Attorneys and Barristers of the Lounge

[Atticus Finch]

...a motion to suppress evidence in a criminal trial, because the state's case is so overhwleming it is depriving the defendant of his right to hope? Come on, we can (and should) do better than fabricating new rights to justify legal actions, especially when those rights already acknowledged will do so just fine...

If the U.S. Constitution contained as many "rights" as many defense lawyers like to think, it would be a thick as a New York telephone directory.

AF

 

[carebear]

The US Constitution doesn't "contain" any fundamental rights, it merely enumerates (and/or provides a procedure for the exercise of) some of them.

Still, there's no right to "hope" either way.

 

[Ephraim Tutt]

Hope is not a right, and it would be a poor lawyer who argued that there is - as it would be a poor lawyer who used Magna Carta as precedent. They would not be laughed out of court here - they would be thrown out on the end of a tongue lashing from the bench. And he/she wouldn't be laughing.

Nonetheless, there is a place for therapeutic jurisprudence. One of the sentencing principles enshrined in the Act here is rehabilitation. This is especially the case in juvenile justice and the Courts, where possible, seek to craft a sentence that will give the young offender a chance to turn his/her life around. Hope, I guess, is part of that equation but it is not a legal principle, or a right. Appeals to such a right would fall on deaf ears. I would have thought that appeals to construct a rehabilitative sentence would be better received - at least here where this has some legislative basis.

 

[Atticus Finch]

The US Constitution doesn't "contain" any fundamental rights, it merely enumerates (and/or provides a procedure for the exercise of) some of them.

I'm glad you set me straight on that issue. In all my years of practicing law, I've clearly been laboring under a false impression.

AF

 

[carebear]

I'm glad you set me straight on that issue. In all my years of practicing law, I've clearly been laboring under a false impression.

AF

My apologies, that came off (hell, was) arrogant and pedantic.

I'm a big natural rights guy and make too much of the philosophic distinction between those and statutory rights; and further I see statutory rights less as rights per se than as the mechanics by which natural rights are interpreted and exercised in a social/government context.

You're absolutely correct. In a practical sense rights is rights and if you want a list you can find it contained in (or interpreted by Scotus from) the Constitution.

 

[Atticus Finch]

My apologies, that came off (hell, was) arrogant and pedantic.

I'm a big natural rights guy and make too much of the philosophic distinction between those and statutory rights; and further I see statutory rights less as rights per se than as the mechanics by which natural rights are interpreted and exercised in a social/government context.

You're absolutely correct. In a practical sense rights is rights and if you want a list you can find it contained in (or interpreted by Scotus from) the Constitution.

Odd that you write this. I was just composing an apology to you. After reflecting on your post for only a moment last night, I understood your point exactly. Then I felt like an ass for jumping back at you as if you had intended to insult me. Actually, I also believe that human rights emanate from a source other than "benevolent" governments.

So, please accept my apologies for my quickness on the trigger. One would think that after fifty-four years I would learn to pause before I write!

AF

 

[Ephraim Tutt]

And they say lawyers have no conscience!

Well said lads. Now let's line 'em up on the bar. What ya drinkin'?

And how about some photos you lot! The good folk in Lounger Land will be gettin' sick of seeing my dressed up melon in here.

 

[David Conwill]

Well said lads. Now let's line 'em up on the bar. What ya drinkin'?

Whiskey! Preferably something from Tennesee or a good Kentucky bourbon.

-Dave

 

[Ephraim Tutt]

Whiskey! Preferably something from Tennesee or a good Kentucky bourbon.

-Dave

One Tennesee head spinner coming right up. Think I'll order myself a Maglieri, McLaren Vale Shiraz. Big and bold Aussie red.

Where's Brother Tortswon - he'd enjoy the Maglieri!

 

[Harp]

Whiskey! Preferably something from Tennesee or a good Kentucky bourbon.

-Dave

May I recommend Maker's Mark?
A smooth-sippin' Kentucky bourbon quite appropriate for rational constitutional discourse.

 

[Ephraim Tutt]

Harp,
I always reckoned that rational was over-rated. Set up the Tennessee bourbon and let's have some completely irrational constitutional discourse about both our irrational constitutions.

 

[Miss_Bella_Hell]

Planning to take the CA bar in February. With the $50 late fee, and the laptop fee, the total to take the Exam is $731. WTF!

 

[David Conwill]

I think that's their subtle way of saying "no thanks, we have enough.". I seem to recall that they are pretty eager to disbar attorneys in California, too.

Good luck with their bar, you'll be taking it with a law school friend of mine. I'm curious to know what the third part of the test is like.

-Dave

 

[Selvaggio]

Planning to take the CA bar in February. With the $50 late fee, and the laptop fee, the total to take the Exam is $731. WTF!

Hello, I am an employment/labour law specialist. Thought I would introduce myself here.

May I ask what a Laptop fee is?

 

[Ephraim Tutt]

G'day Selvaggio!
Welcome to the Observation Bar Association where the conversation meanders through legal practice, law, wine, food and vintage hats, pens or anything else that takes our fancy.
Pull up a chair - I'm in the mood for a big Hunter Valley red. My shout.

 

[David Conwill]

Hello, I am an employment/labour law specialist. Thought I would introduce myself here.

May I ask what a Laptop fee is?

Welcome! This brings up an interesting point. The ABA model ethics rules don't really allow for specialization (at least by name). Is such not the case in Australia? I think all the US states follow the ABA rule in this respect.

-Dave

 

[Ephraim Tutt]

Hi David,
Australia is in the process of developing a new national set of conduct rules that will apply uniformly across all Australian jurisdictions. At present, each jurisdiction has its own though most are at least influenced by the Law Council of Australia's Model Rules. This is no longer sustainable in a country where lawyers frequently practice across state boundaries.

As for specialisation, I'm not sure how ethics would be specialisation-dependant. The principles underpinning the rules don't vary according to practice area. We don't have differing ethical standards depending on the area of law you practice in. We do have some rules that specifically apply to advocacy and litigation (court work) and some that address issues that may be likely to arise in criminal work, but in general the principles apply across the board. A similar approach is taken in the UK, Canada, and the US.

 

[David Conwill]

The ethical problem, as I understand it, arises in the context of the honesty of a lawyer's communications with the public: Law, unlike medicine, has no specialties, so it is disingenuous to say one specializes in an area. One may be certified, if a certification is available, or one may advertise that he or she seeks cases in a particular practice area, but to claim specialization is a no-no.

I'm not saying it makes sense, but that's the rule as I learned it.

On a side note, you mentioned that lawyering is increasingly an interstate activity. To that end, I understand that some states may be moving to a uniform bar exam that would allow admission in all of them. New York and California are resisting such a move, though.

-Dave

 

[Ephraim Tutt]

New York and Cali will need to get with the program. Here, as of next year, one admission and one practicing certificate will be applicable anywhere in Australia. This simply reflects modern practice.

I'm not sure that your concerns re specialisation relate to ethics - unless of course such claims are forbidden over there. If so, how would clients find a lawyer who is expert in their area of legal need? Of course law has specialist areas. A commercial litigator will not necessarily be competent in conveyancing, or personal injury, or employment law. The general practice jack-of-all-trades lawyer is a dying breed. So, why can't a lawyer who practices in only one area of law and has experience in that area (eg crim, family, succession) not call him/herself a specialist or expert in that area? There's nothing inherently dishonest in that.

The situation in this jurisdiction is that a practitioner can apply to the Law Society for specialist accreditation in their practice area and, provided they meet the requirements - and pay a fee - can then advertise themselves as such.

 

[David Conwill]

You don’t care much for the concept of Federalism, do you Eph? I do like the idea of being able to go wherever the economic winds might take me, but I’ve seen firsthand how the slow erosion of Federalism has taken its toll on many states. I’m no Confederate, but I do get a bit frustrated when there’s more and more pressure to concentrate all of the power in Washington, D.C. It’s a big country, and I very much favor local control over most things. There’s more accountability.

I see that my initial comment was flawed, in that I cited the ABA Model Rule. In fact, it is Michigan Rule of Professional Conduct 7.4 that I should have cited. Some other states do allow attorneys to advertise themselves as specialists. It’s a realistic approach, I suppose, but I don’t like the idea that I might ultimately get boxed into a specialty I don’t care for just because that was the specialty that was hiring at the time.

Check this: http://www.abanet.org/legalservices/specialization/statestatus.html#Michigan

On a side note, I see that the ABA is running a poll:

Should Supreme Court Justices Be Able to Review News Accounts Before Publication?

What a ridiculous concept. Should Congress? Should the President? No branch of the Federal government should be permitted to hinder publication on the basis that they might be misquoted.

Can’t you just see it? “Dear Journalist A, your article has been held up for review by the justices/speaker/president. It should be available for publication in four to six months.”

Meanwhile, Journalist B (from the favored news outlet) gets the go ahead for publication immediately.

-Dave