SBM Blog

Report From The ABA Tech Show 2012

From SBM's practice management advisor JoAnn Hathaway, on the scene. "800 attendees are maneuvering their way through approximately 50 plus sessions of learning opportunities at TECHSHOW 2012, all while meeting with over 100 vendors in TECHSHOW's exhibitor hall.  This, coupled with the numerous opportunities to network, dine and listen to award recipients sharing their success stories, already make this year's TECHSHOW a success.  Of note to SBM members is that with the use of promo code RMM1101303, lawyers can join the ABA and a section of their choice until August 31, 2012.  This is six months of free membership.  Enrollment for this benefit must occur on or before May 31, 2012."

How To Find A Good Seat In Coach

From product discounts to tips on how to use the latest technology in legal practice, the State Bar is dedicated to finding ways to make Michigan lawyers' lives easier, to help them serve their clients and the public better. Here's a little help, from the New York Times -- on strategies to getting a good seat on your next flight, short of flying first class. My favorite?  MySeatFinder.

You're welcome.

Read This If You Remember Who Bill Ruckelshaus Is

William Ruckelshaus, who famously resigned his position as deputy Attorney General rather than carry out a Presidential order to fire Watergate special prosecutor Archibald Cox, has spoken for the first time in almost forty years about his role in the "Saturday Night Massacre." His speech in Seattle, filled with interesting tidbits for Watergate aficionados (including that Ruckelshaus was in Grand Rapids in the week leading up to the Saturday Night Massacre, includes this observation about the ethics of his situation:

I really did not believe the decision to resign was a difficult one.  I don’t believe you resign from a presidential appointment without considerable cause.  You owe a duty of loyalty to the President that transcends most other duties, save the paramount one owed to the American people themselves.  Certainly you do not resign because you do not get your way or the President makes a decision contrary to what you might have done had you been elected president.  That, of course, is precisely the point.  He was elected and you were not.  By the terms of your appointment, you serve at his pleasure.

However, when you accept a presidential appointment you must remind yourself there are lines over which you will not step — lines impossible to define in advance but nevertheless always present.  The line for me was considerably behind where I would have been standing had I fired Cox.  In this case, the line was bright and the decision was simple.

HT: Legal Ethics Forum

Practice Management Tip of the Week - Scan Business Cards with Your Cell Phone

There are several applications available that will scan and read business cards using your cell phone. CamCard is one example that has applications for both Android and iPhone smart phones. This app allows the user to scan, save, organize and share business cards. The CamCard website describes the app: “CamCard is a professional business card reader and business card scanner. Simply take a picture of a business card, and CamCard recognizes the business card and saves contact information in Card Holder or your Address Book.” A quick search of iTunes or the Android Market will let you shop for all of the apps that scan from your phone. Shop around to see which one is for you.

 Every week, the Practice Management Resource Center posts a new Tip of the Week. (Here are the archived tips.) To reach a practice management advisor, call the PMRC Helpline at (800) 341-9715 or e-mail questions to [email protected].

 

"Life's Short. Get A Divorce."

Chicago attorney Corri Fetman has been in the legal news for several years now for her provocative marketing theme "Life is Short. Get a divorce." In "Racy Lawyer Advertisements Create a Spiralling Strip-Poker Race to the Bottom" at Slaw, law Mona Zabafian traces the trail of tastelessness down the slippery slope:

Fetman’s advertisements cannot be viewed in isolation as they have implications for family law firms and other areas of law in general. In the area of family law, playing on sexuality and relationships could encourage a downwards spiralling strip-poker-style race to the bottom, in which models wear less and less clothes with each advertisement. As Fetman herself said “[w]e’re not going to stop. In fact, we’re getting ready to do more racy photos.” The issue boils down to determining the vision of society lawyers wish to endorse. The broader impact on legal advertising is that Fetman is creating a society in which unethical behaviour is seen as salvageable by simple legal mechanisms. Every advertisement asserts a greater degree of aggressiveness, provocativeness, and novelty than its predecessors. This new chain of advertisements could lead to situations where criminal defence lawyers use advertisements such as “Life is short. Rob a bank. We’re here to help.” Similarly, another advertisement could read “Is your wife black and blue? Come see us today!” Thus, Fetman’s undignified advertising sends a message about the general legal profession. Taken just a step or two further, her advertisements could lead to lawyers endorsing criminal and unethical behaviour in the name of profits. Society at large would not tolerate this kind of behaviour.

Margaret Van Houten Appointed To Wayne Circuit Bench

Margaret Van Houten was appointed Tuesday to the Wayne County Circuit Court. Prior to her appointment Ms. Van Houten was in private practice in Dearborn Heights, where she also served on the city council. She fills the vacancy created by the election of Mary Beth Kelly to the Michigan Supreme Court. The term expires Jan. 1, 2013.

Decision Upholding Andrew Shirvell's Firing: "Conduct Unbecoming A State Employee" vs. Free Speech

The Civil Service decision issued Tuesday upholding the firing of former assistant attorney general Andrew Shirvell includes this observation on the higher standard of conduct applying to attorneys:

The ultimate question before the hearing officer is whether the conduct of the grievant constituted conduct unbecoming a state employee and, if so, whether discharge was the appropriate penalty.  The hearing officer would not countenance the pursuit and harassment of any member of a group protected by Civil Service rules on the scale demonstrated here as being worthy of any state employee.  The grievant, however, is an attorney and as such is held to a higher standard of conduct.  The Lawyers Oath of the State Bar of Michigan, in its final paragraph, reads as follows:

I will in all other respects conduct myself personally and professionally in conformity with the high standards of conduct imposed upon members of the bar as conditions for the privilege to practice law in this State.

The hearing officer does not pass judgment on the conduct of the grievant as an attorney, but cites the portion of the oath set forth above as exemplary of the fact that all attorneys are aware, however and wherever they are employed, that they are to conform their behavior to a standard higher than that set for their non-attorney fellow employees. 

The Detroit Free Press says that Shirvell's attorney, Michael Thomas, called the decision "one more example of the state trampling on Shirvell’s First Amendment rights." He said that the decision will be appealed.

From the decision:

The facts as set forth in the findings of fact portion of this decision are but a sparse exemplary portion of the conduct engaged in by the grievant, whether it was in the email to former State Representative Drolet, in the “blog” itself, or in his attempts at confrontation with Armstrong and his acquaintances.  The speech engaged in by the grievant is of the most base, hateful sort.  When one reviews the performance ratings given to the grievant and reviews the opinions in this record of his supervisors as to his abilities as an Assistant Attorney General, it is truly disheartening to see that ability utilized to engage in the reprehensible speech, lies and half-truths that are set forth in the grievant’s “blog” postings.  Even the Washtenaw County prosecutor’s office, in its decision not to prosecute, found the speech “offensive,” “mean spirited,” “childish,” and “disingenuous.”  (Joint Exhibit #3, Tab 30)  This speech, generating the negative publicity that it did for the grievant’s employer, is conduct unbecoming any state employee, let alone a state employee working as an Assistant Attorney General.

The decision says that the Attorney General's office received over 22,000 phone calls about Shirvell's conduct.

"Sleeper Issue" of Health Care Challenge Up Today

If Monday's oral argument on jurisdictional issues was the appetizer and yesterday's argument on the individual mandate was the main course, today's issue -- whether the health care law unconstitutionally coerces states into accepting an undue expansion of Medicaid coverage dsigned to fit federal requirements-- is the dessert, and a very rich one, at that. The National Law Journal (sub. req.) says it's a "sleeper issue":

The Court's decision to take up the Medicaid issue was an "unsettling surprise," said Doug Kendall, president of the Constitutional Accountability Center, which filed a brief in favor of the Medicaid expansion for a group of legislators from all 50 states. If the Court accepts Clement's invitation to throw out the Medicaid part of the law, the entire statute could be threatened, Kendall said, making the March 28 argument possibly the one that "matters the most."

Acquittals in Hutaree Militia Case

Judge Victoria Roberts has granted a defense motion to acquit the Hutaree militia members on seven charges, including seditious conspiracy and conspiracy to use weapons of mass destruction. Trial will continue against Hutaree leader David Stone Sr. and his son on weapons-related charge. From the opinion (PDF):

[W]hile the Government presented evidence of vile and often hateful speech, and may have even shown that certain Defendants conspired to commit some crime — perhaps to murder local law enforcement — offensive speech and a conspiracy to do something other than forcibly resist a positive show of authority by the Federal Government is not enough to sustain a charge of seditious conspiracy. A conspiracy to murder law enforcement is a far cry from a conspiracy to forcibly oppose the authority of the Government of the United States.

As explained more fully in Subsection 3 below, the evidence is not sufficient for a rational factfinder to find that Defendants came to a concrete agreement to forcibly oppose the authority of the Government of the United States as charged in the Indictment; that would be an agreement to retreat to rally points after drawing federal law enforcement from across the country to Michigan to engage in a large-scale uprising or “war” with these agents. 

Eugene Volokh notes that that the Double Jeopardy Clause has been read as precluding the government from appealing grants of a motion for judgment of acquittal

Report: Not So Fast, Individual Mandate's Fate Still Unclear

ScotusBlog's Lyle Denniston's reading of the tea leaves from today's argument lines up with the majority of pre-argument predictions -- it all depends on Justice Kennedy:

If the vote had been taken after Solicitor General Donald B. Verrilli, Jr., stepped back from the lectern after the first 56 minutes, and the audience stood up for a mid-argument stretch, the chances were that the most significant feature of the Affordable Care Act would have perished in Kennedy’s concern that it just might alter the fundamental relationship between the American people and their government.   But after two arguments by lawyers for the challengers — forceful and creative though they were — at least doubt had set in. and expecting the demise of the mandate seemed decidedly premature.

So the two brilliant lawyers arguing today wound up helping the opposing side?  Decide for yourself. Here's the audio.  Here's the transcript.