November 1 | October 25 | October 13 | August 31 | August 19 | May 9 | May 2

• Reason magazine has an article by James Joseph on multidisciplinary practice in its November issue. Visit http://www.reason.com/0011/fe.jj.attorney.html to read the article.

• The Alabama State Bar recently filed an amicus brief supporting the Alabama Judicial Inquiry Commission’s (JIC) appeal of a federal court ruling that reinstated Alabama Supreme Court Justice Harold See to his court seat. In July, the JIC instituted judicial ethics proceedings against Justice See, accusing him of running false and misleading ads about Etowah County Circuit Judge Roy Moore in the GOP race for chief justice of the supreme court (the ads claimed that Moore was soft on drug dealers). The JIC accused See of violating two judicial conduct canons; one prohibiting a candidate from using false or misleading information, and a second requiring a judicial candidate to conduct himself “in a manner that promotes public confidence in the integrity and impartiality of the judiciary.” Moore had not complained to the JIC about the ads, and his campaign manager has said that the charges came as a complete surprise.

  See, who has denied all charges, was suspended from office. He filed suit in federal court accusing the JIC of violating his First and Fourteenth Amendment rights. Federal Judge Ira DeMent barred the JIC from prosecuting See until the matter is settled. The JIC subsequently appealed DeMent’s ruling to the 11th Circuit Court of Appeals.

  The Bar’s brief stated “the integrity and legitimacy of its judiciary” was more important than See’s rights as a judge, and echoed the JIC’s arguments that DeMent’s ruling could lead to unnecessary curbs on the way the state regulates judicial campaign conduct. The brief maintains that See should have argued his case through state, rather than federal, courts. 

  Alabama state bar member Jack Park—a senior lawyer in the Alabama Attorney General’s office—expressed his perspectives regarding the bar association’s decision to file an amicus brief in the following open letter:

  Samuel A. Rumore, Jr., Esq.

  President
  Alabama State Bar
  Post Office Box 4156
  Montgomery, AL 36101

  Dear Sam:

  I strongly object to the Alabama State Bar’s filing of an amicus brief in support of the Judicial Inquiry Commission in Butler v. Alabama Judicial Inquiry Commission, Case No. 00-14137-DD, in the United States Court of Appeals for the Eleventh Circuit.  I write to set forth the basis for my objection, but, in so doing, wish to emphasize that I take no position on the underlying matter.  In fact, what I object to is the Bar’s taking a position for me.

  My first notice that the Bar had filed came on September 21, 2000, when I read the Birmingham News’ headline, “State Bar Wants See Suspended Now” on the internet.  The Montgomery Advertiser’s headline on September 22, 2000, read “Bar Files Action Against See.”  The Bar was then obligated to try to “unring the bell,” an effort that produced a 5:22 p.m. AP story on September 22, 2000, headlines, “State Bar Official Says Concern About Rules Prompted Involvement.”  Which of those headlines grabs your attention?  I know which one grabbed mine.

  I then called a member of the Board of Bar Commissioners, who apparently learned of the Bar’s filing from me.  He later told me that he thought the decision was made by the Bar’s Executive Committee.

  The notion that three people can bind thousands to a legal position in a hotly-contested matter is staggering to me.  The fundamental point is this:  The Bar is an integrated bar, and, as an integrated bar, needs to consider how it acts.  When the Bar filed its amicus brief, it spoke for all of its members, some of whom may not have wanted to join.  For example, the entity that filed the amicus brief includes Justice See; Justice See’s lawyers in the underlying dispute; Bill Pryor who is recused from the underlying dispute; Jack Park who is likewise recused; Judge DeMent, the trial judge; Judges Cox, Carnes, and Dubina of the Eleventh Circuit; the Justices of the Alabama Supreme Court; Judge Robertson of the Court of Civil Appeals and the Court of the Judiciary; and Jim North, a member of the Court of the Judiciary.  Did the Bar just eviscerate the system of adjudication set out in the Judicial Article by speaking for all of those lawyers and judges?

  The experience of the American Bar Association is instructive.  Attorneys who disagree with political positions that the ABA has taken have resigned or not renewed their memberships.  Thousands of them have done so.  The lawyers of the Alabama State Bar have no comparable exit rights.  The absence of an exit right suggests the need for the Bar to be especially sensitive when taking a position.  In this case, however, the Bar was simply tone-deaf to the implications of its action.  This dispute is hotly contested and has significant political implications.  The necessary sensitivity was plainly lacking.

  Given that the Bar spoke for all of us when it filed, I believe that the Bar owes its membership a duty of disclosure.  The Bar should tell all of its members:

  • How was the decision to file made?  Who had input into the decision?  Did you have any role?  Did Bar Staff?  Did any of the members of the Board of Bar Commissioners other than the members of the Executive Committee?
  • Did anyone outside the Executive Committee, Bar Leadership and Staff, and the Board of Bar Commissioners have any input?  Who suggested the filing of a brief?  Did anyone furnish a draft to Bar Staff?  If so, who?  Who reviewed the brief before it was filed?
  • When did the Bar last file an amicus brief?  How often has it done so?  What were the mechanics of decision and drafting in those instances?
  • Are there any documents that pertain to the decision to file this brief?  Any e-mails?  Any copies of drafts showing the editing process?

  These disclosures should be made in any event.  I suggest that, because the brief was filed on behalf of the entire Bar, the disclosures be made in The Alabama Lawyer at the earliest opportunity.  Even when made, however, I still believe there is something objectionable in the Bar’s action.  The Bar has no jurisdiction over Justice See’s conduct; its jurisdiction is limited to lawyers running for judicial office.  As for those lawyers, I understand that JIC would assert jurisdiction over lawyers who are elected judges.  That leaves the Bar with jurisdiction over only the defeated candidates.

  This is a self-inflicted wound.  At the Military Law Symposium, you talked about stepping into the middle of a cyclone.This action has done nothing to quiet things down.  The Bar should reconsider its role in this matter and should remind itself of the responsibilities that come with integrated status.

  Very truly yours,

  John J. Park, Jr.

• Jackson may be through with Microsoft case

U.S. District Judge Thomas Penfield Jackson, who ruled that Microsoft violated U.S. antitrust law, could be removed from the case in the event an appellate panel returns portions of the case to his court because of the fact that he has made repeated statements about the case to the media and other audiences. See http://news.cnet.com/news/0-1003-200-3153207.html?tag=st.ne.1002.tgif.ni for further details.

• Pro bono Update:
  For an article describing how many large firms have cut back on pro bono hours while they are enjoying record profits, visit: http://www.nytimes.com/library/financial/081700pro-bono.html
• Visit http://www.abuzz.com/?a=vbc&b=b.81094&e=1.393 to read a discussion on whether lawyers should do mandatory pro bono work.

• The ABA House of Delegates voted 314-106 against MDP (multidisciplinary practice) at its annual meeting last month.
• The Journal of Legal Education (Vol 49, Number 4, December 1999, pp. 535-544) features an article entitled "Using Students as Discussion Leaders on Sexual Orientation and Gender Identity Issues in First-Year Courses." The opening paragraph follows:

  "One of the authors, Nyquist, is a nongay white biologically male law teacher. Ruiz is a heteroqueer evolved male (the now-antiquated term is 'transsexual') Hispanic law student.(1) Smith is a gay white biologically male law student. Both Ruiz and Smith are active in the Les-Bi-Gay-Trans Caucus at the New England School of Law and have been involved in LBGT issues for many years."

  Footnote #1 explains further: "Ruiz prefers the term 'evolved male' to 'transsexual' as a description of his gender. He is a biological female who is in the process of aligning his body with his male gender identity. 'Heteroqueer' refers to Ruiz' sexual orientation; 'heterosexual' is too simple a term for his situation. 'Hetero' refers to Ruiz' attraction to women and 'queer' to his evolved-male status.

  Footnote 22 (p. 540) is also helpful: "For example, when Ruiz first arrived at the school, Nyquist and Smith identified him as a lesbian. In our initial planning session for the class, Ruiz corrected us: 'A lesbian is a biological woman who identifies herself as a woman and is sexually attracted to women.

  Although I have a woman's body and am attracted to women, I identify my gender as male. ... The term I prefer, 'evolved male,' implies not only a physical transition, but also a personal journey, psychological growth, and a physical emergence. The term also serves to distinguish evolved males from biological males."

• The Association of American Law Schools met in January of this year in Washington, DC, for its annual meeting. The theme of this year's conference was titled "A Recommitment to Diversity." David Mayer, Professor of Law and History at Capital University in Columbus, Ohio, wrote an interesting essay about this conference. To learn what this high-level meeting was all about, and what it meant by the use of the word "diversity," go to the March 2000 issue of the chapter's newsletter, available online at its website: http://www.law.capital.edu/student/federalistsociety.
• What Good is Pro Bono? http://www.city-journal.org/html/10_2_what_good_is_pro_bono.html

• On May 25, 2000, The Professional Responsibility Practice Group is sponsoring a conference with the U.S. Chamber Institute for Legal Reform, the Manhattan Institute, and the Hudson Institute on attorney's fees. The conference will take place at the U.S. Chamber of Commerce in Washington, DC.
• The Pennsylvania Bar Institute, which provides continuing legal education (CLE) classes to more than half of Pennsylvania's lawyers, filed an unusual suit against the Pennsylvania Bar Association (PBA) in April, claiming that the PBA has made extraordinary financial demands that not only drove CLE costs up for lawyers but also could force the PBI into insolvency. Each side has retained major law firms to represent them. The PBI complaint reveals that the PBA has made increasing demands for money over the past several years, including seeking $1.2 million from PBI over the next three years. (These monies were designed to be grants to the charitable arm of the PBA.) The two non-profit organizations have an unusual relationship, in that the members of PBI's board and PBA's board of governors are one and the same. The PBI said that PBA's demands came at a critical time, when PBI was--and still is--struggling to maintain its position in the marketplace. The PBI said that it operated at a deficit for most of its existence until 1992, when mandatory CLE was instituted, and it then began to enjoy a surplus. But the PBI had little competition from other CLE providers at that time. Now there are 165 accredited CLE providers in Pennsylvania, all of which are competing to satisfy the needs of Pennsylvania's lawyers. Further, the Pennsylvania Supreme Court has decided that, as of September, for-profit CLE providers will be able to compete to attract lawyers who must fulfill their CLE requirements. This new competition has hurt PBI so much that it can longer afford to give the PBA so much money for grants. Currently, 38 states have a mandatory CLE requirement of some type. Only Washington, DC, bar members have been permitted to vote on whether they wanted mandatory CLE. In a 1995 petition for referendum, DC bar members voted 6-1 against adopting any CLE requirement. Critics of CLE have noted that bar associations, law schools, and professors are the beneficiaries of CLE, which costs lawyers some $350 million annually, and which has not been shown to reduce lawyer malpractice, decrease consumer complaints or intentional misconduct by lawyers.