A Lawyer’s Duty to Protect Clients From Identity Theft

CybersecurityI was honored today to present a talk for the Big Bend Chapter of the Florida Paralegal Association on the topic of “Protecting Our Clients From Identity Theft” at their annual conference.  The Big Bend Chapter of the Florida Paralegal Association is a great group and I always enjoy the opportunity to be guest speaker for them.  The presentation I gave is below:

Protecting Clients from Identity Theft

Moral Wrongs, Law, and Downtown Tallahassee

Join David as he rides down Monroe Street and into downtown Tallahassee. See Hotel Duval, the Aloft Hotel, Florida Capitol, City Hall, and the historic Bankruptcy Courthouse while David talks about the differences between legal wrongs, moral wrongs, common law and statutory law.

The Women in My Life – Why Gender Equality Matters To Me

 The American Bar Association Journal reported this week that women lawyers earn only 77 percent of the pay of their male counterparts.  The article states that the income inequality exists at all level in the legal profession, from paralegals to judges.  In fact, the article indicates that the higher one rises within the legal profession, the greater the income inequality, with female judges receiving only 71.8 percent of the pay received by their male counterparts.

The Legal Profession is Failing Women
The Legal Profession is Failing Women

 One could argue that as a male I benefit from this paradigm.  I often hear people talking about different kinds of “privilege” such as male privilege, or white privilege and I realize that in these statements, I’m the guy they’re talking about it.  I’m a white male living in a society that has historically been ruled by white men.  On the other hand, I also hold a nursing license and spent years in working in what many see as a female profession.   When I think about those who are important to me, the image of a white male isn’t who first comes to mind.  I think about my wife, a physician and an attorney, whom I’ve seen treated differently because of her gender.  I think about my mother, a woman who raised two children largely alone, while working dead-end jobs as a secretary in what sociologists often call “the girls’ ghetto”.  I think about the many women who have shown me friendship and respect, and who have given me their encouragement and support.  I cannot imagine having the life that I have today without the support and contributions of women.  They have been my teachers, my parent, my bosses, my colleagues, and my friends.  Whatever privilege may exist for me, the injustice that the women in my life suffer causes harm to me too. 

 Granted, our society has made progress on many issues of inequality, but there’s a lot of work still to be done, even in the highly educated professions such as physicians and lawyers.  Through my wife I have met many female physicians and they can all share stories of the disparate treatment they have suffered.  It’s not just an income issue, it’s a form of insidious emotional abuse.  I’ve heard many female physicians and lawyers talk about being accused of being mentally unstable and “not a team player” by colleagues and superiors when they asserted themselves.  I saw one employer purchase new executive chairs for many of the male physicians my wife worked with, while her desk was outfitted with a dilapidated typist’s chair.  When my wife approached her supervisor to ask for a new chair similar to those purchased for the male doctors, she was told that she could have one of the men’s old chairs. 

Justice Ginsburg at Chautauqua
Justice Ginsburg at Chautauqua

 A few years ago, I was walking across the grounds at the Chautauqua Institution, when I came across United States Supreme Court Justice Ruth Bader Ginsburg giving a radio interview in which she talked about the gender discrimination she’s faced in her life and the improvements in the profession for women. Indeed, when one looks closely at Justice Ginsburg’s life it is evident that, despite her immense success, she had to work much harder and sacrifice in ways that her male colleagues did not. Prior to graduating from law school she was demoted in a government job when she became pregnant with her daughter.  Despite being tied for the top graduating student in her class at Columbia law school, not a single New York law firm would hire her and Justice Felix Frankfurter refused her a clerkship based upon her gender despite strong letters of recommendation from the Deans of both Columbia and Harvard Law Schools.   As she established her legal career, she was unusually fortunate to have a partner in her husband who was willing to support her career and to assume more of the homemaker role than most men of his, or even the current, generation.  Her drive to excel and her commitment to work is exceptional. It is said that she returned to work at the Supreme Court the day after the death of Martin, her husband of 56 years. 

We’ve failed to create justice for the women in our society. As a nation we’ve failed to pass the Equal Rights Amendment.  The law theoretically doesn’t allow discrimination by race, but discrimination by gender is allowed.  Too often, we’re silent in the face of blatant sexism and gender discrimination.  I’m watching the campaign of Hillary

Ted Cruz Perspective on Women
Ted Cruz’s Perspective on Women

Clinton in which the double standard for women is on full display.  Secretary Clinton’s gender is being exploited by her Republican opponents such as Ted Cruz, when he announced to the press that Hillary Clinton deserves a spanking like his 5-year-old daughter.  (I pity the child growing up with such a father).  Despite my being a Bernie Sanders supporter (although I’m also perfectly happy with Hillary Clinton as the candidate), I can’t help but shake the feeling that many on the left who reject Hillary Clinton are doing so for gender related issues.  

Sadly, it’s not just men who perpetuate this double standard, but many women have been so indoctrinated into the concept of gender inequality, that they go along with it too.  So many times I’ve seen women attacking other women for standing up for themselves or for being successful.  I’ve watched female nurses go out of their way to deliberately make life difficult for female physicians. I’ve been in the ER and have seen my wife have to fight to gain access to an exam room after being called into the ER to care for a child at 2:00 am, while the nursing staff bends over backward to accommodate the male physicians.

I don’t know how to fix this, but we’ve got to work on this problem that continues to permeate American culture. As a lawyer I’ve fought for the right of pregnant women to make their healthcare decisions.  As a man, I don’t make comments on which women are sexy and which aren’t to my guy friends as we walk down the street.  I do my best to show the women whom I encounter in my life respect, and to create relationships and an environment based upon mutual respect and dignity.  I recognize that I probably don’t always do this perfectly, but this is where gender discrimination impacts me the most as a white male.  I want to be able to have equal relationships with the women in my life.  My simply treating women as equals isn’t sufficient because that doesn’t establish a right for the women in my life, but makes it a politeness or courtesy that I bestow upon the woman and continues the unequal power dynamic. I don’t want their choices constrained by their gender or societal judgment.  Gender inequality might create an opportunity for me to be an ally, but it also creates a barrier to our finding connection as equals, and that’s a loss for both genders.

 

Adult Prison Is No Place For A Child

This week National Public Radio reported that, following a mass trial, Egypt sentenced a 3-year-old boy to life in prison in what is now being called a case of mistaken identity.  It may surprise many of my readers to learn that sentencing children to prison for life is not only also practiced here in the United States, but that we lead the world in such sentences.  Furthermore, when it comes to sending children to adult prison, my home state of Florida prosecutes and sentences more children as adults than all other states in the nation combined.

The issue of children in prison has been one that has interested me since my days as a law student.  At that time the case of Lionel Tate, a 12-year-old black child here in Florida who was convicted of murder with a mandatory life sentence, was in the news.  My interest in Lionel Tate’s case led me to a law journal article about children in prison by FSU Law Professor Paolo Annino. During my second year of law school I actually left City University of New York School of Law for two semesters to come to Florida State as a visiting student in order to work with Professor Annino, who remains in my life as a friend and mentor to this day.  A few years ago PBS has made a documentary film called “15 to life” on Professor Annino’s work and research that was used to successfully argue before the United States Supreme Court that life-without-parole sentences for juveniles who commit crimes other than murder is unconstitutional.

My first job after graduating from law school was as a juvenile public defender.  I spent 2 years defending children accused of crimes ranging from stealing cookies from school lunch lines to sex crimes and murder. I never got to represent the children accused of murder for very long because, regardless of age or their level of involvement, they were always removed to adult court almost instantly. Transferring a child to adult Court in Florida is not a decision made by the Judge after a hearing. Instead, it’s entirely up to the prosecutor and no judicial review is available.  I often witnessed this authority being used to try to force children to plead guilty when the State’s case was weak.  The threat was, fine, go to trial, but you’ll do it in adult court and risk prison rather than a juvenile facility if you do.  

The United States Supreme Court has said that, for crimes other than murder, life without parole sentences for children are cruel and unusual and therefore unconstitutional. However, this doesn’t mean that children who have never killed anyone aren’t being sent to adult prison for life with no possibility for release.  Understand, a murder charge doesn’t mean the child actually killed someone, just that they were part of a crime in which someone was killed.  This is the felony murder rule, which has been severely limited, done away with, or ruled unconstitutional throughout much of the developed world. However, the felony murder rule remains in full force in the State of Florida and in force to varying degrees in 45 other states.  If you are a child and you accompany an adult to commit a crime such as a burglary or to buy drugs, and that adult then kills someone, the child can be found to be as legally guilty of murder as the adult who pulled the trigger.  A murder conviction in Florida carries with it a mandatory life sentence without parole. This means that children, often with no prior legal history, who have never actually killed anyone, are sent to adult prison with no possibility of ever leaving – an outcome that, according to Amnesty International, happens in no other nation in the world.

Imprisoned man, looking down, seized to a few barsMy experience working with juvenile defendants left me deeply impressed with the idea that juvenile crimes do not occur in a vacuum.  I have yet to meet a child who committed a serious crime who was not also a victim of untreated trauma, abuse, or mental illness that was either untreated or inadequately treated.  This harm is further compounded when you send a child to prison.  Adult prisons are not equipped to handle the needs of children.  Consider what happened to 13-year-old, Jessica Robinson, whose clemency petition I worked on with Professor Annino. Her story of abuse and neglect while in state custody was profiled by This American Life and is worth listening to.  I, along with other law students, drafted and argued her clemency petition before then-governor Jeb Bush who denied the petition after a year. 

It is fine and noble that we Americans condemn the human-rights violations of other nations such as the life sentence given to the Egyptian child, but we lack any real integrity or moral authority when we do.  As a nation we have refused to give even the most basic legal protections to the status of childhood. Of the United Nations member states, only the United States and Somalia have refused to sign onto the Convention onto the Rights of the Child, the most widely accepted civil rights treaty in the world.  Consider that for a moment, the legal rights of children in the State of Florida are among the lowest in the nation that brings up the rear in the developed world when it comes to providing legal protections for its children.  Until we remedy this situation it will be very difficult for Floridians or Americans to speak with any authority or integrity to try to advance the lives of children in the larger world.  It is long past time for us to get our own house in order. 

In closing, I’m left with a questions, but no answers.  America was once a place of renewal where we believed that people could evolve and change.  What happened that made us give up on our children?  When did we become the people of the developed world whose version of justice for children is only found in the parts of the world with the most questionable of human-rights practices?  Lastly, how do we redeem ourselves from this place?

 

Harper Lee and Shakespeare – Fictional Lawyers Who We Aspire to Be

“Kill all the Lawyers” was a comment in an email I received this week as part of a group discussion on a safety issue I raised as part of a community group where I donate my time.  In some ways, the timing of the comment is somewhat ironic given that Harper Lee, author of “To Kill a Mockingbird” and creator of the iconic lawyer character, Atticus Finch, died this week.

It is impossible to know how many legal careers were inspired by 8th grade English classes reading “To Kill A Mockingbird.  The book continues to resonate with readers and greatly influences how we view lawyers.  In many ways, Atticus Finch is the lawyer that we all aspire to be.  A noble advocate fighting for justice on behalf of an innocent client against the biases and prejudices of an unjust world. 

As someone who practices law in the South, and often in rural communities, it’s impossible to escape the shadow of Atticus Finch.  I remember thinking of him years ago during one of my earliest cases when I stood to address the Court in a small county courthouse and I heard the boards of the wooden floor creaking under me.  The nostalgic atmosphere of the century old building put me in mind of the story and reminded me of the nobility of defending those who live on the margins of our society. 

Confederate Solider - Gadsden County, Florida Courthouse
Confederate Solider – Gadsden County, Florida Courthouse

My world isn’t really that different from the book.  I regularly enter old courthouses set in the center of town with monuments to confederate soldiers standing guard before the main entrance.  I currently have an elderly black client who grew up in the segregated south and raised his family with money he earned by picking tobacco. Of course, the world and the law are not static and things have changed.  For instance, a Black female Judge now is the sole judge sitting on the County Court bench of the courthouse pictured to the left with the confederate soldier.

Equally impossible to escape are the comments such as the one I received in the email seeking to vilify lawyers, often misquoting the phrase, from Shakespeare’s play “Henry VI”, which goes: “First thing we do, let’s kill all the lawyers”.  This phrase is probably one of the most misconstrued phrases of all time.  As explained by Professor Stephen Gey, during an FSU Law School graduation ceremony several years ago, the phrase was uttered by the bad guy in the play.   You can view Professor Gey’s excellent and entertaining talk on You Tube here:

https://www.youtube.com/watch?v=1i0MNOwNNsM

Both Harper Lee and Shakespeare created works of art that reflect elements of truth about law and lawyering.   Despite the common misunderstanding of Shakespeare’s quote, both Harper Lee and Shakespeare speak to the nobility of the law and the legal profession.

Courthouse, Quitman, Ga.
Courthouse, Quitman, Ga.

However, it would be inaccurate to simply declare the law as perfect and lawyers as always championing the cause of justice.  One cannot forget that  slavery and segregation were once given sanction under the law.  The truth is that law often fails to protect the weak and vulnerable and it often fails to deliver justice.  Atticus Finch did not win his case in “To Kill A Mockingbird.”  This outcome parallels real life. Harper Lee’s father was a lawyer who, in 1919, defended two black men accused of murder.  The men were convicted, hanged, and their bodies mutilated. It is said that Harper Lee’s father never tried another criminal case.

When I was a law student I attended a lecture by Morris Dees, founder of the Southern Poverty Law Center.  I’ll never forget when he told our group of law students that in the law it doesn’t matter what role you have, but how you conduct yourself in that role.  Being a criminal defense attorney or a prosecutor isn’t nearly as important as the ethics you bring to the role.  You can be a corporate attorney and exist as the conscience of the organization, or you can simply be a hatchet man using the law to oppress and bully those who are weaker or have less legal resources.

The truth about laws and lawyers is complex.  I know that I work in an imperfect system where justice is sometimes sacrificed for that which is predictable and efficient.  I have long believed that law’s primary function isn’t justice at all, but to maintain the power structure of society in all but the most egregious cases.  However, I also know that, as a lawyer, I can sometimes make a difference and create justice and truth where it wouldn’t otherwise happen.   When I think about Atticus Finch, I’m reminded that as a lawyer I can bring optimism, hope, and voice to injustice. 

Scalia’s Legacy of Civility

The death of United States Supreme Court Justice Antonin Scalia is an unexpected and massive change in the American legal and political landscape.  Consider for a moment the length of Justice Scalia’s tenure on the Court.  He was appointed in 1986 by President Regan and served for nearly 30 years.  His time on the bench spanned 5 Presidents.  He joined the Court while Thurgood Marshall, the first Black Supreme Court Justice, was still a member and the first female justice, Sandra Day O’Connor, had only joined the Court a few years earlier.

It is ironic that Justice Scalia, who joined the Court during a time of modernization and diversification, has become iconic to many for being antiquated in his thinking and unreasonably rooted in the past.  For Justice Scalia, the answer always seemed to begin with the question, “What did the framers intend?”  It always seems to me that Justice Scalia rejected the idea that one generation should interpret the constitution any differently than the generations that came before it.  In legal circles he is what we call a “textualist”, that is, he looked, almost exclusively, to the text of the Constitution.  Emerging understandings of justice and human rights had no place in his analysis. When interpreting the Constitution, his approach was to always seek to understand the issue from the perspective of the framers and view the issue from the perspective of the 18th century.   His answer to injustice, as viewed from the modern world, contained within the Constitutional text, wasn’t reinterpretation based upon new understanding, but amendment.  I think it is fair to say that he did not see the Constitution as a living document, but as a static piece of writing.

I believe that the accurate perspective of Justice Scalia is to view him as a fundamentalist.  He did not seek out deeper meaning in the text, but simply viewed it at its most fundamental level, looking at little more than the simplest meaning of the text.  He was not one to look at the spirit of the language or the document.  In his opinions, especially his dissents, he writes as if problems of unjust outcomes are beyond his and the Court’s concern.  One can’t help but read is writings and wonder if he lacked compassion, or if empathy was lost at the expense of his adherence to dogma.

This is not to say that Justice Scalia never raised thought-provoking questions or persuasive arguments.  Many times I’ve read his writings in which he argued positions with which I disagree, but I came away thinking that he raised interesting arguments.  Sadly, I often can’t help but wonder if his arguments would have been more compelling absent his often denigrating statements about those justices and people who disagreed with him. 

Perhaps the most interesting thing to me about Justice Scalia is his close friendship with Justice Ruth Bader Ginsberg, a justice with whom he rarely agreed.  This is really the quality that I most admire about Justice Scalia.  Regardless of his almost unwavering loyalty to his fundamentalist legal dogma, he was able to find connection with a person who completely disagreed with the reasoning that he used to define himself. In many ways, Justice Scalia and Justice Ginsberg were a model for the civility that should exist between lawyers.  Indeed, it should exist at some level between all people.  Yes, we may disagree, we may see the world from very different perspectives, but we have to look beyond that and see the commonality and the beauty that exists in our fellow human beings.