Monday, December 31, 2007

Suing Your Public Defender

In a legal malpractice claim arising out of the client's representation by a public defender, the New Jersey Supreme Court held that the statute of limitations is not affected by the actual innocence of the plaintiff. Further, the statute is not tolled by a collateral attack on the conviction. Rather, the malpractice case must be brought along with the post-conviction claim and may be stayed by the trial court until" the underlying criminal proceedings reach its logical conclusion." A dissent suggests that this approach is unworkable and not in the interests of judicial econony. (Mike Frisch)

December 31, 2007 in The Practice | Permalink | Comments (0) | TrackBack (0)

Reciprocal But Not Identical

An attorney who had been suspended for six months by the United States Court of Appeals for the Ninth Circuit was the subject of reciprocal discipline proceedings in New York. A former associate in the lawyer's firm, who had also been the subject of charges of misconduct, testified that the lawyer had engaged in serious misconduct. These allegations were rejected, leading the Appellate Division for the Second Judicial Department to impose a public censure in lieu of suspension. In the Ninth Circuit proceeding, it was found that there was:

"no evidence to support the most serious allegations: that Oriakhi and Roman[the accused attorneys] interfered with and obstructed Obayemi [the associate] in prosecuting petitions for review, that they forged briefs or prepared misleading documents in cases belonging to Obayemi, and that they offered inducements, or threatened Obayemi to force his cooperation in taking the blame for the allegations in the order to show cause. The Commissioner did find, however, evidence of negligent misconduct by Oriakhi and Roman caused primarily by their reliance on an inadequate case-management and calendaring system at Roman & Singh. As a result of their failure to supervise Obayemi and neglecting to have an adequate system in place to monitor his cases, Oriakhi and Roman failed to enter timely appearances in the petitions for review to protect their clients' interests and prosecute their petitions diligently. The Commissioner found that their violations of court rules and orders and other misconduct burdened the court by requiring research by court staff and action by a panel of judges, inconvenienced opposing counsel, and had a potentially adverse effect on the legal proceedings, although there was no evidence of actual injury."

The case involved attorney Roman. The court declined to impose the identical discipline of a suspension, noting that Roman was the only attorney in the firm's New York office. (Mike Frisch)

December 31, 2007 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Friday, December 28, 2007

Discuss Ethics, Values, Literature, and a Life in Law: But Do So Under The Tuscan Sun

Posted by Alan Childress
The Justice Institute for the Legal Profession in Ohio uses studies of the humanities to reconnect lawyers, judges, and teachers to the ideals of law and justice.  The group offers a "CLE" in July 2008 that is way more than that, and takes place in Tuscany, Italy -- mainly the "Val d'Orcia valley, arguably the most beautiful region of Tuscany, famous for its hill towns and breathtaking landscapes."  Two week-long seminars "explore the relationship between law, justice and culture" and encompass the 'great28m readings' such as Sophocles' Antigone, Augustine's City of God, and Virgil's The Aeneid, all linked to great modern films. 

If you can't go to Italy, consider their 10th Annual Legal Profession Seminar, Oct. 15-18, 2008, in the villas of . . . Newark, Ohio.  OK, I know, but this too is not your father's ethics CLE:  "Bringing together experienced members of the Ohio bench, bar and academy, we will meet again this fall for an intensive discussion designed to deepen the understanding of legal ethics and professionalism. As we have done in the past, the discussions will center around classic and contemporary 'Great Readings' from literature, history and philosophy."

No word on whether Diane Lane will show at either site.


December 28, 2007 in CLE | Permalink | Comments (0) | TrackBack (0)

Suspension Recommended For Billing Misconduct

The Illinois Review Board has recommended a 30 day suspension of an attorney for billing misconduct. The attorney had trained as a nurse prior to attending law school and had been employed by a law firm as a nurse paralegal and later as an associate attorney. The misconduct came to light from the firm's review of files assigned to the attorney after she had left. While the review board expressed some concern about the quality of the evidence establishing the misconduct, it deferred to  the hearing panel's findings:

"there were issues of credibility and issues as to the sufficiency of the Administrator’s proof. Evidence was presented relating to gaps within the preliminary searches undertaken by [law firm] personnel, prior to the more thorough, and multiple, searches by [the head of the law firm's information systems department] and his staff. Evidence was also presented to the Hearing Board as to various possible points at which a dictation tape might have been lost, a computer file saved under someone else’s name, or a completed work product misfiled or misplaced within the [law firm's] offices. Sargent’s capable attorneys presented these issues to the Hearing Board. The Hearing Board considered the evidence with great care, thoroughly analyzing the facts presented. While other conclusions were possible, the Hearing Board’s findings are not against the manifest weight of the evidence."

The Administrator had sought a one-year suspension. As I have had occasion to note in the past, in charges of billing misconduct, senior partners tend to get credibility issues resolved in their favor to a far greater degree than departed associates. This case seems to fit the pattern. (Mike Frisch)

December 28, 2007 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Two Divorces, One Disbarment

The New Hampshire Supreme Court disbarred an attorney for misappropriation of funds entrusted in connection with the representation of a client in a divorce case. The accused attorney had been in a law partnership with her husband and the misconduct occurred in the midst of the breakup of their marriage. The lawyer-husband sought a lien against the proceeds of the litigation. The lawyer-wife had opposing counsel transfer the proceeds to her escrow account and converted the payment into travelers checks. Thereafter, the money was used for the lawyer's own purposes. In the disciplinary case, the lawyer claimed to have the client's authorization, but that contention was rejected. The court also did not consider delay in the disciplinary case as a mitigating factor. (Mike Frisch)

December 28, 2007 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Absent Class Member Not Entitled To Counsel's Files

The New York Appellate Division for the First Judicial Department held that an absent class action client does not have the blanket right to obtain access to the files of class counsel. Rather, such entitlement must be established on a case-by-case basis:

"In sum, while petitioner herein, as an absent class member in the federal action, was entitled to some of the benefits of the attorney-client relationship, such as the right to privileged communications with class counsel and the prohibition against attempts by defendants' counsel to communicate with him, he had no right to direct the course of the litigation, testify at trial, participate in discovery, or dismiss class counsel. Moreover, petitioner was free to hire his own counsel to appear in the class action if he wished to employ a traditional attorney-client relationship, although his input into the litigation would still have been curtailed, or to opt out of the class action altogether if he was unsatisfied with his limited role.

Given the above-delineated disparity in the roles, responsibilities, and potential liabilities assumed by a client in the traditional attorney-client context, as opposed to an absent class member's relationship to class counsel, and his/her status as a litigant, coupled with the potential for class counsel to be unduly burdened, even after the end of litigation, by a multitude of requests from absent class members for counsel's entire file, we reject a blanket extension of Sage Realty's presumptive-entitlement right to absent class members, and find that the better practice is to require absent class members to establish their entitlement to class counsel's file on a case-by-case basis. Petitioner, in this matter, has failed to shoulder that burden."

In an unrelated matter, the court accepted the resignation and struck from its rolls an attorney from the same firm as a result of his criminal conviction:

"The basis of this conviction was that, for over 20 years, respondent, a named partner at a securities plaintiff's law firm, conspired in the payment of illegal kickbacks to individual class action plaintiffs and obstructed justice by corruptly influencing the administration of justice and making false statements in court. As part of his plea agreement, respondent agreed to, among other things, cooperate in the government's ongoing investigation and forfeit $7.75 million to the government. " (Mike Frisch)

December 28, 2007 in Clients | Permalink | Comments (0) | TrackBack (0)

Thursday, December 27, 2007

Not Just the First State, But One Born With Supremacy?: Committing Delaware Malpractice While Practicing in New York City

806534_90596719 Over at the New York Attorney Malpractice Blog, Andrew Bluestone answers Yes to a question that should send shivers down the spines of lawyers practicing corporate law and advising, even if they have never set feet in Delaware:  Can a New York Attorney Commit Delaware Legal Malpractice?   

And not just for New York City?  ...also for the folks in San Antone, and wherever you live.  [Alan Childress]

December 27, 2007 in Hot Topics | Permalink | Comments (1) | TrackBack (0)

two tech tips: new gmail vulnerability found, plus how to track email sent to you and identify it via its IP address

Posted by Alan Childress

828908_30023475I ran across two techy items worth passing along. 

1. This site, Online Tech Tips (HatTip Electronic Ephermera), tells you how to figure out who sent you that email via their IP address, at least the original location. 

2.  If you use Gmail, you may have opened yourself to a malicious code that forwards some ordinary mail you received, on to the bad guys.  Easy to search for474025_71075757 the vulnerability and stop it.  Article here at, via HT  The latter says:

Odds are high that you’re fine. But to confirm it, here’s what you do after logging in to Gmail:

… click on the ’settings’ tab in the upper right of the screen. Then check both the ‘Filters’ and the ‘Forwarding and POP’ sections.

Examine what’s listed there to make sure there’s no forwarding instruction you didn’t put 540753_red_postthere yourself.

December 27, 2007 in Blogging | Permalink | Comments (0) | TrackBack (0)

ABA Journal's Top 10 Legal Ethics "Traps"

Here is a link to a useful ABA Journal story (they are reprising at year end) that's rounding up the top ten traps that practitioners can fall into, in terms of legal ethics.  Its story also provides a link to a downloadable CLE program on the topic.  [Alan Childress]

December 27, 2007 in Ethics | Permalink | Comments (0) | TrackBack (0)

A Tragedy And A Work Product Issue

A nine year old child was served a peanut butter cookie on a field trip and died as a result of an allergic reaction. The school district immediately retained counsel, who conducted an investigation of the incident. After the family had settled the resulting claim, a newspaper sought access to information concerning the matter under laws that provide access to public records. The Supreme Court of Washington held that:

"the vast majority of the documents at issue here are protected
from disclosure because they are handwritten notes or memoranda about witness
interviews created by the legal team, making them protected work product.  Three
additional documents are protected work product created by the legal team, even
though they are not handwritten notes from witness interviews.   The remaining
documents involve  privileged  communications between the attorneys and their

A concurring and dissenting opinion note a strong public policy argument in favor of disclosure of the documents at issue. (Mike Frisch)

December 27, 2007 in The Practice | Permalink | Comments (0) | TrackBack (0)

Fit But Verify

The Minnesota Supreme Court reinstated an attorney who had been suspended for 18 months for misappropriation of over $27,000. The attorney was placed on probation for three years and also is subject to some conditions that are in force as long as he practices law. These permanent conditions include a prohibition from maintaining a trust account solely in his name, up to three additional signatories on any trust account, each disbursement signed or authorized by one other signatory and a prohibition against his wife being a co-signatory.

While I have no objection to conditions that protect the public from future defalcations,  I wonder if the court truly believes that the lawyer has demonstated "that he is competent and morally fit to resume the practice of law" in light of these permanent requirements. (Mike Frisch)

December 27, 2007 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Internet Referrals Blessed

The District of Columbia Bar's Legal Ethics Committee recently opined that:

"Lawyers may participate in both not-for-profit and for-profit lawyer Internet-based referral services where the services require a flat fee for participation, a flat fee for transmitting the lawyer’s name to a potential client, and/or a flat fee for every client secured as a result of a referral."

The full opinion is linked here. (Mike Frisch)

December 27, 2007 in The Practice | Permalink | Comments (0) | TrackBack (0)

More Dissents With Dignity

The back-and-forth between justices of the West Virginia Supreme Court of Appeals continues with another shot across the bow that suggests that the last word has not been uttering among the warring justices. Money quote:

"Starcher, J., dissenting:

            I have read, and re-read, and re-re-read, the majority's opinion. I don't know what was in the Kool-Aid they were drinking, but I believe that the opinion is one of the most factually misleading and legally pernicious cases to be produced by this Court. "

Perhaps the court could benefit from yoga, a justices-only retreat or a therapy session. The ongoing attacks certainly cannot promote respect for the judiciary. (Mike Frisch)


December 27, 2007 in Judicial Ethics and the Courts | Permalink | Comments (1) | TrackBack (0)

Caught Between the Infinite Regress of Rational Choice and Psychological Determinism

Posted by Jeff Lipshaw (cross-posted at Concurring Opinions)

I neglected to mention, in my original commentary on the Cerberus opinion over at Concurring Opinions, that I am indebted to Frank Pasquale (the real one!) for directing me to Paradoxes and Inconsistencies in the Law, edited by Oren Perez and Gunther Teubner.  I'm now doubly indebted to Frank because he pointed out another blog post that makes for an interesting counterpoint about practical reason - how we decide (particularly as lawyers) what to do.

In his introductory essay to Paradoxes, Oren Perez (Bar-Ilan) makes a point about rational calculation, in the context of the Learned Hand formula for negligence, that had never occurred to me, and which seems to make sense.  (I invite anyone to explain why it is wrong!)  This has broad application because it gets at the heart of the core relationship between the ex post outcome of cases (like Cerberus' "lessons" on eliminating ambiguities in drafting) and the ex ante calculation in respect of that outcome that lawyers (those most rational of actors) are supposed to make.

Perez's argument goes like this.  The potential tortfeasor, informed by the case holdings, knows that she will be liable for the injury she causes if the cost of precaution is less than the probability of an accident times the magnitude of the accident.  For the model to work, it has to assume that potential tortfeasors and judges are perfect welfare maximizers with perfect information.  But information and deliberation are not costless.  So maximizing actors need to make a decision about whether to invest costs in obtaining the necessary information and spending the time deliberating about the choice.  That decision is itself not costless; one needs to gather information about whether gathering information and deliberating is a fruitful way to spend one's maximizing time.  And so on to the infinite regress. This appeals to my intuition in the same way as, and seems to be related to, at least analogically, the idea that rules cannot determine their own correct application.  (If there were a rule for the application of a rule, then what would the rule be for the application of the rule for the application of a rule, and so on to the infinite regress.) 

Perez's conclusion is that this is why we have rules of thumb for deciding what to do - they sit somewhere between unsatisfying calculation and pure intuition.

But wait.  Maybe we don't calculate or intuit.  Maybe we just frame, conform, and comply.  That's a thesis proposed by Sung Hui Kim (Southwestern) over at The Situationist, a law and psychology blog affiliated with the Project on Law and Mind Sciences at Harvard Law School. In Part II of a series speculating on why lawyers acquiesce in the frauds of their clients, Professor Kim says:

Inside counsel, as employees of the firm, are inclined to take orders and accept the “definition of the situation” (a phrase coined by Milgram) from their superiors.  These superiors happen to be a cohort of non-lawyer senior managers vested with the authority to speak on behalf of the organization and entrusted to give direction to inside counsel.  They create the reality for inside counsel: they define objectives, identify specific responsibilities for inside lawyers and, ultimately, determine whether an inside lawyer’s performance is acceptable. And accepting management’s “definition of the situation” means accepting management’s framing of the inside lawyer’s role and responsibilities.

This framing provides that compliance responsibilities be segmented.  Although inside counsel’s duties include a prominent role in corporate compliance, it is business management that jealously guards the right to decide whether to comply with the law, which is seen as the ultimate risk management decision.  For inside counsel to challenge management’s decisions or management’s authority to make decisions would then amount to clear insubordination. Obedience in the corporate context will be substantial, so we should not be surprised by the banal tendency to listen to superiors.

Full disclosure.  I spent eleven years of my career as an in-house lawyer, so it's entirely possible that I resemble that remark.  (Professor Kim can also call on real-world experience as outside and inside lawyer, and in fairness, her very thoughtful and interesting Fordham Law Review article on the subject, which I recommend heartily, is more nuanced than the blog post.)  But I'd be a lot more comfortable accepting this sweeping conclusion were it made on broad empirical evidence of actual in-house lawyer conduct rather than on what appears to be a combination of inference from the Milgram conformity lab tests and well-known examples of lawyers behaving badly.  I knew a lot of in-house lawyers, and while I can't say how they would have performed in the electric shock tests, and can't deny the impact of framing on decision-making, I sure saw a lot of thoughtful and courageous pushback to management on lots of legal and moral issues.  Indeed, my casual observations were that individual moral choice and leadership in context, while certainly more elusive in its measurement, showed up more than just from time to time.  I can't determine whether that was the exception or the rule.  Indeed, I applaud the coda to Professor Kim's bio: "I tell my students that there are two questions that every lawyer should ask when counseling a client about a proposed course of action. The first is: 'Is it legal?' The second is: 'Is it right?'" But how do you make that call? 

I struggle with the line between psychological "truths" and moral free agency.  I am willing to accept the conclusion that we are hardwired to seek and justify physical and material well-being, and hence, a natural inclination for people, not just lawyers, is to comply and avoid conflict.  I don't like, however, blanket statements about in-house lawyers doing this and that, and having this and that tendency.  If I may engage in another exercise of shameless self-promotion, the point of my piece, Law as Rationalization:  Getting Beyond Reason to Business Ethics, was to explore the difference between lawyers using reason to justify a desired material world outcome, and lawyers using reason as autonomous moral agents trying to discern ethical obligation.

The implication is that I don't think you can change things by incentives (more cheese for the rats).  My answer is there has to be personal engagement in a continuing struggle to ask questions with the hope of getting answers along the way.  To borrow from Robert Louis Stephenson, sometimes it is better to travel hopefully than to arrive.

December 27, 2007 in Economics, Ethics, In-House, Lipshaw | Permalink | Comments (0) | TrackBack (0)

Wednesday, December 26, 2007

'New Rules' by Bill Maher: My Addition

Posted by Alan Childress
I am a fan of Bill Maher's "new rules" segment on his HBO show, and here is a link to a recent segment, including this one on his site:

New rule:  You don't have to recall things that would make people sick anyway. General Mills has recalled five million Jeno's frozen pizzas because they might be contaminated with E. coli. Couldn't they just as easily say they're recalling five million strains of E. coli because they might be contaminated with Jeno's pizza? I mean, what's the difference? One gives you stomach cramps and diarrhea, and the other is E. coli! 

I was thinking of this format the other day while eating Chinese food and drinking diet pepsi ("no coke--659363_panda_3

pepsi") out of a cup that proclaimed Panda Express to be "gourmet Chinese cuisine."

New rule:  You can't call your food "gourmet" if it is served by slopping it onto a styrofoam container, at the mall.  From behind a massive sneeze guard.

December 26, 2007 in Blogging | Permalink | Comments (0) | TrackBack (0)

Jack Thompson's Comments About His Possible Disbarment May Show a Little of the Problem Here

Posted by Alan Childress

I posted, yesterday, this fairly innocuous link to Michael Froomkin's own brief post on the pending bar discipline matters involving Jack Thompson in Florida.  I passed along the question, should he be disbarred?  (A fair question, I would say, since such proceedings, findings, and recommendations are pending.)   I added my own view, which I stand by, that Thompson does himself a disservice in his public pleadings against the bar.  Mr. Thompson took issue with the post, and commented here.

Anyway, here is the "pleading" he sent to the FloridaPic18 Supreme Court (and he openly disseminated further) last Thursday.  It includes all sorts of cut-out pictures and obscure movie and music references, including the Here's Johnny money shot to the right (that is his illustration not mine), either in self-reference or as an image of how others perceive him.  And much of it makes no sense to me [all as if he is blogging, now that I think about it].  He quotes Paul Simon to the effect that when Mr. Thompson looks back to all the crap he learned in high school it's a wonder he can think at all.  He refers to the Florida bar organization as "goose-stepping brigades" -- quoting an old case, to be sure, about integrated bars, but doing so next to a big picture of a swastika (actually two).  He suggests he is prosecuted for being "an uppity Christian."  He asks for, "for the first time, a fair review of this regulatory abortion," and then adds "picture withheld."  Gross. 

Mr. Thompson's comment posted on this site is that:

Oh, and for the confused Prof. Froomkin: I'm not a "video game opponent." I opposed the sale of Mature-rated video games to anyone under 17 when their parents aren't around. That's a view shared by 90% of the American people. We're the only country in the world that rates games for adults and then sells them to kids.

Professor, you need a reality check and to stop attending ACLU meetings.  Jack Thompson

My reply is fairly simple (besides the obvious facts that he misquoted me leaving out the word 'extreme,' that I am not Froomkin, and that the assertion that I attend ACLU meetings [or is that Froomkin?] is just made out of the blue without any basis--though I would not think it improper had I done so):  I think all of this supports my stated view that his public 'defense' is ineffective and a disservice.  It also suggests the kind of non-factual and wild "lawyering" which led to some of the bar complaints in the first place.  So I specifically reply:

To Mr. Thompson:

Thank you for posting a comment.  I believe that if you always presented your stance about gaming that way, as in your first paragraph, there would be a tidal wave of people who would agree with you and support you.  I have a 15 year old son, and I believe you do too so I understand your concern -- and thus of course I worry about the effect of violent (or as I said it "extreme") video games on kids.   Protecting kids is a cause worth caring about and taking on, and needed a champion.

But the fact, apparent to almost everyone, is that this positive cause is being led by someone who is himself beyond extreme in his manner and presentation, and does not seem to follow normal social and legal norms to accomplish his goals.  It comes across as if the worthwhile goal is subservient to more personal and less noble goals that are antithetical to the stated public goals.  You often attack those who might agree with you, as if the attack and drama is far more important than the agreement and the promotion of a unified front against the perceived opposition.  It appears as though the real opposition is not Sony, or Grand Theft Auto, but rather everyone else in the world but you.  If you think about it, this makes it all too easy for your video litigation opponents to paint you as the rabid poster child against their sales, and misdirect focus from the cause you promote.  I wonder why you would support them in that way, and make their lives and P.R. so much easier than if you took on their stances responsibly and cogently.  I suspect you think that they hate you, but I am sure they love you.  You have allowed yourself to be the perfect strawman focus so that they never really have to address the merits of their own right or wrong.  They could not buy better press than you.

Even your manner of promoting your more personal goals, like staying licensed as a lawyer, seems ill conceived and begging for failure.  It comes across as if you would rather lose your license in a big splash, and be able to say for years that you got screwed, than keep the license.  So be it, because anyone can see that is where you are heading, and if you want to lose your law license, fine. 

This site has recommended to many readers that anyone in serious trouble with a state bar hire separate counsel and be cooperative with the bar.  You did not do that, to my knowledge.  Last week you sent the Florida Supreme Court Justices a missive in which you not only questioned their ability to rationally determine your fate, but you specifically referred to the Florida bar organization in such a way that any reader would know you mean "Nazis."  You mean real Nazis, with two swastikas, not just some allegorical fascists. (You also hint that this is all an anti-Christian attack, as if the Florida Supreme Court or its bar has religious issues with you.)  That is not a strategy that I would predict would lead to success.  Especially since some of the issues you are being alleged to have had problems with, leading to bar discipline, are lack of decorum and respect, and failure to follow specific procedural instructions by judges.  In sum, you seem to be confirming their bar allegations by the way in which you are replying to them.  (New rule:  you cannot send cut-out pics of Jack Nicholson being crazy, swastikas, the Target logo, and increasingly larger fonts to the Florida Supreme Court  -- and then act all offended that they are judging you.)

I could take some comfort in your statement, posted on Froomkin's site, that "PS:  I'm not on meds.  The Bar finds I'm perfectly sane.   That's why they're concerned...."  But if you really want to keep your law license, take my advice and withdraw your letters to the Court, apologize to the Court, hire counsel, and actually follow her or his advice.  If you are unable or unwilling to do that, please do not cry foul on this site when the inevitable result of your current scorched-Earth strategy leads to, well, all the Earth around you that you care about being scorched.  What counsel gives you is credibility and perspective.  Whether or not the merits of your points against the video industry and even the bar process are correct, it is clear that you need to find a new source of credibility and perspective. 

Whether it is too late, or undeserved, is for others to say.  But since you posted on this site and seemed to think I am following some script from the ACLU, I will say that you need an intervention, not only for your own self, but for the cause that you say that you care about and which many people would support if you would let a different person lead it.

December 26, 2007 in Bar Discipline & Process, Blogging | Permalink | Comments (2) | TrackBack (0)

Tuesday, December 25, 2007

Scenes from a Lawyer's Life

Posted by Jeff Lipshaw (cross-posted at Concurring Opinions)

The Arts Section in today's New York Times highlights the renewed interest in the work of Diego Rivera, exemplified by a series of exhibitions ongoing in New York.  The theme is Rivera's stepping out from behind the overwhelming interest in his third wife, Frida Kahlo.  Our family takes a special interest in all things Rivera and Kahlo as a result of a particular historical interlude:  their four year stay in Detroit, beginning in 1929, when, at the behest of Edsel B. Ford, Rivera painted his monumental murals on the walls of the Detroit Institute of Arts.   

We have hanging in our living room three prints signed by Rivera, part of a collection of ten he gave to my wife's grandfather, Nathan Milstein, a lawyer in Detroit, who did work for and befriended Rivera and Kahlo.  (Family legend has it that Kahlo made a pass at him, but this is unconfirmed.)  Nathan was born in 1907, graduated from Detroit Central High School in 1924, and attended the Detroit College of Law (then the Detroit City Law School and now the Michigan State University College of Law) and Wayne University Law School, receiving his LL.B. at age 21 in 1929.  Nathan passed away in 2003, having continued to practice until his late eighties, and his seventy-four year tenure as a member of the bar is supposedly one of the longest in Michigan history.

Alene and I spent many hours going through his voluminous files.  One truly appreciates the historian's and the biographer's art of distilling the story from the data when looking at records like these.  The documents are tantalizing.  For examples, Nathan was a bachelor until 1946, when he married Alene's grandmother, who was a widow with two children.  Before that, he was supporting his mother and sisters.  When the war broke out, he tried for years to find a way to serve without being drafted as a private (which in 1941 paid $21 a month, not enough to support the family.)  Ultimately he found a job as a civilian flight instructor, but the file of letters and rejections to almost every branch of the military and government agency is about two inches thick.  I have framed in my office my personal favorite:  the letter signed by John Edgar Hoover advising Nathan he had failed the F.B.I entrance exam, which I had first interpreted as having been on account of Nathan's being Jewish while taking it.

The Rivera piece inspired me to go back through some of the files this morning (a quiet Christmas task).  I realize now it's entirely likely Hoover objected to Nathan not only because of his ethnicity, but also because he consorted, in the course of his immigration practice, with all sorts of "undesirables," and espoused public positions to which the F.B.I. director of long memory must have objected. As to his practice, I'm just now organizing a series of correspondence relating to his representation in late 1932 of one Halvard Lange Bojer, the son of noted Norwegian author, Johan Bojer.  The younger Bojer, an engineer who had emigrated to the U.S. in 1928, was working for General Electric in Fort Wayne, Indiana, when he was arrested by the Immigration Service, and transported to the Wayne County Jail in Detroit, on the grounds that he was a member of the Communist Party.  Bojer himself described it to a reporter as follows:  "They tell me that I'm a Communist. . .It so happens that I'm a member of the Communist Party Opposition, whose headquarters is in New York.  Members of that Party, though glad to take Moscow's advice, refuse to take Moscow's dictation.  There are other differences, such as our belief that the worker's solution is in the organization of a Labor Party, comprised of Trade Unions, similar to that of England.  Also, we disbelieve in Moscow's theory that existing labor organizations, such as the A.F. of L., should be wrecked for the formation of Communist units."

The American Civil Liberties Union attempted to intervene on Bojer's behalf.  (I can't tell if Nathan was already representing Bojer or if the ACLU retained him on Bojer's behalf.)  On December 12, 1932, Roger Baldwin, the ACLU Director, wrote to Nathan, urging Bojer to fight deportation as a test case.  Baldwin stated:  "The issue is far more than personal to him.  This is the first case, so far as we are aware, when a member of his particular Communist group has been held for deportation on the ground of membership.  It is worth fighting through because it offers a test of the application of the law to other than members of the Communist Party."  Nathan met with Bojer in the Wayne County jail, where Bojer, "a very affable and highly cultured young man," advised that he had no desire to appeal the deportation, and was willing to return to Norway.  He was released pursuant to a bond posted by his friends in Fort Wayne, and joined an "East bound deportation party" on December 29, 1932.

As to Nathan's political views, here's an excerpt from his tribute to Judge Arthur C. Denison on the occasion of his retirement from the 6th Circuit Court of Appeals in January, 1932:

Humanizing the enforcement of existing laws relating to admission and deportation of aliens has become a serious problem confronting social leaders throughout the country.  In the present delirium of unemployment when a vague terror seizes the nation, this fear is translated into alien hatred.  Public discontent must be directed away from the cause of the unrest and to accomplish this, a counter irritant is administered.  The ever oppressed alien is again victimized.  The term alien becomes synonymous with undesirable.  Deportation "drives" and "spectacular raids" then become common occurrences.  Wholesale deportation follows as a panacea for what ails the nation.  This national hysteria influences the action of public officials and finds expression in more rigid and relentless enforcement of deportation laws.  Even the courts are sometimes swept into the whirling cyclone, marring the annals of juridical science with unprecedented decisions.  To espouse the cause of the under-privileged requires great courage.  Those who bear the courage of their convictions and refuse to be swayed, belong to the school of Holmes and Brandeis.  So few do they number that a loss in the ranks is keenly felt by liberty loving citizens.

Just an ordinary kid from an ordinary school in an ordinary city.  Whose parents had been aliens.

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December 25, 2007 in Law & Society, Lipshaw, The Practice | Permalink | Comments (0) | TrackBack (0)

Michael Froomkin Asks Whether Florida Bar Should Disbar Jack Thompson

In the ongoing all-out war between the Florida bar and extreme video-game opponent Jack Thompson, here is a post from U. of Miami Law School's always-interesting Michael Froomkin, at his blog.  He cites to summaries and video to catch readers up.  Thompson does not always do himself a service when he pleads his own case to the public.  [Alan Childress]

December 25, 2007 in Bar Discipline & Process | Permalink | Comments (1) | TrackBack (0)

Monday, December 24, 2007

Site Ranks Ten Dumbest Holiday Gifts of the Year

"Winners" at this site include an extension arm for taking self-photos for narcissist MySpace addicts, aSnapjack tubular pine cone picker-upper, the Hollywood Cookie Diet, and the Fish 'N Flush real fish tank toilet (really).

And of course a pancake dissector endorsed by Rachel Ray, which obviates a "fork." 

[Alan Childress]

December 24, 2007 in Blogging | Permalink | Comments (0) | TrackBack (0)

Best Western Bethlehem is Sold Out?

YahooNews' teaser headline is "Christians Flock to Bethlehem for Christmas," linked to this story.  The more things change....

And Minor Wisdom has linked to the best misunderstood Christmas lyrics (technically "mondegreens," as in "for Richards Stands" and "Jose can you see"), in his post Joy To The Word; The Lord Has Gum.

[Alan Childress]

December 24, 2007 in Blogging | Permalink | Comments (2) | TrackBack (0)