Friday, March 24, 2006
There’s Too Much Bull Puckey
By ROGER M. GRACE
I’m sick of what one judge in Texas has denominated “el toro pupu.”
There is an overabundance of it these days.
Here are some of my complaints of bovine dung.
•I’VE JUST RECEIVED a piece of mail which, on the flap, bears the seal of the State Bar of California. The first line on the return address is “State Bar of California.” Such a communication just might be assumed to have emanated from the State Bar of California.
On the front, in bold, red type, are the words “FORM 63584-7 Enclosed,” followed by the admonishment in black type, “DO NOT DISCARD.” The only inference that can be drawn is that this is important, official stuff being sent by the State Bar to its members. I would imagine that few recipients would be so bold as to toss the envelope out, unopened.
On the inside, the form is headed, true to the information on the envelope, “FORM 63584-7.” In bold type, the words appear “Confirmation Required:” followed by what appears to be a blank with the words typed in, “FORM 63584-7.” From this, a reasonable person would instantly assume that what’s in hand is a form which the State Bar is requiring be filled out and returned.
It’s a solicitation from a private company which is seeking to peddle insurance policies.
That’s eventually evident. Under the words “FORM 63584-7” at the top are the words, in smaller, pale type, “State Bar of California-Sponsored Accidental Death and Dismemberment Enrollment Form.” The return envelope goes to Marsh Affinity Group in Des Moines, Iowa.
A recipient of the solicitation is apt to be fooled initially into thinking the piece of mail came from the State Bar but would not likely hold that impression long. Nonetheless, by creating the impression that the advertisement was an official communication from the licensing and disciplinary body to whose authority the recipient is subject, Marsh is using a ruse to virtually assure attention being lent its advertising piece. The State Bar should not have complicity in fooling its members.
The endorsement of insurance policies is explained on the State Bar’s website as follows:
“The State Bar of California endorses several Group Insurance Programs specifically designed to serve the needs of State Bar members. These programs are monitored by Standing Committees of the State Bar comprised of volunteer lawyer members who negotiate with carriers to provide comprehensive benefits and service at reasonable rates with top rated carriers. These Standing Committees monitor carrier performance for each line of insurance.”
For the State Bar to use its clout to get low rates for members is altogether reasonable. But to permit use of its seal and its identity in the peddling of insurance by a private company—even if the State Bar does endorse its product—is, well, el toro pupu.
•THE STATE BAR is no stranger to subterfuge. MCLE providers, in giving a one-hour credit for a lecture, are expected to stage a presentation of roughly one hour. (Under MCLE Rule 5.1, there’s a rounding off to the nearest quarter hour, so anywhere from 52 minutes, 31 seconds to 67 minutes, 30 seconds counts as an hour.)
But the State Bar, itself, fudges.
You can read an article in the California Bar Journal, take a multiple-choice “Self-Assessment Test,” mail to the State Bar it along with $25, and you’ll receive back a certificate for one hour of credit, along with your test, with wrong answers marked.
You get one hour of credit no matter how much less than one hour it took to take the test and review the corrections.
Now, if the time it took to read the article to which the test related counted, it would all be on the up and up. But it doesn’t count. Rule 5.2 says: “Credit may be offered only for the time actually spent answering the self-assessment test questions and reviewing the results from the provider.”
To mark off 20 multiple choice questions and look at the results cannot comprise more than, say, 10 minutes.
There is no space on the form to indicate how long it took to take the test. You get one hour of credit—period. The State Bar is thus engaged in playing games with the State Bar’s own MCLE rules.
I have a good mind to complain about this to a member of the State Bar Board of Governors.
•I WAS INVITED as a guest at the Irish American Bar Assn.’s St. Patrick’s Day lunch last Friday. Even though District Attorney Steve Cooley was the speaker, I wanted to go. But I couldn’t. About the time the event started, at 11:30 a.m., I was in Chinatown—where I had no intention of being.
I left the house late that day, but in enough time (or so I thought) to park in the L.A. Times lot across from our office, which is at 210 S. Spring Street. We have monthly parking at the Times lot. I intended to pop in our office, and then walk over to the event and get there by 11:30. What I didn’t know was that there was a parade and streets were blocked. We got no notice from the city.
Going north on Hill Street, I came to Second Street. I was then two blocks west of Spring Street. I expected to turn right, but there was a barricade. I would have parked at a lot except I didn’t know that First Street would also be blocked. So was Temple. Traffic moved at the pace not merely of a snail, but a lethargic snail. Then, there I was in Chinatown.
At last there was a street where a right turn was permitted, but the traffic on that street was so slow it was backed up. I continued on, finally turned right, and wound up at a place where I had a choice of going forward onto the freeway, going on the bridge to East Los Angeles, or turning around and going back the way I came.
Without giving a street-by-street recitation, I finally wound up at a parking lot by the office (not the lot where I had a parking pass) and it was 12:22 when I stepped into the office.
A couple minutes after I got there, my wife, Jo-Ann, came in. It had taken her 45 minutes to get from the State Bar headquarters at 11th and Hill, park at a lot on Hill Street between Second and Third, and walk over. (She, unlike me, has a cell phone and called the office, learning of the parade.)
Given how late it was, I didn’t go to the Irish American Bar Assn. lunch. It’s always awkward when someone comes to a lunch late and is served soup when everyone else is starting dessert. So, rather than partake of the “gourmet Irish cuisine” that was promised by the bar association, I sat in my office eating a hot dog, and fumed.
Jo-Ann telephoned the office of Jan Perry, the City Council member for the Ninth District where our office is situated, to find out why we had received no notice that the streets would be blocked. That wasn’t Perry’s responsibility, Jo-Ann was blithely told, because it was Tom LaBonge, councilman for the Fourth District, who planned the parade.
Our business is not in LaBonge’s district.
Nonetheless, Jo-Ann phoned LaBonge’s office. It was a Friday afternoon. So, no one was there. She left a not-too-pleasant message on voicemail.
Monday, an indignant member of LaBonge’s staff telephoned to upbraid Jo-Ann about the unpleasantness of the message.
I frankly think we had good reason to feel rather unpleasant about the situation.
According to the LaBonge person, it wasn’t their fault. One of the departments should have taken care of giving notice.
If city streets are going to be usurped for some event, the affected businesses damn well should be notified in advance so that plans could be made. The giving of that notice should be a prerequisite to obtaining the permits for the event.
I think I would have the concurrence of a man who flew in from San Francisco last Friday for an 11 a.m. meeting at our office with our general manager. He arrived at 12:15, and had walked three blocks from a parking lot. Obviously, the meeting would have been scheduled for some other time had there been foreknowledge of the street closures.
In my case, I was two blocks from my office and it took over an hour to maneuver my way there while, if I had known in advance about the street closures, I would have arrived earlier or parked in a lot on Hill Street, south of the quagmire.
But, the outrageousness of not being able to get to one’s own office does not strike the staffs of Jan Perry or Tom LaBonge as anything significant.
•EVERY ELECTION YEAR, at least one candidate for local judicial office comes up with a misleading ballot designation. This year we have one George C. Montgomery, aspirant for Los Angeles Superior Court Office No. 102, being described as a “trial lawyer/teacher.”
Except for elected officials, who may use a full office title, candidates are limited by Elections Code §13107(a)(3) to “[n]o more than three words designating either the current principal professions, vocations, or occupations of the candidate, or the principal professions, vocations, or occupations of the candidate during the calendar year immediately preceding the filing of nomination documents.”
Where does Montgomery teach? He responded Wednesday that he used to teach as an adjunct professor at Loyola Law School. When did he cease teaching there? “The day after the earthquake in ’94,” he answered.
That would not seem to have been “during the calendar year immediately preceding the filing of nomination documents.”
Oh, but he does still teach. “I teach young lawyers how to try a lawsuit,” he explained.
He doesn’t advertise the service, it’s “not organized at all,” but some of the young lawyers pay him money for his guidance, he related.
And how many young lawyers has he counseled in the past year?
Six, he said.
This would not seem to be a “principal” undertaking. “It is not,” Montgomery acknowledged. “Of course not.”
And yet, the statute allows only “principal professions, vocations, or occupations.”
But, Montgomery insisted that after listing his principal profession, that of a “trial lawyer,” he was “entitled” to add a “secondary” pursuit.
And from whence does he derive that entitlement? A clerk at the Registrar-Recorder’s Office told him it was OK to use the word “teacher.”
Montgomery, 73, is a delightful fellow. But a lawyer who would make an affirmative assertion of law based on what a layperson had told him does not strike me as someone I’d like to see on the bench.
Whatever the clerk told him, it may reasonably be assumed that it was Montgomery, himself, who filled out his declaration of candidacy. Under the blank for “BALLOT DESIGNATION REQUESTED” is the instruction: “Print your principal profession, vocation or occupations in 3 words or less.” It does not say, “You have three words in which to state your principal profession, vocation or occupation, and you can use any word or words left over for something else you do.”
The form must be signed under penalty of perjury. Montgomery, a candidate for a judgeship, stated under penalty of perjury that one of his “principal professions, vocations or occupations” is that of a teacher, basing that assertion on having given informal advice on trying cases to six members of the bar.
It is also questionable whether it is legitimate for Montgomery to be designated as a “trial lawyer.” He is, indeed, a lawyer, and he has tried cases. But over the past year, he has tried only one case (a bench trial) and, by his own reckoning, spent 80 percent of his time on pre-trial work in a case that settled.
That makes him a litigator, but the term “trial lawyer” connotes one who engages in trying cases in courtrooms.
The Merriam-Webster Dictionary of Law defines a trial lawyer as “a lawyer who engages chiefly in trying esp. plaintiff’s cases before courts of original jurisdiction.”
Montgomery is not presently engaged in a trial and has not spent any appreciable amount of time over the past one-year period trying cases. His principal profession is that of a “lawyer,” not a “trial lawyer,” and certainly not a “teacher”
His ballot designation qualifies as steer manure.
So does that of Robert Davenport, a candidate for Office No. 122. His designation is “disabled veteran/attorney.” By no stretch of the imagination is “disabled veteran” a “profession,” “vocation,” or “occupation.” While “attorney” obviously does qualify as a profession, it is not a profession in which Davenport has engaged over the past year. Indeed, he’s been on inactive bar status since Jan. 1, 1989. The Registrar Recorder’s Office rejected two earlier designations Davenport proposed, including “retired judge advocate.” It was remiss in accepting the present one.
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