April 2012


This past weekend, the State Bar of Arizona carried out its Law Day event, which I mentioned before (and hope to report more on soon).

Law Day, of course, is a nationwide celebration of the rule of law. Communities and entities celebrate it in many ways. That makes tomorrow’s event sponsored by the Maricopa County Bar Association worth your attention.

The MCBA’s event is titled “The Crisis in Court Funding.” That is an endeavor that brings attention to one of the most serious impediments to widespread access to justice.

Among the panelists will be former Arizona Chief Justice Ruth McGregor.

More information, and a registration page, are here.

Former Arizona Chief Justice Ruth V. McGregor

April draws to a close, and with it, our coverage of green topics for lawyers.

Mind you, I’m sure we’ll cover more on the topic in the coming year. But as we approach May 1, the Arizona Attorney Magazine digital edition rolls over to a shiny new issue we call “June.” (Yes, the May issue will still be there, but right now there’s no hunting-for-it to deal with.)

So enjoy some sustainable reading here. Thanks again to lawyer Jennifer Mott for her amazing writing accomplishment.

And in case you don’t receive the print issue in your mailbox, I share below my column from the May issue. As you’ll see, we at the magazine are examining our own carbon footprint. Are you? Is your law firm or employer?

Have a great weekend. Here’s my column:

Recycling Ideas

A time of economic troubles may seem an odd occasion to visit a topic like green law offices.

After all, lawyers everywhere are scrambling for the best ways to survive and thrive in a global downturn. Trees and how to save them may not be top of mind.

But as our coverage this month by lawyer Jennifer Mott explains, the green law office is not so much about trees as it is about growth—of your practice and efficiency. (OK, it’s also a bit about the trees.)

(Click on the magazine page to make it larger.)

Today, there are some glimmers in the economic news that indicate a meager recovery may be in the offing. As that develops, lawyers will seek savings and smart practices wherever they can. And what we’ve dubbed “Earthwise Lawyering” may be a place to start.

On the ever-rising seas, we are all in the same boat, and I have to confess that we too have a ways to go. The State Bar of Arizona has made environmental inroads with methods as simple as window films to increase efficiency. But at Arizona Attorney, we still abide by the truism, “It takes a forest to raise a magazine.”

Jennifer’s coverage has been a spur to rethink our own paper use.

Years ago, we examined the option of fully or partially recycled paper. But the cost was substantially higher, and fellow magazine-folk said the quality was spotty. Neither was the result we wanted in our member magazine.

In 2012, though, cost is down and quality is up. Therefore, we will explore with our printer the use of various eco-friendly papers. Perhaps we might even achieve Forest Stewardship Council (FSC) certification (more information is at http://www.fsc.org/).

Would you welcome such an outcome in your magazine? And have you made your own legal–environmental strides? Tell us your story at arizona.attorney@azbar.org.

***

You may remain unmoved by the (melting) iceberg that is sustainable law practice. But here is a green story we all can support.

For more than a decade, I’ve had the pleasure of reading the work of law students, courtesy of an annual competition at the University of Arizona Law School. And let me tell you—these greenhorns can turn a phrase.

The Richard Grand Legal Writing Competition is named for (and funded by) a UA Law alum whom I’ve written about before. This year, the winners in his competition (in prize order) are: Jared Jorde (2L), Matthew Chandler (2L), Joseph Austin (1L) and Benjamin Harville (3L) (tie), and Annie Ross (1L). (More detail on the competition is here: http://wp.me/pEOwt-1zm)

The other competition judges were Justice Robert M. Brutinel, Arizona Supreme Court; Commissioner Wendy Morton, Maricopa County Superior Court; and attorneys Troy Larkin, U.S. Customs and Border Protection, and Jeremy A. Lite, Quarles and Brady LLP.

Thank you to the Law School for including me in this tradition once again. And congratulations to the winners.

If your community is anything like mine, your morning may have been marked by the rush of speeding flower-delivery trucks. Each was laden down with bouquets of blossoms, all headed to lawyers and law firms focused on intellectual property.

Today, you see, is World Intellectual Property Day (I’m sure I didn’t need to remind you).

Tonight, the saloons and restaurants will be packed with IP attorneys, heady with the day’s festivities. Voices will be raised in passion amidst the war stories of obviousness, and copyright, and publication; they will not be estopped.

So if you get the opportunity today, hug a patent lawyer and thank him or her for their work.

Certainly, I jest, for WIPD is a real and significant occurrence. I take this stuff pretty seriously, so before you ask: Yes, I did pay the royalty fee to publish that great cartoon above!

Here—in a more serious format—is what the Library of Congress tells us about the annual event:

Copyright Office Celebrates World Intellectual Property Day 2012

April 26 marks World Intellectual Property Day, an international celebration of the visionary innovation and creative expression fostered by the intellectual property system. The U.S. Copyright Office joins the World Intellectual Property Organization (WIPO), its Member States throughout the world, and our colleagues across the U.S. government in celebrating the significant contributions of authors and other creators to our global society.

We are fortunate to live in a culture that values the talent and dedication of writers, composers, musicians, photographers, filmmakers, artists, producers and other authors. As the Supreme Court has noted: “The immediate effect of our copyright law is to secure a fair return for an ‘author’s’ creative labor. But the ultimate aim is, by this incentive, to stimulate artistic creativity for the general public good.” Twentieth Century Music Corp. v. Aiken, 422 U.S. 151, 156 (1975).

We also live in an age of great technological innovation. This not only affects the ways in which authors may disseminate creative works and consumers may enjoy them—it affects the very means by which works are created and knowledge is accessed. And it calls for a robust legal framework for the 21st century—a framework by which authors are respected, investments (both intellectual and financial) are encouraged, enforcement measures are responsive, and limitations and exceptions are meaningful.

For more information about copyright law, please visit our website at www.copyright.gov. To learn more about WIPO, visit www.wipo.int.

If you’re feeling the need to laugh (and who isn’t), a comedy concert may be just the ticket.

I’ve written before about the Phoenix Comedy Festival that is slated as a fundraiser for a first-in-the-nation Bill of Rights Monument. But today’s about the comedy, not the limestone slabs.

So before you do anything else, you may want to click here to purchase Comedy Festival tickets.

If you read my story on the Monument in the May Arizona Attorney Magazine (here’s hoping), then you may have been troubled that the link didn’t work. Apparently, Ticketmaster changed things around, or something. But none of that matters now, because you have the correct link. (See what I did there; I put the link in AGAIN, so you couldn’t miss it.)

And while you’re at it, I’ve learned that there is a more direct way to get to the page where you can donate for the Monument (and even specify the amendment you most support!). That link is here, on the MyBillofRights website.

So here’s hoping I see you on May 13. That is also Mother’s Day, so either we’re bringing our moms, or we have a lot of explaining to do. So while you’re at it, maybe you should buy two tickets. (It’s the least we can do for the hardest-working Bill of Rights ever!)

And because I like to support good writing (and not just limestone monoliths), here is an Arizona Republic column on the topic by E.J. Montini. Funny, funny stuff.

Let’s get laughing. It’s the patriotic thing to do.

One of the more unique CLE offerings I’ve seen will occur tonight. It is hosted by the Arizona Diamondbacks and will be held—where else—at the ballpark.

The impressive panel is comprised of sports law attorneys (including the talented Nona Lee, whom we covered here in Arizona Attorney Magazine).

After the 5:30 CLE, the first pitch in the game against the Phillies is at 6:40, and legal learners are encouraged to stick around for the matchup.

Here is more about the CLE series. And the complete form is below (click to make it larger).

For the very first time, AZ Attorney has a guest blogger. She is Fiona Causer, currently (as she describes herself) “a student pursuing her bachelor’s degree in Legal Studies … [who] enjoys writing and seeks to use it as a vehicle to convey ideas and engage others in discussing relevant issues of our day.” She writes here about social media and privacy issues. The opinions in the post are solely those of Ms. Causer. You can reach her directly at fiona.causer1@gmail.com.

Are you interested in writing or collaborating on a guest post? Contact me at arizona.attorney@azbar.org.

Thanks to Fiona for her thoughtful piece:

Photo from Wired.com, photographer name withheld; digital manipulation by Jesse Lenz

Paralegal Perspective: Is Social Media a Means of Voluntary Expression or Unwanted Exposure?

Guest Post by Fiona Causer

In an era where near-constant surveillance of American citizens is a possibility, do online social media outlets really allow for free speech? In other words, if you know that people are monitoring what you say, can your speech really be considered free? For example, we’ve all held our tongue on Twitter, since we know that all of our followers will hear what we have to say and we don’t want to offend anyone. For folks in the United States, despite having the freedoms of speech and personal privacy granted to us by the U.S. Constitution’s Bill of Rights (e.g., via 1st and 4th Amendments, respectively), interpretation and practice can at times be unclear.  This gives rise to many challenges for career legal professionals tasked with sifting through the ambiguity caused by an Internet-based world where personal information is not only widely accessible, but distributed quickly as well. While paralegal certification programs are growing in popularity with more people interested in entering the field of law, the issues created by online social networks will be sure to be a burden on the minds of future professionals in the field of law.

So while we do try to bite our tongue at times to not offend or simply be polite, what happens if we just feel that everyone is listening? Will self-censorship increase if you knew your boss was listening, or if a government operative were monitoring your private Facebook emails. How does this relate to social media and privacy? In two recent instances, there have been cases where people are “listening” to what you’re saying online in a way that can only be deemed invasive.

In the first instance, as reported by the Associated Press, employers are asking potential employees for their Facebook username and password, so they can have full access to the potential employee’s site – and should the job seeker refuse to provide his password, he may be denied employment. As this practice has become publicized, there have been some strong reactions. Facebook stated that under no circumstances should a user provide his password to another individual, since this practice violates Facebook’s user agreement. However, this does not directly address the First and Fourth Amendment issues of freedom of speech and freedom of privacy. The primary issue here is: Do employers have the right to monitor potential employees’ speech, and to investigate their privately-posted material? Senators Charles Schumer (NY) and Richard Blumenthal (CT) feel they may not and have requested that the Department of Justice investigate if the practice violates federal law. Additionally, some states are taking matters into their own hands. As reported by ABC News, Maryland has already passed legislation that makes it illegal for employers to demand social media passwords from potential employees.

An even more troubling instance of monitoring was reported in Wired magazine by journalist James Bamford. His article regarding the NSA reveals that the United States Government is in the business of surveillance. A $2 billion dollar facility is being built in Bluffdale, Utah, called the Utah Data Center. As Mr. Bamford reports, the purpose of the “listening center” is to monitor citizens’ (and foreigners’) emails, cellphone calls, Google searches and electronic purchases. The center will have enough data storage that, for example, all the phone calls and emails of a single person can be easily collected and stored. Meaning that anything you say has the potential to be monitored and later used against you. In such a situation, one justifiably wonders if soon one’s ideas and speech will be free at all.

Were you seeking one last SB1070 event before the Supreme Court hears argument this Wednesday on Arizona’s controversial immigration law? If so, this evening is for you.

Head over to the ASU Cronkite School at 6:00 tonight for a MALDEF panel on the law and its repercussions. Here is all the detail from the group.

Speakers will Discuss Upcoming Supreme Court Oral Arguments and Other Pending Lawsuits

PHOENIX, AZ – MALDEF President and General Counsel Thomas A. Saenz will speak alongside a distinguished panel of legal scholars and advocates at a major forum discussing upcoming oral arguments before the Supreme Court in State of Arizona v. U.S., the federal government’s case against Arizona’s anti-immigrant law SB 1070. Oral arguments before the Supreme Court are scheduled for Wednesday, April 25, 2012.

MALDEF and a coalition of civil rights organizations have been at the forefront of the battle to challenge all of the discriminatory and unconstitutional provisions in SB 1070.

WHAT: Major Forum on upcoming Supreme Court oral arguments in State of Arizona v. U.S., the federal government’s case against anti-immigrant law SB 1070. Presentation and discussion will include: the major arguments from either side; impact on other pending lawsuits against SB 1070; amicus briefs; the make-up of the court; and other FAQs.

WHO: Thomas A. Saenz, MALDEF President and Counsel, will be in attendance.

Also speaking will be: Dan Pochoda, ACLU of Arizona; Evelyn Cruz, Arizona State University Law Professor; Crystal Lopez, DLA Piper; and Daniel Ortega, Ortega Law Firm.

WHEN: Monday, April 23, 2012, 6–8 p.m.

WHERE: Cronkite School of Journalism, ASU Downtown Campus, Cronkite Theater, 555 N. Central Ave., Phoenix, AZ 85004

MALDEF: Founded in 1968, MALDEF is the nation’s leading Latino legal civil rights organization. Often described as the “law firm of the Latino community,” MALDEF promotes social change through advocacy, communications, community education, and litigation in the areas of education, employment, immigrant rights, and political access. 

For more information on MALDEF, please visit here.

Anthony Young, Southern Arizona Legal Aid

Last week, we got the great news that an Arizona legal leader was selected to be part of a small group to speak at the White House.

The topic was legal-aid funding, so we’d probably agree that the fact there’s a need for such a summit is not so great. Nonetheless, the nation and our state are served well by Anthony Young being designated.

As a Legal Services Corporation story reported:

“At a White House forum April 17 on the state of civil legal assistance, co-hosted by LSC, President Obama said that making civil legal assistance available to low-income Americans is “central to our notion of equal justice under the law,” and pledged to be a “fierce defender and advocate” for legal services.

“Those remarks drew to a close two hours of spirited discussion of the state of civil legal assistance by a diverse group of national leaders.”

The complete story is here.

And here is a press release on Anthony Young’s contribution.

Washington, DC – Southern Arizona Legal Aid (SALA) Executive Director Anthony Young was a panelist today at a White House forum examining the state of civil legal assistance for low-income Americans. The forum was co-hosted by the Legal Services Corporation (LSC).

Young noted that SALA sustained a 20 percent decrease in funding over the past year, requiring a reduction in staff, from 63 to 56, and the closure of its office in Santa Cruz County, the poorest community in its service area. With fewer staff, “we are using more volunteers, and using them in different ways,” Young said after the forum. “Our pro bono lawyers are training pro se litigants on how to complete the forms they need, file them, and navigate the court system without a lawyer.”

“Southern Arizona Legal Aid proves the value of collaboration in providing access to justice,” said LSC President James J. Sandman, who moderated the panel of directors from LSC-funded programs. “SALA’s partnership with the University of Arizona Law School extends the reach of the program’s foreclosure prevention work. Through SALA’s Volunteer Lawyers Program, private attorneys represent clients pro bono and assist self-represented individuals. Through these collaborations, many low-income Arizonans gain access to justice they would not otherwise have.”

President Obama also spoke briefly at the forum, saying that the availability of civil legal assistance to low-income Americans is “central to our notion of equal justice under the law,” and pledging to be “a fierce defender and advocate” for legal services.

Anthony Young at the White House

Other speakers at the forum included: U.S. Attorney General Eric Holder; Deputy Chief of Staff to the President Mark Childress; former Pennsylvania Governor and U.S. Attorney General Richard Thornburgh; U.S. Department of State Legal Advisor Harold Hongju Koh; Department of Veterans Affairs General Counsel Will A. Gunn; White House Counsel Kathryn Ruemmler; Justice Jess H. Dickinson of the Mississippi Supreme Court; Illinois Attorney General Lisa Madigan; American Bar Association President William T. Robinson; LSC Board Chairman John G. Levi and Harvard Law School Dean Martha Minow, who is also vice chair of the LSC board.

Young is one of six directors chosen from among the 135 organizations nationally that receive federal funding through LSC. In addition to Arizona, other states represented on the panel were Georgia, Montana, Ohio, Virginia and Washington.

Established by Congress in 1974, LSC is the single largest funder of civil legal assistance in the nation. LSC grants help address the civil legal needs of the elderly, victims of domestic violence, veterans seeking benefits to which they are entitled, persons with disabilities, tenants facing unlawful evictions, and other civil matters.

Earth Day may be this weekend, but green issues have been on my mind a lot this spring.

That may be due a recent Solar Summit I attended, or my test-drive of a Nissan Leaf. Or it may be because of the great April issue of Arizona Attorney Magazine. In it, lawyer Jennifer Mott provided a wealth of information for lawyers seeking a little sustainability in their practice.

You can read the whole April issue here.

On this Change of Venue Friday I provide a few quick links to Arizona options available to people looking to celebrate Gaia, nature, Earth, parks, forests, public spaces, or whatever else strikes your fancy.

Let’s start with Tucson, where a festival has been dedicated to the cause.

And here is a list of events in Flagstaff.

In Phoenix, Local First Arizona has compiled a list of activities.

Meanwhile, over at ASU’s Global Institute of Sustainability, they celebrated Earth Month (show-offs). They’ve held a wide variety of events since April 1. But on Saturday, April 21 there is a (wait for it) … Solar Oven Cook-Off. Here’s the information. No detail on whether you bring your own hot dog (or tempeh).

An example of a solar cooker

Have a great weekend.

Dean Erwin Chemerinsky

In major Supreme Court cases, it’s useful to have a scorecard. And that’s just what Erwin Chemerinsky provides in regard to SB1070.

Arizona’s own criminal–immigration law hybrid is examined by the UC-Irvine law dean in the ABA Journal. And his insights get right to the heart of the case being watched carefully by legal scholars, lawyers, politicians and even police departments. What do you think SCOTUS will do with the case? Let me know your thoughts at arizona.attorney@azbar.org.

You may recall that we published a Q&A with Dean Chemerinsky in our February Arizona Attorney Magazine. As he told us then, “So often discussions of federalism have focused on the scope of Congress’s power. But federalism also is about the extent to which federal law preempts state law. Arizona’s immigration laws, include SB 1070, focus attention on this.” (Our Q&A preceded his delivery of the annual ASU John Frank Lecture.)

In the ABA Journal, Chemerinsky examines some of the disagreements between the parties, which includes the State of Arizona:

“It is striking that the briefs of Arizona and the United States disagree about everything that is before the court. First, the two sides disagree as to the context in which the court should approach the case. Arizona begins its brief with a long section on “illegal immigration’s disproportionate impact on Arizona.” It spends the first seven pages of its brief describing the effect of illegal immigration on Arizona in terms of crime, government benefits and employment.

“By contrast, the brief for the United States begins with a long section describing “the comprehensive federal immigration framework.” The United States brief begins with almost eight pages describing the detailed system of federal immigration regulation.

“This difference is not coincidental. Arizona wants the justices to see this case from the perspective of a state dealing with a serious problem and acting to protect itself and its citizens. The United States wants the justices to view this matter as involving an area which is traditionally and inherently under the control of the federal government.

“Second—and surprisingly—the two sides disagree about the standard the court should use when deciding whether federal law pre-empts state law. Arizona repeatedly states that in the absence of an express preemption provision in a federal law, a state law is preempted only if there is a conflict between federal and state law. Its brief states: “The bottom line is that there is no preemption unless state law conflicts with some identifiable federal statute.” Arizona argues that there is no conflict between SB 1070 and federal law; its primary argument is that SB 1070 is using the resources of state and local law police to supplement and enhance federal efforts.

“The United States, though, says that a conflict between federal law and state law is not required for preemption; there is preemption if a state or local government interferes with achieving a federal objective. It sees Arizona’s law as doing this. The United States contends that inevitably decisions about immigration enforcement implicate issues of foreign policy and that is in the sole domain of the national government. The United States relies heavily on the Supreme Court’s 1942 decision, Hines v. Davidowitz, which said that immigration enforcement necessarily implicates “important and delicate” considerations of foreign policy and that therefore states cannot “contradict” or “complement” federal immigration efforts.”

Keep reading here.

Introduction to our Q&A, Arizona Attorney Magazine, February 2012

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