I’ve moved! After spending most of Sunday hunched feverishly over my laptop, I’ve migrated this blog to my Web site. The new version of the I Am Not A Lawyer blog is at http://www.wordofthelaird.com/blog. If you’re RSSing, and the blog stats suggest that somebody is, point your reader to here.
So I won’t be updating here anymore. Thanks for reading.
First, here’s an article on the movie Michael Clayton and its criticisms of law-firm life. The thing is, pointing out that large law firms make their employees miserable and sometimes have to turn a blind eye to their clients’ ethical excesses is such a cliche that I’m almost embarrassed by my urge to blog about it. But it’s true, in my experience. Which is why I wish I had written this article. (And why I am sometimes glad I am not a lawyer.) Mad props to the guy who did write it.
Here’s a blog post in a similar vein from another member of the legal media who I could envy — Jordan Furlong, editor-in-chief of National magazine, which is put out by the Canadian Bar Association. (Despite his nationality, or maybe because his country and mine are so similar, he seems to blog frequently about issues at large U.S. law firms.) In this post and others, he takes law firms to task for focusing more on money and numbers than on client satisfaction, using the $2 billion revenues at Certain New York And LA Firms as a springboard. (Rees Morrison makes the same criticism in passing.) Something he either didn’t mention or didn’t see is that law firms and legal publications both really love lists. They’re profitable for the publications (AFAICT), they allow competitive lawyers to compete, and they’re easier for editors with resources to put together than a set of well-thought-out feature articles. Not that I disagree with Furlong. The law is unique among large business sectors in that the culture doesn’t necessarily prioritize client satisfaction. Clients are where the money is coming from, guys!
By the way, this blog is migrating to my Web site, most likely this weekend because that’s when I’ll have the time. Watch this space if you care.
Because it’s a holiday, I’m working on nonpaying projects today. And of course, I’m procrastinating furiously. So I followed a link to Kareem Abdul-Jabbar’s blog, which is a relatively new addition to the LA Times Web site. He has a post from Friday on Charlotte E. Ray, who was the first black woman to become a lawyer in the United States. In 1872! Being any sort of female lawyer in 1872 must have been very hard, but to be black on top of it must have posed some serious problems. (And vice versa!) She didn’t let it stop her from contributing to public life, as you’ll see if you follow the link.
If you’re interested in Abdul-Jabbar himself, African-American history or a pro athlete’s reflection on pro athletics, it’s worth checking out the rest of it.
This is another entry in the semantic-wonk category. A Ninth Circuit opinion (en banc) caught my eye today because it had four individual components — the opinion, a concurrence, a dissent and a partial concurrence/partial dissent. Oy! Anderson v. Terhune. The issue that stirs up all this controversy was a Constitutional one — the Fifth Amendment and when you’ve truly invoked it.
Once upon a time, a guy named Jerome Alvin Anderson was arrested in Shasta County on suspicion of murdering a friend for stealing another friend’s car. According to Judge McKeown, writing for the majority, this happened at his interrogation:
Anderson twice attempted to stop police questioning, stating “I don’t even wanna talk about this no more,” and “Uh! I’m through with this.” After questioning continued, Anderson stated unequivocally, “I plead the Fifth.” Instead of honoring this unambiguous invocation of the Fifth Amendment, the officer queried, “Plead the Fifth. What’s that?” and then continued the questioning, ultimately obtaining a confession. It is rare for the courts to see such a pristine invocation of the Fifth Amendment and extraordinary to see such flagrant disregard of the right to remain silent.
Judging solely by the opinion, the police seem not to have interpreted Anderson’s requests as deal-breakers until he said “I’d like to have an attorney present.” But after a break, they decided he wanted to keep going, continued the interrogation and eventually got a confession. Anderson was subsequently convicted of murder with special circumstances. He argued with the Superior Court and the CA that his confession was inadmissible, but both courts thought his request to take the Fifth was ambiguous. It ended up before the Ninth Circuit because he asked for a writ of habeas corpus (and got it, which I think is pretty rare). If you’re interested in criminal defense or judicial references to pop culture, there’s more good stuff in the opinion.
Let’s ignore the interrogation transcript for a moment and turn to the way the Ninth Circuit interpreted it. The majority seems to be saying that the state courts were unreasonable in finding that Anderson’s Fifth Amendment request was ambiguous. Even if he kept talking after that, they said, it doesn’t matter because law enforcement has a duty to back off once you take the Fifth. The concurrence, by Silverman and Rawlinson, says they agree but want to make sure people know they think the state courts were unreasonable on one issue, not legally incorrect. (Not sure how to interpret their motives for this — judicial politeness or genuine legal hair-splitting?) The concurrence/dissent, by Bea, seems to agree that Anderson clearly took the Fifth, but says that because he re-initiated the conversation afterward, his confession is legit. The dissenters, Tallman and Callahan, seem to believe that context shows that the state courts were not unreasonable — Anderson did not clearly invoke his Fifth Amendment rights, and the police officer was legitimately trying to clarify when they asked what the Fifth Amendment is.
I am drawing two lessons here: First, appeals judges are very, very interested in the Fifth Amendment and willing to split legal hairs over it. And second, if you’re ever in Anderson’s position, ask for a lawyer, shut up and stay shut up. He got a writ, but it took almost 11 years.
Edited to add a more educated take from a federal public defender at the Ninth Circuit blog.
If there are any actual lawyers reading this, please consider bopping over to the California Blog of Appeal and helping a nice lawyer who’s helped me in the past. The blogger is Greg May, an appellate lawyer up in Ventura who gave me quotes for a recentish article (not yet published, unless I missed something). He’s giving a presentation about how lawyers use legal blogs in their research and would like some data.
I, of course, am not a lawyer and therefore rely more heavily on Web search results than I might if I had free access to services like Westlaw. I also use legal blogs to keep up with what people in specific practice areas are doing. I suspect that younger lawyers do the same, but that’s just a guess.
Via SCOTUSBlog, and in turn via Workplace Prof Blog, I have learned that The Golden Gate Restaurant Association has asked the U.S. Supreme Court to stop the City of San Francisco from implementing a universal health care law. Whew — that was a loaded sentence. More is yet to come, my friends. To explain succinctly: The restaurant association is trying to stop the San Francisco city and county government from making health care universal for all workers in the city. The proposed system would force employers to either provide health care to their employees or pay into a fund that covers the uninsured. This is what they call an employer mandate, backed up by a public insurance fund. The restaurant association doesn’t want to give health coverage to a bunch of part-timers with high turnover, so it sued. The trial court issued an injunction (which stops the law from taking effect), but the Ninth Circuit lifted it.
Notice I didn’t say what the legal issue is here. That’s because it needs its own separate paragraph. The restaurant association argued that the city’s health care plan is preempted by the federal Employee Retirement Income Security Act, or ERISA to its friends. In short, it regulates employee benefit plans. According to the Ninth Circuit’s opinion, ERISA’s text outright says that it trumps state laws as far as they relate to benefits plans, which is why the experts were surprised by the court’s decision. In fact, when I looked into it, I found out that other state employer mandates have been struck down under ERISA, and still others (maybe just Massachusetts) are only functioning because nobody’s annoyed enough to sue.
I’m interested both in the legal theory and the effect here. Almost everyone agrees that the health care system is broken in the United States. It’s a personal issue, a business issue, a public health issue and to some extent an immigration issue. Some kind of local mandate seems to be the politically palatable solution thus far — but even people who want the mandates seem to think they’re illegal under ERISA. Meanwhile, ERISA itself isn’t really intended to relate to state mandates, according to the Ninth; the point of the preemption is to ensure that everyone in the United States gets the same regulatory system. In the language of computing, ERISA preemption is a bug, not a feature. (And mandates are kind of a hack.) So we have an unintended consequence of a well-intentioned law that nonetheless ties judges’ hands.
That’s why it’s probably for the best that this case may be going to SCOTUS. It’s going to take decisive national action to get around or tweak ERISA, and I think we know Congress won’t do much across party lines this year. Quoth the Golden Gate Restaurant Association:
This matter lies at the center of a national debate over universal healthcare: may various local governments require employers to pay different minimum amounts toward employee health benefits, or is that authority reserved to the federal government? More than half the states have considered this type of legislation in the past three years, setting up an inevitable collision with more than three decades of uniform benefit regulation under ERISA.
Just dropping by quickly to note that the California Supreme Court will be broadcasting oral arguments on same-sex marriage. That’s March 4 on the California Channel, which is somewhere on basic cable for most of us; follow the link for help finding it in your area. The cases are In re Marriage Cases, which grew out of the brief availability of same-sex marriage at San Francisco’s City Hall back in 2004. This is the least frivolous way I will ever use my DVR. I look forward to it.
I don’t follow internet decisions closely, but only because I don’t have endless time. California’s Sixth District Court of Appeal handed a decision down yesterday that caught my eye anyway, thanks to Professor Martin at the California Appellate Report. In Krinsky v. Doe 6, the appeals court said internet message board users have the right to anonymity under the First Amendment, unless the person suing can show that there’s a viable cause of action — a solid case.
Let me see if I can keep this short yet factual. There was a discussion about a financial company on a Yahoo! message board. As many internet conversations do, it devolved into personal attacks against the company’s officers. One of them, Krinsky, sued for defamation. She subpoenaed Yahoo!, but one of the people involved, Doe 6, wanted the subpoena quashed under the First Amendment. The trial court said no, but the appeals court reversed. The judges said internet users have a First Amendment privacy right that they’re only willing to overrule if the plaintiff can make a case that the speech is defamation (which of course is not constitutionally protected). In this case, the court said, she did not make her case, mostly because Doe 6 was such a jerk that nobody could reasonably think he was telling the truth:
A reasonable reader of this diatribe would not comprehend the harsh language and belligerent tone as anything more than an irrational, vituperative expression of contempt for the three officers of SFBC and their supporters. It appears to label each of the executives in the order named (with “boobs” referring to plaintiff); but even if each epithet refers to all three, this juvenile name-calling cannot reasonably be read as stating actual facts.
True dat.
Like all intermediate appellate court decisions, you can’t take this one to the bank just yet, which may be why I didn’t see much about it in the media. It doesn’t apply widely even within California, and SCOCAL could overrule it. But additions to the caselaw in Internet privacy are generally welcome.
By the way, Doe 6 posted to the message board under the name Senor Pinche Wey, which is Mexican Spanish for something you probably wouldn’t say to your abuelita.
I just saw this article in the Wall Street Journal on First Amendment challenges to how lawyers are allowed to advertise. In short, lawyers hold themselves to higher standards than most other professions when it comes to ads. I’m sure this was rooted in notions of propriety that go back a long way, possibly even to English legal culture. But the culture of the law changes very slowly. Thus, we have state bar rules from around the country that forbid advertisements that use threatening images, background sounds, suspense, and in South Carolina, “puffery or hucksterism.” According to the article, Florida is among the strictest:
But the Florida bar isn’t buckling. It filed a complaint in 2004 against Fort Lauderdale personal-injury attorney Marc Andrew Chandler over ads that featured a pit bull wearing a spiked collar. The Florida Supreme Court sided with the bar in 2005, ruling that pit bulls conjure up images of viciousness. “Were we to approve,” the court wrote, “images of sharks, wolves, crocodiles, and piranhas could follow.”
Oh no! Advertisements with piranhas!
One thing the article didn’t point out, which piqued my interest, is that all the lawyers involved in disputes over advertisements are personal injury lawyers. The plaintiffs’ bar is far from the only group of lawyers that regularly takes out ads, as those of us who work in the legal media know. I was reminded in particular of an advertisement by Bingham McCutchen that got attention by putting a baby in a bear’s arms. I’m not criticizing Bingham for this (in fact, I commend their advertising agency’s cleverness), but I wonder if they were allowed to run it in Florida.
Don’t get me wrong; I really like it that lawyers feel a higher sense of personal responsibility than other professions. That sense of responsibility gives us pro bono work, free lawyer referral services and the really excellent California self-help center for consumers. And I’m not a big fan of bad lawyers, or even worse, people who are not lawyers but take poor people’s money by pretending to be lawyers. But it’s a bit old-fashioned and silly to spend energy cracking down on semi-sensationalistic ads, especially when I could turn on my TV and see much worse. Or as a lawyer who’s suing the Florida bar said: “The established legal bar pines for the Eisenhower era.”
Here in California, we’re voting on a few Indian gaming compacts today. (Among other things.) This got me into a discussion with a writer colleague who once worked as a reporter in Palm Springs, which of course put her near the Morongo casino. She questioned whether federal labor-rights laws apply to Indian tribes; her readers frequently complained about this. So I went and looked it up.
Verdict: Unclear! A few federal employee civil rights laws have clauses that explicitly exclude Indian tribes. Everything else seems to depend on which of the federal circuits you happen to work in. A couple of circuits have ruled in favor of employees, and a couple of others have ruled in favor of casinos. Of great interest here, of course, is the National Labor Relations Board. Appeals from that body go to the DC Circuit, rather than the home circuit, so we also care what the DC Circuit thinks. And that fine body decided, almost a year ago, that the NLRA does apply to casinos (and other tribal businesses). Seven months later, the workers at the Foxwoods casino in Connecticut — which I am familiar with mainly through advertisements at Red Sox games — voted to unionize under the authority of that decision. The tribe is fighting it, so that’s pending. Given the amount of money at stake in Indian gaming in California, that’ll be one to watch here as well.
Indian law makes me wish that I were a lawyer, by the way. I am particularly interested in weird little loopholes and exceptions that create big changes in people’s lives. And clearly, tribal sovereignty is full of such things.
Less talk, more rock, guys. Go vote.
