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The Florida Bar
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February 1, 2014
Letters

Lawyer Advertising
While in South Carolina, I recently saw a television commercial where a man standing in a courtroom, wearing a judge’s robe, states that he has been on the bench for over 19 years and that people who have been in a car wreck should contact a certain lawyer, whereupon that lawyer appears, putting his hand on the judge’s shoulder, thanking the judge, and telling people to contact him to get the money that they deserve. 

It is very sad to see what was an honored profession descend to just another sleazy industry. 

Douglas de Vlaming
Clearwater

________________

Kudos to Daniel Aaronson on his January 15 letter convincingly affirming that the First Amendment trumps the Bar’s attempt to severely restrict its application to lawyer advertising.

If possible, however, the Bar’s largely self-serving ad regulations besides being unconstitutionally arbitrary and capricious — as posited in the recent Searcy Denny law suit — are an affront to all members of the Bar, in that we are all officers of the court. Disciplinary proceedings for improper conduct (false and intentionally misleading advertising as opposed to general puffing, for example) is the proper way to regulate here — not arcane notions of what some designated Bar committee thinks is “objectively verifiable.”

Almost 40 years ago, when I was a young FTC attorney in the Bureau of Consumer Protection in Washington, D.C., the Supreme Court ruled in Goldfarb v. Virginia State Bar that de facto price-fixing of title examination fees by the Virginia Bar was unconstitutional as an abridgment on the freedom of competition (1975) (sound familiar from the Butler opinion of the Florida Supreme Court (2000)?); that retailers of prescription eyeglasses could advertise their prices notwithstanding Virginia State Board of Pharmacy rules prohibiting such advertising (1976); and that — perish the thought —lawyers could advertise their services, thereby overruling the Arizona Supreme Court in the landmark Bates case (1977).

Chicken Little found the sky to be falling after each of these rulings. Lou Goldfarb was a fellow FTC attorney at the time he brought his suit and had just left the commission — much of his brethren shunned him for allegedly sullying the profession or, gosh, actually encouraging competition (Ironically, one Internet reporting service on that case reports that lawyers’ fees have gone up, not down, once the price restrictions were lifted, but isn’t that competition at its essence?). A return to pre-1975 thinking by The Florida Bar is not advised. It creates artificial situations which stultify competition, costs attorneys who wish to advertise significant time and unnecessary filing, and other fees payable to the Bar, and results in page one articles in the News. Instead of the Bar using those funds to “explore” and “refine” their proscriptive advertising rules, why not use these severely needed funds for better pro bono representation of the poor and defense of our planet, just as two obvious examples — the higher purposes for which we as citizen activists have a particular ability and training to implement?

This is a classic case of less (regulation) resulting in more (positive competition and effective community activity). The logic of all of this is simple; the Bar’s rendition of it is a labyrinth of frustrating contradictions for the earnest attorney who wishes to advertise his or her qualifications and experience to the community at large.

Paul A. Lester
Miami

Church and State
Gabe Kaimowitz says that he is “discomfort[ed]” by “seemingly minor intrusions” into his life from some Christian practices or ornamentation in conjunction with the judiciary. (See “Church and State,” January 1, News.) I am not sure that being made “uncomfortable” rises to the level of a constitutional violation. At least when it comes to freedom of speech, the Supreme Court has ruled that irritation with a speech or speaker is not a basis to silence the discourse.

(Notably, Kaimowitz also discloses that he is a Jew, and recounts some recognition of Jewish holidays, without making it clear whether he is “discomforted” by that, as well.)

Judges should not be required to park their religion in the parking lot adjacent to the courthouse steps. The Constitution protects free exercise of religion along with protection against establishment of religion. Certainly there can be a tension between the two, but it is not a proper resolution of that tension to say that all religious practices must cease simply because someone is a government employee.

The founders of our country and judges and legislators throughout the nation’s history have acknowledged the proper and beneficial influence of religion on the morals and conduct of the citizenry, including governmental citizens. We are not required to act like atheists in conjunction with all actions in the public arena. (Atheism itself takes a position toward religion, one which makes me “discomforted”!)

In the ultimate analysis, we should not be so “thin-skinned” as to take umbrage every time someone says or does something we disagree with, whether religious or otherwise. If a judge should choose to ornament his office with a Star of David, I’m not going to be bothered by that if I have a meeting in chambers.

Thomas F. Harkins, Jr.
Ft. Worth, Texas

Mental Health Courts
I read with interest the article written by Jan Pudlow titled “Stop treating mental illness as a crime” and commend Judge Steve Leifman on his desire to change the antiquated standard for hospitalizing mental health patients.

Unless the Florida Legislature changes their negative attitude toward funding mental health programs, the implementation of Judge Leifman’s good ideas will sadly never be accomplished.

Florida now ranks 50th out of 50 states plus the District of Columbia in mental health funding.

Harry M. Rosen
President of the Florida Initiative for Suicide Prevention, Inc.
Weston

Free Speech
It was pleasing for me to read Daniel Aaronson’s letter, who has been a member for over 30 years, in the January 15 News.

As a retired member over 50 years of The Florida Bar, which requires attorneys to be a member in order to practice law in the state of Florida, the epitome of a member’s infringement of freedom of speech is denying the right to speak before the Board of Governors at a disciplinary hearing.

Russell Lee Johnson
St. Petersburg

Scientific Method
My letter weeks ago, in which I argued that the scientific method is a better way than the adversarial system to find and establish the truth, has engendered considerable controversy.

Let me emphasize that justice is better served when the search for the truth is based upon objective methodological standards and not based upon the factors that are central to the adversarial system. These include party financial resources, competent counsel, honest witnesses, jury impartiality, clear jury instructions, memory, and honest witnesses.

It is a dream world to believe that the adversarial system can, by its very nature, 100 percent of the time, provide the objectivity without which the truth of the matter cannot be found. Indeed, there are many appeals from trial courts precisely because factual reality has not been served. A failing that is costly and time-consuming and, thus, leads to uncertainty and inefficiency.

So inefficient that trials have become rarities. And which attorney wants to spend an entire day or week in court in the hopes that his or her case will finally be called for trial? And which attorney relishes having to sit for hours while the voir dire is being conducted? And endless hours trying with every emotional and logical technique in the book to convince each juror of the rightness of the client’s case?

The judicial system cannot live by the adversarial system, as evidenced by swamped court calendars and long backlogs of cases. So serious is this resource problem for the court and the clients and their attorneys that encouragement is given to settlement. But settlement does not tell us what the truth of the matter is.

The adversarial system is the modern day medieval trial by combat. One side or the other wins. But the scientific method is of a different mindset. It is not about winning by one side or the other. It is about the truth winning, even if all interested parties lose.

The scientific method is a form of critical thinking which by deconstruction nothing is taken for granted. But the adversarial system is burdened by precedents recent and even ancient. There is thus this inherent conservatism (nonpolitical) that weighs on the scales of justice. The scientist can be bold where the lawyer and the judge, bound by such tradition, may be reticent to strike new ground.

The time has come to re-evaluate the adversarial paradigm.

Stephen Schoeman
Westfield, NJ

Corporate Fellows
I read with interest the recent article about Greenberg Traurig’s new policy to allow recent law school graduates to work for their firm as “corporate fellows,” at reduced pay, and to meet “up to one-third” of their billing target through work as a “resident in training.”

FordHarrison began its “Year One” associate development program in 2007. The program is a 15-month, on-the-job training program for new lawyers. Year One associates do not have any minimum billable hours requirement. Instead, they have a clinical hours requirement.

Similar to the medical internship model, the primary purpose of clinical hours is to learn through hands-on work assignments, direct observation, and mentoring. The program includes a six- to 12-week full-time secondment to a client’s legal department, classroom training, and independent self-study.

Unlike Greenberg’s program, our new hires are hired as regular associates and are paid full salaries. Your article suggests that Greenberg’s is the first such program in a multi-state law firm. FordHarrison is a multi-state employment law firm with 25 U.S. offices including five affiliate offices, and a member of Ius Laboris, an international affiliation of employment law firms.

The Year One associates we have had are among the most impressive lawyers we have hired and many have been accelerated as a result. We applaud other firms for giving new lawyers the chance to practice in the field we all cherish.

Shane T. Muñoz
Tampa

More Speech, Not Less
As the past president of the First Amendment Lawyers Association, the right for people to express themselves is of paramount concern to me. Recently in an interview, the patriarch of the “Duck Dynasty” empire made comments that, at a minimum, could be viewed as homophobic, bigoted, racist, hateful, and insensitive. Many have called for his removal from his popular “Duck Dynasty” cable program.

Although I hardly agree with anything that he said, I am glad he said them. Now I know that I will not buy a Duck Dynasty T-shirt or duck call. I now know that I will not watch the show. If he had not opened his mouth, I would not know of these thoughts and I could have accidently found myself purchasing items or watching his show, thereby adding to his popularity and riches.

In this era of political correctness, it is important that everyone is not forced to speak politically correct. Rather, I want to know who hates me. I want to know who I disagree with, and I want to know what others truly think.

So, in the spirit of the First Amendment, let Mr. Roberts speak, but in that same spirit, now that I know what he has to say, I don’t have to add to his empire.

Daniel Aaronson
Chair emeritus and immediate past president of the First Amendment Lawyers Association
Ft. Lauderdale

[Revised: 04-15-2014]