November 2010


If there is a code of honor among blawgers (and I’m sure there is, for there is a code involved in all things law), then I am sure it requires this of me: to spread the news that finalists have been named in the ABA’s Blawg 100.

These, as you might have surmised, are the “best” law bloggers, as determined by the ABA Journal’s legion of editors. Now people far and wee (you, me, the finalists’ families and pets) get to winnow the field to the best of the best.

I have to admit that I am as surprised as you are that this very blog — AZ Attorney — was not selected. But gnashing our teeth and crying in our beer will get us nowhere (though the second path sounds appealing). Instead, we’ll forge ahead, read some blogs and cast some votes. And that is what you should do too. Do not dwell on the injustice heaped on our Grand Canyon State, or rend your garments in dismay. We shall be the better advocate for quality blogging by simply carrying on, focused outward, as always.

Oh, yes, the voting. You can go here to register and then cast your ballots.

No write-ins allowed (I already checked).

Happy reading.

"Can You Spot the Future Americans?" - photo essay by Matt Slaby/Luceo

We’ve gotten many views of immigration over the past year, especially here in Arizona. But I was struck this past weekend as I read an essay with insight that we don’t typically receive.

I found it in a Mother Jones article that detailed the immigration situation through the lens of an immigration law judge.

As you might guess, that view is one of a vast bottleneck of cases, with justice—or at least decisions—rendered in a matter of seconds.

What many forget is that immigration judges are employed by the U.S. Department of Homeland Security. Thus, as we look through our mind’s eye at our elementary-school chart of the separation of powers, these judges sit in the same frame as the rest of the executive branch. Checks and balances do not apply.

The story examines the cluttered calendar of an immigration judge, who must weigh the law and facts with remarkable speed. And what is at stake is far more than a property dispute or some lost overtime. As the author Casey Miner writes, “With just minutes to decide whether someone gets deported, overworked immigration judges have reached a breaking point.”

Read the whole story here.


The State Bar of Arizona has just launched a significant portion of its redesigned website—and they want to know what you think.

The portion that is primarily tailored toward the public has seen remarkable changes over the past few months. Still to come are changes to the areas that lawyers use on a daily basis (such as Arizona Attorney Magazine, I like to think). But everyone is welcome to jump in, click, search—and then comment. Here is a page that invites your suggestions.

Praise and critiques can go directly to the State Bar’s Chief Communications Officer, Rick DeBruhl (rick.debruhl@staff.azbar.org)

He’s also the guy to tell if you think that the staff who put out that remarkable Arizona Attorney deserve huge raises and a reward trip to Waikiki. Just saying.

Have a wonderful Thanksgiving.

Kevin Gover

Yesterday we received two news items that were three time zones apart, but each says something important about Indian law issues.

The more specific Indian Law analogue was the announcement of an ABA award to Kevin Gover, who is the director of the Smithsonian National Museum of the American Indian. Pertinent for us, he has Arizona ties and is a longtime law professor at the ASU Sandra Day O’Connor College of Law.

He will receive the 2011 Spirit of Excellence Award, given by the American Bar Association Commission on Racial and Ethnic Diversity in the Profession.

More information on the award is here. You can read Gover’s profile, via the ASU Law School, here.

As the ABA says:

“Gover has been a tireless champion for the rights of Native American tribes,” said Fred W. Alvarez, commission chair. “He walked his first picket line as a 10-year-old member of the Pawnee Tribe of Oklahoma, and marched as an undergraduate at Princeton University to draw attention to the plight of American Indians.  He rose to become Assistant Secretary for Indian Affairs in the United States Department of Interior, responsible for policy and operational oversight of the Bureau of Indian Affairs and overseeing a $2.2 billion budget and supervising 10,000 employees  Since 2007, he has led an institution dedicated to advancing knowledge and understanding of the life, languages, literature, history and arts of the native peoples of the Western Hemisphere. His career has been truly extraordinary.”

“Gover began his career in Indian affairs more than 30 years ago, with his post on the American Indian Policy Review Commission. Shortly after receiving his law degree from the University of New Mexico School of Law, he joined the Indian law division of Fried, Frank, Harris, Shriver and Kampelman, where he worked exclusively on matters relating to the American Indian community. Gover later formed his own firm, focusing his practice on Indian law, which eventually became one of the largest Indian-owned firms in the country. His work caught the eye of then President Bill Clinton, who appointed Gover to his Department of the Interior post in 1997.”

Charles Calleros

(The Arizona honor continues even further: Also earning the Spirit of Excellence Award is ASU Law Professor Charles Calleros. Congratulations to both.)

The other news item that affects Indian Law issues was the announcement by Arizona Gov. Jan Brewer that a vacancy on the Supreme Court would be filled by Robert Brutinel, a judge on the Superior Court for Yavapai County. We reported on that yesterday.

It was Faith Klepper, former chair of the Arizona Attorney Editorial Board, who pointed out (on Facebook) that Judge Brutinel has some experience in Indian law matters.

According to his application for the position (available here at the Supreme Court website, but who knows for how long, now that he’s been named to the Court), he indicates that when he was in private practice he represented an Indian tribe. He goes on to say:

“As a practitioner, I was involved in the drafting of major revisions to the Yavapai–Prescott Indian Tribal Code. I drafted a number of ordinances in various areas of the law for the Tribe.”

Judge Robert Brutinel

The new Justice is highly accomplished in many areas, and has even been honored this year as the Judge of the Year by CASA: Court Appointed Special Advocates.

But having some Indian Law experience could be extremely helpful in Arizona. And it may even have an impact on how law is taught in this state.

As we’ve noted before, a petition submitted to the Arizona Supreme Court to add Indian Law to the state’s bar exam has been tabled for quite some time now.

If the addition of Indian Law will not happen while the Court considers signing on to a broader uniform bar exam, maybe Justice Brutinel will be influential in another area: getting Indian Law added to the training for lawyers admitted on motion, without taking an Arizona bar exam.

After all, a lawyer who has worked on the drafting of an Indian Law Code may be particularly attuned to its value. That, too, would add to a spirit of excellence.

June 2009: Then-State Bar of Arizona President-elect Ray Hanna and Judge Robert Brutinel, Arizona Superior Court for Yavapai County (today named to the Arizona Supreme Court)

Back in June 2009, as we prepared for an Arizona Attorney Magazine profile of incoming State Bar President Ray Hanna, photographer Christopher Marchetti snapped a shot of Ray with Judge Robert Brutinel–today named to the Arizona Supreme Court. Enjoy the photo.

You can read more about Judge–I mean Justice–Brutinel in the Governor’s press release.

I’ve already told you we’re seeking bloggers (forgotten already? Click here). But what, exactly, does that mean, you ask.

Like Potter Stewart, I’d like to say “I know it when I see it.” But unless you’re a pornographer, you deserve a better answer.

Well, as luck would have it, I just came across a well-written essay on the topic. Click here to start reading.

It was written by Ali Luke, at the Creativity Toolbox. She is a London writer; find her—and follow her—on Twitter at @aliventures. (You might also stop by her website here.)

Ali Luke

Early on in the essay, she points out that “The truth is, if you’re blogging—or even planning a blog—then you’re already much more creative than a lot of folks.”

Well, right on, I say. Whether you are blogging (or planning to), or writing in some other form (or planning to), you’ve got a creative spark that we want you to share.

And as you read the essay on problogger.net, ignore those blinking ads that say, “Make Ca$h Blogging.” Wouldn’t you rather do that with Arizona Attorney Magazine, where we pay you in positive vibes, great readers, and the occasional coffee and doughnut?

If you said yes to those things, you may be on the path to becoming the kind of blogger we seek.

Don’t just sit there—read what Ali has to say. And give the endeavor some thought.

On this Change of Venue Friday, I am still attending the State Bar’s Solo and Small Firm Conference (which I wrote about yesterday). So I’ll take the opportunity to tell you about another great event, this one hosted by the Arizona Minority Bar Association.

More than 50 people attended the AMBA’s lawyer–law student mixer held on November 4 at the Hotel Congress in Tucson. It is an annual event, much appreciated by both groups of people.

I was told about the event by Suzanne Diaz, a Fennemore Craig attorney and a graduate of the State Bar’s Bar Leadership Institute. She was kind enough to invite me and, when I was unable to attend, to send me news and photos.

Suzanne says that lawyers and students all enjoyed meeting and talking to each other, and that the students said they received great advice from the lawyers and judges.

Among the judges sharing their Thursday evening were Supreme Court Associate Justice John Pelander and Judge Philip Espinosa of the Court of Appeals’ Division 2. (If we missed any judges, Suzanne and I both apologize.)

Suzanne even passed on a review of the evening by a student attendee:

“I thought it was absolutely fabulous! The students had a great time!” ~Ashley Gomez, JD Candidate, 2012

You’ve heard the great news. Now get ready for the call to action. It’s in two parts.

First, traipse over to the AMBA’s Facebook page and, if you’re so inclined, click “Like.” I did, because it’s great to see a dynamic group of lawyers who enjoy and are energized by their duty to mentor and advance a new generation of lawyers. Bravo.

Second, do you have an event that we should cover? Is it coming up in the future, or has it just happened? In either case, contact me—we want to help spread the word about your news regarding Arizona’s legal community.

Here are a few photos (more are at that Facebook page). Have a great weekend.

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Today and tomorrow, I plan to attend what promises to be a helpful event hosted by the State Bar of Arizona.

The Solo and Small-Firm Conference will be at the Chaparral Suites in Scottsdale, and it includes an impressive lineup of speakers and presenters. In fact, the afternoon breakouts, which are divided into “Substantive” and “Law Practice/Technology” tracks, present me with a difficult decision.

More information on the conference, including the speaker roster, is here.

Well, since I won’t be there to garner MCLE credit, I may just hop back and forth. I’ll let you know how that goes.

The event launches Thursday morning with remarks by Arizona Chief Justice Rebecca White Berch. She’s followed by speakers, some nationally known, on topics such as surviving bad economic times and ethical marketing tips.

Friday morning includes conference co-chairs (Kathleen McCarthy, Lynda Shely, Susan Traylor and Paul Ulrich) presenting “61 Tips in 60 Minutes.” I’ll be counting—and looking at my watch—to see if they bring that in on time and under budget.

Breakout sessions will include topics such as: Internet marketing, fee agreements and getting paid, reducing paper in your law office, and small-firm financial management.

(The conference materials indicate that there will be a continental breakfast. But I have it on good authority that French toast will make an appearance one of the mornings. Attend to find out which.)

I’ll post a story and some photos next week. But I’ll also tweet from the event, using the hashtag: #SBAsolo

Hon. Ron Reinstein (ret.) speaks at ASU Law School, Nov. 16, 2010

Yesterday, a program at ASU Law School turned a light on what may be one of the most important issues in law today.

“The White House Subcommittee on Forensic Science: Policies and Issues” was the title, and it covered developments—or the lack of them—that have followed on the nearly two years since the National Academy of Sciences issued a compelling report about the state of forensic science today.

(We covered the report’s release in Arizona Attorney in April 2009. You can read it here.)

The speaker was Ron Reinstein, former Maricopa County Superior Court Judge who now works at the Administrative Office of the Courts. His experience in the area is broad and deep, and he currently chairs the state’s Forensic Science Advisory Committee.

ASU’s Law & Science Student Association was the host, and it gave Reinstein 50 minutes to explain “what’s happening in the world of forensic science.” He did quite a job in his allotted time.

He admitted, though, that the White House Subcommittee is pretty stringent on what can and cannot be said about the group’s workings, at least until it issues its report. As he landed on his last slide, he said, “We’re only allowed to do that PowerPoint.”

Of course, he was able to explain far more than that about the world outside the subcommittee.

The takeaway message was that much work had been accomplished over the past year at the federal, state and local level. Unfortunately, that work has translated very little into changes in approach and operations in forensic labs. “To be honest,” he said, “I am not that encouraged about state government responses around the country.”

Even in terms of education, Reinstein admitted that few judges have read the NAS report, and many others are even unaware that it exists. A survey of Texas judges showed that only 22 percent knew anything about it. “That’s kind of scary,” Reinstein said.

Much that was proposed in the NAS Report is unlikely to come to pass, he said. That includes an effort to require that all forensic labs be independent of law enforcement agencies. “That was dead on arrival,” he said.

(For insight into why that is important, read an article in the November issue of the ABA Journal, titled “CSI Breakdown.” As it says, “Some police and prosecutors tend to view government-employed forensic scientists, including medical examiners, not as independent experts but as members of the prosecution’s ‘team.’” The article is here.)

Courts, too, have not taken a leadership position on forcing changes in the forensic science regimen. “Judges don’t feel comfortable taking the lead on this,” he explained, adding that there have been few challenges by defense counsel based on the NAS findings that would allow judges to rule on admissibility. (One exception he mentioned is Nancy Gertner, a federal judge for the United States District Court for the District of Massachusetts. You can read more about her here.)

The speaker showed some silver lining in terms of education. He’s been pleased at the focus on the topic at Arizona Judicial Council conferences, and at the State Bar Convention. He said that people interested in the topic are watching to see what if anything the state’s new Attorney General, Tom Horne, and the Legislature adopt in regard to forensic science. And he is confident that “The Supreme Court wants to see change occur”; he mentioned Justices Hurwitz and Bales, and former Justice Ryan, as three who have indicated a strong desire to see positive change happen soon.

In the same vein, his Forensic Science Advisory Committee has developed a six-month course that will educate prosecutors and defense attorneys—25 of each—on all aspects of forensic science. It will meet weekly from January through May.

Look for more coverage in Arizona Attorney in 2011.

Here are more photos from the event.

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Minneapolis protest against Arizona immigrant law SB 1070 (Wikimedia Commons, Author Fibonacci Blue from Minnesota, USA)

SB1070 is said to bring out the venom. But in some ways, it brings out the saccharine.

I was out of the office Thursday last week for Veterans Day. And that’s why I had to miss a panel discussion on Arizona’s polarizing immigration–criminal statute. It was hosted by the Phoenix School of Law and was titled “SB1070: Its Beginnings to Its Future.”

Pretty generic stuff—from the title onward, they sought not to alienate anyone scattered along the political spectrum.

And then in the press announcement, I caught two interesting points:

1.Event is NOT open to the general public.

Yes, it was underlined and in red.

Odd, I thought, that a discussion touching on a matter of massive public interest would be open to law students and media only.

The second unique feature came next:

2. “Discussion is expected to be academic and an opportunity to be the ‘voice of reason’ on what has become a polarized piece of legislation.”

I cannot remember the last time event organizers sought to increase attendance by reassuring potential attendees that the occasion would be “academic” and devoid of controversy.

But then I remembered, That’s not entirely true. The last time I saw the same behavior was … the last time a conference on SB1070 was held.

ASU Law School’s October 8 conference will be the focus of a short item we are running in the December issue of Arizona Attorney Magazine (mailed this week). But those conference leaders, like their counterparts at Phoenix Law, also sought repeatedly to douse any flames of partisanship or controversy. Attendees were assured, more than once, that they were committed to looking at the law and its effects, reasonably and rationally. They would leave aside any protests and hysterics.

As if protest and hysteria are the same thing.

I have some sympathy for that approach, because I have participated in just that kind of firestorm-avoidance therapy.

Last April, I moderated a panel discussion on SB1070. The organizers who asked me to play the role were almost painfully committed to a discussion that was reasoned and drained of any of the anger that can be felt almost everywhere in Arizona—outside academic discussions.

In at least two of these panel discussions, the participants were largely people who were opposed to SB1070 (as I did not attend the Phoenix Law event, I can’t claim a sweep). But they worked mightily to preserve the impression that there was a huge space between academics who largely opposed the law and street protestors who did the same.

I draw two tentative conclusions about this strange dynamic.

1. Based on the results of this month’s elections, there is a difference between those who stand by their partisan rabble-rousers who stake out perhaps peripheral positions that may be occasionally discourteous and loud—and those who distance themselves from those obstreperous protestors and act like they may have stepped in dog feces. There is a difference between people who understand that their grassroots base may be noisy but helpful, and those who think that the base must be discarded and dissed because elections are won in university lecture halls.

They are called, respectively, Republicans and Democrats. Or, if you’d like, winners and losers.

One group views its base as passionate activists, and the other sees them as hysterical discontents.

2. It is easy to mistake passion for hysteria, as women’s history makes clear. My wife and I just saw a play that demonstrates that in a vibrant way. “In the Next Room (Or the Vibrator Play),” by Sarah Ruhl, is a Tony Award-nominated play that is “a comedy about marriage, intimacy and electricity.” It shows behaviors that some of its Victorian characters view as deranged and even hysterical. The period piece shows that many behaviors were commonly acknowledged to be better ignored and marginalized.

Of course, we laugh now at that misguided approach, which led to entire generations that ignored women’s contributions. If this year’s election lends any lesson, it may be a reminder that ignoring the colorful and passionate side of yourself is not the path to success—of a person, a society, or a party.

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