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

The international civil rights sentinel, Human Rights Watch, has just released the study that we mentioned last Sunday, “No Easy Answers: Sex Offender Laws in the US” (Sept. 12, 2007). Click for the News Release, “US: Sex Offender Laws May Do More Harm Than Good: End Registration of Juveniles, Residency Restrictions and Online Registries” (Sept. 12, 2007), or for the Summary. The Report’s mainpage also has links to individual sections. You can download the entire 148-page report in a pdf file, or purchase a copy from HRW. Here is the opening excerpt from the News Release:

“Laws aimed at people convicted of sex offenses may not protect children from sex crimes but do lead to harassment, ostracism and even violence against former offenders, Human Rights Watch said in a report released today. Human Rights Watch urges the reform of state and federal registration and community notification laws, and the elimination of residency restrictions, because they violate basic rights of former offenders.”

“Politicians didn’t do their homework before enacting these sex offender laws. Instead they have perpetuated myths about sex offenders and failed to deal with the complex realities of sexual violence against children. ”

– Sarah Tofte, researcher for the US Program of Human Rights Watch and author, “No Easy Answers.”

Chapter IX covers Residency Restriction Laws. Here’s what the Summary says on that topic:

Residency Restrictions

Among laws targeting sex offenders living in the community, residency restrictions may be the harshest as well as the most arbitrary. The laws can banish registrants from their already established homes, keep them from living with their families, and make entire towns off-limits to them, forcing them to live in isolated rural areas. For example, former sex offenders in Miami, Florida have been living under bridges, one of the few areas not restricted for them by the residency restriction laws of that city.

There is no evidence that prohibiting sex offenders from living near where children gather will protect children from sexual violence. Indeed, the limited research to date suggests the contrary: a child molester who does offend again is as likely to victimize a child found far from his home as he is one who lives or plays nearby. A study by the Minnesota Department of Corrections found that individuals who committed another sex crime against a child made contact with their victim through a social relationship.

Moreover, the laws apply to all registered sex offenders regardless of whether their prior crimes involved children. It is hard to fathom what good comes from prohibiting a registered offender whose victim was an adult woman from living near a school bus stop. Stories of the senseless impact of residency restrictions are legion. For example, Georgia’s residency restriction law has forced a 26-year-old married woman to move from her home because it is too close to a daycare center. She is registered as a sex offender because she had oral sex with a 15-year-old when she was 17.

Some lawmakers admit to another purpose for residency restriction laws. Georgia State House Majority Leader Jerry Keen, who sponsored the state’s law banning registrants from living within 1,000 feet of places where children gather, stated during a floor debate, “My intent personally is to make [residency restrictions] so onerous on those that are convicted of [sex] offenses … they will want to move to another state.”5 Yet people who have committed sex offenses must live somewhere. For those who do pose a threat to public safety, they should be able to reside in communities where they can receive the supervision and treatment they need, rather than be forced to move to isolated rural areas or become homeless.

The News Release summarizes the Report’s recommendations to state governments:

Recommendations

· Refuse to change registration and community notification laws to meet Adam Walsh requirements [relating to listing juvenile sex offenders];

· Eliminate residency restriction laws;

· Limit registration requirements to people who have been convicted of serious crimes and who have been individually assessed to pose a significant risk of reoffending; and,

· Prevent unlimited dissemination of registry information by eliminating publicly accessible online registries. Community notification should be undertaken only by law enforcement officers and only about those registrants who pose a significant risk of reoffending.

“Everyone has the right to live free of sexual violence.” said Tofte. “States should craft laws that will protect this right in a fair and sensible way.”

This important Report deserves to be read — especially by lawmakers and those most interested in finding realistic and effective ways to protect children from sexual abuse. We need to heed the words of Jamie Fellner, director of the US program at Human Rights Watch:

“Human Rights Watch shares the public’s goal of protecting children from sex abuse. But current laws are ill-conceived and poorly crafted. Protecting children requires a more thoughtful and comprehensive approach than politicians have been willing to support.”

update (Sept. 14, 2007): See our post “Patty Wetterling tells ‘the harm in sex offender laws‘”.

in autumn wind
a homeless crow
is blown

……………. by Kobayshi Issa, translated by David G. Lanoue

ocean sundown–
a child jumping up
for one last look

………… by Barry George – Tinywords.com (Sept. 12, 2007)

It’s great to finally see some straighttalk today in the legal press about alternative billing. In the blawgiverse, you will search in vain (except here at f/k/a, and an occasional word from Carolyn Elefant) for any acknowledgment by those who sell legal services, or their consultants, that alternatives to hourly billing come loaded with their own difficulties and anti-client incentives. So, I urge both sellers and buyers of legal services to read “Firms Learn to Cope With Alternative Billing Plans: Clients see corner-cutting, slowdowns” (The National Law Journal/Law.com, by Leigh Jones, September 11, 2007).

The NLJ article begins: “As more corporate clients are getting the alternative billing arrangements they want, they are claiming some pushback from law firms trying to make the best of the new deals.”

“A mix of sky-high billing rates, ballooning associate salaries and pressure from company executives has heightened corporate counsel’s demand for different ways to pay their outside law firms.

“And while they report that more of those firms are answering the call, in-house lawyers say that these new payment methods create their own sets of challenges in dealing with outside counsel.”

. . . “The arrangements include fixed fees, contingency/results-based fees, retrospective-based compensation, blended rate deals, discounts and more.”

Hourly billing indeed has incentives that cut against lawyer efficiency, but “But alternative arrangements take longer to devise, say lawyers from both camps, and they are far from foolproof.” (The foremost problem — how to get people on a fixed fee to work hard enough — is an obvious issue far too often concealed by the lynch mob that is trying to kill the billable hour and ignored by the customer looking for other options.) Here are some of the important points made in the article (emphases added):

• “One of the primary problems in-house counsel say they encounter is a slowdown in work performed under a fixed-fee arrangement. “There is a grave concern that outside counsel will take their eye off the ball,” said Steven Lauer, general counsel for Global Compliance Services Inc., a provider of corporate compliance services and products.

“If the parties miscalculate how long they expected a matter to take, and if they do not make contingency plans for extensions, law firms may be tempted to start pulling lawyers off the file. “Once they blow through the fixed number, there’s less work [completed],” [James] Potter [general counsel of Del Monte Corp.] said.”

• “Arrangements that are some derivation of hourly billing, whether it is a discount or a “rate tiered to volume,” are the easiest to negotiate, he said. The further the attorneys get from the traditional form of payment, the greater the unknowns become.”
• “Particularly irksome for Potter, at Del Monte, is the bait and switch that he says starts at the proposal stage.” Many law firms in recent years have improved the pitch to win bids from in-house counsel. The problem, he said, is in the delivery of services. He sees a mismatch between the assurances made by the team that sells the deal and the resources available to actually do the work. He attributes the disconnect, in part, to poor internal structures at firms.

• Bonuses tied to outcomes are also problematic, [Potter] said. At the conclusion of a matter, in-house counsel may consider the result merely adequate, while outside counsel may view the outcome as extraordinarily positive — and seek additional compensation for it accordingly. [Editor’s Note: As Rees Morrison recently advised: “[D]on’t promise a bonus for the inevitable; reward outcomes that on the probabilities known at the start are exceptional.”]

• If difficulties do arise, they usually are an indication of a larger problem between in-house counsel and the law firm it hires, said Andrew Shipley, assistant general counsel of Northrop Grumman Corp. . . . The defense contractor giant utilizes a variety of alternative billing methods, depending on the matter, but central to any arrangement, Shipley said, is the quality and efficiency of the lawyers and their written product.
  • For lawyers inexperienced at creating alternative arrangements, there is a learning curve, . . . although legal departments are calling for more billing options, they, too, are often inexperienced in negotiating the arrangements. . . . Because alternative methods may be new territory for both groups of lawyers, drawing up solid agreements can be time-consuming. . . . During those meetings [to draw up alternative fee contracts], one group should try viewing the situation from the other’s vantage point to help align interests.
• “Very often, in-house and outside attorneys don’t mean the same thing when they use the same words,” he said. The word “productivity,” from the law firm’s perspective, means the hours associates can bill a matter. To in-house lawyers, it means “efficiency,” he said.

Rees Morrison [of the Law Department Management weblog], told NLJ that “Lawyers can avoid most alternative billing headaches through careful planning . . . Well-crafted agreements need to have buffers in place if matters get sticky.” I hope buyers of legal services will be vigilant when setting up arrangements for treating unexpected (or expected but nonetheless surprisingly resource-needy) problems that arise during a matter. You especially need to be wary of law firms that will try to exploit such events.

Value Billing is Not Always a Great Value: On April 21, 2005, in our posts ron baker: sensitive guy? and ron baker & price sensitivity, we tried to help the buyer of legal or other professional services understand some of the traps that underlie concepts like alternative billing or value billing, as they consider pricing methods other than hourly billing. (and see “still sensitive over value billing” May 6, 2005) We focused on Ron Baker, because he is repeatedly said by alternative billing cheerleaders at law firms to be the great theorist, practitioner and teacher of value billing and similar concepts. In his writing, however, Baker consistently makes the point — listen up clients! — that the goal of escaping the billable hour is to increase profits and charge super-premium prices, by getting the client to agree on price when the client is least sensitive to increases and the professional has the most leverage.

Thus, in the article, “Change Orders: What a Concept!” Baker tells his audience: (emphasis in original)

“The moral: Always set your price when you possess the leverage.”

Baker then suggests ways in which the client can be maneuvered so that “a premium price” can be charged. He stresses, as do I:

“A favorite way to make the client insensitive to premium fees is the use of Change Orders when services are needed beyond those covered in the initial fixed-price arrangement [no kiddies, pricing can’t really all be done up front].”

In a subsection titled “Change Orders Indicate a Climb up the Value Curve,” Ron gleefully points out that: “One of the greatest advantages in using a change-order policy for all scope changes is that they point out value pricing opportunities.”

Baker’s parting wisdom: “change orders have ‘value pricing’ written all over them and should be priced accordingly.”

If you are not yet convinced to be wary of Change Orders and similar tactics, please read Baker’s “Change Orders and Innovative Pricing Methods,” (SmartPros, Jan 24, 2000). Here’s how our prior post summarized the article:

Finally, if you’d like to see some of the results Ron suggests can be had using his value pricing techniques, strategies, and psychology, see “Change Orders and Innovative Pricing Methods,” (SmartPros, Jan 24, 2000). It seems that clients, properly “leveraged,” will offer to pay two or three times as much (sometimes ten times as much) as a professional’s regular fees, and the professional can sit back and rake it in, righteously smoting the evil hourly billing system and increasing the client’s perceived value. (The shrewd professional will even give the client a discount off the 200% or 300% premium fee the client has offered to pay — earning both merits points in ethical-code heaven and the client’s trust and loyalty.)

Of course, as always, I worry about the unsophisticated consumer of legal services who does not have the information, experience or leverage to venture safely into alternative billing arrangements — especially when those who tout them the most often have the smoothest, most-soothing patter about the advantages that switching from billing by the hour can bring. The Big Boy Buyers of legal services might have a learning curve, but they have plenty of time and opportunity to travel on the curve and get it right. Most “Main Street” clients do not.

You can read much more about the issues raised when considering alternative bill methods in our recent post, “broadening the hourly-billing debate — consider yourself, your clients and your ethics” (Aug. 18, 2007), which collects links to other postings on the topic, and has lengthy excerpts from many of them.

for the fat green frog
crouched on the log
time is flies

……………………………….. by George Swede – from Almost Unseen

the bill collector
with shoes on steps inside
to the hearth

a nightingale singing
included in the price…
five-penny tea

river boat–
on a night of fireworks
still selling fireworks

harvest moon–
the peddler selling
eight cent sake

they even sell tea
not worth a fart!
summer trees

selling morning-glories
wet with morning dew…
a tough character

……………. by Kobayshi ISSA, translated by David G. Lanoue

Sunday newspapers across the nation have major articles today (Sept. 9, 2007) questioning the efficacy, enforceability and negative unintended consequences of residency restrictions on sex offenders. An Associated Press story out of California, by Catherine Saillant for the Los Angeles Times, is appearing in media markets big and small, from the Seattle Times in Washington State [“Strict laws may foil sex-offender tracking“] to the Concord Monitor in Massachusetts” [“No easy answers for housing sex offenders: New laws leave many of them homeless“]. The Schenectady NY Gazette features the story on its front page, with the headline “Sex offender laws questioned in California“. The piece begins:

“Habitual sex offender Ross Wollschlager has bounced from one Ventura County hotel to another in the weeks since his release from a state mental hospital, getting ejected each time the owner learned of his identity.

“Publicity about his release has made it impossible for the 44-year-old convicted rapist to find a rural landlord willing to give him a place to live.”

A social agency has tried for 17 months to find a place for Wollschlager to live. The article continues with a quote from Margaret Coyle, a county prosecutor who opposed Wollschlager’s release:

“It’s harder to protect the public when he is homeless. Were he in a condo or an apartment, we could supervise him more effectively.”

In a related article, the Associated Press is reporting today that “More Than 2,700 Sex Offenders Must Move” (Sept. 9, 2007) in California:

“On Friday, the California Department of Corrections and Rehabilitation finished notifying 2,741 sex offenders that they have 45 days to find legal housing, or they will be sent back to prison for violating their parole, said spokesman Bill Sessa.

“The department previously estimated no more than 2,100 parolees were violating the law approved by California voters in November. Jessica’s Law, named after a 9-year-old child kidnapped and killed by a molester in Florida, prohibits offenders from living within 2,000 feet of a school or park.

…. “The department has adopted new policies to deal with sex offenders that wind up on the street, Sessa said. Homeless offenders will be required to visit their parole officer each day to report where they spent the previous night.”

The plight of homeless American sex offenders even made the news in the former Soviet Union today, with Georgian news media picking up the United Press International report : “Sex offender released, living in tent“.

Despite these problems, lawmakers are still responding to public fears by proposing more residency and exclusion-zone laws. [See our August 30th post about Chenango County, NY., where I’ve included links to major f/k/a posting on the topic]. For example, in the Rhineleander Region of Wisconsin, “Crandon Common Council wants to protect children from sex offenders” (Sept. 8, 2007), with a law stating that any lease for a residence in violation of the new 2,000 feet rule cannot be renewed, and that prohibits sex offenders from “participating in holiday events involving children under the age of 18, such as giving candy to trick-or-treaters on Halloween or dressing up as Santa Claus or the Easter Bunny, unless the offender is the parent or guardian of the children involved and no other non-related children are present.”

– lawn sign in Mt. Upton, Chenango County, NY [News10Now; see our prior post]

– “Mt. Upton is United: Sex Offenders Get Out !… & Stay Out !…“

In addition, a Wilkes-Barre, PA, councilman insists that he will continue to press for residency restrictions, despite the fact that “Mayor, residents voice doubt over councilman’s sex offender ordinance” (Zwire.com. Sept. 8, 2007). According to CitizensVoice.com:

“Mayor Tom Leighton gave [Councilman Jim] McCarthy a letter at a work session Tuesday from Lauren Taylor, executive director of the sexual offenders assessment board of the Pennsylvania Board of Probation and Parole, which cites research showing there is no correlation between residency restrictions and reducing sex offenses against children. In fact, ordinances may make children more vulnerable to sexual predators, the letter stated.

“According to the letter, 93 percent of sexual abuse victims know their abuser; 34 percent are family members and 59 percent are acquaintances. Forty percent of sexual assaults take place in the victim’s own home and 20 percent take place in the home of a friend, neighbor or relative.

“Residency restrictions may have the unintended effect of increasing risk and may make supervision and management more difficult, the letter stated.”

The lawmaker, Councilman Jim McCarthy, sounds a lot like politicians in Schenectady County, e.g. Legislature Chair Susan Savage, when he replies to such arguments by stating: “We are an island amidst all of these people protecting these children.”

According to today’s Associated Press article, “A report, ‘No Easy Answers: Sex Offender Laws in the United States,’ scheduled for release this week by the nonprofit group Human Rights Watch, is expected to be critical of such laws and policies and urge state and federal overhaul, including the elimination of residency restrictions.”  A Human Rights Watch op/ed piece in the San Francisco Chronicle, “Banishment is Not the Answer” (by Corinne Carey, Jan. 31, 2005), very likely foreshadowed this week’s Report, when it argued that “Communities will be safer when sex offenders are able to re-integrate, receive support for behavior change, establish new adult relationships and face effective mechanisms for monitoring and accountability.”

For another interesting perspective on the problem of housing sex offenders, see the opinion piece in the Ventura County [California] Star,”Where will sex offenders live?” (Sept. 9, 2007), by Scott Monroe, a certified property manager and president of the California Apartment Association. In the thoughtful piece, Monroe says “The California Apartment Association position would be to list only the high-risk sex offenders, and not those individuals who might have been convicted of less-harmful offensives such as nude sunbathing or urinating in public. By reducing the list to only high-risk sexual offenders, we can better understand the magnitude of the problem and begin to create long-term solutions.”

In addition, here in the New York Capital Region, the Albany Times Union published a major original piece of journalism about sex offender residency laws today: “Efforts to protect kids often carry own risks: Regional laws restricting residency for paroled sex offenders can be counterproductive, some officials say” (Sept. 9, 2007; article goes into for-pay archive in two weeks). Veteran reporter Carol DeMare notes:

“Parole officers understand the obstacles, but they have to work within the laws. ‘We think these laws are counterproductive to the rehabilitation of sex offenders and can put communities at risk by, in some cases, driving sex offenders underground,’ said Mark Johnson, spokesman for the state Division of Parole.”

The article collects some very useful information, which I have reproduced below the fold, such as a description of the various laws in six local counties, and a chart showing how many sex offenders reside in each county as of September 4, 2007, broken down by their designated risk level. It also has quotes from a variety of persons in the community and local politicians.

The Times Union quotes Albany County Legislator Christine Benedict saying “It’s going to end up not just cities against towns but counties against counties.” Benedict also told the TU, “If I had my druthers … I would like a facility where they can live and go to work and a have a life but away from a residential area. They committed a crime, and they need to color inside the lines now.” The article notes:

Benedict has been in the vanguard of efforts to manage where sex offenders live. “I don’t know what the answer is, but it lies in the hands of state government and they need to do something.”

Benedict, the legislature’s Republican minority leader, and Democratic Majority Leader Frank Commisso are working to develop a county master plan for housing sex offenders.

Work groups discuss “what would be the model, what would be the right approach for us to be looking at in relation to housing for sex offenders,” Albany County Social Services Commissioner Elizabeth Berlin said.

The notion that you might solve this problem by housing sex offenders in some form of group facilities seems unworkable and possibly unconstitutional. Despite Benedict’s assertion, the sex offender can hardly be expected to “a have a life” (i.e., a family and a healthy stable relationship within the community) living in an SO facility.

You might recall our f/k/a “mini-editorial” on August 24, 2007 [which the Schenectady Daily Gazette printed as a Letter to the Editor, on Sept. 5, 2007 ], in which we noted that Ms. Benedict showed up last month at the Schenectady County public hearing on changes to our sex offender residency laws. Benedict, who had voted for the Albany County 1000-feet exclusion zones, warned Schenectady County that it better rescind its laws, as her constituents live right across the County line, and she would do everything she could to make sure that sex offenders do not move from Schenectady County to Albany County. Her remarks became a justification for some Schenectady “leaders” to keep our restrictions on the books.

p.s. Meanwhile, the treatment of juvenile sex offenders is also in the news today: For example: “Questions linger over treatment of juvenile sex offenders” (Yakima Herald, Sept. 9, 2007) “Sex offenders going on record: Adam Walsh Child Protection and Safety Act requires names of juvenile offenders to appear on federal registry” (News-Herald, Cleveland, OH, Sept. 9, 2007); “Juvenile exemption weakness in law” (Altoona [PA] Mirror, Sept. 9, 2007)

Don ‘t forget, the Gatehouse two-part series, Sex Offenders: A Flawed Law, published in several newspapers, including the Patriot Ledger of Quincy, MA — Part One and Part Two, August 25 & 27, 2007)

(more…)

The newest edition of the bi-monthly online magazine The Complete Lawyer was posted this afternoon and focuses on a topic that should interest every segment of the legal community (as well as the public that uses its services): What Can Law Schools Do Better? (September-October 2007, Vol. 3 #5)

Earlier this year, the Carnegie Foundation for the Advancement of Teaching released its report “Educating Lawyers,” and the Clinical Legal Education Association published Univ. of South Carolina law professor Roy Stuckey’s “Best Practices for Legal Education” (which you can download here). As Stuckey explains in his new TCL article, “Practicing Lawyers Can Change Legal Education“:

“Each study concluded that law schools over-emphasize teaching legal analysis and doctrinal knowledge, and virtually ignore teaching professional skills and values.

“The reports advocated that law schools broaden their educational objectives and make greater use of experiential and context-based learning in order to better prepare students for the practice of law.”

In an editorial titled “How Many Wake-up Calls Will It Take?“, Don Hutcheson, the Editor/Publisher of The Complete Lawyer, asks:

.. “In the face of this unrelenting challenge to change, how are law schools responding? In this edition of TCL we hear from law school deans and professors from across the country, from large law schools and small, who share their insights, experience, and hope on the critical topic: What can law schools do better?”

Don highlights a quote from Chester Irving Barnard (1886–1961), author of the influential management book Functions of the Executive: “We hire people for their skills, but the whole person shows up for work.” He ends his TCL editorial with this plea:

“I think that notion is as important today as it was in Barnard’s time—perhaps more so. Now more than ever, law schools need to prepare their students not simply for their careers but also for their lives as ethical, competent, and compassionate lawyers inclined to make a difference in their communities.”

Here are the articles you’ll find in the newest TCL, focusing on What Law Schools Can Do Better:

• Practicing Lawyers Can Change Legal Education – Hundreds of law teachers understand the need for reform. Unfortunately, they are still in the minority: They welcome your help. By Roy Stuckey
• We Need To Produce Lawyers, Not Technicians – The profession is increasingly seeking more skills training from law schools. By Lisa A. Kloppenberg,
  Dean at the University of Dayton School of Law.
• Law School Innovations Result In Broader Students – The changes in legal education we’re putting into effect will train students to be much broader, both professionally and intellectually, than traditional legal education now does. A TCL Interview: Larry Kramer, Dean of the Stanford Law School.
• Educating Law Students For Leadership – Leadership skills are increasingly an integral part of a modern professional education. By Donald J. Polden, Dean of the Santa Clara U. law school.

. . . . . .

• Developing A Personal And Professional Identity In Law School – Neglecting the development of identity in law school is one key reason so many lawyers are dissatisfied with their lives. By Daisy Hurst Floyd, law school dean at Mercer Univeristy.
• Turning Law Students Into Lawyers – A blend of experiential and doctrinal learning helps law students not only think like lawyers but act like them. By Case Western law professor Kenneth R. Margolis
• I Blame Law Schools – I blame law schools for ignoring the importance of developing interpersonal skills and for failing to cultivate well-rounded graduates. By marketing columnist Alf Nucifora.

You’ll also find a Book Review by Pierce Law school’s Sophie Sparrow of Stuckey’s Best Practices for Leal Education book. (Prof. Sparrow is the recipient of the Inaugural Award for Excellence and Innovation in Teaching Professionalism.)

TCL’s Weblog Directory – As of the Sept. 2007 edition, The Complete Lawyer has posted TCL’s Weblog Directory (which, as discussed below, I helped compile). The TCL Weblog Directory is an annotated, alphabetical list of over 110 law-related weblogs (blawgs) whose stated description or mission falls within TCL‘s scope: content that “focuses on the professionalism and quality of life and career issues that impact every lawyer’s success and satisfaction.” They explain:

“The directory is divided into two segments Legal Life and Legal Marketing. Legal Life covers weblogs whose mission includes Personal and Professional Development and Work/Life Balance; while the Legal Marketing list includes weblogs that focus or feature aspects of legal marketing. There are about 75 weblogs on the Legal Life list and 38 on Legal Marketing.”

• Legal Life – weblogs featuring personal and professional development and work/life balance
  
• Legal Marketing – weblogs that focus on or feature various aspects of legal marketing

I first became familiar with The Complete Lawyer when approached by its editor Don Hutcheson to participate in its The Graying of Lawyers edition (July-Aug. 2007). Since then, because TCL covers so many topics that are important for the profession and ultimately its consumers (take a look at the Focus topics in its prior issues), I’ve been trying to attract attention within the legal weblog community for the publication. To that end, I compiled TCL’s Weblog Directory. Blame any omissions on me, and let me know if I’ve missed a site that deserves to be on the list [Leave me a comment or send an email to “dag DOT law76 AT post DOT harvard DOT edu“.]

fund drive
the ivy covered building
has a new name

……………………….. by Yu Chang from Upstate Dim Sum

september morning
none of the students
has failed

………………… by John Stevenson – Upstate Dim Sum (2003/II)