f/k/a archives . . . real opinions & real haiku

The Massachusetts Association of Court Appointed Attorneys (MACAA) issued

 a press release today (April 4, 2005), giving its initial reaction to the Report of the

Commission to Study the Provision of Counsel to Indigent Persons in Massachusetts

(see our post).  The statement praises the hard work of the Commissioners and spotlights

the recommendation that assigned counsel rates “reach the 75th percentile of national

rates by 2009.”

– read the full story here, which notes

MACAA’s carefully-worded offer of cooperation is more significant:

Light footsteps on the bridge–

necks of drifting swans

just visible through mist

 

 

 

 

 

 

 

 

 

Spring clouds–

the thoroughbreds

nod through their breath

 

 

 

 

 

 

 

Shoots of new grass

over a crumbling tombstone

the faded epitaph

 

 

 Rebecca Lilly, from Shadwell Hills 

(Birch Prees Press, 2002)

 

 

 

• 
  
  from dagosan:  

the river’s back

within its banks —

her look of disappointment

 

             [April 4, 2005]

 

 

 

potluck

  Yesterday, Professor Bainbridge chided the liberal elite who do not

agree with Steve and John Paul II that “truth” is decided in the salons

of the Vatican.  I predict that, during my lifetime and Steve’s, another Pope

will apologize to women and gays for the way the Church has treated them

over the millennia.

 

Remember my piece on podriahs from March 26?  A website called

Offshoring Digest liked it enough to place the entire posting within a black

frame on its “news ticker” page (haiku and all) — but, with only a hyperlink

 to the original post, and no mention of this weblog or the author.  I do grant

a non-commercial Creative Commons license.  Offshoring Digest appears to

be commercial. Copyright aside, am I right to be irked that there’s no attribution?

update: April 7, 2005:  Rebecca Arcega, editor/writer of Offshoring

Digest responded right away to my message asking for attribution,

and I’m pleased to have the podriah posting at their site.

 

Bonus: flood haiku from two Honored Guests:

 

 

dinner party
glancing up from grace
to the flood mark on the wall

 

                    Peggy Lyles  from To Hear the Rain

 

 

 

flooded plain —
fence tops show which water
belongs to whom
                                 — George Swede – The Heron’s Nest

In his book, The Pontiff in Winter : Triumph and Conflict in the Reign of

John Paul II  (2004),  John Cornwell writes that the papal role takes over the

personality of the individual who is elected to the “strangest, most impossible

and isolating and job on earth.”  [p.8]  He quotes Pope Paul VI:  “I was solitary

before, but now my solitariness becomes complete.  Hence the dizziness,

the vertigo.”

 

  Karol Wojtila, who became John Paul II, was also a poet of note,

especially in the years before his papacy. See The Place Within (1982).  In 

The Pontiff in Winter, Cornwell tells of an incident that may help us understand

the papal solitude of John Paul.  [p. 9]  It revolves around a theologian who sat

next to the Pope at a Vatican dinner:

“Holy Father, I love poetry and I’ve read all of your verse.  Have

you written much poetry since you became Pope? ” To which the

Pope said: “I’ve written no poetry since I became Pope.”   So the

theologian said: “Well, why is that, Holy Father?”  The Pope cut

him dead, turning to the person on the other side. 

 

Twenty minutes later, John Paul turned to the theologian and said

curtly: “No context!”  That was all.  . . . .

 

But [John Paul] had imparted a tragic truth perhaps.  The papal office

takes over the whole person.  That is what the job demands.  When he

said there was no “context” for poetry, he seemed to be acknowledging

that, in the depths of his soul, deep down where the poetry is written,

there lies a terrible, vertiginous solitude.

I’d like to think that Karol Wojtila made himself a promise after that awkward  

dinner encounter — to reconnect to the part of him that was the poet. The

small volume of published in 2003, The Poetry of Pope John Paul II,  may

have been the result of that pledge.

 

When I read The Pontiff in Winter last month, I was saddened at the thought 

of a poet too consumed with the obligations of office to have the time and the

“context” to write poetry.  John Paul II and I may have disagreed on many

issues, but I bet he would agree with me that the dignity he asserted for every

human being includes the right to maintain a connection between daily life and

the inner soul — so that each of us has the opportunity to nurture a relationship

with our personal Muse.  No job, not even one as important as the papacy,

should take away the poetry of life. 

 

    gentle rain

the new seabed

 smoothed over

 

 

 

 

 

 

  caterpillar

spins a mid-

   life crisis

 

 

 

 

 

 

 

 

   something dead,

something blooming

    spring breeze

 

 

 

 

 

    a blue ceiling

where the roof-beams

    have collapsed

 

 

–  from Presents of Mind, haiku and illustrations by Jim Kacian

(Katsura/Red Moon Press, 1996).

 

 

• 
  
  from dagosan:  

–  2 PM: No new haiku yet today: my block, neighborhood,

favorite park, and more are being flooded by the Mohawk River. 

 My favorite backyard tree (giant, ancient, gnarled) has fallen

into the River, crushing another favorite, too (a tiny evergreen that

always reminded me of a living scarecrow).  My senses are over-

whelmed.  I better “get” a couple haiku out of all this! —

 

-10 PM:

such thick roots —

the flooding river 

topples our giant oak

 

                            [April 3, 2005]

The New York Times has a thoughtful editorial on John Paul II 

today. (April 3, 2005) It’s final words:

“johnPaul2” “The pope always believed that human values, not

numbers, were what mattered. His embrace of each person’s innate

dignity was his touchstone, allowing him to shape our times

even as he railed against them.”

The special commission created to find solutions to the “indigent defense crisis”

in Massachusetts issued its Report yesterday (April 1, 2005).  The crisis was

sparked by statewide boycotts of assigned counsel, called “bar advocates,” over

the low rates paid by the State (background here)  (Statewide News Service,

“Commission recommends pay hike, decriminalization;” also see MassLive and 

Boston Globe, April 2, 2005)

• 
  
  
  

  Click for the 2-page Executive Summary or the 30-page Full Report of

  
  

  the Commission to Study the Provision of Counsel to Indigent Persons in

  
  

  Massachusetts (April, 2005)

The major conclusions and recommendations are (see MassLive):

  The commission called for increasing the pay of bar advocates to

$55 an hour for District Court cases, $70 an hour for Superior Court (felony)

cases, and $110 for murder cases. The increases would be phased in over three

years.

 

  The commission said the state relies too heavily on private lawyers, who

are handling 95 percent of the cases involving the indigent and almost all the district

court assignments.  The report recommends pilot projects in both Hampden and

Bristol counties that would include hiring 15 staff lawyers for each, who would handle

just District Court cases.

 

  The commission also recommends amending the statutes for “non-serious

misdemeanors” so they are punishable as civil infractions — saying the caseload could

be reduced by 15,000 cases a year.

• 
  
  
  

  The misdemeanors include: operation of a vehicle with a suspended license,

  
  

  registration or insurance; shoplifting; disorderly person or disturbing the peace;

  
  

  trespassing, and larceny by check. 

The Commission also wants to tighten procedures so that only the “truly needy” 

are provided assigned counsel. 

The Massachusetts Association of Court Appointed Attorneys says it won’t have a statement on

the Report for a few days.  Assigned counsel have been advised on their Listserve to make their

public responses to the pay proposals positive.   It seems clear that they are, however, quite unhappy

about the Commission’s recommendation to increase the number of public defenders and to move

toward a system that has a more appropriate balance between private and public defenders.  (As we

mentioned here, in February, the recent ABA “Gideon” study on indigent defense concluded that

defendants are more likely to receive consistently competent representation in a system with fulltime

public defenders, with statewide monitoring and funding, than from situations that rely heavily on

assigned counsel.) 

 

chestnuts flying–
all the chickens
squawking!

 

Kobayashi ISSA,

translated by David G. Lanoue

 

Anthony C. Bonavita, president of the Hampden County Bar Advocates, is quoted saying the new

pay rate will attract an adequate number of assigned counsel, and the pilot project in his county

(the epicenter of the group boycotts) is not needed.   I’ve been reading the Massachusetts Private

Counsel Listserve today, and there are grave warnings of disaster (cost and competency) if the ratio

is shifted to rely more on public defenders. 

 

The Commission Report was written in a manner meant not to offend anyone (it never uses

the word boycott or strike, and never mentions that hiring more public defenders is good

insurance against further coercive joint action by assigned counsel).  I believe it did a good

job of balancing interests — the valid interests of assigned counsel in a fair pay raise; the need

to improve the system to provide effective and efficient defense to the indigent; and the State’s

interest in paying only for the defense of the truly indigent. 

• 
  
  
  

  The actions and words of assigned counsel and their group leaders will go a long way

  
  

  toward showing whether they truly care more about the 6th Amendment Rights of their

  
  

  clients than about their own financial interests.

 

 

cathedral garden

cardinals in the birdbath

scatter drops of light

 

 

 

thunderclap

the frayed shoestring

snaps

 

 

 

 

an inchworm
humps and straightens–
purple dusk

 

 

Peggy Lyles,

“cathedral garden” & “night flight” from To Hear the Rain  

“an inchworm” from tiny words (Aug. 22, 2001)

 

 

 

 

from dagosan                                               

 

April rain —

today     

the river’s coming to me             

 

                                [April 2, 2005] 

 

The Washington Post says “Sales of computer software to create living wills are

surging amid the high-profile debate over Terri Schiavo.” (via Between Lawyers) 

The Post also notes:

“Living wills can be obtained cheaply or free from numerous sources

and generally don’t require an attorney.

 

“Debra Speyer, a Philadelphia attorney who does estate planning, said

software is fine, but she’s receiving nearly 10 times as many calls from

people who feel they need an adviser to more fully explain the document.”

  I’m pretty sure you don’t need a lawyer to create an effective living will, and

even more certain that family and friends will make better “advisors” on the important

health care choices to be made, and the value issues involved, than most strangers

who happen to be lawyers.   

 

Those who’d rather not pay for a Living Will or Health Care Directive can get free state-

specific documents online from Compassion & Choices.  I just downloaded a 15-page

document for New York State, which is well-written, and appears helpful and thorough.

You can also find general information on living wills and health care proxies from HALT.

• For a smile over lawyers and living wills from the New Yorker (1991) click here.
  
• 
  
  Click for a A Catholic Guide to End-of-Life Decisions.  If you’re one of the
  
  
  70% of Americans who would not want to continue on artificial sustenance
  
  
  once in a prolonged vegetative state, you may want to pause before naming
  
  
  a devout Catholic as your healthcare proxy. See also, this discussion from EWTN.

update (April 6, 2005):

HALT has put together a Living Wills Clearinghouse, now found

on its Home Page, saying “Due to the explosion of interest in living wills

as a result of the Terri Schivao crisis, HALT is offering free living wills for

consumers in every state. Filled out properly, a living will is a powerful tool

to ensure that you receive only the care you want if you become unable to

express your wishes.”   In addition to general information about Living Wills,

there is a brochure Durable Power of Attorney: Do You Need One?  [See our

prior post “you don’t have to pay for a living will.”]

 

 

I’m no good at dying
again they see…
cherry blossoms

my hut’s snow
not very good
at dying

 

Kobayashi Issa 

translated by David G. Lanoue   

– an April 1st dream by Prof. Yabut –

In a press release made available late this evening (April 1, 2005), the American Tort Lawyers Association announced the adoption of new ethical standards that should mean the end of the Standard Contingency Fee among its members.    The press release explained:

Jack Cliente, ATLA’s consumer rights ombudsman, said “We’re tired of being known as the “At-Least-a-Third Law Association.” A small but committed group of members were able to convince their colleagues that their ethical duties were inconsistent with the automatic application of a “standard” percentage fee.

Cliente explained that the percentage fee charged should reflect how likely the client is to win, how much money is likely to be rewarded and collected, and how much work and expense the lawyer is likely to put into the case.  At the press conference, Cliente frequently quoted trial lawyer and former Florida Bar president Rutledge R. Liles. For example:

“While it is easy to defend the philosophy of the contingent fee, it is impossible to defend its abuses.  . . . It has been accurately said, in justification of the contingent fee, that it is the ‘poor man’s key to the courthouse.’ Professionalism, however, demands that we be ever mindful that keys are made of brass — not solid gold.”

As of today, April 1, 2005, all ATLA members must give to each client, and thoroughly explain and implement, an Injured Consumers’ Bill of Rights for Contingency Fees, which lawyer and client must sign.  At the core of the Bill of Rights is the requirement that a lawyer take a list of enumerated factors into account in evaluating each client’s case, and discuss each factor with the prospective client, before they negotiate and agree upon the percentage fee to be charged in a contingency fee agreement.

Cliente noted that this position (although now mostly “honored in the breach”) is the profession’s traditional approach to the use of contingency fees.

• • Your editor believes the new ATLA requirements are a great start toward fulfilling the admonition in ABA Ethics Opinion 94-389 that “any lapse from the applicable requirements by some members of the profession simply suggests that the profession should redouble its efforts to assure that the ethical obligations associated with entering into a contingent fee arrangement are fully understood and observed.”

The Bill of Rights appears to draw heavily on the requirements set forth in ABA Formal Ethics Opinion 94-389, while also using concepts found in Rule 4-1.5 of Florida’s Bar Code and in the Bill of Rights that appeared in HALT‘s The Legal Reformer (Dec. 1997).  [Ethics Opinion 94-389 is not available online without a subscription, but is discussed here.] Cliente stressed that ATLA is not affiliated with another bar group using the same acronym, which has yet to condemn standard contingency fees, although it has publically asserted — when faced with reform proposals — that such fees should vary depending on the riskiness and complexity of the individual case.

Editor emeritus of this weblog, ethicalEsq, was certain the Press Release must be an April Fool’s joke, but ombudsman Cliente has assured us that the entire leadership of his organization is now strongly behind the reform measure.   skepticalEsq concluded ATLA had discovered plans to clone Judge Preska and put her in charge of regulating contingency fees. [for more, see ethicalEsq posts such as here and here, and especially our four-part essay on the ethics and economics of the standard contingency fee.]

 

diner dusk

her twenty-something hips

winding minds counter clockwise

 

 

 

 

 

                                                                                 a   y

                                                                              w

                                                                            a

                                                                          s

                                                                       w

                                                                    o

                                                                  l

                                                                b

birthday balloons the one that doesn’t burst

 

 

 

 

 

pea soup fog

the sound of a map

unfolding beside me

 

 

 

 

Ed

     Markwoski,

     “pea soup fog” * “diner dusk” from

              Haiku Sun  (Issue X, Jan. 2004) 

 

 

and, an encore:

    shifting
as
       he shouts
          the
faith healer’s
                    toupee

 

 

from dagosan                                               

 

April 1 —

no one here

to make a fool of me

 

 

             

 

 

first scull of the year

arms ache

just waving

 

 

 

 

 

last day of March

her pink slip’s

no prank

 

 

[April 1, 2005]

 

 

The usual savvy suspects are taking part in Adam Smith Esq‘s

“The Future of the Billable Hour.”  As usual, almost everyone

blames the method of billing rather than the motives of the biller.

It is an awful lot like blaming the automobile for injury done from

collisions, rather than blaming the reckless ness or negligence (or

intent) of the driver (or the driver’s employer).

 

As I’ve discussd in my piece on chronomentrophobia 

(where you can find citations and links), and have probably mentioned

elsewhere:

[1] From the client’s perspective, there is nothing wrong  

with the billable hour fee system that cannot be cured by

the lawyer merely doing what is required of him or her ethically

and as a fiduciary: (a) following the standards embodied in

Rule 1.5(a) of the Model Code — e.g., basing the fee on the

experience and capabilities of the lawyer, complexity of the matter,

etc.; (b) performing in an efficient and competent manner; and

(c) keeping the client well-informed.

 

 [2] From the perspective of the overworked associate or partner,

there is nothing wrong with the billable hour fee system that is not

very likely to be carried over to any alternative billing arrangements,

if the firm expects the shift to be made without reducing its income

or profits. 

 

[3] Clients expect “alternative fee arrangements” and “value billing”

to result in lower overall fees, not higher ones.

No matter your take on evolutionary biology (or on the role of government in 

the marketplace), if you’re looking for signs of intelligent life on April Fool’s Day,

you should click on over to the special report by the American Antitrust Insitute‘s

Science Correspondent, “Antitrust Controlled by Jerks” (AAI, April 1, 2005). 

 

You’ll discover whether antitrust history demonstrates an “evolution by creeps, or

evolution by jerks.”  And, among other artifacts, you’ll find Larry Summers

speculation on “why there are so few women heading up the antitrust departments

of major law firms.”

 

 AAI President Bert Foer isn’t revealing the identity of the Science

Correspondent, or his sources.  Feel free to speculate.

• 
  
  For a serious look at the satirized issues, see William B. Kovacic’s essay,  
  
  
  The Modern Evolution of U.S. Competition Policy Enforcement Norms.
  
  
• 
  
  
  

  For a look at the search for intelligent extraplanetary life, see this illustrated

  
  

  lecture by University of Arizona professor Michael R. Meyer.

 

 

on the beach

the tracks of two

lounge chairs

                      John Stevenson

                               from Quiet Enough

 

  Stop by George M. Wallace’s neck of the woods today — there 

should be an April 1st celebration at A Fool in the Forest.

 

  You know Steve Bainbridge must be quite rattled, if he forgets

to rattle his Tin Cup after an auto break-in.   You might want to pay a visit and

help Prof. B. pay his deductible.