is
the sandwich variety, where part of one of the blended words
is inserted into the other word (rather than attached to it). A
famous example is Lewis Carroll’s “chortle,” where chortle =
ch(uck)le + (sn)ort. . But, “blawg” is unique:
“The recipe for such sandwich words is pretty constant:
take a polysyllabic word and replace the primarily-stressed
syllable with a punchy monosyllabic word of your choice.
It’s clear, however, that blawg is a different beast, morpho-
phonologically speaking. Denise Howell took a monosyllabic
word (blog) and inserted another monosyllable (law), such
that the “bread” for the sandwich consists merely of one
initial consonant (b-) and one final consonant (-g). I know
of no other sandwich word so dominated by its filling.
“What’s more, the two component words are maximally over-
lapping for some speakers and nearly so for others. . . . “
[Ed note: a discussion of whether "blawg" sounds like
"blog," and if it matters, follows.]
After this brief exposure to linguistics, it seems to me that linguists
are science-minded persons, who like words more than numbers,
and are too nice to want to be lawyers. Like lawyers, however,
they apparently do tend to take liberties when describing the pos-
itions of others. Thus, where I said I was surprised, Benjamin says
I am “shocked.” Where I merely gave a prominent example, he says
I am “troubled.”
One thing for sure, I bet Benjamin and Mark would be quite annoyed,
if someone wanted to permanently call their weblog a “bling“, merely
because weblogs by linguists are so unique.
p.s. (Jan. 25, 10 AM): Just a quick apology to Benjamin Zimmer
for mistakenly calling him “Zimmerman” in the first version of this
post. All the portmanteau talk led me astray: “when it comes
to morphophonology, Zimmer is the Man!”
update (Jan. 27, 2005): Denise Howell, coiner of “blawg” and still
one of our very favorite persons in the entire blogiverse, has a piece
“blawg.” Denise suggests, in “I, Sandwich Dominatrix,” Jan. 25, 2006)
without ever linking to f/k/a or mentioning us, that:
Tyler, the original “baggage”:
“If you are among the folks — linguists excluded; it’s their
job — who might be spending a little too much thought and
energy on this borderline microbial issue, please consider
channeling your efforts toward something of more tangible
benefit to mankind.”
See our response by scrolling down to the update to our original post
on making the word “blawg” obsolete.”
“snowflakeS” Speak Brooks? We sure do. So, here are a
half dozen haiku and senryu from Randy Brooks:
big brother’s grin . . .
the last piece of the puzzle
out of his pocket
returns to the porch rail
new snow fluffs off
the sap begins to flow
out of the evergreen
eyeing the spot
where our bumpers bumped–
snow in his thick eyebrows
cedar walking cane
hangs from the coat rack
dust on the handles curves
We just found them last night and can’t wait to share a stash
of never-seen-here poems by Barry George — found at Dietmar
Tauchner’s Bregengemme website (where you’ll also find Guest
well as haiku auf Deutsch).
after our quarrel
mousetraps grimly loaded
for the night
in a vacant lot
shooting at the sun
“Mouse Lawyer horiz”
the comedian faces
away from the crowd
his parents talk…
sipping both straws
“dining out” – Paper Wasp (Spring 2004)
“after our quarrel” – Modern Haiku 23.3 (1997)
“in a vacant lot” - Frogpond 15.1 (2002)
“boy watching” – Cicada 30 (1999); *Psychopoetica 46 (2000)
Like Matt Homann, I want to welcome the new weblog by
“Why do law firms find it so hard to understand that a feudal
warlord system forcing everyone to work harder is not the
height of mankind’s achievement in civilization? I have spent
twenty years trying to say all professions look similar and can
learn from each other, but I’m finally prepared to concede that
lawyers are different – and it has nothing to do with economics.”
Go to David’s website to find out what he thinks the problem is with
lawyers and law firms (and see the proposed solution, which includes
a “mutually committed force that can throw off the oppressor and craft
a more civil and economicallyfunctioning society”).
Of course, we believe that lawyer greed is part of the problem and
greed seems to us to be economic, despite all of its psychological roots.
I hope David Maister would agree with our sentiments from Jan. 2005,
“When it comes to fees, our legal profession is fiddling away
its scant goodwill, while its clients — and youngest members —
scream “fie” and are treated like foes.” . . .
“If young lawyers want to work saner schedules but don’t
want to sacrifice income or “prestige,” they need to stop
whining and realize that they are part of the problem.”