Restoring Public Confidence in the Judicial System

Posted on Categories Judges & Judicial Process, Legal Ethics, Public, Wisconsin Law & Legal System, Wisconsin Supreme Court4 Comments on Restoring Public Confidence in the Judicial System

“[A] lawyer should further the public’s understanding of and confidence in the rule of law and the justice system because legal institutions in a constitutional democracy depend on popular participation and support to maintain their authority.”  Taken from paragraph six of the Preamble[1] to the Model Rules of Professional Conduct, this quote sets out our duty to educate the public.

In April 2009, then Wisconsin State Bar President Diane Diel discussed this very quote in a short article published in Wisconsin Lawyer magazine.[2]  The article focused on the negative effect judicial elections have on the public’s confidence in the judicial system — discussing current Justice Michael Gableman’s allegedly unethical ad that aired during his campaign against Justice Louis Butler and his subsequent disciplinary hearing — and the ever-controversial topic of judicial recusals, focusing on whether judges should be required to recuse themselves from deciding cases in which they received campaign contributions from an interested party.

Diel’s article seems to have foreshadowed the current turbulence in the Wisconsin Supreme Court, which has led to plunging confidence in the judicial system.   Continue reading “Restoring Public Confidence in the Judicial System”

Why Were the Lawyers Wearing Blinders?

Posted on Categories Criminal Law & Process, Legal Ethics, Public1 Comment on Why Were the Lawyers Wearing Blinders?

In the September 2009 issue of the ABA Journal, the author of the article “Town Without Pity,” Wendy Davis, asked, “Where Were the Lawyers?”  Judge Mark Ciavarella had been giving jail sentences to juveniles that were shocking to the conscience for minor offenses.  All the lawyers in the court system, including the district attorney, knew what was happening, but very few challenged Ciavarella. Barry Dyller, a local Wilkes-Barre attorney quoted in the article, stated that “only the absolute strongest lawyers, who didn’t mind facing his wrath” ever argued with the judge’s decisions. The other defense attorneys, the article notes, appeared resigned to these rulings. Additionally, if there were any lawyers who suspected the judge was taking bribes, there is no record of any stepping forward.

In August 2011, Ciavarella was sentenced to 28 years in federal prison on racketeering charges, among others, in a case that was called “Kids For Cash.”  Ciavarella, along with another Luzerne County judge, accepted bribes totaling over $2.6 million from the builder of juvenile detention centers in exchange for sending thousands of children to newly built facilities in order to ensure the facilities would be adequately utilized.  Continue reading “Why Were the Lawyers Wearing Blinders?”

Signing a Recall Petition Does Not Require Judicial Recusal

Posted on Categories Constitutional Law, Election Law, First Amendment, Judges & Judicial Process, Legal Ethics, Political Processes & Rhetoric, Public, Wisconsin Court System, Wisconsin Law & Legal System14 Comments on Signing a Recall Petition Does Not Require Judicial Recusal

We live in interesting times.  A segment of the general public is quick to forgive the killing of two young men in Slinger, Wisconsin and Sanford, Florida as the unavoidable consequence of the exercise of a constitutional right.  Yet at the same time, state court judges who have exercised their constitutional right of self-governance by signing a recall petition are being publicly called out by both special interest groups and the media, as if by signing the petition they have transgressed some moral boundary.  These are interesting times, indeed.

The signing of a recall petition is a right guaranteed by Article XIII of the Wisconsin Constitution.  It is a procedure whereby any voter can request that the continuation in office of an elected official in the State of Wisconsin should be put to the vote of the full electorate.  If a sufficient number of voters sign the petition, a recall election is held.  A recall can only succeed in removing the officeholder if both a sufficient number of recall signatures are filed and a majority of the electorate votes in favor of removal.  The Recall is democratic self-governance in its purest form, and along with the Initiative and the Referendum it is one of the three structural vehicles by which Progressive Era voters sought to bypass the influence that special interests hold on elected bodies.

The Wisconsin GOP has filed an official complaint against Dane County Circuit Court Judge David Flanagan with the Judicial Commission on the grounds that the judge should have recused himself in a case challenging the constitutionality of the Wisconsin Voter ID law.  Must judges who have signed a recall petition subsequently recuse themselves from sitting on any case in which the Governor, or Republican legislators, or the Republican Party of Wisconsin asserts that the signing of the petition evidences a bias against them?  The answer is “no.”  There is no explicit provision that prohibits judges from signing a recall petition or that mandates that they recuse themselves from any politically charged case if they have done so. Continue reading “Signing a Recall Petition Does Not Require Judicial Recusal”

3,000 Billable Hour Requirement – Believable?

Posted on Categories Legal Ethics, Legal Practice, Public2 Comments on 3,000 Billable Hour Requirement – Believable?

Did everyone happen to see this article in the ABA Journal? If you missed it, an attorney who had been fired is now suing his former law firm because the firm’s alleged requirement that attorneys bill 3,000 hours per year encouraged fraud.

There are so many great conversations/debates that could be started by this lawsuit:

– the merits of the billable hour system

– the long hours often worked by attorneys (i.e., work-life balance)

– the controversy over billing time in minimum increments

But before we get to that, I have to ask whether there is any truth to this lawsuit and the alleged 3,000-hour requirement in the first place. Continue reading “3,000 Billable Hour Requirement – Believable?”

Tackling the Unauthorized Practice of Law in Wisconsin Today

Posted on Categories Immigration Law, Legal Ethics, Legal Practice, Pro Bono, Public, Wisconsin Law & Legal System3 Comments on Tackling the Unauthorized Practice of Law in Wisconsin Today

Professor Michael McChrystal once pointed out that in the State of Wisconsin, the penalty for working as a beautician without a license is not much different from the penalty for practicing law without a license. Continue reading “Tackling the Unauthorized Practice of Law in Wisconsin Today”

“We Can Be Better Than That”

Posted on Categories Legal Education, Legal Ethics, Legal Practice, Public2 Comments on “We Can Be Better Than That”

Law school is hard.  Being a lawyer is harder.  But that difficulties and responsibilities come with entering the legal profession is not something to bemoan or a cause to run away.  Nor should the difficulty of legal education and practice be sought purely as a means to financial rewards, especially since these rewards are becoming all the more elusive in today’s world.  It is an opportunity for intellectual development and experience, all lifetime benefits to embrace.

The difficulty starts from the moment we study for the LSAT.  In our first years, we are tasked with reading and processing and cogently articulating concepts gleaned (or pulled like teeth) from ancient cases about barrels falling out of windows, churches burning down, and smoke balls that supposedly cured every minor ailment under the sun.  Come second year, we may find ourselves toiling in the law review cite-check room as staffers or coming out of our shells as we practice oral argument for Appellate Writing & Advocacy, along with even more copious amounts of reading, this time on topics like criminal process, agency and corporate law, taxation, postmortem property transfers, and intellectual property.  Then you will get the taste of working as an attorney, whether in a summer associate position at a large firm or clerking for a mid-size or smaller firm, in which your legal studies for the first time become “real.”  When third year arrives, you will have the chance to take workshops on pretrial practice and contract drafting among others, and (you guessed it) more reading.  In sum, as Justice Stephen Breyer was right to tell his children, “[I]f you do your homework really well, . . . you can do homework the rest of your life!”

Once you begin practicing in the real world, you will have even more difficult homework, and the stakes are even higher.  Continue reading ““We Can Be Better Than That””

Making the Right Choices

Posted on Categories Legal Ethics, Legal Practice1 Comment on Making the Right Choices

It’s been a very long time since I’ve attended a CLE presentation and found myself absolutely riveted by the speaker and the content of his or her presentation.  That happened on May 5 at the State Bar of Wisconsin’s Litigation, Dispute Resolution, and Appellate Practice Institute.  The speaker was Egil “Bud” Krogh who served as White House counsel under President Richard Nixon from 1969 to 1973.

Sure his story is remarkable.  He is one of the “White House Plumbers” who created and authorized one of the most infamous covert operations ever.  His actions resulted in a criminal conviction, a six-month prison sentence, and later disbarment from the practice of law.   This is where his story becomes important to me.

His time in prison and subsequent reflections on his years in the White House allows him to share a perspective about the importance of good and sound decision-making with a sense of integrity.  Notwithstanding his actions in the early 1970’s, he is now able to lead by example and talk about how the pressure of our work, our relationships with co-workers, our need to address client demands, and our internal pressure to succeed can interfere with our need to maintain both personal and professional integrity.

He talks about the legal profession with a level of respect and, candidly, enthusiasm that is infectious and truly inspirational.  He has lived through some tough life experiences that are certainly unique to him.  Nonetheless, his message resonates with all of us.  Thank you, Mr. Krogh, for sharing with us your recipe for how to make the right choices.


Lawyers: Play Nice

Posted on Categories Federal Civil Litigation, Judges & Judicial Process, Legal Ethics, Legal Practice3 Comments on Lawyers: Play Nice

As you may have already seen, the blawgs have been discussing this recent order by United States District Court Judge Eric Melgren. Judge Melgren issued the order granting a motion for a continuance of a trial scheduled for June 14, 2011, in Kansas, after the defendant, a Dallas attorney,  sought the continuance on the grounds that his first-born son was due to be born on July 3, 2011. The judge expresses his dismay at the plaintiff’s attorneys’ decision to oppose the motion: Continue reading “Lawyers: Play Nice”

Why Twitter Shouldn’t Scare Lawyers

Posted on Categories Legal Education, Legal Ethics, Legal Practice, Marquette Law School, Uncategorized, Wisconsin Law & Legal System3 Comments on Why Twitter Shouldn’t Scare Lawyers
Black-necked stilt, AKA "lawyer bird"*

It’s fair to say Twitter has taken the social media world by storm. In less than five years, Twitter has become one of the go-to media outlets for bloggers, newspapers, companies, and the everyday Internet user. I won’t go into a long discourse on what Twitter is, what it can do, or how it works. Other people have done a much better job at describing it than I could have.  (Consider checking out’s “What is Twitter” article or viewing Common Craft’s “Twitter in Plain English” video. Also, Twitter has its own about page.)

I’ve discovered through casual conversations (with law school classmates, lawyers, businesspeople, and family and friends) that there are three basic reactions to Twitter. A) “I don’t get it. What’s the point?”, B) “That would never work for me,” or C) “Awesome. Sign me up.” The links in the previous paragraph address the first reaction, and the third reaction needs no additional encouragement, so my message today is directed at the second: don’t be afraid of Twitter. As law students, lawyers, or professors, Twitter offers something for each of us.

The basic benefit of Twitter as a lawyer (either as a solo practitioner or a member of a law firm) is in providing information to current or potential clients and to other lawyers. But it’s about more than just “tweet”ing firm news releases or updates. Indeed, as an individual lawyer, any specific updates you could provide would likely breach attorney-client confidentiality or violate state ethics codes. Twitter is, instead, a useful tool in keeping your followers up-to-date about legal news. That news could be about important decisions in courts around the country, news about legislation, or a story about how the law operates in practice. Continue reading “Why Twitter Shouldn’t Scare Lawyers”

More on An Ethic of Professional Satisfaction

Posted on Categories Legal Ethics, Legal Practice1 Comment on More on An Ethic of Professional Satisfaction

I rather liked Rebecca Blemberg’s post on lawyer happiness and virtue ethics and would like to extend the discussion. I agree that one of the mistakes a lawyer can make is to follow the lure of a consequentialism that is divorced from her knowledge of herself and what that tells her about the way in which she should practice law.

We normally associate this with pursuit of the shimmering rewards of legal practice such as money or glory. Rebecca is right to suggest that these things, in and of themselves, will not make for a happy career. I know plenty of lawyers who love the practice while making tons of money and winning lots of cases, but their happiness as lawyers (and perhaps their success) has another source.

But it seems to me that one can become unhappy in the law by pursuing what might be seen as selfless objectives as well. Thus the picture of Al Pacino as Milton in The Devil’s Advocate. Continue reading “More on An Ethic of Professional Satisfaction”

Lawyers and Happiness (And a Little Bit of Virtue Ethics)

Posted on Categories Legal Education, Legal Ethics, Legal Practice2 Comments on Lawyers and Happiness (And a Little Bit of Virtue Ethics)

Most of the lawyers I know are happy to be lawyers.  They take pride in their work, and they feel good about their role in the justice system.  Life as a lawyer isn’t easy, but it’s rewarding and fulfilling.

But it seems like there’s a perception that has intensified in the past decade or so that lawyers are miserable—that we feel alienated from the profession and that justice rarely plays a role in our tedious, all-consuming work.  There’s a stereotype of a “soulless” lawyer who works to pay off debt or make more money but who feels no satisfaction with the job.    I’m not sure how true this stereotype is (see above), but it’s prevalent and widely discussed.  (Raise the Bar:  Real World Solutions for a Troubled Profession is an interesting book published by the ABA that contains multiple essays exploring the “miserable lawyer” question.)  I want my law students to become lawyers who are happy in their chosen profession, and this blog seems as good a place as any to consider happiness and lawyering. Continue reading “Lawyers and Happiness (And a Little Bit of Virtue Ethics)”

Early African-American Lawyer Inducted into College Football Hall of Fame

Posted on Categories Legal Ethics, Sports & Law1 Comment on Early African-American Lawyer Inducted into College Football Hall of Fame

Amid the coverage that focused on the induction of former Notre Dame star Tim Brown to the College Football Hall of Fame, the fact that the list of 24 former players and coaches inducted included former Harvard center William H. Lewis has been almost completely overlooked.

Admittedly, Lewis is not exactly a household name in 2010.  His years on the Harvard football team were 1891 and 1892, and he was a lineman.   However, the Virginia-born Lewis compiled an impressive list of accomplishments in his career, both as a football player and as a lawyer, which deserve to be better known.  For example:

(a) Lewis was the first African-American to play American college football.  This happened when he transferred to Amherst College from the all black Virginia Normal and Collegiate Institute (now Virginia State College) at the urging of his mentor, John Mercer Langston, the institution’s president.  (Langston was also one of the first half dozen black lawyers in American history and was the first dean of the Howard Law School.)  Lewis, who had never before played the game, was a member of the Amherst football team for three years.  He not only starred at football, but he was also the commencement speaker when he graduated in 1892.

(b) After graduating from Amherst, Lewis enrolled  at the Harvard Law School, from which he graduated in 1895.  During his first two years of law school, he also played for the Harvard varsity football team, winning All-American honors each year.  He was named captain of the Harvard team late in the 1893 season, making him the first black All-American and the first black to captain a college football team.  As a law student, he was also instrumental in convincing the Massachusetts legislature to enact amendments to its civil rights laws to provide additional protections to African-Americans.

(c) In 1900, legendary football coach Walter Camp named Lewis as the best center in the history of college football, crediting the quick-footed 175 pounder with revolutionizing his position.

(d) From 1895 to 1906, Lewis helped coach the Harvard eleven, leading the team to a combined record of 114-15-5.  Lewis was widely viewed as an innovative coach, and in 1896, he published one of the first guides to American football, entitled “A Primer of College Football.”  The work was serialized in Harper’s Weekly, one of the nation’s best known magazines in that era, and published by the Harper & Brothers publishing house.  In 1905, when a serious effort to ban football from college campuses emerged, Lewis was an eloquent defender of the sport and its role in higher education.

(e) While serving as a coach at Harvard, Lewis, a Republican, practiced law in the Boston area.  He was also elected to the Cambridge, Massachusetts city council in 1899, and in 1902, he was appointed to fill a vacancy in the Massachusetts state legislature. He was, however, defeated when he ran for re-election in 1903.

(f) In 1903, following his electoral defeat, President Theodore Roosevelt, also a Harvard graduate, appointed Lewis Assistant United States Attorney for the eastern district of Massachusetts.  Lewis was the first African-American lawyer to hold such a position.

(g) In 1910, President William Howard Taft appointed Lewis to the position of Assistant United States Attorney General, the highest position in the United States government that had ever been offered to an African-American.  Lewis was confirmed by the United States Senate over Southern Democratic opposition in 1911, and became a highly visible figure in the nation’s capital for the remainder of the Taft presidency.

(h)  In 1911, Lewis became the first African-American lawyer elected to membership in the American Bar Association.  Unfortunately, his election touched off an effort to expel him from the organization on the part of members who claimed that Lewis had misled the admissions committee by failing to list his race on his application.  Although Lewis was ultimately permitted to remain a member, in part because of the intervention of United States Attorney General Wickersham who wrote personal letters to each of the 4,700 ABA members, the ABA adopted a new rule in 1912 barring other black lawyers from joining the association.  (This rule was not repealed until the 1940’s.)

(i) Lewis left government service in 1913, following the election of Democratic president Woodrow Wilson.  He returned to Massachusetts where he successfully practiced law until his death in 1949.

(j) Historians of early football appear to unanimously agree that Lewis’ election to the College Football Hall of Fame in 2009 was woefully overdue.  It is also time to secure his place in the pantheon of great African-American lawyers.

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