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

  

Are you calendar-challenged?  You are not alone.  Yesterday, I spent the  

entire day knowing it was January 30th, and believing today would be the first

day of February.  As a self-help  measure that I hope will be of assistance

to those similarly afflicted, I found a link today to a rock’n’roll version of

30 Days Has September, April, June and November Song, performed

by Jack Hartman. 

 

 

Like many others, Monica Bay, the Common Scold, was saddened

to learn of Wendy Wasserstein‘s death, at 55, from lymphonia. In

response, Monica wrote a truly moving appreciation, titled “Sweet

Dreams, Sweet Twin.”  It concludes, “Yesterday, the lights of Broad-

way dimmed in your memory, but your light will remain fierce in our

hearts.“

 

In a New York Times op/ed piece today, “28 Days to Save Darfur,”

Kenneth H. Bacon makes a very good recommendation to the U.S.,

as it starts a month at the head of the UN Security Council:                                                                              

“The United States has a vexing and inconsistent record on

Sudan. Periods of engagement have been followed by longer,

and troubling, periods of inaction. Now, with a month to lead

the Security Council, the United States has a chance to

show the world that we can do more than just talk about

genocide.”

 

  Ever striving to help lawyers provide Perfect Client Service, 

Patrick Lamb reminds us that Speed [Is] The Essential Ingredient, when it

comes to answering client email or phone calls.  Lamb says:

Clients call when they do for a reason.  Its their reason and,

most of the time, it is an important reason.  You are the

SERVICE PROVIDER.  It is your job to honor their reasons.

 

Think minutes, not hours and certainly not days

   

 

a coyote call

goes unanswered

evening star

first blossoms

my cell phone

set to vibrate

 

 

 

 

 

 

 

winter hills—

what the truck’s insurance

doesn’t cover

 

 

 

paul m.

“first blossoms” – Walking the Same Path; Heron’s Nest VI:4 

 “a coyote call” – Acorn No. 6 (Spring 2001)

“first blossoms” – Hermitage

                                                                                                      

                                                                                                              

 

Here’s a quick summary of my position against calling law-oriented

weblogs “blawgs“.  It now appears at the top of my original piece, the

full-length essay (with updates), “let’s make the term ‘blawg’ obsolete.”

Quick Summary:  Lawyers don’t need a special word to

designate their weblogs.  Weblog technology is not being

used in any special way at law sites.  No other group or

profession has coined a special word for their category

of weblogs.  By insisting on using the trivializing, confusing

and too-cute word “blawg,” lawyers appear to be elitist, clan-

nish, or childish (likely, all three).  Those who agree can help

stop the terminology from becoming a generally-accepted

part of the English language (and spread worldwide), by not

using the term “blawg” and by declaring their choice publically.

 

Yes, there are many things I would prefer to be writing right now, and

that you would surely prefer to be reading about — so I hope I can

let the subject percolate on its own for awhile.  Before leaving it,

though, I want to say that there was no need for Denise Howell (who 

coined “blawg”) to print, and Dennis Kennedy to second, a not-very

veiled insult of anyone who cares about this topic. The insult was com-

pounded by not even bothering to link to the major posts raising the

issue — mine, and the earlier argument from Kevin O’Keefe, who is not

exactly a minor character on the legal weblog scene.  Not linking, of

course, made it harder for their readers to encounter our arguments

and less likely that search engines would find them. 

 

                                                                                  

 

On the bright side, Evan Schaeffer was good enough to point to

Kevin O’Keefe’s post and this one (as well as the defense by the Editor

at Blawg Review (“Who let the blawgs out?“), and to risk being unpopular

by reiterating his position on the word “blawg:”

“Not only does the indiscriminate use of the word “blawg”

lead to obscurity, but it gives readers the unintended impres-

sion that the weblog writer is running a private club.”

He received quite a few dissenting Comments, including one from

the well-known Jargon Sheriff, Monica Bay, who stated:

“. . . i don’t mind blawg.

 

“Why: because it adds meaning to blog. It accurately

describes a specific thing. You see “blawg” and you

know that it is a law-related blog. It defines, it narrows,

and it doesn’t obfuscate.”

My response at Legal Underground was:

Monica, I don’t agree that “blawg” adds significant meaning.

If your audience already knows the proprietor is in the law

community or the topic is law, it adds nothing. If they don’t

know that, just tell them, rather than using a word that does

confuse the uninitiated, and can refer to anything from the 

cultural musing of George Wallace’s “Fool in the Forest,” and

my punditry & poetry weblog, to How Appealing‘s small blurbs,

and the major essays of Judge Posner.

Judge Posner.

Of course, I should have added that “blawg” is also applied to both the  

personal diaries of law students and the topical legal and political

commentary of well-known law professors and public intellectuals. 

 

Come back to the fold, Dear Scold.

  Again, let me stress that I am not against

new words, nor trying to dictate what others should

do. 

 

  Two years ago, I wrote a post pointing out that a

lot of the fun of being in a weblog community was lost

when Comments and Trackbacks are deleted because

the weblog owner disagrees with what was said.  Today,

I’m waiting to see if Dennis Kennedy will ever post the

Comment I left at Between Lawyers two days ago, con-

cerning the use of the word “blawg” in Europe. or allow

the related Trackbacks.

 

update (11 PM, Jan. 31): Last Friday, Dennis Kennedy pointed to a

post by Edwin Jacobs, at his Law & Justice weblog, saying “Interest-

ingly, I noticed in the post that legal blogs are apparently being called

‘blawgs’ around the world.”  I’m happy to see that Mr. Jacobs has

now clarified his own feelings about the word “blawg,” in Comments

at his own site and at Blawg Review #42.   Here’s what Edwin had

to say: 

“Indeed, I prefer to use the term “blawg” to explain it and when

it appears in the name of some site/blog I am citing.  Otherwise,

I use “lawyer blogs” or “law-related blogs”. The reason is that it

better says what it really is, I think, i.e. a blog related to law or

made by a lawyer in his capacity of a lawyer, e.g. not about his

pet or hobby or whatever.

 

“I think it’s a simple matter of communication with the target

audience and I don’t make a big issue about it. I don’t care which

word is used, as long as it is clear what person A is communicating

to person B. But I think in communicating with non-lawyers, or with

non-tech savvy lawyers for that matter, it just makes more sense to

talk about a “law related website, lawblog, …” instead of “blawg”.

Frankly, even using the word “blog” is often complicating things.

So, use whatever you want, but “keep it simple” for your target

audience.”

 

 

                                                                                                                 

 

heavy clouds

the snowplows’ rumble

drifts into town

 

 

 

 

 

snowmelt

he changes into play clothes

after school

 

 

 

 

a fat horse

gallops with the others

a bit behind

 

 

 

 

 

 

swaying branch

the warbler’s song

rises and falls

 

 

 

 

DeVar Dahl 

“a fat horse” & “swaying branch” from

                something to sing about, pawEprint 58 (2003)

“heavy clouds” from HSA Members’ Anthology (2003)

“snowmelt” – from Walking the Same Path 

 

 

 

The New York Commission on the Future of Indigent Defense, established by Chief

Judge Judith S. Kaye, has unaminously recommended “a single, statewide, state-funded

system for the delivery of indigent defense services.”  Judge Kaye will give the details of

her resulting proposals, in her State of the Judiciary address, next Monday, February 6,

2006.  (Albany Times Union, Jan. 31, 2006) According to Ray Kelly, president of the state’s

Association of Criminal Defense Lawyers:

 

                                                                                                                   

“They are talking about setting up a statewide public defender office that would

be responsible for handling 60 percent of the state’s cases. They would then set

up a statewide system of assigned counsel to handle any conflicts.”

Last February, this weblog voiced the opinion that “indigent defendants are far more likely

to receive consistently competent representationin a system with fulltime public defenders

(with statewide monitoring and funding) than from situations that rely heavily on assigned

counsel.   (And see, David Feige’s excellent Slate article “Public Offenders,” where he says

that onlya comprehensive public defender system, not one relying heavily on assigned counsel,

will provide adequate service. )  Gideon’s Broken Promise, the ABA 2005 report on indigent

defense, states that national standards for indigent defense favor fulltime public defenders,

whenever the population and caseload can support them.

 

The New York indigent defense “system” has been organized and funded on the county

level since Gideon v. Wainright.  Many private attorneys count heavily on the assigned

counsel cases they received under this system and fought hard for a rate hike, finally 

passed in 2004, that brought fees long stuck at $25 to $75 per hour to $60 to $95 dollars 

per hour.  It is somewhat ironic, but the impetus for this change is reaction of the sixty-two

counties to the rate hike.  The TU reports that, without additional State funds to help pay

for the hike:

 

“emptypocketsS” 

“They opted instead to set up in-house offices, which were not subject to the

higher rates, to save money. the state’s 62 counties have established more than

122 individualized programs to defend the poor, with no cohesion, unified standards

or consistent format, said Ray Kelly….”

Indeed, just last week, the Schenectady Gazette reported that “Eighteen months after it

began operations, the Schenectady County’s Conflict Defender Office has helped save

taxpayers more than $100,000 in outside attorney fees, a review shows. (Jan. 29, 2006,

p. B2).

 

Don’t be surprised if this trend spreads across the nation, as more and more assigned

counsel (who are in private practice) push for higher fees.  The Bar Advocates in Mass-

achusetts are clearly afraid that the fee hikes they coerced from the Legislature last year

may result in the establishment of public defender offices that will take away work they

consider to be “theirs.”  Thus, they adamantly oppose the hiring of more public defenders.

(see our prior post)  Perhaps, like auto workers, their organized successes may prove to

be their undoing. 

 

 

 

the mountain moon              
gives the blossom thief
light

 

   Issa,

     translated by David G. Lanoue

 

                                               

First, two old favorites from Matt Morden:

 

 

winter sickness
my daughter tucks me in
for the first time

 

 

 

 

 

an old resume
my son colours in
his rainbow

 

 

 

 

 

     

      – and two new ones from his Morden Haiku 

 

 

 

a compost heap
listening to
the sound of worms

 

 

 

 

 

 

 

loft clutter
sweeping up flies
woken from sleep

 

 

 

 

 MATT MORDEN 

 “a compost heap” – Morden Haiku (Jan. 24, 2006) 

“lost clutter” – Morden Haiku (Jan. 23, 2006) 

“winter sickness” – The Heron’s Nest, (July 2003)

“an old resume” – bio page at World Haiku.  

 

                                                                    

 

  And, three poems that first introduced me

to Alice Frampton:

 

 

 

last goodbye –
scent of his wool coat
deeper into my nose

 

 

 

 

wishing fountain

outside the cancer clinic:

some heads, some tails

 

 

 

 

 

 

 

morning milking

the white

of mother’s breath

 

 

Alice Frampton from New Resonance 3: Emerging Voices

“last good-bye” – The Heron’s Nest Volume IV No. 2

“wishing fountain” – Frogpond XXV: 1

“morning milking” – Haiku Canada Newsletter XVI: 3

                                                                                        

 

 

 

  Don’t forget: There is a great

list of daily haiku weblogs at Matt’s Morden Haiku. 

One of the best parts of visiting haijin weblogs

is reading the comments on their work.

 

 

 

low-lying clouds —
trumpeter swans
rest near the glacier

   

centuries of shale
crunching underfoot —
coots bob offshore

   

 

 

patches of snow-

he walks his first bike

back up the hill

 

 

 

 

 

 

 

coffee brewing —
the moon and Orion
light the way 

 

Billie Wilson from Haiku Harvest (Spring 2001)  

except: “patches of snow” Modern Haiku (Spring 2004)    

                                                                                                                                                

 

 

 

    The latest edition of Harvard Law Today (Jan. 2006) appeared in my real-world mailbox on Saturday. In it, I learned that HLS Dean Elena Kagan has been assessing “the status of women in law” and is quite concerned that women “still lag behind men in most measures of success.” (see her full remarks in the Leslie H. Arps Memorial Lecture, to ABCNY, Nov. 17, 2005).

Dean Kagan thinks the problem starts in law school, because women law students are less likely to speak in class, or graduate with honors, and give themselves poorer evaluations for the use of legal logic. Then, once they leave law school, Kagan believes that the numbers tell an ominous story:

“While women account for almost 30% of lawyers, they account for only about 15% of general counsels of Fortune 500 companies, 17% of law firm partners, and 23% of federal district and circuit court judges. At law schools, women account for roughly 19% of deans and 25% of tenured professors.” (from ABA 2005 Women at a Glance stats)

Virtually every law student, by the end of their first year, should be able to explain to the Dean why these numbers alone don’t tell even half of the “story.” Kagan says time has shown it is not just a “pipeline” problem — getting enough women into the profession’s pipeline. But, I believe much of the so-called problem is indeed related to how long the female lawyers have been practicing, what areas they have chosen to specialize in, and what other priorities have shaped their career choices and timing.

Many women make choices early in their careers that start them on paths that are far less likely to end up in the CEO’s suite — or the Dean’s chair. Kagan notes that they leave law schools for jobs in non-profits and in government at a higher rate than men. When they do go to law firms, Kagan is concerned that “even just two or three years into practice, women are far more dissatisfied than men with every aspect of their jobs except the work itself.” I say, that’s a healthy sign, in what Professor (and federal court nominee) Patrick J. Schiltz calls our “Unhappy and Unhealthy Profession“ (52 Vand. L. Rev. 871) See our prior post.

Kagan echoes issues raised recently in many parts of the media about whether highly-educated women are “off-ramping” or “opting out”: deciding, once they have children, that they “can’t — or don’t want to — ‘have it all’.”

See Ellen Goodman, “Homemakers, heed opt-out warnings,” Jan.
17, 2006; Boston Globe, “Relaunching Mothers,” by Carol Fishman
Cohen and Vivian Steir Rabin, Jan. 23, 2006; Kansas City Star, “More
women opt out of work, but why?,” by Donna Vestal, Jan. 10, 2006;
Sarah Gilbert at BloggingBaby, the feminist elite talk back, Jan. 25,
2006.

However, Dean Kagan points out that Lisa Belkin’s “opt-out revolution” may
be a mirage. Kagan notes that 93 percent of women who leave the general
workforce want to return. She wants law schools to help off-rampers get
back into “successful” career paths, and they surely should. But, I’m
afraid the Dean shares Linda Hirshman’s notion that taking the off-ramp
to raise children (or to take advantage of your spouse’s high income and
the choices it brings) somehow demonstrates that feminism has failed.

Kagan frets that not enough women say that having a “powerful
position” is a worthy career goal. She suggests that the preferences
shown by women may in fact reflect “contingent circumstances”
and “unnecesary structures and constraints that prevent them from
creating the work lives they most desire,” rather than their fully-
informed, mature judgment. She also wonders why so darn many
women go into “public interest” jobs.

My sentiments are far more with “Dani,” an interviewee at Blogging Baby,
who asks: “And how exactly is Hirshman treating women with respect by
accusing them of opting out when they prioritize their families over financial
gain?”

 

Dean Kagan points out that many off-ramping lawyers want to go in very
different career directions when returning to work — heading for non-profit,
or solo, or part-time practice. We might suggest that this helps explain,
a least a little, why women as a whole in the legal profession “still lag
behind men in most measures of success” and never seem to quite catch
up after their child-rearing break from the partneship track. (In “Relaunching

Mothers”, Cohen and Rabin point to the improved post-offramping career of
Justice O’Connor as a role model and sign for optimism.)

I’ve been working for equality of the sexes for several decades. If any
real discrimination exists in our profession, it must be eliminated. How-
ever, if women are lucky enough to have, or smart enough to make,
choices that get them out of the most dehumanizing, demoralizing, or
stressful parts of our profession — or out of it completely — I say “bravo.”
If they find their priorities greatly changed — and their willingness to make
tradeoffs increased — once they give birth, we should not devalue their
choices.
There are an awful lot of male attorneys who would love to have such
opportunities, such courage, and such common sense.

By the way, over the weekend, J. Andrew Lockhart, a
poet and music teacher, left a Comment at dagosan’s
haiku diary, that said: “p.s. – I used to be an attorney
but left 10 yrs ago after a stroke -best thing that ever
happened to me!

 

snowfall
my daughter asks where
we are going …

first snow gone —
this steady need
to practice

autumn colors–
how assertive
she becomes

framed photo
the three of us
close back then

lingering in bed
the ceiling
has no answers

……………………………… by Tom Clausen- Upstate Dim Sum (2004/I)

……………………… by george swede

The Heron’s Nest (Dec. 2005)

Former judge and retired lawyer Robert H. Rowe is a Member of New Hampshire’s

lower legislative body — and he has some explaining to do.  Here’s a description of

his House Bill 1234 (text), from the legal reform group HALT‘s eJournal (Jan. 25,

2006):

New Hampshire

“In an outrageous move, Representative Robert H. Rowe introduced

House Bill 1234 to cut in half the current small claims dollar limit

from $5,000 to a mere $2,500, which would be the fourth lowest limit

in the country. No state has ever lowered its dollar limit, and if the bill

were approved it would do serious harm to legal consumers by denying

the remedy of small claims court to all but the most trivial of cases.”

………………………………….

 

That’s right: while legislatures around the nation are increasing dollar limits

in small claims courts, in reform efforts that would help increase access to

civil justice by making these “peoples’ courts” available for the disputes most

likely to arise in modern consumer and tenant transactions, Rep. Rowe

wants to decrease a dollar limit that is already below the national average

for small claims jurisdiction — the first such rollback in our nation’s history.

Go to HALT’s Small Claims Reform Project for more info

on this important movement, including Report Cards and

background materials on each state.  Also, see Your

Editor’s Prairielaw article “Supersize Small Claims” and

a thorough discussion, with relevant links. at Crime &

Federalism, “small claims, big potential,” Jan. 24, 2005).  

Rep. Rowe is an author (e.g., Quest for Liberty, a historical novel, and

Walking Tour of Amherst Village.), and he lives in the historic Jones

Tavern in Amherst. 

 

                                                                                

Action Alert: On Feb. 9, 2006, there will be a public

hearing on HB 1234, in Rm. 208, LOB, 10:30 AM,

in Corcord, NH. [directions]  You can also write Rep.

Rowe at P.O. Box 1117, Amherst, NH  03031-1117. 

I just might try to be there, to hear Mr. Rowe explain his reasoning for

gutting New Hampshire’s small claims courts.

 

 

  HB 1234 has put me in a sober mood, just right

for some Andrew Riutta poetry:

 

a hillside

overlooking the cemetery—

distant orchards  

 

 

 

 

deep
in the scent of summer
a homeless man

 

 

 

 

 

cat burial . . .

the snow

up to my waist

 

 

 

 

 

 

old stomping grounds

the river still follows

its path

 

 

 

Andrew Riutta 

“old stomping grounds” – from Full Moon Magazine (2005) 

“deep” – Haiku Harvest (Fall-Winter 2005)

p.s. Off topic: Is Denise Howell, coiner of “blawg,” right to suggest

it is a waste of time to worry over the use of that term (see her

“I, Sandwich Dominatrix,” Jan. 25, 2006), and/or scroll down to

our response at our original post on making the word “blawg” obsolete.”

 

                                                                                                            

There is far too much prose at the top of this webpage.

Dr. Bill Owen will cure that problem:

 

 

 

winter sun
the boy burns a circle
in a leaf

 

 

 

 

 

 

 

 

whittling

the changes

in his face

 

 

 

 

lifting the hammer
the old carpenter’s hand
stops shaking

 

 

 

 

 

 

 

 

 

 

after his death

the width of our

favorite path

 

 

 

 

 

 

her estate

dividing

the children

 

 

 

W.F. Owen 

“winter sun” – Mainichi News (No. 679, Jan. 2, 2006)

“whittling” – lose change (HSA Members’ Antholgy, 2005)

“lifting the hammer” – A New Resonance 2; Mayfly #30 (2000) 

“after his death” – Selected Poems of W.F. Owen

“her estate” – The Loose Thread; Modern Haiku XXXII:1;

 

 

clearing out

the spider webs —

again, I spare the cricket

 

dagosan

 

At his Death & Taxes weblog, href=”http://www.jas-law.com/”>Joel A. Schoenmeyer has an interesting   

post today dubbed “ADR and George Washington’s Will“.  Joel, an estate

planning lawyer, who is training to be a mediator, wants to use those

skills in probate court.  He was inspired to learn that the Real GW included

a mandatory “alternate dispute resolution” provision in his will (using the 

ancient method of tapping the wisdom of trusted elders).   It’s a nice com-

plement to Abe Lincoln’s more general advice to young lawyers — long

ignored — that they

“Discourage litigation. Persuade your neighbors to compromise whenever you can.” 

George and Abe: they warm this old lawyer-mediator’s heart.  (see prior post)

                                                                                                                                                           “snowflakeS”

 

If you care about legal ethics and client rights, and can be in Columbus,

Ohio, tomorrow afternoon, Jan. 27, please start making plans to be at the

headquarters of The Ohio State Bar Association by 1 P.M.  If you can’t be

there — and especially if you are a member or future member of OSBA or

the Ohio Bar — you should also read on, and take action by email or phone,

or at your website.

As explained below, we believe OSBA is (or is about to be) a

prime example of our Bar & Guild Theory: Most bar groups

spend much of their time acting like guilds — promoting the

interests of their members, and “protecting” the public from

competition, information, innovation and choice.

The Urgency: On Jan. 27, 2006, the OSBA House of Delegates

will consider whether to support a completely revamped set

of ethics rules.

The two issues I will focus on here are: (1) Should lawyers be

allowed to characterize their fees or rates in ads as “discount,” 

“cut-rate,” “lowest,” or “special,” when the terms are not used

in a false of misleading fashion?  (2) Should lawyers be required

(for matters bove $500) to communicate in writing with a client

concerning the scope of engagement and the basis or rate of

fees and expenses? [You may find other favorite issues that

need your or our attention.] [UPDATE: Our efforts failed. The Ohio Bar included the ban on advertising discount fees in its recommendations to the Ohio Supreme Court, which then included the provision in the Comment to Rule 7.1, which has been in effect since February 2007.]

After lengthy consideration on how to modernize the current Ohio ethics

Code, and to bring it more into line with the ABA’s Model Rules, a Supreme

Court Task Force issued its Report and Proposed Rules (with Comparisons

to the Model Rules and the current Code) for comment, in October 2005.

An OSBA ethics subcommittee has also issued its Bar Recommendations.

As OSBA President E. Jane Taylor recently announced:

On Jan. 27, 2006, at 1 p.m., the Council of Delegates will hold a

special meeting at OSBA Headquarters, 1700 Lake Shore Drive,

Columbus, to consider recommendations of the Supreme Court

Task Force on Rules of Professional Conduct.

In addition, all members of the Association “have the privilege of the

floor on a parity with delegates. . . [and] Members wishing to address

this matter at the upcoming Council of Delegates meeting are asked

to communicate their interest to Bill Weisenberg in advance so

they can be recognized at the meeting. [you can contact Bill at

wweisenberg@ohiobar.org; phones: (614) 487-8585; (800) 232-7124;

FAX (614) 487-8808]

Here’s why I am concerned and am asking for your help:

First: As the ABA eJournal reported last week, and Carolyn Elefant

at My Shingle decried yesterday (via Lisa at Inside Opinions): “Ohio

Bar Won’t Allow Lawyers to Say They Offer Cut Rate Service,” Jan.

25, 2006). In Opinion 2005-9, (Dec. 2, 2005), the Bar Ethics Committee

held that it had no choice but to apply the current Code to the “coupons”

in question.  Ohio Code DR- 2-101(A) specifies that a lawyer shall not

use any form of publicity that:

(5) Contains characterizations of rates or fees chargeable by the

lawyer or law firm, such as “cut-rate,” “lowest,” “giveaway,” “below

cost,” “discount,” and “special;” however, use of characterizations

of rates or fees such as “reasonable” and “moderate” is acceptable.

Clearly, this antiquated rule, which almost certainly violates 1st Amendment

commercial speech rights, and would violate antitrust laws if promulgated by

the Association rather than by the Court, deserves to be thrown out.  There is

nothing inherently misleading about a discount claim — there is, of course,

something inherently competitive about them, which might be the rub. Rules

such as these, which have been eliminated in all but a few jurisdictions, are

wrapped in concern for misleading claims, but “belie the legal profession’s

basic dislike of lawyer advertising, competition, and affronts to its bloated

feelings of self-importance.” (see prior post on the NYSBA war against adver-

tising, and a round-up of recent action by the profession’s “dignity police.”

They contain excerpts from the ABA and the Federal Trade Commission,

on the harm to consumers from broad lawyer advertising bans that are not

narrowly tailored to prevent unfair or deceptive acts or practices.)

“Complaint BillF”

The Ohio Supreme Court Task Force recommends new Rules 7.1 and 7.2,

which largely follow the much-improved ABA Model advertising rules. They

move many prohibitions “in deference to constitutional concerns about the

regulation of commercial speech.” (Task Force Report) The Model Rules ban

only a false or misleading communication — that is, one which “contains a

material misrepresentation of fact or law, or omits a fact necessary to make

the statement considered as a whole not materially misleading.”  In a

Comment to Rule 7.1, there is this appropriate conclusion about fees:

“[A]n unsubstantiated comparison of the lawyer’s services or fees

with the services or fees of other lawyers may be misleading if

presented with such specificity as would lead a reasonable person

to conclude that the comparison can be substantiated. The inclusion

of an appropriate disclaimer or qualifying language may preclude a

finding that a statement is likely to create unjustified expectations

or otherwise mislead a prospective client.”

It is unfortunate (and misleading), however, that the Proposed Ohio Rule 7.1

removes the ban on terms such as “discount” and “cut-rate” from the body

of the Rule, but insert the provisions again in Comment [4] to Rule 7.1, which

states:

4] Characterization of rates or fees chargeable by the lawyer or law

firm such as “cut-rate,” “lowest,” “giveaway,” “below cost,” “discount,”

or “special” is misleading. [emphasis added]

It is a per se rule making discount advertising by lawyers unethical.  That can

only have one purpose (eliminating or reducing price competition) and one

result: higher prices for consumers of legal services.  The higher price will,

of course, mean that more and more Americans will be functionally eliminated

from the legal services marketplace, and have their legal needs unmet or met

through nonlawyer sources.

The drafter of the Task Force Report sounds rather unhappy about this result,

reading between the lines.  And, the OSBA ethics committee could have

corrected it, advocating for the Model Rule version, the First Amendment,

and competition.  However, it did not.  The committee’s Recommendations

adopt the Task Force’s version of the advertising rules in their entirety.

The written fee and scope of engagement requirement has a bit

of a different posture.

The current Code says, in relevant part:

EC 2-18 As soon as feasible after a lawyer has been employed,

it is desirable that he reach a clear agreement with his client as

to the basis of the fee charges to be made. Such a course will

not only prevent later misunderstanding but will also work for

good relations between the lawyer and the client. It is usually

beneficial to reduce to writing the understanding of the parties

regarding the fee, particularly when it is contingent.

Model Rule 1.5 (b) states that the engagement/fee agreement must be

communicated before or within a reasonable time after commencing the

representation, “preferably in writing.”  But, the Ohio Task Force decided

to go farther — giving, in reality, both the client and lawyer more protection,

by requiring a written agreement unless the matter is expected to cost less

than $500.

Rule 1.5 (b) The scope of the representation and the basis or

rate of the fee and expenses for which the client will be responsible

shall be communicated to the client in writing, before or within a

reasonable time after commencing the representation, unless the

lawyer will charge a client whom the lawyer has regularly represented

on the same basis as previously charged or the fee is $500.00 or less.

Any change in the basis or rate of the fee or expenses is subject to

division (a) of this rule and shall also be promptly communicated to

the client in writing.

How did the OSBA “ethics” subcommittee react to this written requirement?

The majority of the members rejected it — with the following eloquent and

thoughtful, but remarkably frank analysis:

“A majority of the subcommittee recommended changing Rule 1.2

to eliminate the writing requirement concerning scope of representation

and fee-and-expense agreements to prevent violations of that requirement

forming the basis of a disciplinary complaint.”

Ironically, the OSBA website has a LawFacts e-pamphlet, titled Lawyers,

which states:

“You should ask the lawyer to put into writing fee and billing agreements

to avoid any misunderstanding.”

In a modern, information world — with clients who can almost always read and write

(and with the scope of representation in more flux than ever ) — many of us surely ask

ourselves: “What kind of a lawyer wouldn’t use a written agreement when representing

a client.”   My reply: Exactly the type of lawyer who would oppose this Rule and whose

clients most need the in-writing mandate in Rule 1.5(b) for their protection.

“tinyredcheck” Ohio consumers need your voice in support of the proposed

Rule 1.5(b), and to help make it easier for Ohio lawyers to compete

on price (with its resulting benefits in innovation and acces).

In addition to letting the OSBA know how you feel, you can

write the Supreme Court of Ohio, which is seeking comments, until Feb.

15, 2006.  Ask them to keep the in-writing requirement and to junk

the ban on discount advertising.

You might also contact OSBA President E. Jane Taylor (click for her

firm profile and email address), or Robert K. Leonard, Chair of OSBA’s Legal

Ethics and Professional Liability Committee (at 119 N. West, Lima, OH 45801,

(419) 228-1020 ,  (419) 228 5490 Fax.

Please excuse the lateness of this alert.  Youf humble editor

learned of the OSBA Meeting this morning.

Ohio weblogers (and other concerned citizens), please do whatever you can at

your website to help bring Ohio’s lawyer ethics rules into the 21st Century and the

era of Consumer Sovereignty.    How about it, Modern Esquire; Dale Oesterle at

Business Law Prof; the (in)famous Law Dork, Chris Geidner; the anonymous

proprietor of Law v. Life (who recently started to take criminal cases, too); Prof.

Dan Tokaji of Equal Vote; and Prof. Douglas A. Berman at the award-winning

Sentencing Law & Policy ?

p.s. In August 2003, in a moment of deep insight and/or cynicism, I

suggested the following Warning be placed on all bar association

websites:

Warning:  We are a guild, here to serve the economic interests of our

members.  We’ll fight (’til your last dollar) to protect you from any legal

adversary and to secure your legal rights.  However, when it comes to

your financial interests versus our own, we will put ours first whenever

possible.

afterthought (Jan. 27, 2006):  Another aspect of the Proposed

Rule 1.5 bothers me — the Model Rule 1.5‘s ban on “unreasonable”

fees or expenses is rejected in favor of keeping the current ban in

Ohio’s DR 2-106 on “clearly excessive” fees.  Furthermore, the

fee, to be excessive, under the current and the proposed rule,

must leave a “lawyer of ordinary prudence” with “a definite and firm

conviction that the fee is in excess of a reasonable fee.” [emphasis

added] (Apparently a layperson on any Ohio grievance committee

cannot apply his or her own prudent judgment on the excessiveness

of a fee, after studying the circumstances. That’s one more concern)

Good lawyers use or choose particular words purposefully. Here,

it is hard to avoid the conclusion that merely banning “unreasonable”

fees seemed too harsh for Ohio’s lawyers.  Indeed, even a ban on

“excessive” fees was apparently too draconian — a fee needs to be

“clearly” excessive to be unethical.

I do not buy the excuse, if offered by the

Task Force and the Bar committee, that the

benefits of continuity outweighed adoption of

the standard used in most jurisdictions. Keeping

the “clearly excessive” standard is a clear signal

that the burden of proof for anyone challenging a

fee is extremely high — so that few, if any, fees will

be held to be excessive by your peers.  If your fee

isn’t illegal or fraudulent (e.g., demonstrably padded),

you’re safe in Ohio.

One final point of irony:  The current Ohio Publicity Rule, DR 2-101 (5),

prohibits the advertising of fees as being “discount,” but allows you to

call your fees “reasonable” and “moderate.” Comment [4] to Proposed

advertising rule 7.1, also declares discount claims to be misleading

and therefore banned. Notice how this ties in with the current and

proposed ethics rules on fees: any legal fee that is not “clearly exces-

sive” is “reasonable” in Ohio.  It makes you wonder which is more likely

to mislead the public, a “discount” claim by a lawyer whose fees are

genuinely lower than the local norm, or a “reasonable” claim by an

Ohio lawyer whose fees are just shy of being “clearly excessive.”

fresh snow
for the hands,
for the face

applauding

the mime

in our mittens

under the

blackest doodle

something unerasable

John Stevenson

“applauding the mime” – Quiet Enough (2004)

“under the” – Something Erasable (1995)

“fresh snow“– The Heron’s Nest (June 2005)

Our Referer/Came-from statistics page is always leading us into distraction

of temptation.  Yesterday, it led us into some extra-legal bocce fun  Some-

body did a Google Blog Search for bocce> and ended up at this website. 

We’re delighted to see, only four months after declaring ourselves to be

bocce advocates, that the top three results came from f/k/a.

 

As is our wont, we checked out some of the other results and want to

share with you some of our findings — which did not necessarily relate to

big balls and little balls.

 

                                                                                              “bocceBallsG”

 

 

  First, If you are under 20 and over 40 years old, you should probably

stay away form the International League of Extreme Bocce, which

specializes in “Reckless Urban Beyond-Lawn Bowling. “

 

Second, thanks to Emily Gaston’s weblog, we learned that last

December, Star Wars the Musical was unveiled.  One of the tune,

available for MP3 downloading, is “Do You Speak Bocce?”  In the

scene, Uncle Owen is looking for a droid that speaks Bocce, and

breaks into song upon examining one unit:

Do you speak Bocce?
Do you speak Bocce –
not Splocce, not Blocce,
not Crocce.
Do you speak Bocce?
Do you speak Bocce?   

I hope our Fool in the Forest friend will give us a review of the

score and book in the near future.

 

 

 

Last, but far from least, we discovered that Miba Whiber of

Star Wars Dot Com has published a Bocce/English Dictionary.

 

To save my weblogging colleagues some time, I’ve compiled

sentences that they might find particularly useful.  At the end,

there are some we all may need:

 

  Here are English-to-Bocce phrases for:

 

George Wallace at Declarations & Exclusions

& Martin Grace at RiskProf:

I do not want the collision insurance and medical coverage.
Noy’meetix goyatoixee he manux ii mediizal.

 

I have insurance.
Kazz ma kazz.

 

The payment is in the HoloNet.
Ker pazet on bpnip Holonot.

 

Evan Schaeffer at The Legal Underground

My program is faster because I have the

latest moomaws.
Bixtix hit yilly rev moomaws.

My neighbor is spacesick.
Zee dopi peeza peeza.

                                               

Scheherazade at Stay of Executiion

What do you do?
Finitez cetex detox?

 

Steve Bainbridge at Prof. Bainbridge & On Wine

Are there good drinks on board?
Openex co pakaz di hunhiy?

 

“spiltwinef”

 

I’d like to rent a Legion Condor EX.
Kizzee mit rentaz hu Legion Condor EX.  

 

Matt Homann at the [non]billable hour

Can I upgrade to first class?
Keez meeza foy wunclaz?

 

Benjamin & Mark at Language Log:

Do you speak Basic?
Bazi batza Bazic?

 

Carolyn Elefant at My Shingle

Can you turn the gravity down a little?
Peez doz gravorti dow pinti?

 

How do I exit this spaceport?
Deeza va deeza copex?

 

Ben Cowgill at BC’s Legal Ethics

Can you send a pilot to guide me in?
Mil weez joto ne dimiix?

 

The Editor at Blawg Review.  

What are my coodinates?  
Motex coff keez hopiz?

 

Nancy Stinson in the Stark County Law Library

 

Will the bill list the title of the holo?
Beetix fo fee fi nototex ge holo?

 

 

Walter Olson at Overlawyered.com  

Send help!
Geewaaz hokokeez!

 

Mike Cernovich at Crime & Federalism

When are we going to get there?
Hwen dorix bijunize?

 

Monica Bay at The Common Scold

Move aside and stop hogging the space lane!
Jeeza goz dobo ipinahex colax!

 

That _____ is in my seat.
Cee ____ feeth ur nockneez.

 

Denise, Dennis, Tom,

Marty & Ernie at Between Lawyers:

My droids will talk to your droids.
Keliza l’gik droi to talk droi.

 

Will we be jumping to hyperspace?
Tuz de ju mugee hyperaaze?

 

To Paul Caron at TaxProfBlog:

May I have a receipt?
Tirez meez canto ripit?

 

Another hot towel, please.
Kitex co kopad nikozax, bleeze.

 

JR at Jeremy Richey‘s weblog:

That scratch was there when I rented the ship.
Zat x’ratch keezo bopaz ha sheep.

 

The eponymous David Maister,:

I am vice president and systems consultant for
personnel development and managment consulting.
Lyo waza kinateze u kuntatezaz
u pizolooiz un tazax goniteezex.

 

Lisa Stone at Inside Opinions:

This is ____.
Deemeezz bo treeza ____.

 

Of course, there are quite a few we could all use:

I will get back to you on that one.
Vitex fo gobaj ka zu zux.  I

Where is my luggage?
Infinez topi lopiz?

 

Where is my seat?
Infinez tope ur nockneez?

 

Clear the landing zone!
Kiz kiz fee dolomitex!

 

Can you turn the gravity up a little?
Peez doz gravorti oop pinti?

 

I am spacesick.
Meez peeza peeza.

 

 

“questionDudeS” 

 

I don’t know yet if Hilary Tann speaks bocce,

but I’m hoping she’ll learn soon.  Until then,

she sure does speak haiku & senryu:

 

river mist

shadows of the geese

I hear

 

 

 

 

radio interview

the candidate

adjusts her hair

 

 

 

 

snowmelt

my dog’s nose

to the ground

 

 

weekday morning

gulls gather

round the ice-fishing hole

 

 

 

 

 

first warm day

looking for eagles

and finding the sky

 

Hilary Tann 

from Upstate Dim Sum (2003/II)

 

 

bocce blind date –

she smashes into 

my male ego

 

      dagosan

 

                                                                                               

 

This morning, at Language Log, linguist Benjamin Zimmer from, 

UPenn, posted “Blawgs, phonolawgically speaking” as a

follow-up to Mark Liberman’s piece at the same weblog “Who

Let the Blawgs Out?”.  Both were inspired by our war on the

use of “blawg” terminology and the defense of its usage by

the Editor of Blawg Review.   Zimmer takes a look at what

makes “blawg” such an interesting portmanteau or “blend

word,” with special emphasis on the morphophonological

aspects of the word.

 

 

For an interesting peek at another profession that is (literally)

focused on parsing words and making fine distinctions, law-

types could not do better than checking out Zimmer’s post 

bisecting the blog-law-blawg portmanteau.

 

For example, he explains that one type of blended word is

the sandwich variety, where part of one of the blended words 

is inserted into the other word (rather than attached to it). A 

famous example is Lewis Carroll’s “chortle,”  where  chortle =

ch(uck)le + (sn)ort. .  But, “blawg” is unique:

“The recipe for such sandwich words is pretty constant:

take a polysyllabic word and replace the primarily-stressed

syllable with a punchy monosyllabic word of your choice.

It’s clear, however, that blawg is a different beast, morpho-

phonologically speaking. Denise Howell took a monosyllabic

word (blog) and inserted another monosyllable (law), such

that the “bread” for the sandwich consists merely of one

initial consonant (b-) and one final consonant (-g). I know

of no other sandwich word so dominated by its filling.

 

                                                                      

 

“What’s more, the two component words are maximally over-

lapping for some speakers and nearly so for others. . . . “

[Ed note: a discussion of whether “blawg” sounds like

“blog,” and if it matters, follows.]

After this brief exposure to linguistics, it seems to me that linguists

are science-minded persons, who like words more than numbers,

and are too nice to want to be lawyers.  Like lawyers, however,

they apparently do tend to take liberties when describing the pos-

itions of others.  Thus, where I said I was surprised, Benjamin says

I am “shocked.”  Where I merely gave a prominent example, he says

I am “troubled.” 

 

One thing for sure, I bet Benjamin and Mark would be quite annoyed,

if someone wanted to permanently call their weblog a “bling“, merely

because weblogs by linguists are so unique.

 

p.s. (Jan. 25, 10 AM): Just a quick apology to Benjamin Zimmer

for mistakenly calling him “Zimmerman” in the first version of this

post.  All the portmanteau talk led me astray: “when it comes

to morphophonology, Zimmer is the Man!”

 

update (Jan. 27, 2005):  Denise Howell, coiner of “blawg” and still

one of our very favorite persons in the entire blogiverse, has a piece

at Bag & Baggage about the recent discussion at Language Log,

by linguists Benjamin Zimmer and Mark Liberman on the use of

“blawg.” Denise suggests, in “I, Sandwich Dominatrix,” Jan. 25, 2006) 

without ever linking to f/k/a or mentioning us, that:

 

                                                              Tyler, the original “baggage”: 

“If you are among the folks — linguists excluded; it’s their

job — who might be spending a little too much thought and

energy on this borderline microbial issue, please consider

channeling your efforts toward something of more tangible

benefit to mankind.”

See our response by scrolling down to the update to our original post

on making the word “blawg” obsolete.”

“snowflakeS” Speak Brooks?  We sure do.  So, here are a

half dozen haiku and senryu from Randy Brooks:

 

big brother’s grin . . .

the last piece of the puzzle

out of his pocket

 

 

 

 

mourning dove

returns to the porch rail

      new snow fluffs off

 

 

 

 

sawing–

the sap begins to flow

out of the evergreen

 

 

 

 

 

 

 

eyeing the spot

where our bumpers bumped–

snow in his thick eyebrows

 

 

 

 

 

 

cedar walking cane

hangs from the coat rack

dust on the handles curves

 

 

 

 

“schoolBrooks” Randy Brooks,

from School’s Out (Press Here, 1999)