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November 2008
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Is Legal Ethics About Protecting Clients?

If this post gets noticed, I expect it to be controversial.  Some will use emotion or make other bad arguments.  But those arguments all fail, when you look at lawyering from the client's perspective.  If you were a client, what conduct would harm you most:

1) You gave your lawyer a $5,000 retainer.  The lawyer is to draw on this retainer only after work has been performed.  But you nonetheless expect the lawyer to perform $5,000 worth of legal services.  One week later, your lawyer is short on cash and can't make payroll.  Using the $5,000 he put into a checking account for you, he starts writing $5,000 worth of checks.  Two weeks later, he performs $5,000 of legal work for you.  Feeling a little guilty about the interest-free loan you gave him, he actually give you a couple of hours of free work as interest.

2)  You see your lawyer on Dateline NBC, being asked by Chris Hansen to, "Please take a seat over here."

3)  You are emotionally vulnerable and needy.  Your lawyer is someone you tell things you never tell anyone else.  You trust your lawyer because of the relationship you developed through attorney-client privilege conversations.  You eventually have sex with your lawyer.

4)  Your lawyer makes a critical mistake in your criminal case.  Because of this mistake you spend 25 additional years in prison.  

As a client, which would harm you the most?  Most would say that 4) is unacceptable; 3) is shady as all Hell; 2) is disgusting and might make you want a new lawyer, but doesn't affect you; and 1) wouldn't even be an issue - and thanks for the free work! 

Legal ethics, however, says the following: 1) is the worst conduct imaginable.  A lawyer caught doing 1) would be suspended.  Fall on your sword, beg for forgiveness, repent.  And maybe you won't get disbarred. 

A lawyer caught doing 2) would be suspended, but probably would not be disbarred.

A lawyer caught doing 3) would almost certainly not receive any punishment.

A lawyer caught doing 4) would receive no formal punishment.  At all.  He would be left free to screw up other clients' cases.  At worst, some judge in some opinion would publish his name.

Does that make sense?  As a client, you probably don't think so.  Given that, one must wonder: Is lawyer discipline about protecting clients, or about enforcing a worldview (lawyer-as-status-symbol)?  Is legal ethics about protecting your, or about making lawyers feel more dignified?  Does knowing that lawyers who harm clients will almost never been punished make you think more highly, or less highly, of the legal profession?

Last Book Blogging Post for '08

Finished, "What Every BODY is Saying: An Ex-FBI Agent's Guide to Speed-Reading People," which is really good and which I intend to blog later.

Other than drafting a complaint and doing a motion to suppress, doing some light reading for the next couple of days:

  • Traffic : why we drive the way we do (and what it says about us)   
  • The power of movies: how screen and mind interact
  • The young Mencken: the best of his work

Awaiting these titles via interlibrary loan:

  • The Psychology of Judgment and Decision Making
  • Choices, Values, and Frames
  • Heuristics and Biases: The Psychology of Intuitive Judgment

Happy New Year!

Gerry Spence on Intellectuals

My reading list varies between that of a law professor, or graduate student in psychology or philosophy; School of Athens close up of Plato and Aristotle so I'm not anti-knowledge.  Yet I, like Gerry Spence, don't think highly of intellectuals.  If you were going  to run for political office, would you really care about what John Rawls had to say?  If you were going to organize a society and listened to John Rawls, you'd have total collapose.  Karl Marx, after all, was quite the intellectual.  Anyone American readers want travel back in time to live in the Soviet Union; or to move to Communist China?

If you were going to invest your money, and you had listened to the pointy-head economists, you'd be in ruins.  The economists are lining up to offer solutions to the economy's current problem; yet those same economists never even say the problem coming.  So what good are they? 

In a way, then, the debate between Platon and Aristotle will never die.  Plato is fun to read, but he doesn't have much to offer one in how to live one's life.  Aristotle, on the other hand, wrote the book on friends - why they are good, how to make them, and how to keep them.  So, while I'll read Plato for pleasure, I'll recognize it as the intellectual hedonism that it is.  Aristotle for the win.

Fantastic Financial Advice for 2009

This post is great.  Note that, unlike every other commentator, Karl Denninger has published his predictions for 2008 - showing which ones were right, and which ones were wrong.  How many other "financial advisers" are doing this?  Will you continue to listen to people who have cost you money, and who will not hold themselves accountable?  Insanity is doing the same thing over and over again, and expecting a different result.  Get sane.

When Should a Lawyer's Conduct be Relevant to His Law License?

At Simple Justice, there is an interesting post about a New York lawyer who solicited sex with a 13-year-old girl.  To Catch a Predator Style, the lawyer had explicit chats with someone purporting to be 13-years old.  He agreed agreed to meet her.  Instead, he was greeted by law enforcement. 

The question before the New York Court of Appeals was this: Should the lawyer be disbarred?

The Court of Appeals, in a split decision, said No.  Scott disagrees:

When one assumes the responsibility of being a lawyer, one undertakes the responsibility of trustworthiness above and beyond others.  We aren't close to being as trustworthy as we should (right Marc Dreier?) and should put our effort into being worthy of the license we hold, not trying to get 13 year old girls to engage in sex.  Lever's conduct was sick, but the Appellate Division's decision was simply wrong and disgraceful. 

I think the issue is more ambiguous, and that the answer will depend upon how one views a lawyer. 

There are two major views of a lawyer: lawyer-as-status-symbol; and lawyer-as-weapon-of-mass-destruction.

Some folks say, with italics, I’m a lawyer.  Their entire identity is tied up in their profession.  They go around calling everyone else non-lawyers.  They say things like, “Well, this might not make sense to a lay audience.”  They hate lawyer advertising.  They talk about dignity and gravitas.  They really get into the status of being a lawyer. 

They want to enforce this worldview on other lawyers.

I bought into the lawyer-as-status-symbol model until I went to law school.  I looked around.  I asked myself, “How many of these people would I trust to represent myself?”  When you meet enough lawyers and would-be lawyers, you realize the status associated with the position is a myth. 

Lawyers are people, too.  Lawyers, like other people, are generally only marginally competent.  A few are excellent.  A few are outright dangerous and destructive.

There thus shouldn't be an inherent status that should be attached with being a lawyer.  Any flunky can go to law school (there are enough of them, after all) and pass the bar.  One should be proud of attained excellence in a profession or endeavor. But merely attaining a professional position should not be a status symbol in itself.

The other view of lawyers is lawyers-as-weapons-of-mass-destruction.  A lawyer can ruin your life. 

Have you ever been charged with a crime?  Sued?  A prosecutor can falsely charge you with a crime, and a civil lawyer can file a frivolous lawsuit against you.  A criminal defense lawyer can provide you ineffective assistance of counsel, costing you years in prison that a good lawyer could have saved you.

Lawyers can do real damage to your life.  All lawyers, by virtue of their license, have this power.  Thus, the proper model of a lawyer is one who can harm the public using his law license.

If you view the legal profession as I do, you’re much less concerned with what a lawyer does off-the-clock.  TheNew York lawyer did not solicit a 13-year-old client he was representing in juvenile court.  He didn’t use his inside knowledge or law license to meet the child.  (If he had abused his position of trust as a lawyer, then he certainly should have been sued, and disbarred.)  He met her the same way any other creep would meet a teenager – on the Internet.

Amazingly, though, lawyers who file frivolous lawsuits are never disbarred.  Defense lawyers who provide ineffective assistance of counsel are not suspended.  Prosecutors who file false criminal charges aren’t even identified in publicly-available documents.  Judges who make outright wrong rulings and create judicial fiefdoms are never punished. 

Lawyer discipline is unfortunate.  It currently focuses on the wrong sort of misconduct.  Even most reformers are more concerned with the image of lawyers, rather than the reality of harm lawyers can cause. 

If we want to clean up the legal profession, lawyers who file frivolous lawsuits, provide ineffective assistance of counsel, and file bogus criminal charges are the ones who should be punished.

In other words, a lawyer's conduct is only relevant when it relates to his conduct practicing law.  Under this view, a few more creeps might be practicing law.  But we'd have a fewer frivolous lawsuits and false criminal accusations.   UPDATE: Follow-up post, here.

Calorie Restriction and Life Extension

Every study done on any species has shown that calorie restriction expands lifespan.  A recent study (via David Lat's Facebook) was done on earth worms:

Sometimes it’s not what you eat, but when you eat it. At least when it comes to longevity diets. For some time, scientists have known that animals kept on a strict diet live longer than their well-fed peers. But this Methuselah meal plan is no ordinary just-say-no-to-that-second-slice of pie kind of diet. To reap the life-extending benefits, some of these animals cut their calorie consumption in half. Such a diet might be do-able for captive mice and monkeys, but it would be a tough sell for people.

Then, five years ago, studies in mice suggested that intermittent fasting would work just as well. These mice abstained from eating every other day, and lived longer then their gluttonous comrades—without really skimping on the total calories they consumed.

Now, scientists at Kyoto University have found the same thing in worms that fasted every third day. And they found a gene that regulates the effect, results reported in the journal Nature. Like the mice, these fasting worms did not cut their total calorie intake. But they boosted their lifespan by 50 percent, and showed fewer signs of physical decline than their peers. So go ahead, enjoy that extra slice of pie. Because tomorrow’s another day. To not eat.

Of course, neither modern medicine nor the American Medical Association will trumpet these results.  There is no expensive drug to sell.  And how many people want to hear that eating less is the fountain of youth?

I certainly respect people who make a cost-benefit lifestyle choice about their weight.  If you're willing to die a few years (or decades) sooner because you like to eat, great.   How dare I or anyone else suggest you live your life otherwise? 

But the debate over whether calorie restriction will increase lifespan really is over - and probably has been over for years.  The only open questions are, among others, whether intermittent fasting is as good as steady calorie restriction; and whether one can realize the benefits of calorie restriction through protein restriction:

"That was puzzling because it was the first time we hadn't seen agreement between mice and rats on calorie restriction and humans on calorie restriction," Dr Fontana explained. "But we know there are two major influences on IGF-1 levels: calorie intake and protein intake. So we decided to look at the influence of protein."

Dr Fontana and his associates next examined a population of strict vegans who consume no animal products, which results in a lower protein intake than most people, including those who practice calorie restriction. "The vegans had significantly less circulating IGF-1, even if they were heavier and had more body fat than CRONies," Dr Fontana stated. "Protein in the diet seemed to correlate with the lower levels of IGF-1. The strict vegans took in about 10 percent of their total calories from protein, whereas those on calorie restriction tended to get about 23 or 24 percent of calories from protein."

There are lots of interesting issues regarding calorie restriction.  Whether it works?  That has gone the way of the flat Earth theory.

Incidentally, if you're interested in calorie restriction, or life extension, or simply living a better life, check out the Life Extension Foundation.  I've always had a sense of my own mortality, and thus have been a member since I was 22.

Crime & Section 8

You mean when you move dead beats into a neighborhood, rather than being uplifted by the nicer neighborhood, they bring the neighborhood down?  Who would have thought?

As more and more black renters began moving into this mostly white San Francisco Bay Area suburb a few years ago, neighbors started complaining about loud parties, mean pit bulls, blaring car radios, prostitution, drug dealing and muggings of schoolchildren.

In 2006, as the influx reached its peak, the police department formed a special crime-fighting unit to deal with the complaints, and authorities began cracking down on tenants in federally subsidized housing.

The story makes this seem like a black-white issue.  Which is ignorant.  If you moved white people from the trailer park into Antioch, you'd seen similar increases in crime and associated drama. 

Few will admit this: The dregs of society will remain dregs.  Moving bad people into a good neighborhood doesn't make the bad people good; it makes the good neighborhood bad.

Of course, the very same people I will offend with my comments work very hard so that they don't have to live around the dregs.  Diversity is great when it's a slogan.  Diversity is great when it's not in our neighborhood.

When Socialism Met Capitalism

A few days ago I noted one major hole in John Rawls' theory of justice, namely, corruption.  This New York Times article offers more evidence of the problem of government redistribution:

A tight-knit group of former senior government officials who were central players in the savings and loan bailout of the 1990s are seeking to capitalize on the latest economic meltdown, enjoying a surge in new business in their work now as private lawyers, investors and lobbyists.

With $700 billion in bailout money up for grabs, and billions of dollars worth of bad debt or failed bank assets most likely headed for sale or auction, these former officials are helping their clients get a piece of the bailout money or the chance to buy, at fire-sale prices, some of the bank assets taken over by the federal government.

In other words, the same crooks who caused a smaller meltdown are profiting again.  That, of course, is exactly what we'd expect to happen when the government does not simply enters an arena; but where, as here, the government has created the arena.  And the only way to get a seat is to pay admission.

The crooks of decades past are paying for their seat:

“Fortunes will be made here, no doubt about it,” said Gary J. Silversmith, one of more than a dozen former R.T.C. officials interviewed who now are involved in enterprises seeking to profit from bank bailouts.

Notice that he said, fortunes will be made.  He did not say that banks will be saved.  That's quite the linguistic distinction, isn't it?  Yet the government making the rich richer is exactly what libertarians like me would expect. The larger the government we have, the more government corruption we will see. 

Yet while John Rawls and others would create a huge government infrastructure to ensure that every citizen obtained "justice," he fails to note how decayed this infrastructure would be.  In light of the corruption we'd expect from the government, would a Rawlsian society truly be more "just," even by Rawls' own definition? 

More concretely: Did any libertarian not predict exactly what is happening in the Times article?  Yet, while noting this corruption, the liberal editors at the time ignore what has caused it - the nature of government itself.  I'd ask if the Times editors suffered from cognitive dissonance, if I were confident that they've considered the contradiction between big government and uncorrupt government.