December 2011


New Year’s resolutions are one of those constructs that annoy as much as they inspire. But I’ll do my best to craft a few for 2012.

Why they trouble me, I don’t know. Ask anyone I work with, and they’ll tell you that I am a resolute guy. But somehow that’s not quite the same thing. On this Change of Venue Friday, let’s explore some of those promises we make to ourselves.

Yesterday, I enjoyed reading some other peoples’ blog posts from this year and past, when they addressed the same issue. Some were pretty mundane—“Use the photocopier less” was less than a revelation. But a few others intrigued me.

One blogger opened with “Improve your writing skills,” so they had me at the get-go. And the two other resolutions from FindLaw’s “Strategist”—regarding technology and marketing—are also worth your bookmark.

Another blogger reminds lawyers that it really, really, really is time to learn something about social media. In fact, the author at Ms. JD promises to launch an entirely new blog dedicated to her journey into that world. Even if we don’t do the same, we might learn from her successes and stumbles.

(The Legal Watercooler had a cheekier take on the topic, calling its post “Learn How This Social Media Thingie Works.”)

But now it’s time for me to step up to the plate. Here are three resolutions that I anticipate will guide me through 2012 (with adjustments per quarter!):

  1. Write more, meeting less.

When I speak dismissively of meetings, I assure you I do not mean meeting with potential or current authors about their ongoing cool project. I don’t mean brainstorming sessions about the evolution of Arizona Attorney’s look and feel. No, I mean the raft of other meetings that the human flesh is heir to. And if I could replace those often nonsensical gatherings with a little more time to write, what a year it could be!

  1. Share more in the legal community.

This resolution will require more of those meetings I refer to in (1) above, meetings of the good variety. Currently, I often try to be away from my desk attending and covering legal events that may be of interest to our readers. In 2012, I aim for even more of that. I also would like to meet more with law firms and legal groups and organizations to discuss story ideas and remind lawyers about the role the magazine may play in achieving their own goals. (In fact, if you have an upcoming event I should attend or speak at, contact me at arizona.attorney@azbar.org.)

  1. Collaborate and ask for help.

This final resolution will be mandatory if I hope to achieve our goal of providing even more content in 2012—content in the magazine and online. To do that, we’ll need to identify great idea people whose ideas would shine in our media platforms. We’ll create partnerships with lawyers and nonlawyers who can speak to compelling issues in a changing industry. And we’ll locate even more Arizona lawyer-bloggers who enjoy having their fellows read and comment on their stuff.

OK, I’m done. What are your resolutions?

Happy New Year’s. I’ll be back on Tuesday (that’s right, I’m taking Monday off, another mini-resolution!).

Two days ago, I wrote about a Mesa school district program that gets truant students in front of a justice of the peace. The goal is to get them on the straight and narrow. But the outcome is, necessarily, more misdemeanor convictions.

Last night, I read a disturbing Washington Post article that analyzed data from schools in that city and its suburbs. It found that African American students are disciplined far more often than other children.

Read the whole story here.

The story, by reporter Donna St. George, opens:

“Across the Washington area, black students are suspended and expelled two to five times as often as white students, creating disparities in discipline that experts say reflect a growing national problem. … Experts say disparities appear to have complex causes. A disproportionate number of black students live below the poverty line or with a single parent, factors that affect disciplinary patterns. But experts say those factors do not fully explain racial differences in discipline. Other contributing factors could include unintended bias, unequal access to highly effective teachers and differences in school leadership styles.”

Daniel J. Losen

As the story indicates, the challenge of equalizing discipline is a national one. So much so that a joint effort of the Departments of Justice and Education was announced last July to combat the school-to-prison pipeline.

According to the Department of Education press release:

“Secretary of Education Arne Duncan and Attorney General Eric Holder today announced the launch of the Supportive School Discipline Initiative, a collaborative project between the Departments of Justice and Education that will address the ‘school-to-prison pipeline’ and the disciplinary policies and practices that can push students out of school and into the justice system. The initiative aims to support good discipline practices to foster safe and productive learning environments in every classroom.”

The Post story explains the problematic nature of many of the suspendable offenses, which are labeled “soft” infractions—disrespect, defiance, insubordination, disruption and foul language. Some offenses, the reporter notes, allow administrators “significant latitude in how they respond.”

Discipline rates in DC schools (click for larger version)

And things really have changed in schools since many of us were kids: “Suspensions have surged nationally since the 1970s, fueled in part by a zero-tolerance culture.”

“‘We associate getting kicked out of school with something really really bad, but there has been a sea change in recent years in what kids get suspended for and how often we use suspension,’ said researcher Daniel J. Losen, who recently authored a report on suspension and disparities for the National Education Policy Center at the University of Colorado.”

Russell Skiba

The disparities are troubling, the reporter says, especially for parents who may already be suspicious of an unbalanced ledger in school administration:

“Lea Collins-Lee, an African American parent in Prince George’s [County], said her eldest son was first suspended a decade ago for placing an extra dessert on his cafeteria tray. Last month, her youngest son, now 18, was suspended for five days after a tussle that she said he did not start.

“‘I really do think it’s harder for black kids,’ she said. ‘If they get into a fight, it’s a gang fight. If white kids get into a fight, it’s a disagreement.’”

For those who suggest a suspension may be no big deal, a recent Texas study drew a stark line between school discipline and the likelihood of dropping out and ending up in the juvenile justice system. And as I noted Tuesday, a criminal record may be forever. (Here is another study examining disparities in the Virginia schools.)

In the Post article, a researcher answered in advance one of the questions many may have:

“‘It is not just a matter of kids coming from poverty,’ [Indiana University’s Russell] Skiba said. ‘Poor kids do get suspended more. But that does not explain why poor black kids get suspended more than poor white kids and why affluent black kids get suspended more than affluent white kids.’”

Angela Ciolfi

Donna St. George quotes another researcher, Angela Ciolfi of the Legal Aid Justice Center, which published the study of Virginia schools:

“I think people assume it has to be this way. [But], when schools pay attention to who gets in trouble and why, they find they are able to reduce misbehavior overall and also address the discipline gap.”

What do you think of this discipline gap? Do you see it in Arizona? And for those in the juvenile justice system, what do you think of the notion that wielding too much discipline in schools provides a gateway to the courthouse?

Just blow: Ignition-interlock device

We read this week that Arizona’s DUI sentence for first-time offenders will be eased slightly in 2012. Does anyone else find that surprising?

As the Arizona Republic story reports:

“Starting Jan. 1, Arizona drivers convicted of a first-time DUI offense will get a slightly gentler sentence.

“A new state law will require first-time offenders to have an ignition-interlock device on their vehicle for six months, instead of the current requirement of a year.”

You may read the whole story here.

As the story goes on to say, Arizona is one of “the toughest states in the nation when it comes to DUI laws.” In addition, this sentence-reduction comes not from the defense lawyers, but from a lawmaker, Sen. Linda Gray (R-Glendale), “who has led the effort for 13 years to strengthen the state’s DUI laws.”

You read that and you ask, What’s up? Why the sudden change in a state that likes its sentences stiff? Unfortunately, the reporter may not have been as curious as we are. The odd bedfellows remain a mystery.

Last April, I wrote about the ignition-interlock law. This may suggest some of the movements behind the scenes that led a conservative lawmaker to decide to reduce a penalty on DUI offenders.

Does anyone else have any insight into the turnaround? And is this a one-time anomaly, or may there be space for variation elsewhere in the state’s sentencing regime?

An intriguing story almost slipped by unnoticed yesterday. It is about a truancy program in the Mesa School District, which is Arizona’s largest.

The “no-nonsense” program provides a series of checks on student absence, which may culminate in a misdemeanor conviction.

You may read the whole story here.

As it explains:

“Truancy court is a no-nonsense year-old partnership between the Mesa Public Schools Safety and Security Department and East Valley justice of the peace courts … . Mesa, the largest school district in the state, has a long history of being the toughest on truants.”

Truancy is certainly a problem, but the story reminded me that having a criminal conviction may be a problem too. In fact, the “criminalizing” of youth behavior has grown so pervasive that it’s now got a label: The School to Prison Pipeline. And as we might guess, it most affects students who are poor or of color, or often both.

Justice of the Peace Dan Dodge talks to a woman and her daughter about truancy during a hearing at Highland Justice Court in Gilbert. (Deirdre Hamill/The Arizona Republic)

Have any lawyers had experience with this approach, in Mesa or elsewhere? As the steps toward a conviction escalate, are the students provided counsel? (Likely not, given the absence of jail time that is possible.) Are the juveniles advised of the meaning of accepting (or having imposed) a misdemeanor conviction? Do they have an inkling of how it will affect job and other opportunities, when they must indicate that they have been convicted of an offense?

In fact, dropping out of school is not a good thing, but could it ever be the better course? For those who are old enough to drop out of high school, could it be preferable to do that just before a conviction is levied? After all, a person may always go back and earn a GED. But you may never undo the conviction.

What do you think?

During the holidays, if the hustle doesn’t get you down, the bustle will. What’s billed as the happiest time of the year may cause us all to become aggravated beyond reason. But today I share a bit of poetry that urges us to choose a different path.

This past August, an ethics counsel for a state bar association took the time to transform a classic piece for the benefit of lawyers. Travis Pickens wrote the following piece for the Oklahoma Bar Journal (Aug. 6, 2011), and I hope we all take it to heart this week and into 2012.

Thank you to Carol Manning, Communications Director for the Oklahoma Bar Association, for her generosity in sharing this.

Ethics ‘Desiderata’

By Travis Pickens

In 1927, American writer Max Ehrmann wrote a prose poem titled “Desiderata.” It was thought that Ehrmann had written it for his children, and the poem was extremely popular in the ‘60s and ‘70s, especially among young adults. “Desiderata” is Latin for “desired things.” The following is an adaptation of the poem.

Go ethically amid the noise and haste,

and remember what peace there may be in an office practice.

As far as possible, without surrender,

be on good terms with opposing counsel and your client.

Make your argument quietly and clearly;

and listen to others,

even to the dull and ignorant;

they too have practiced law, and are now retired.

Tolerate, but do not emulate, rude and vexatious lawyers;

they depress Lady Justice, but sometimes cannot be avoided.

If you compare yourself with others,

you may become vain and bitter,

for always there will be lawyers more or less super than yourself.

Enjoy your successes and find lessons in your defeats.

Keep interested in the law, however routine your practice may be;

it is a real possession in a down economy.

Exercise caution in negotiations,

for last-minute bargaining is full of trickery.

But let this not blind you to what virtue there is;

many lawyers strive for high ideals,

and everywhere the law is full of professionalism.

Be yourself. Especially do not feign sincerity.

Neither be cynical about civility,

for in the face of all anger and disenchantment,

it is as calming as a stream.

Take kindly the counsel of the years,

gracefully surrendering the clients of youth.

Nurture your investments to shield you in sudden misfortune,

but do not distress yourself with imagined missed deadlines.

Many fears are born of fatigue and insecurity.

Beyond enough billable hours to satisfy your partners,

be gentle with yourself.

You are a child of the legal world,

no less than the jurists and the justices;

you have a license to be here.

And whether or not it is clear to you,

no doubt your career is unfolding as it should.

Therefore be at peace with the law,

whatever your practice may be.

And whatever your losses and victories,

in the stressful confusion of this demanding life,

keep peace in your soul.

With all its dangers, duties and fights,

it is still a beautiful career.

Realize your good fortune. Resolve to be happy.

I don’t know about you, but I’m feeling a little more 99-percent-ish than usual.

Whatever your sentiments in regard to the nationwide (and perhaps global) Occupy movement that began with Wall Street, I think many of us recognize the impulse that propels it: A sense of complete power and invincibility among a select few, while the mass of us are tossed upon the shifting seas.

The seas got even choppier yesterday, when an Arizona prosecutor announced his findings in regard to the Fiesta Bowl scandal: No one—at least, no elected officials—will be prosecuted in the ticket probe.

(I stress the “elected officials” part because one person—the Bowl’s former chief operating officer—has already been indicted. In November, a grand jury handed down charges against Natalie Wisneski, the bowl’s second-in-command. Time will tell whether anyone above her takes a fall. She has pleaded not guilty.)

I do not question the judgment of Maricopa County Attorney Bill Montgomery, who made yesterday’s no-charges announcement. He indicated that “inconsistent laws, vague reporting requirements and a requirement that prosecutors prove a defendant ‘knowingly’ violated the law as factors in his decision.” (Not everyone accepts that explanation; read the words of those interviewed by the Phoenix New Times here.)

Nor do I doubt Montgomery’s conclusion that the reporting requirements are vague and make legislators’ action a moving and squishy target. Given those circumstances, he acted as a responsible prosecutor and declined to file charges.

The Occupy movement’s itch starts to ache, though, as Montgomery offered his recommendations for the future:

“Maricopa County Attorney Bill Montgomery intends to ask the Arizona Legislature to pass sweeping reform, including an outright ban or severe restrictions on gifts for lawmakers, following his investigation into the Fiesta Bowl scandal.”

The story, which you can read here, continues:

“Montgomery said he will pressure lawmakers to:

  • Ban all gifts or require the disclosure of all gifts above a certain amount, perhaps $25.
  • Change state statutes to say what gifts are permissible.
  • Increase the frequency of reporting of gifts to quarterly from annually.
  • Create a Web-based reporting system so it’s easier for the public to see what gifts politicians have accepted.
  • Adjust penalties for knowingly or intentionally not reporting gifts to a felony from a misdemeanor.
  • Create a ‘reckless standard’ act that is punishable by a misdemeanor or civil penalty for those who violate the reporting requirements but don’t do it knowingly or intentionally.
  • Increase campaign-finance disclosure requirements.”

Hmmm. Let me return to my assessment of what gives the Occupy movement legs: A powerful and invincible few, and the storm-tossed us.

Former Fiesta Bowl head John Junker (Tom Tingle/AP)

I wish Montgomery luck as he sternly suggests to the few that they should make themselves a bit less invincible. Perhaps the better angels of their nature will prevail, and we will see such legislation in the coming legislative session.

In the meantime, if you or I want any Fiesta Bowl tickets, we’ll have to get them the old-fashioned way: By buying them.

A member organization is often assessed based on what it gives its members. And why not? At least one of its many goals is usually to serve those people.

In that assessment, high-profile initiatives get most of the limelight. Lawyers appreciate free legal software and discounts on professional liability insurance. But recently, the State Bar of Arizona rolled out a feature that until now has been low on the radar.

It’s a new In Memoriam page on the Bar’s website.

Yes, lawyers are pleased to receive a wealth of other benefits. But it is a pretty common occurrence for us to hear from a lawyer, pleased that we had published an obituary or even a one-line death notice in Arizona Attorney Magazine. Those members point out that friends and colleagues fall out of touch, especially after retirement. Providing news of deceased members allows the living to pay their respects. And in doing so, they often reconnect with other fellows who are still alive.

We’ll continue to publish lists of deceased members in the print magazine. But kudos to the Bar for rolling out this more timely and complete list feature.

Or, as I almost called this post, “Blogs and the Organizations That Love-Hate Them.”

Scottie Pippen

Today I follow up on the Scottie Pippen lawsuit. In the suit, we discover that Pippen thinks he can draw decisive conclusions from tags in a blog post. He suggests that readers may draw an “=” sign between a tag and a blog subject.

Do you think he’s right? For my sake—and that of millions of others—I hope not. More important, I hope a federal district court doesn’t buy that argument.

I wrote last week about Pippen’s lawsuit against a raft of media outlets. He alleges that their discussion of his financial picture hurt that very picture. In fact, he says at least one of those outlets claimed he had filed bankruptcy, which he says he never did.

But his naming a blog at ASU Law School as a defendant hits closest to home for me, for a number of reasons.

The blog, as I noted before, did not call Pippen bankrupt. It simply pointed out that he, like some other pro athletes, has experienced financial trouble.

Pippen’s boggle about the blog is more specific. His lawsuit notes that the blog post includes the name “Scottie Pippen” and the word “bankrupt.”

Not surprising, you might think, for parts of the blog mentioned athletes who had declared bankruptcy.

For Pippen, that’s inflammatory. His name near the BK word is actionable.

That gives me pause—and it should do the same for any journalist who works online, or who ever has her stuff posted online. In other words, practically everyone in the field.

The reason should be clear: Post tags refer to a wide variety of the content in a post. The only certain connection between the tags is that they appeared in the same post.

Let me give an example. I wrote a brief post on December 6 that praised the work of nine lawyers who volunteered to answer consumer questions about bankruptcy. To no one’s surprise, “bankruptcy” was one of the tags. But was I suggesting that those lawyers were financially insecure because of the tag? Of course not.

This happens all the time. Again here in Arizona, a prominent county attorney recently announced the recommendations of a task force examining child protective services and child abuse. Newspaper and TV news stories online used his name and child abuse as tags. Ungainly? Perhaps? Actionable? Not so much.

Of course, Pippen’s suit may chill speech at least a bit. For example, have you glanced up at the top of this post to see what tags I chose? Go ahead; I’ll wait.

Back? So you see that I decided to tag Scottie Pippen; but my more careful side omitted “bankruptcy.”

Over-careful? Maybe. But I’ll be watching how the court treats Pippen’s claim about some tags in a law school blog. Concurring with Pippen’s view would undermine the way journalism is done online; this question will remain open as long as there are online tags.

Even more important, agreeing with Pippen’s interpretation would deconstruct a foundational way that people read and use online information, trusting the interactivity of links without believing that those links are causational or essentially related. And that would be revolutionary.

Or, more simply put, Pippen’s analysis is Chicago Bull.

In the meantime, until the court rules, organizations (like ASU, I presume) will continue to have mixed feelings about blogs. They enjoy the immediacy and reader connection they engender. But their speedy publication nature—and lawsuits like these—give their lawyers agida—physical and mental.

As a blog advocate (“blogvocate”?), I am eager to see the case’s outcome. And until then, I’ll watch my tags.

Example of stonework to be used in Arizona memorial to the Bill of Rights.

A belated birthday greeting goes out this morning to a document that means a lot to every person in the United States. That document is the Bill of Rights.

Like many important events, this one sneaks up on us unawares every year. But on December 15, the Bill of Rights celebrated its 220th birthday.

Though the event was last week, I think it’s important enough to blow out a few candles even today. And I know just the person to help do it: Chris Bliss.

Among his many attributes, Chris Bliss is the Executive Director of a nonprofit called MyBillofRights.org. The group’s goal is to erect a monument in every state’s capitol to the founding document. And I’m happy to say, Arizona is on track to become the first of the 50 to do so.

Last week, Chris penned an op-ed piece on why we should care about the Bill of Rights and its birthday. He opens:

“Two-hundred-and-twenty years ago today on Dec. 15, 1791, something happened that changed history forever. Virginia ratified the Bill of Rights, becoming the 10th state to do so and thus making it part of the Constitution.

“The ways this changed history were myriad, foremost among them by preserving the fledgling new country called the United States of America, after the Articles of Confederation had failed.

“Today, 220 years later, the Bill of Rights remains the heart and soul of who we are as a people and why America remains an inspiration to those everywhere seeking their liberty. Its ingenious balance of personal freedoms and political principles has proved both dynamic and durable, becoming one of history’s most important and influential documents as the global road map for basic human rights.”

You should read his entire essay here.

Chris Bliss

A few weeks ago, Chris stopped by the State Bar of Arizona to explain his group’s mission. He seeks to get the word out to the entire state, and wants to be sure to include Arizona’s lawyers and judges. He believes—correctly, I think—that they would recognize the value in a historic document that maps out rights in a concise and compelling way.

More detail about the organization and their Arizona plan is here.

As a humorous aside, this past weekend, I ran into Chris in downtown Phoenix, where we each were attending a play. By chance, the play focused on the Arizona debate over ethnic studies in the Tucson schools.

At one point early in the play, a character mutters the imprecation, “Constitution, schmonstitution!” There was perhaps no one who laughed more heartily at that curse than the ED of MyBillofRights.org.

It came to my attention just the other day that December is well afoot, and that what many call “The Holidays” are near upon us.

Distressed at the disappearance of October and November, and aghast that what I call “The Troubles” are rising into view, I suspect that at least a few of you share those non-sentimental sentiments. But today is Change of Venue Friday, so let’s take those lemons and make a blog post out of it, shall we?

Therefore, here are three only quasi-random things to occupy you as The Troubles bear down on us like an out-of-control sleigh:

1. Gawk at cakes you cannot eat.

The Arizona Make-A-Wish Foundation does great work, and until December 19, you can view some amazing gingerbread houses in the Arizona Biltmore lobby. The cakes will be silent-auctioned to support the foundation’s work, so if you’ve always wanted a confectionary Gammage Auditorium or Guggenheim Museum or Fallingwater, hie thee to the Biltmore, a Frank Lloyd Wright jewel in its own right.

(More cake photos are at the Arizona Attorney Magazine Facebook page.)

2. Buy some “lawyer gifts” that may be ridiculous, but by purchasing them you’ll help the economy, or something.

Yearn for a Lincoln bobblehead (see above)? Can’t exist without some red-tape cufflinks? Obtaining both items may be some kind of cry for help, but they’re destined to generate a chuckle or, among lawyers, a guffaw.

3. Tread on the boards that actors have trod.

Granted, this may seem like a time-waster in the busy month of December, but a backstage tour of Phoenix’s Orpheum Theatre could be just the ticket to alleviate a law-filled month. Here’s some info on next week’s (free!) tours:

The Friends of the Orpheum Theatre invite you to enjoy the holidays with a free tour of the historic Orpheum Theatre.

Originally opened in 1929, the Orpheum Theatre premiered as a much sought-after venue for vaudeville acts. The theatre changed ownership and became a deluxe movie palace prior to being purchased by the city of Phoenix in 1984. The city registered the site as a national historic landmark in 1985 and embarked upon a massive restoration project.

Orpheum interior by (my brother-in-law) Keith Taylor. More great work at http://www.keithtaylor.com/photography/

Visit the Orpheum to learn more about how the restoration project became a reality and what production premiered when the theatre reopened in 1997.  Tour reservations are not required, but encouraged. For more information please contact Patty McMahon at 602.495.7139 or patty.mcmahon@phoenix.gov.

WHAT: FREE Orpheum Theatre Public Tours

WHEN: 12 – 1 p.m., Tuesday, Dec. 20; Thursday, Dec. 22; Monday, Dec. 26; and Friday, Dec. 30

WHERE: Orpheum Theatre, 203 W. Adams St., Phoenix, AZ 85003 (Meet under the marquee)

Have a great weekend.

Orpheum Theatre from the actors' view

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