Recent Blog Posts
What the Hell is Wrong With the Maricopa County Criminal Bar?
As Scott Greenfield reports, Judge Gary Donahoe in Arizona has held Deputy Adam Stoddard in "indirect civil" contempt for plundering defense counsel's file. From the court's ruling:
[T]his case is not about disobeying a court order. It is about protecting a defense attorney from misbehavior and harassment by another officer of the court. It is about protecting the sanctity of the attorney-client privilege. It is about enforcing the boundaries of the 4th Amendment. This Court is of the opinion that DO Stoddard's conduct in removing the document from counsel's file and copying the document was misbehavior that impacted the court's duty to protect attorneys from unreasonable conduct and thereby lessened the dignity and authority of the court. For proof of that point, one need look no further than the media reports about this event; those reports have cast everyone involved in a negative light. The seizure violated the 4thAmendment to the Constitution of the United States.
Sixteen Rules for Lawyers Who (Think They) Want to Market Online
1. If you're looking for The Promised Land, you're in the wrong place. This is the Wild West, Pilgrim.
2. There are clients online-sophisticated, moneyed clients-but they don't find lawyers the way you think they do. That is, they don't find lawyers the way the marketers want you to think they do. Clients-sophisticated clients, clients with money-who use the internet to find lawyers don't google "Houston criminal lawyer" and pick the first lawyer they see. Clients get a few names from one place or another and then google each one. Google your name: what do you see? Yeah, that's what your potential clients see too.
3. As a result, online (as in the real world) your reputation is everything. In the beginning, you might think you can create your own reputation, regardless of the truth. Jason Sughrue thought that too (go ahead, google it; I'll wait).
4. But this is not the Yellow Pages. Here, content is king. If you write good, interesting (not "I'm the best!") content, people will link to it and discuss it. If people link to it and discuss it, more people will link to it and discuss it and pretty soon it'll be part of your reputation.
Why Federal Court is No Place for Amateurs
If I were to pick one U.S. District Judge from the Southern District of Texas before whom one should not appear pro se, it would be David Hittner:
(I'm guessing Judge Hittner wants to get the parties before him to see if the plaintiff can control his temper better in person.)
The Motion to Recuse
From the State's Motion to Recuse Judge Helm from all family violence cases:
Due process requires recusal when "there is a serious risk of actual bias-based on objective and reasonable perceptions."
and
This bias should not be allowed to interfere with the State's due process rights in a manner that infects "the integrity of the trial process."
Problem: The State has no right to due process.
(Prosecutors and other statists go slackjawed when introduced to that principle, and see it as non-obvious, so I offer them a cite: Collier v. Poe, 732 S.W.2d 332, 343-44 (Tex. Crim. App. 1987)).
The Motion to Recuse
From the State's Motion to Recuse Judge Helm from all family violence cases:
Due process requires recusal when "there is a serious risk of actual bias-based on objective and reasonable perceptions."
and
This bias should not be allowed to interfere with the State's due process rights in a manner that infects "the integrity of the trial process."
Problem: The State has no right to due process.
(Prosecutors and other statists go slackjawed and glassyeyed when introduced to that principle, so I offer them a cite: Collier v. Poe, 732 S.W.2d 332, 343-44 (Tex. Crim. App. 1987)).
Prosecutors: Please Be More Careful
I, [name of prosecutor], the undersigned Assistant District Attroney, do hereby certify that a true and correct copy of the foregoing document was served on the attorney for the Defendant by certified mail on 11/10/09.[signed]
When you sign a certificate of service it is supposed to be true. If you file a document with a false certificate of service, that's a class A misdemeanor. (We've covered this before. Every year or so.)
When I sign a certificate of service, I make damn sure I've done what the certificate says I've done before filing the document, not only because it's right, but also because I'm not laboring under the delusive belief that your boss won't file charges against me.
Are you laboring under the delusive belief that she won't file charges against you?
Tyler Flood Postscript
Houston DWI lawyer Tyler Flood made an irresistible target of himself by running his mouth to the Houston Press, and I was unable to resist. Whoever writes blog posts under his name at his blog managed (inadvertently, I hope) to string Christmas lights around the target by comparing him to Andy Nolen and accusing me of bashing Tyler.
But, as I've noted before, Tyler is nothing like Andy Nolen.
Tyler Flood is a lawyer who fights for his clients, and gets them good results-10 of his last 20 DWI cases in Harris County, for example, were dismissed. That kind of fight makes up, in my book, for a lot of quirks and missteps.
Your Witness... No, Not Literally
After the shot across his bows, the Harris County DA fires a broadside at Judge Reagan Cartwright Helm, asking him to recuse himself from all cases involving accusations of domestic violence (Brian Rogers, Chronicle).
If Judge Helm recuses himself in response to these motions, or if Administrative Judge Olen Underwood recuses him, it might be the right result (friends of Judge Helm, with his best interests at heart, approached him several months ago to suggest that it was time for him to step down) but it will be for the wrong reason.
"It's something we've thought about of a long period of time - because we have to show a continuing course of conduct," [Family Violence Division Chief Prosecutor Jane] Waters said. "It reached a point that we didn't think it was fair to the victims of domestic violence."
In the case of State v. Defendant, the complainant (whom the State always calls the "victim," even when she is lying) is not a party. She is just a witness. And while judges should treat witnesses, like everyone else, with dignity and respect, a witness doesn't have any standing to ask that the judge be recused.Jane Waters's mindset-that a witness somehow has some stake in the litigation, some interest to be protected with a motion to recuse the judge-is not aberrant. First Assistant District Attorney Jim Leitner, who, because of his defense experience, knows better, refers to survivors of the victims of capital murder as "his witnesses."
Comment Bug?
If you tried to leave a comment in the last couple of days and it didn't post, please try again or leave a comment here. I had installed the Subscribe to Comments plugin, and I think it might have broken commenting.
In Favor of Lawyer Exceptionalism
Avvo's general counsel Josh King proposes this rule for the regulation of lawyer marketing:
Ultimately, in the absence of consumer harm – and, indeed, a crystal-clear fit within the law's prohibitions – states should never find that lawyer marketing practices violate their rules.
Josh's reasoning is Constitutional-I gather from his post that the First Amendment allows lawyers to do whatever they want as long as the State Bar can't prove that anyone has been hurt by it.
Given his job, I'm fairly confident that Josh knows a lot more about the First Amendment and lawyer advertising than I ever will. I'm not going to argue about the Constitutionality of lawyer marketing.
But I will say that, for the profession of lawyering, "No blood, no foul" is a really crappy rule.Here's Josh again:
Anyone coming to the world of lawyer marketing from a consumer product background would be stunned by the state bar rules governing lawyer advertising. The vestigial remains of the courtly days before lawyer advertising, these rules are typically a mix of picayune detail and over-expansive reach, an attempt at lawyer exceptionalism in our 21st century media landscape.