Getting Off The Avvo Merry-Go-Round – Can You Trust Online Attorney Ratings?

The current dominant website for attorney referrals and ratings is Avvo and I’ve decided not to participate. I don’t believe the Avvo online reviews and rating systems are a reliable method of determining whether or not to hire an attorney. I actually think the systems developed by Avvo and other similar companies are misleading to consumers and that they use poor methodology to determine their rankings of lawyers.

My Avvo rating as of the date of this writing is 7.7 out of 10, which, according to Avvo, makes me a “very good” attorney. My rating was higher before I removed all the information I could from Avvo, which I will discuss shortly. The absurdity of the Avvo rating system becomes readily apparent when you compare my rating to the rating they give to Lewis Killian, Jr., which is currently 6.7 out of 10, which equals a “good” lawyer.  A non-lawyer looking at this rating system is likely to think that I’m a stronger and more experienced attorney than Lewis Killian, Jr.  This is hardly the case. Lewis Killian, Jr. is a retired US Bankruptcy Judge, now in private practice, who served for more than 25 years as the Chief Bankruptcy Judge for the Northern District of Florida. In the world of bankruptcy law, he is a virtual superstar.  While I consider myself to be a competent bankruptcy lawyer, Lewis Killian, Jr. has probably forgotten more bankruptcy law than I currently possess.  The complexity of cases and issues he has dealt with far exceed my experience.  He has been licensed to practice law for 39 years, compared to my 13 years. He is a West Point graduate, and retired military JAG officer. What he hasn’t done is claim his Avvo profile, provide material for the Avvo website, or seek out endorsements from other lawyers or clients. Therefore, Avvo doesn’t rank him very highly.

Next consider the online reviews.  I have a number of positive reviews from lawyers; this is one of the tricks of the Avvo rating system.  The idea is that in order to get a higher ranking we’re supposed to invite our friends to the Avvo platform to endorse us and in exchange we do the same for them.  Basically, the more a lawyer feeds the Avvo system, the higher the rating.  The more questions you answer, the more you get your clients and peers to interact with the Avvo website through endorsements, the higher your rating. 

The website allows anonymous “reviews” by “clients”, but doesn’t really have what I consider a meaningful quality control system for this aspect.  I currently have one glowing review and two negative reviews.  All the reviews are anonymous, so there’s no way to know if they were left by actual clients, a competitor, or a disgruntled defendant in a lawsuit I have filed for a client. One review that calls me worthless doesn’t connect with any work I’ve done over the past few years.   The other doesn’t even claim to come from a client, but someone who says I refused to take their case following a consultation.  I’ve contested both with Avvo, but they say there’s no way for me to find out who left the review or to provide me with evidence that the anonymous reviewers were even clients of mine.  Avvo says my solution is to encourage more of my clients to go to their website and leave reviews.  However, I questioned the Florida Bar’s attorney ethics hotline about asking my clients for reviews and I don’t see asking for reviews as an option.  According to the Florida Bar’s rules that govern attorney advertising, when I ask a client for a review, I am responsible for ensuring that anything my clients write about me complies with the rules for attorney advertising. Given that I have no ability to edit what is written or to even identify the author, the likelihood of an ethical violation is enormous.

The lawyers who are hurt the most by Avvo are those who have committed some form of minor bar infraction.  Avvo flags these lawyers with a warning at the top of their profile regardless of the severity of their mistake. The reality is that good lawyers sometimes make mistakes and find themselves subject to bar discipline.  This doesn’t make them unsafe or incompetent to practice law.

It seems to me that Avvo’s solution for an attorney seeking to protect or build his or her reputation is always the same, create more content for the Avvo website and drive more people to use it.  In other words, in order to preserve our reputations, we’re compelled to constantly feed the Avvo website content and user interactions. In my mind, this makes Avvo useless as a measure of attorney quality.  For me, I’ve decided to jump off the Avvo train.  I’ve dismantled my profile as much as possible.  I no longer am willing to give or seek endorsements from other lawyers.  I don’t link my website to or from Avvo. To the extent that I am able, I am dropping out of the Avvo game. My job is helping my clients by practicing law, not feeding someone else’s website.  So far, I don’t notice any difference in my practice.  My phone rings just as much as it ever did.  I will leave it up to others to decide whether or not to continue their relationship with Avvo, but as for me, I’m getting off the merry-go-round.

Trolls, Cyber-Bullies, and Other Misfortunes of Social Media

I love YouTube videos and have wasted countless hours watching videos of people pranking each other and the cockpit action during take-offs and landings.  However, beyond the time wasting potential, there is a serious downside to our prolific sharing. These days just about anything we do has the possibility to end up posted online for the world to see. 

I saw the recent viral YouTube video of a young Miami neurology resident taken while she was on a drunken rampage with an Uber driver who was refusing to carry her as a passenger (I’m deliberately not linking to this video in order to preserve the young woman’s dignity).  Without a doubt, her actions were ridiculous and abusive towards the driver.  According to an ABC news story, the video has now been viewed more than 5 million times.  During an interview with ABC News she told about the vicious cyber-attacks she’s now suffered, of the death threats, the comments that she should be raped, that her family is now fearful because their address has been publically leaked and they have also been threatened.

Accusation guilty person. Sad upset woman looking down many fingers pointing at her backThis reminded me of a recent NPR This American Life Podcast that I listened to in which another woman, writer Lindy West, who writes about feminist issues, spoke about the cyber-bullying and troll attacks that are inflicted upon her anonymously through social media. In her case, one troll went so far as to impersonate her recently deceased father online and use that false persona to insult and denigrate her in online social media postings.

Now, at first glance, you might think that there is a distinct difference between the condemnation of a drunk woman acting badly and the online stalking and abuse of a woman who simply writes articles that challenge our ideas about gender, beauty, and politics, but I don’t think the difference is as great we might try to make it out to be.

Yes, the drunk woman was acting badly. She herself admits that her behavior was inexcusable and that she has made amends with the Uber driver she abused (I would note that he refused to press charges against her).  She has been suspended from her training pending an investigation and her biography and images have been removed from the websites of her medical school and residency program. She has taken down her social media profiles which were flooded with condemning comments from viewers of the video.

In her interview on ABC she asks for forgiveness from the larger public, although I’m not clear how it’s any of the public’s business at this point.  However, she continues to suffer from calls that she is forever unfit to practice medicine, and that she should be killed or raped.  People who have never encountered her as a physician have flooded the online rating systems to basically trash her online ratings.  She now has to live with the fear that this YouTube video that captured just a few brief moments of her life will come to define her as a person and haunt her for the rest of her life.   

When I view the video, I see something that is all too familiar to me.  The pressure on young physicians, especially those who are in their residency, is beyond extreme.  Residency training programs are often inhumane and cruel, working young doctors beyond exhaustion while demanding perfection and while the young physicians deal with the most complicated and emotionally difficult medical cases.  Having worked as a nurse alongside residents and being married to a physician, I have seen the mental and physical toll their residency programs take on their lives.  Young physicians are ripe for substance abuse problems, depression, and other forms of stress-induced physical and mental illnesses.  When I view the video, I don’t see an evil person or someone who is unfit for a medical career.  I see a young person who drank too much and is acting badly.  Does she have a drinking problem?  Maybe, but she will need to determine that for herself along with those who know her much better than I do.

What I do know is that the connection between the drunk physician and Lindy West, is the people who anonymously, feel that they somehow have the right to abuse another human being, based upon whatever justification they make up for themselves and the websites that profit from their activities. The anonymous trolls and internet bullies reduce their victims to a single dimension upon which they feel entitled to pass judgment.  They become judge, jury, and executioner with near impunity, and in the most vicious ways possible.  In a disproportionate number of cases their victims are women.

What is most sad, and often overlooked, is that our most vulnerable and imperfect moments can be stolen from us simply by someone with a cell phone who takes a video and uploads it to a public site where it then becomes a commercial product where others to profit from our shame and misfortune. Social media sites such as YouTube, Facebook, Twitter, newspapers that allow article comments, and the multitude of internet quasi-journalists all compete for clicks that sell advertising dollars. Too often, these clicks are derived from the selling of another’s shame story or the invitation to torment an innocent person.  

American laws have not yet caught up with the internet and social media.  In much of the world people have the right to have embarrassing content removed, especially when it is old content that no longer represents the person.  The idea is that privacy includes the right to have one’s past forgotten.  American law does not provide us such a right.  Perhaps it’s because, as a society, we Americans seem to have given up on the idea of redemption and the possibility of change.  That’s too bad really.  I think we’re all diminished without the hope that we can be a better person tomorrow than we are today.

 

The Real Constitutional Threat In The Oregon Militia Takeover

Preamble to the Constitution
Preamble to the Constitution

The latest news in the oddball social and political American landscape is the occupation of a National Wildlife Refuge in Oregon by a group of militants led by the son of nutso criminal cattle rancher Cliven Bundy.  This news story rivals the Trump campaign for its absolute weirdness and its appeal to disaffected people in search of a cause.

I find very little of their cause to be the least bit appealing or convincing.  I don’t buy their claims of an over-reaching federal government stealing land or that they have some sort of divine or Constitutional right to private possession of public lands which they are free to utilize or extract resources from without restraint.  Perhaps more significantly, I completely reject the notion that they have a Constitutional right to engage in armed resistance or rebellion against the United States Government.  In numerous places the Constitution rejects the concept of sanctioning armed rebellion. For example, with regarding to Congressional powers, the Constitution says that Congress has the power:

To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions; U.S. Const. art. I, § 8, cl. 15

The Constitution explicitly prohibits armed rebellion and defines it as treason when it states:

“Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort. No Person shall be convicted of Treason unless on the Testimony of two Witnesses to the same overt Act, or on Confession in open Court.” U.S. Const. art. III, § 3, cl.

It is clear that our founding fathers did not contemplate armed resistance and rebellion as a protected political right.

404253
404253

However, there is an issue in this fiasco which does interest me.  That is, the sentencing of the two ranchers, a father and son, Dwight and Steven Hammond, for setting fire to public land. A statement by the prosecutor recounting the history of case and the law violations of the Hammands can be found here and is worth taking the time to read.  The trial Court judge, following their convictions after a two-week jury trial, imposed relatively short sentences of a year or less upon the two defendants.  The government appealed and the Appellate Court found the Judge lacked discretion to impose less than the minimum mandatory sentence.  It’s this issue of removing sentencing discretion from the trial Court judge that I find disturbing.  I recognize that sentencing guidelines are designed to encourage uniformity in sentencing, but the reality is that not all crimes are the same.  Especially in the federal justice system, the mandatory sentences for drug related offenses have resulted in extremely long sentences being imposed upon defendants who may have only had a minor role in the crime.  This becomes even more unfair when the low level players often have little valuable information to bargain with prosecutors for a reduced sentence whereas the kingpins often are able to work deals to plea to lesser crimes in exchange for providing information to the government.  As a result of these minimum mandatory sentences we now have the world’s largest prison population and the sentences our nation imposes are far more severe than those imposed in the rest of the developed world.

A few years ago I attended a week at the Chautauqua Institution where the theme of the week was Crime and Punishment.  One of the speakers I heard was former Federal Judge Nancy Gertner, who is now an outspoken opponent to the federal mandatory minimum sentences that judges are required to impose.  Here is what she wrote in a recent publication:

Mandatory minimum sentences distort our criminal justice system. In effect, the legislature is sentencing, when it knows little or nothing about the individual or what may work to deter him in the future. Or the prosecutor is sentencing, when he or she sees only one side — the offense — and rarely knows much about the defendant’s life. The judge is effectively a bystander. And while the judge’s decisions must be transparent, and are subject to appeal and public scrutiny, the prosecutor’s are not.

Beware of the new Super Legislature
Beware of the new Super Legislature

Our system of government contemplates three equal branches: The Executive (President); The Legislative (Congress); and the Judiciary.  I can’t help but feel that the American judiciary has not only been weakened in the past generation, but is quickly on pathway towards being irrelevant.  We now are faced with a super legislature, fueled by massive corporate donations, that is rapidly consolidating its power and intruding into and successfully limiting the function of both the Executive and Judicial branches. Our judges no longer have authority to hear the vast majority of civil contract claims due to the Federal Arbitration Act.  These claims are now decided by corporate-run arbitration where the records are private and there is no right to appeal.  Due to legislatively imposed mandatory minimum sentences we have lost the right as people to have a judge hear our case and determine a fair sentence based upon the facts presented at trial, including mitigating circumstances.  Instead, our sentence was predetermined by politicians, who never heard our story and who may be getting campaign contributions from the for-profit prison industry.

If you think I’m over-exaggerating consider this:  The leader of the group in Oregon is the son of Cliven Bundy, the man who after two trials was found to owe the United States government in excess of $1 million dollars in fees. A federal judge twice permanently prohibited Mr. Bundy from grazing his cattle on federal lands, but he continued to ignore the order with impunity. When the judge ordered seizure of Mr. Bundy’s cattle to pay the debt owed to the government, Mr. Bundy basically took up arms against the government.  Two years later, neither the Executive branch nor the Legislative branches have done anything to enforce the Judge’s order.  Be aware, Courts do not control the police or law enforcement, they must rely upon the executive branch of government to enforce the law.  In this case, due to the lack of action by the other branches of government, the judiciary is rendered absolutely impotent.  This is something that should frighten us all and is much more of a threat to American democracy than some nut jobs inhabiting a bird sanctuary.

 

 

Truth and Reconciliation

Traditional South American Indians : a ClanDoes the United States need to consider appointing a truth and reconciliation commission?  This week I caught a news story about the Canadian Truth and Reconciliation Commission, which concluded its work on December 15, 2015 to uncover the truth about Canadian mistreatment of aboriginal children and to seek reconciliation between the aboriginal community and larger Canadian society.  The occasion of the release of the report was recognized with a statement by Canadian Prime Minister, Justin Trudeau, in which he praised the work of the Commission, its search for truth, and affirmed the need for continued reconciliation.

This got me thinking about how issues of race and inequality continue to be problems in American society. From the multitude of press stories about seemingly unjustified police shootings of Black men to the recent U.S. Supreme Court argument regarding affirmative action in college admissions we see issues of race, inequality, and social injustice continuing to be a part of the American social and legal landscape. It amazes me that even in the 2016 Presidential campaign we see issues of race, prejudice, and fear continuing to be successfully exploited by candidates.

Diverse People Holding Hand Truth ConceptAbsent a national effort to seek out the truth of our history, it will be very difficult for our nation to move forward in healing the deep wounds created by a century of slavery (I’m counting from the nation’s founding; I recognize that the actual history of slavery in North America is much longer) followed by a century of Jim Crow and segregation, followed by decades of prejudicial policing and economic injustice. For most White Americans these issues are mentally relegated to the area of “Black History” with the implication that it’s of little relevance to them.  I wonder if it is in the labels that truth gets lost.  Maybe there is no such thing as “Black” history or “White” history, only a shared universal history found in whatever truth we can recover from the past. Slavery, segregation, and Jim Crow were not only Black experiences, they were an experience of all who lived during those times and are a legacy that all contemporary Americans have inherited.

Our search needs to be for something greater than a collection of facts that we call history, it should be for truth, no matter how messy or inconvenient it may be.  Truth is not about vilifying or shaming, but about seeing ourselves as honestly and accurately as possible so that we can find reconciliation and freedom from the past.  Denial is the product of a dysfunctional mind whereas truth is a pathway to healing from the dysfunction.

None of this is a novel idea.  We’ve long known that one of the most important steps for a person struggling with an addiction seeking to become sober through a 12-Step program is a fearless and searching moral inventory followed by an effort to make amends except where it would be harmful.  Religious traditions have long recognized that truth and repair are predicates to redemption. For example, this week I was attended the Friday evening service at Congregation Shomrei Torah and I read the following in the Jewish prayer book:

“You cannot find redemption until you see the flaws in your own soul and try to efface them. Nor can a people be redeemed until it sees the flaws in its soul and tries to efface them. But whether it be an individual or a people, whoever shuts out the realization of his flaws is shutting out redemption.  We can be redeemed only to the extent to which we see ourselves.”

Our national failure to seek out the truth of our history tethers us to the past. Sure, we all know the factual history that slavery and segregation once existed in the United States.  What is lacking is the visceral connection that comes through a “searching and fearless” inventory that reveals the truths behind the history. It’s more than just knowing the basic facts, it’s understanding the why, the how, and the impact. The stories of both the oppressed and the oppressor must be told and heard.

ReconciliationWhen used in this context, truth is not something that is defined by a particular group.  It’s not the property of the oppressed or the oppressor, but is owned by both.  Without truth reality becomes distorted and both the oppressor and oppressed suffer. Consider the bizarre reasoning of Supreme Court Justice Clarence Thomas, who recently wrote that slavery didn’t strip the slave of his or her dignity. Such reasoning is the intellectual denial of the truth.

Having sought out the truth, we then seek reconciliation with each other.  As a lawyer working in the American legal system, reconciliation is a somewhat foreign concept to me. The system I work in proudly declares itself as an adversarial system where we seek to determine guilt, innocence, or liability, and then impose some form of retribution either in the form of jail or money.  Repairing the relationship between the parties is not the goal and is rarely achieved. Therefore, I find it tempting to reduce reconciliation to its most simplistic concept and regard it as nothing more than apology, but that’s incorrect. In researching reconciliation, I found an interesting paper on reconciliation in Rwanda by Eugenia Zorbas in the African Journal of Legal Studies in which she writes:

“Reconciliation is a vague concept. In the wake of mass violence there is no goal past which ‘reconciliation’ has been achieved. My premise is that legal (prosecutorial) instruments, striking political compromises, publicly acknowledging the wrongs inflicted on victims, and other measures, as ‘messy’ as they may be, are all more acceptable than doing nothing.  I label ‘doing nothing’ unacceptable first because of its ‘shocking implication that the perpetrators did in fact succeed’. Indeed, silences makes us complicit bystanders to the perpetrators of yesterday. Secondly, inaction is unacceptable because it leaves grievances, fears of reprisals, and cultures of impunity to fester, encouraging cyclical outburst of violence by the perpetrators of tomorrow… ‘Reconciliation’ is the umbrella term I will use to refer to this series of messy compromises, though it may be inconceivable or offensive to some, is thus the only sustainable and genuine form of prevention in societies that have undergone mass violence.”

c399f805-cd08-4fdd-97cc-21559c10f305In other words, we can’t simply declare the injustice over and then move on with life as if nothing happened.  Unfortunately, moving on without reconciliation has been the American approach to social injustice to date.  Whether we’re discussing slavery and segregation, native American genocide, or political persecution of communists and socialists, our solution has always been to declare the injustice to be unlawful and move-on. We outlawed slavery, then 100 years later outlawed segregation. We’ve outlawed employment and housing discrimination.  We’ve even outlawed laws that outlawed interracial marriages.  Yet not once have we ever engaged in national soul searching for truth followed by overt action intended to heal the wounds. In the meantime, we see repeat performances of the old demon of racism in our society.  Perhaps it’s not too late. Maybe if we seek truth and reconciliation we can end the denial and start healing some of the wounds that are festering in American society.

 

The Rewards of Friendship

A few days ago I received a letter from the President of the Florida Bar. The letter informed me that although I’d been nominated for a pro bono service award, another lawyer was selected to receive the award. When I read the name of the recipient, I smiled and felt a deep sense of pride and contentment. The lawyer selected is one of my closest friends, James Cook, a man whose influence upon me, and my development as a lawyer, can’t be overstated.

This got me thinking about friendship and its impact upon our lives. I’ve never seen myself as one of the “popular kids” and superficial conversation is often quite difficult for me. I’m quite content to be alone reading a book, playing my guitar, or working on my computer. However, I’m nowhere near a complete hermit. I love small dinner parties with close friends where we share stories and great food. I’m very fortunate to have small group of close friends who I have known for many years and with who I feel that I have deeply meaningful relationships.

We all meet many people, probably tens of thousands, in our lifetimes. Yet, most of us have only a few close friends. What distinguishes those who become acquaintances from those who enter our inner circle of friendship? Aristotle wrote that a friend is a single soul living in two bodies and I suspect there is truth to that statement. When I think about my friend, James Cook, an image of our shared passion for justice and life-long scholarship comes to mind. I know that James “gets” the things that are important to me.

However, one might argue that shared passions could just as easily result in competition and rivalry. Consider two young baseball players, both talented and passionate about the game. While it’s true that they might find connection through their shared passion and experience, it’s also likely that they could end-up as competitive rivals.

Science many offer an explanation for why some become friends, others acquaintances, and others our competitors. According to an article published by Psychology Today friendships are established by self-disclosure and reciprocity. Research also shows that once established the friendship is maintained by acceptance, unconditional support, loyalty, and trust. However, the single most important factor in determining who becomes our best friend is more surprising:

“We become best friends with people who boost our self-esteem by affirming our identities as members of certain groups…”

That is, we find validation for our identity from our best friend. This makes sense to me. When I think about my friend James Cook, I think about the kind of person he is and my admiration for both his skill as a lawyer and his dedication to justice and scholarship. These are qualities I seek to cultivate and aspire to in myself. When approached from this perspective, our best friends are those who provide us with a double reward. Like all friends, they provide us with the connection that comes from the friendship itself, but they also provide us with connection to our own identity.

In some ways, this is a little depressing. I like to think that the joy I derive from my friend receiving the award is rooted in some altruistic characteristic within myself. However, if the science is correct, then my joy might be rooted in a sense of self-validation that lawyers like James and me are worthy of award and recognition. Maybe this isn’t such a bad thing though. After all, finding within one’s self a connection to the common well being of our fellow human beings, even when it validates our own identity, is hardly a moral failing of epic proportion. Indeed, isn’t this the foundation from which all brotherhoods arise?

Regardless of the underlying psychology, I can’t help but feel fortunate to have James, and my other friends, to share this experience we call life.  Maybe it’s true that we’re all alone in the end, but having a fellow traveler around to share the journey sure makes the whole experience much more meaningful.

 

 

Civility and Respectability Politics…

I recently attended an alumni event at my alma mater, City University of New York School of Law (CUNY). It was wonderful to return to CUNY Law, reconnect with the school, see the new building, attend the Continuing Legal Education program, visit with the faculty, and generally drink the CUNY Kool-Aid. Perhaps the best part of the weekend was getting to spend time with my nephew, Chase, who is currently a 1st year student at CUNY Law. I’m very proud to have a legacy at CUNY and I love hearing about his experiences at the law school.

It was during a conversation with my nephew regarding the importance of civility in the practice of law and how, when advocating, it’s important to find common ground and connection with others who may not share our views that my nephew told me that some of the students in his law school class rejected such an idea as being “respectability politics”, a label that renders the option invalid.

I’d never heard the term “respectability politics” before and I became curious as to where the term originated and what is its actual meaning. According to Wikipedia, “respectability politics” is defined as

“attempts by marginalized groups to police their own members and show their social values as being continuous and compatible with mainstream values rather than challenging the mainstream for its failure to accept difference.”

One of the most interesting pieces I located on the history and application of respectability politics was written by Randall Kennedy and published in the October 2015 edition of Harpers Magazine. The author reviews the important role that respectability politics played in the 20th century civil rights movement. He also notes that this approach has fallen out of favor and is now often criticized by black activists:

“This approach has recently become a target of much derision. It is denounced as a flight from blackness, an opportunistic gambit, a cowardly capitulation, a futile exercise, and an implicit concession that racist mistreatment is excusable unless committed upon a perfect black victim.”

This concept challenges one of my strongest beliefs, that is, when seeking social change or conflict resolution, it is useful to find common ground whenever possible. I strongly feel that the more people see themselves in kinship with each other, the less likely they are to seek to oppress or mistreat each other.

I’ve been contemplating this idea for several days now and I have to admit that I’m disturbed by this idea that finding common ground with opponents is somehow improper. Certainly, it’s not my role to pass judgment or dictate how other people seek to liberate themselves from societal mistreatment and abuse. I’m not a person of color and I’ve not experienced the discrimination and racism that continues to exist in the world. On the other hand, my life’s work is to create justice and give a voice to people whose voices are often unheard.

The idea of respectability politics is not limited to ending racial discrimination, but can be and is being applied in many different contexts. In my own Jewish community, respectability politics is especially dominant and is seen as a defense and rebuttal to anti-Semitism. When the Bernie Madoff scandal was in the news, many Jewish leaders expressed concern that Madoff’s misdeeds would be used to justify anti-Semitism in the United States. The Jewish community often seeks to rebut criticisms of Israel by showing the many great accomplishments of Israel and its similarities to Western culture. Scholars also note the use of respectability politics in the gay rights movement.

We must consider whether or not respectability politics allows us tell the full and honest story of our history and reality. Part of the work that people have to do when recovering from injustice and trauma, whether as the victim or the perpetrator, is to deal with the messier truths of experience. I recall an article in the New York Times about the Rwandan genocide and the process of reconciliation happening within the country and how both perpetrators and victims are working together to heal from the genocide.

When I think of more recent American events, I wonder if it is accurate for me to view Michael Brown as a violent person who gave the officer in Ferguson, Missouri little option but to shoot in self-defense while also seeing him as a victim of injustice? I know from my own work as an attorney that the combined effects of racism, economic injustice, and oppressive policing push people beyond their breaking points and strip them of their connection, hope, and dignity. In this respect, Michael Brown is a symbol of the lives, hopes, and aspirations that have been lost due to the unaddressed injustices in American society. He’s not seen as a victim because he’s a model citizen, but he can be viewed as a victim of societal injustice. This bring us to the point that I do think is significant about a rejection of respectability politics, that  blame is reflected back on the larger society that allows the injustice to continue. I see truth in that reflection.

I find that people connect with even the most imperfect story if you give them the opportunity to see the commonalities of human experience. I was once privileged to witness a very large tattooed Latino ex-gang member bring a group of white upper middle class housewives to tears through his sharing of the story of his life, which included his being a victim of abuse and poverty, then evolving into a very angry and dangerous criminal, followed by his recovery of his humanity. He didn’t project that he was like them in order to gain acceptance, but he did share with them his very real suffering, his acting out, his shame over his own actions, and his efforts to find re-connection and redemption.

One can argue that respectability politics is rooted in a belief that only some, being those who conform, are worthy of justice, and that those who don’t conform are not. I agree that such a paradigm isn’t justice, but privilege for the conformist and the members of the dominant group. However, I do think there is value in the self-empowerment ideas behind respectability politics. The idea that members of an oppressed group guide and encourage each other to rise to their highest levels, despite the existence of oppression, fits very well with my own personal philosophies that it takes a village, but that I am the only person over whom I have any control. In some ways this conflicts with my belief that self-empowerment also includes authenticity. I am not empowered if I am only accepted to the degree that I am like other people. True freedom and empowerment has to include the ability to be one’s true self to the degree that it doesn’t intrude upon the rights and well being of others.

I don’t see civility and seeking common ground with others as forcing respectability politics. We can find common ground, develop connection, and form alliances without disempowering ourselves. In the practice of law you can be an aggressive advocate and attorney without being uncivil and without reducing your opponents to one-dimensional villains. According to a resource from the American Bar Association:

“Civility in the legal profession is generally defined as “treating others, opposing counsel, the court, clients, and others, with courtesy, dignity, and kindness. Civility for an attorney means treating opposing counsel the way the attorney would want to be treated i.e., the golden rule”

CompassionCivility is absolutely necessary for me to function as a lawyer. Maintaining civility keeps my focus on the law and facts of a case, which is where I am most effective.  When civility is lost in a legal dispute you wind-up fighting about everything and often accomplishing very little. The litigation becomes more about beating the other guy than persuading the Court or jury. Acrimonious disputes create unnecessary stress in an already extremely stressful business – a factor that I think greatly contributes to the high rates of substance abuse, depression, and burnout in the legal profession. Lastly, I find that being a civil person is simply good mental hygiene.

The American Bar Association, in its guidelines for lawyer conduct, notes the importance of civility:

“Deteriorating civility, in former ABA President Lee Cooper’s words, “interrupts the administration of justice. It makes the practice of law less rewarding. It robs a lawyer of the sense of dignity and self-worth that should come from a learned profession. Not least of all, it … brings with it all the problems … that accompany low public regard for lawyers and lack of confidence in the justice system.””

Regarding civility, Justice Kennedy, a favorite jurist of mine, is quoted as saying:

“Civility has deep roots in the idea of respect for the individual . . . respect for the dignity and worth of a fellow human being.”.

There are few people who are more passionate about the dignity and worth of their fellow human beings than the law students with whom my nephew studies. It is my hope that while they examine the weaknesses and unfulfilled promises of respectability politics that they also recognize its strengths and accomplishments. Lastly, I hope that they become the change they seek and that they approach the practice of law in a way that affirms the dignity and worth of the judges, lawyers, clients, and even the opposing parties with whom they come into contact.

 

 

Modern Slavery – Yes, it happens in Tallahassee

Few things are more precious to us Americans than freedom. However, it may surprise you to know that not everyone in our nation is free and that slavery is a growing problem in our country. At this past week’s meeting of my Rotary club, Terry Coonan, director of the Florida State University Center for the Advancement of Human Rights, gave an especially compelling presentation on Human Trafficking. I was looking forward to his talk because I gave a sermon at my synagogue a few years ago on the Tomato on the Seder Plate initiative of Rabbis For Human Rights of North America which focused on the problem of slavery in Florida’s agricultural industry.

Modern slavery, which includes both worker and sex trafficking, is a worldwide problem. According to a 2013 White House report, it is estimated that there are 21 million people who are being held in bondage in the modern world. This is the largest number of people living as slaves in human history. One might think that modern slavery is relegated to the third world countries and remote areas of the world, but modern day slavery is happening throughout the world, including the United States, in both our urban and rural communities. It is especially pervasive in the sex, agricultural, and the hospitality industries. In modern slavery people are not kept captive with chains. Instead, traffickers use force, fraud, and coercion to keep people enslaved.  A huge industry, modern slavery generates between $9-12 billion annually in the United States alone. It is said to currently be the second largest criminal industry behind the drug trade.

Even relatively tranquil communities such as Tallahassee are not immune from this problem. One of the major sex trafficking prosecutions in the past 10 years, the Melchor case, began when two women being held captive in a private home in the Killearn neighborhood of Tallahassee escaped and ran door to door seeking help. The women, who had come to the United States based upon the promise of jobs, were forced into prostitution utilizing a mobile brothel model where they were driven to apartments and mobile homes on the outskirts of Tallahassee and forced to perform 25-35 sex acts per night.  An ensuing two-year investigation revealed an international conspiracy that trafficked women from South America into multiple Florida cities for the purpose of forcing them into prostitution.

Melchor is not the only case to arise in the Florida panhandle. The Destin King labor trafficking case involved workers at the Sandestin Hilton and other hotels along the Gulf Coast. The workers were young women aged 19 -23 from eastern Europe who came to the United States upon the promise of employment at Disney. When they arrived in the United States they were told that the promised Disney jobs weren’t available, but that they could work at hotels in the Florida panhandle. They found themselves living 15-20 people in a single condo, while working for less than minimum wage.  As if paying less than a living wage wasn’t enough, their employers charged them for things such as rent, job placement fees, transportation fees, and $1500 – $2000 for visa processing fees. The young women were not employed directly by the hotels, but they worked for subcontractor corporations that negotiated contracts to supply the workers to the hotels. The subcontractor corporations were able to submit low bids for the contracts due to their failure to pay even a minimum wage to the workers. The hotels were able to claim ignorance of the situation because the women weren’t employed directly by the hotel, although one has to question whether or not the hotels were simply turning a blind eye to the exploitation when they unquestioningly accepted such extremely low bids from the contractors.

You can do something to help!
You can do something to help!

As individuals there are some things we can do to help combat modern slavery. There are a number of websites that list possible signs of Human Trafficking such as the National Human Trafficking Resource Center. I’m not going to reproduce the list here, but I do encourage you to make yourself familiar with the possible signs. One thing that I will say is that it is absolutely necessary that we slow down, recognize, and engage with people who are often invisible in our society. We have to take time to notice the hotel maid, the streetwalker, the runaway youth, the homeless, and the agricultural worker and report instances where we suspect involuntary servitude may be happening to the toll free human trafficking number 1-888-373-7888. We need to support businesses that are willing to join Fair Food and Fair Trade programs and to encourage other businesses to join through our purchasing decisions. I also would suggest that supporting businesses that allow their employees to join unions and engage in collective bargaining is yet another way of combating human trafficking.

I hope that this post will inspire you to want to learn more about this huge injustice. I believe that the more attention that can be brought to this subject, the better. As I think about this topic, I can’t help but recall that the Hebrew Bible, at least 36 times, more than any other commandment, repeatedly reminds us that we must treat the stranger kindly because of the Jewish people’s own experience with slavery in Egypt. This is not an issue we can afford to ignore.

 

The Lawyer as Artist

In 1989 Salman Rushdie was quoted in the London Independent as saying:

“A poet’s work is to name the unnameable, to point at frauds, to take sides, start arguments, shape the world, and stop it going to sleep.”

To me this sounds a lot like the work of a lawyer. Is there a connection between artistic creation such as one finds in poetry and the practice law? Can a lawyer be an artist, or are we merely logical thinkers who rarely color outside the lines society draws for us?

When I was a law student attending City University of New York School of Law I lived in Brooklyn. When the long hours of studying law exhausted my energies I would sometimes take the subway into Manhattan, or “the city” as genuine city dwellers call it. Once in there, I would go to the Pastel Society of America where they offered inexpensive classes in pastel painting led by the top pastel painting artists in the United States. I loved these classes and found the process by which these incredible artists created their paintings to be fascinating. Through these classes I began to see that a tree is more than just green and brown, but is really a collection of an endless variety of different colors spanning the entire rainbow. Indeed, the only limit on the colors found in a tree is that created by the artist’s own mind. When I would return from my expedition into the world of art and creativity to the “logical” world of law I noticed that my understanding of the cases and legal principles I was studying seemed to be enhanced. I wasn’t just rejuvenated – I was inspired. It occurred to me that, after the classes, I was seeing law differently, and this led to a continuing curiosity into the intersection between law and art.

I don’t often hear people describing lawyers as artists, but in my mind great lawyers think artistically as well as logically. I love going to art museums, plays, concerts, and reading great writing because, when executed well, they provide me with opportunities to see some aspect of the world from a different perspective. For me, art is fundamental. In my spare time I play and study music. I explore Tallahassee on my bicycle and take photographs. I’ve written and performed a play about economic justice. Even this blog is a creative outlet that allows me to play with ideas. I find that art is at its very best when it takes something that is familiar to me and lets me see it in a totally different way than I’ve ever seen it before.

So it is with law. I believe that a great lawyer or judge doesn’t just see law and justice as words on a page to be blindly followed and applied. Such an approach to the law would leave it forever stagnant and allow injustices to go undiscovered. Great lawyers recognize injustices and create for themselves and others, a constantly refining vision of justice. Consider that for nearly 100 years the law and the courts in the United States steadfastly held onto the rarely challenged notion that racial segregation under the doctrine of “separate but equal” was justice. However, it took visionary lawyers such as Thurgood Marshall to show them a different perspective, that “separate but equal” would never be equal. Such work is as much art as it is logic. The question is how to tell the story such that the injustice of the status quo becomes undeniable.

The primary art form of the lawyer is that of storyteller. Our client’s cases are non-fiction stories that we advocate be viewed from a certain perspective. Our choice of words, the way in which we present evidence, the focus we give to certain facts, and the way in which interpret the law all become part of our storytelling vision. I know that many will read this and think that this idea of “storytelling” is justification for deception and dishonesty, but it’s not that at all. Effective storytelling is truthful. When a story becomes dishonest it loses the ability to fully engage us. Good stories are often messy and even the best cases usually present a challenging fact or two for a lawyer to deal with. It is the lawyer’s ability to weave the messy or difficult parts of the story into a collective whole with a positive truth for the client that I believe distinguishes great creative lawyers from the ordinary.

Many lawyers such as John Grisham, Robert Lewis Stevenson, and Scott Turow have made successful transitions from lawyer to author. In fact, so many lawyers are interested in making the transition from lawyer to author that there actually was a panel called “The Law as a Platform for Writing” at the 2013 annual meeting of the American Bar Association. While I hear many stories of unhappy lawyers, I don’t see the interest in writing as a product of that unhappiness. Instead, I see it as evidence that many lawyers see the art in our profession, and once this is recognized, are compelled to give expression to that art in as many ways possible both in and out of the courtroom.

 

 

Mass Murder in America – Looking Beyond Legal Solutions

Until a couple of days ago, I wasn’t sure what I was going to write about this week. However, the tragic gun deaths of nine students, and wounding of nine others, at an Oregon college is a topic that deserves attention. Predictably, this event has reignited political debates regarding issues such as gun control and allowing students to carry firearms on campus. While I think these are important discussions, and I support gun control legislation, I’m not convinced that either gun control or further proliferation of firearms will resolve the problem of mass shootings.   I say this because on many levels these events are more than simply legal problems and failure of legislation.

I recognize that law has its limits. We cannot seek to resolve our social problems solely through criminalization and regulation. I believe we need to take a closer look at what social forces are driving these events and consider how we can create change that stops the creation of people who are driven to commit mass murder.

When one looks back that the majority of mass shootings in our nation we see a recurring profile of the individuals who commit these violent acts. The group is exclusively male, most often white, alienated, unemployed or underemployed, and exhibiting symptoms of untreated mental illness. These are not professional criminals, gang members, or individuals with histories of long-term involvement in radical organizations, although they may take up a cause to justify their actions.

I would like to focus upon the issues of alienation and untreated mental illness because I feel that these two areas are ignored in most discussions. Human beings have a strong drive for connection. We are not solitary creatures. In fact, social isolation has been compared to smoking and obesity in terms of the magnitude of its impact upon our health. Yet we live in a society where the social fabric is decaying, and with it, opportunities to find social connection. More and more of our professional and personal lives have moved into the digital realm. I was recently talking with some young people about job hunting and I was encouraging them to go to the employer and talk with someone in person whenever possible as part of their job hunting strategy. I was surprised when they told me that this was no longer possible with most employers and that for grocery stores and other retail entities all job seekers are directed to the Internet. As I wrote in an earlier posting, social institutions of all sorts are declining in membership. I would argue that even where membership is steady, the social life of many institutions has declined tremendously in the past two decades. I remember years ago when the holidays of Chanukkah and Sukkot in my local Jewish community meant multiple invitations to parties and dinners. In recent years such invitations have become increasingly rare to the degree that I am surprised when one is extended.

Alienation creates worse health outcomes, not just physically, but also for mental health. We are not prepared to respond to  the increased mental health needs arising from increased alienation. The United States’ mental health infrastructure is completely inadequate and  is getting worse by the day. We do not have the providers and we  haven’t funded the research needed to deliver effective evidence based treatments. Even for those who have the financial resources to pay for care, it’s often simply not available or the quality of care is poor due to inadequate training of the provider.

Untreated mental illness often brings people into the criminal justice system. I remember when I was doing contract nursing and I was sent to work in a local prison. I was stunned at how a majority of the inmates’ medical records showed the same profile of untreated mental illness; a history of childhood abuse or neglect; low IQ; and untreated addiction. Is it any wonder that the largest provider of mental health services in the State of Florida is the Department of Corrections? However, this also says that, as a society, we’re not committed to the prevention of crime and destroyed lives, only to reacting to the damage they cause.

One last story and I’ll close. When I was a law student I worked on a clemency petition for a young woman who, at age 13, was sent to adult prison in Florida for 9 years following the home invasion robbery of her Grandparents’ house. This child, and she was a child until the state of Florida stripped her of that status, had been evaluated by two mental health experts a few weeks earlier following a violent outburst. The mental health experts both recommended immediate inpatient treatment for her. Nothing was done, her behavior continued to escalate, and the State of Florida decided that rather than mental health treatment she was a criminal and made her the youngest person in the Florida adult prison system. It should be noted that her escalating violence was associated with her mother’s abandonment of her. During her 9-year prison sentence, neither her mother nor her grandparents ever visited her once. The recommended mental health treatment was never provided to her. I argued her clemency petition to then Governor Jeb Bush, who denied it. I guess he just figured that stuff like this happens.

In closing, I don’t believe that we’re helpless in the face of this problem.  As individuals, we can work to decrease alienation in our communities by simply going out into the world.  I know some will disagree with me, but a digital connection is not the same as being in the presence of a live person.  We can lobby for mental health research and treatment funding, not simply because of this issue, but because it creates justice in the world.   If we can do these things, our lives will all improve.

 

 

Is Kim Davis A Truly Willing Martyr?

I wasn’t planning to write a blog post about Kentucky Clerk of Court Kim Davis and her refusal to issue marriage licenses to same sex couples. I don’t see the situation as being especially complicated or interesting from a legal standpoint. I feel that her recent jailing was highly predictable. On the surface, this situation seems to be little more than a woman who seeks a special exemption for herself from  the  performance of her elected duties on the basis of religious belief. However,  when reading an ABC news report regarding her testimony during the contempt hearing, something jumped out at me that makes me suspect that this situation is  more complicated and I’d like to discuss what I think might be going on.

ABC news reported: “’I did a lot of vile and wicked things in my past,’ Davis said when asked about her life before becoming a Christian in 2011.” I think this is an important statement that tells us a lot about how Mrs. Davis sees herself and the role her religious identity plays in her life. Clearly, Mrs. Davis carries a great deal of shame about prior decisions in her life and she sees her religious conversion as a return to worthiness. She’s seeking redemption, a way to undo the mistakes of her past, through her willingness to be a martyr.

As Jewish person I can get my head around this idea of redemption. People who follow my religious tradition are currently in the month of Elul, which is a time of reflection in preparation for Rosh Hashanah and Yom Kippur, two holidays in which there is great focus on redemption and repentance. Judaism recognizes two forms of redemption. One form of redemption involves healing the relationship between the individual and G-d, the other form involves healing the relationship between ourselves and other people, especially those whom we may have harmed. I believe that redemption is a universal human need. We all make mistakes in our lives and sometimes we harm others as a result of our mistakes.   It is important that we find some sort of mechanism that  allows us to repair whatever damage we may have caused and to move forward without carrying endless guilt.

It appears that Mrs. Davis believes that having even the most remote connection to same sex marriages will impair her relationship with G-d, and that she most prove her love and gratitude to G-d through self-sacrifice i.e. martyrdom.  I can’t help but feel that this martyrdom is rooted in an unhealthy degree of self-righteousness that is contrary to the spiritual renewal of redemption that she seems to be seeking. During her conversations with the same sex couples to whom she’s refusing marriage licenses,  her facial expressions are, at best, condescending and dismissive of their emotional pain.

Is there evidence to suggest that she’s being manipulated? There certainly is a crowd of opportunists surrounding her, for example, politicians like Mike Huckabee, who is championing her cause as  judicial tyranny and as a war on Christians . According to CNN, Ted Cruz recently issued a written statement that this is an attempt to drive Christians from public office. I also wonder about the religious education and guidance she is receiving from the clergy and elders of her Church, who generally have no formal religious training, do not attend any seminary, and are exclusively male. Is her situation different from those who, while seeking religious purpose and redemption, are manipulated into being suicide bombers or jihadists by those seeking political and religious power and control?

Politicians have no obligation not to exploit people or their causes. Likewise there is no legal duty of loyalty, or even competency, for a clergy person. However, there are ethical obligations for lawyers, and I have to wonder what role her lawyers may be playing in promoting her martyrdom? As an elected official involved in a dispute regarding the policies and procedures in her office, one might expect that she is represented by the County Attorney or a law firm that routinely represents elected officials. This is not the case for Mrs. Davis, who is being represented by lawyers through Liberty Counsel, a group that describes its purpose on its webpage as, “to preserve religious liberty and help create and maintain a society in which everyone will have the opportunity to discover the truth that will give true freedom.” The Southern Poverty Law Center has labeled Liberty Counsel as an anti-LGBT hate group. According to the Southern Poverty Law Center, Liberty Counsel has championed causes such as removing hate crime legislation. The Liberty Counsel website contains a Marriage Solidarity Statement in which they claim “the Supreme Court has no authority to redefine marriage and thereby weaken both the family and society.”

Is there a conflict of interest between Liberty Counsel’s agenda and providing competent legal advice to their client, Mrs. Davis? That is, can Liberty Counsel competently advise  Kim Davis regarding her best interests, or is it about promoting their political agenda with her being a martyr to the cause? This important question was raised in a recent Slate article in which the columnist observes:

“Yet the Liberty Counsel didn’t mind putting their client at risk—perhaps because the idea of a middle-aged woman being hauled off to jail for purportedly following her conscience would send thousands of anti-gay Americans reaching for their pitchforks (and checkbooks).”

A lawyer’s duty paramount duty is always to the client. The question that arises in many cases, such as Mrs. Davis’ where a third party is providing funding, is who is the client? Are her lawyers working for the “ministry”, which has its own agenda, or for Mrs. Davis whose interests might align in some ways, but in other ways might be at odds with those of the ministry? Such a problem is not unique in the law, insurance defense attorneys sometimes face a similar dilemma, especially when the insurance company wishes to settle or contest a claim and the client being sued does not. However, in cases involving insurance defense lawyers there is some protection for the client in that if an insurance company refuses to settle a claim and the client is forced to trial and loses, the insurance company then has to indemnify the client for the full amount regardless of the policy limits. In Mrs. Davis’ case, the stakes are not simply monetary and it’s not Liberty Counsel who is going to jail or who will be burdened with a record of contempt, it is only Mrs. Davis. I note that while Liberty Counsel is standing in front of the national press promoting its cause of suppressing rights for gays and lesbians, no court has found merit in any of the claims it has raised so far, and their client is sitting in a jail cell.

There is another ethical obligation of an attorney to keep in mind when advising a client such as Mrs. Davis. As a lawyer I am not permitted to advise my client to disregard or violate a Court order. I can agree with my client that an order is unfair or unjust, but I cannot counsel a client to violate a judicial order. This is my obligation as an officer of the Court. I must give respect to judicial rulings, even when I don’t agree with those rulings. I am free to challenge them on appeal, but I am not free to advise my client to disobey those rulings. As an outside observer of this case I have no idea what  discussions have taken place between Mrs. Davis and her lawyers, but I’m left wondering what counsel she is actually receiving regarding complying with the Judge’s order? Is a client well served by lawyers whose focus may be their interpretation of Biblical law rather than the secular law of the Court? I think that an argument can be made that, unless you are able to encourage your client to follow the orders of the Court, you are not able to render competent legal counsel to the client.

I don’t agree with Mrs. Davis’ argument that her religious beliefs permit her to refuse to allow her office to issue marriage licenses to same sex couples. I feel that as a matter of law it fails on many levels. However, I’m really wondering whether or not her need for redemption is making her susceptible to the manipulation of those who have surrounded her in this cause. Of course, in the end, it will be Mrs. Davis who will bear the costs.