50 STATE IMMIGRATION LAWS?

Arizona has recently enacted their own immigration law, purportedly specifying the conditions for immigration to that state—and only that state. I have my doubts about the seriousness of the Governor’s state of mind in promoting the legislation and think she may be “nudging” the federal government to come up with a workable, comprehensive law that is practical and enforceable.

Article VI of the US Constitution provides:

“This Constitution, and the Laws of the United States which shall be made in
Pursuance thereof; and all Treaties made, or which shall be made, under the
Authority of the United States, shall be the supreme Law of the Land; and the
Judges in every State shall be bound thereby, any Thing in the Constitution or
Laws of any State to the Contrary notwithstanding”

Article 1 of the Constitution, which spells out Congress' powers, specifically gives U.S. lawmakers authority to establish a "uniform Rule of Naturalization" and to regulate commerce with other nations.

Strong discontent exists, especially in the southwest, over the illegal immigration from the Latin American countries, and the fifteen million illegal aliens currently in this country. In addition, there is a strong desire among the average citizen to just round them up and send them out. Most, however, have no comprehension of the complexity of that undertaking---the number of illegals, nationwide, is almost twice the total population of Los Angeles County. The federal government would have to hire tens of thousands of additional employees to administer that program at a huge cost to the taxpayers. Even then, it may not be a practical, or final, solution.

Under the Supremacy clause of the U. S. Constitution and the doctrine of preemption, it is my opinion that this state law cannot survive a constitutional confrontation; and even though there are some committed state’s right advocates on the current Supreme Court, they probably will not go this far. I suspect the Attorney General’s office of the State of Arizona told the Governor as much. The federal government is responsible for the immigration laws, and to have each state adopt their own version is just not workable. Possibly the Arizona legislators view it as a “feel good” law that may help with their re-election.

Supreme Court selection preview

In the coming weeks the President will decide on his nominee to replace (physically) the retiring Justice Stevens, the only justice that is a protestant, and did not graduate from an Ivy League (meaning primarily Harvard and Yale) University. Other than Justice Sotomayor's trial work with the district attorneys office in New York, I can find no record in the biographies of the other justice's to suggest that any of them have ever tried, as a lawyer, a jury trial, or represented an "individual" client; although they have all served as appellate court jurists.
It seems time to try to break the "cookie cutter".

I will have much more to say when the "field" is narrowed.

LAWYERS AND CHEERIOS

I am a great believer in the first amendment to the United States Constitution and generally support the mandate that the “… Congress shall make no law…abridging the freedom of speech”, however I do not believe that James Madison, Alexander Hamilton, John Jay and company intended “commercial speech” to have the same protection as political speech, if at all; especially when considering the commercial speech of lawyers. Prior to 1977 and the United States Supreme Court case of Bates v. Arizona advertising by lawyers was prohibited by the bar associations of the many states. Prior to that prohibition lawyers did not advertise because considered unprofessional and demonstrated a lack of class. Still is and does, but notwithstanding the repugnancy many lawyers now peddle their law practices the same as cereal manufacturers peddle their products.

To get a sense of the methods used to “tout their wares” go to the Yellow Pages of any major city telephone directory and you become inundated with the most undesirable advertising you have ever experienced. Unfortunately, including the photographs of many the homelier of my colleagues that for some unknown reason think that the public is going to select a lawyer because of his appearance. Early in the 20th century, Clarence Darrow, recognized as the best trial lawyer in the United States, and one of the premier trial lawyers of all time, was once accused of looking like a “sack full of doorknobs”. When someone mentioned his slovenly dress, his response was, “I guess these dandy’s don’t sleep in their cloths”. Maybe some lawyers, at least those that have heard of Clarence Darrow, should learn from this, improve their skills, and pay less attention to their “brand” of cloths. Below are the pictures of Mr. Darrow, and another “(in)famous” lawyer Charles Colson. If you saw ads featuring these two lawyers, you might be inclined, based solely on appearance, to hire Mr. Colson, a lawyer that was involved in the Watergate scandal of President Nixon, and went to prison for obstruction of justice-- “can’t tell a book by its cover.” (In fairness to Mr. Colson, after coming out of prison worked very hard to assist many others by his efforts and his generosity-- he did a great deal of good for a great many people.)


Clarence Darrow

Charles Colson

From the time of the founding of this country and for the next 200 years, or so, the acceptable method of developing a law practice, and the securing of clients was the time consuming process of increasing yours skills as a lawyer. It was not by generating instant name recognition through advertising and self-promotion. The prohibition against advertising served multiple purposes, but the most important were preserving the dignity of, and respect for, lawyers, and the secondary effect of lawyers having to work very hard to increase their knowledge and skills in order to compete with established lawyers in their community.

The way new lawyers expanded their practice were referrals from existing clients, referrals from other lawyers that were aware of the fledgling talents and referrals from judges that may have been impressed by effective appearances in their courtrooms. These methods for increasing the practice have now given way to the repugnant ads you see in telephone books, newspapers, radio and television, buses and park benches. Frequently these ads are misleading if not outright falsehoods. It is quite common to see ads that a particular lawyer handles, or specializes in, for example, personal injury litigation, when the lawyer placing the ad has never personally tried a jury trial in his entire career—personal injury or otherwise. While these ads may not amount to actionable fraudulent misrepresentations, they are certainly misleading. I suspect that the average person that resorts to the telephone book to find a lawyer to handle a personal injury claim would assume the advertiser would, and could, properly try the case to a jury should it prove necessary. I would further assume that the injured person thinks the lawyer is an experienced trial lawyer.

Many of these advertising lawyers are creating a new form of law practice—that of a case broker. Some of these lawyers advertise to get the client in the door, attempt to obtain a quick settlement, and take a significant fee (usually about a third of the recovery). If they are unable to settle the case, they then refer the case to a (hopefully) competent trial lawyer to prosecute the case in return for a referral fee from the lawyer that completes the job--again, about a third of the fee charged by the final lawyer.
Perhaps the various bar associations should restrict the ability of the advertising lawyers to receive referral fees from other attorneys. However, caution is necessary to make sure the referring lawyer sends the case to a competent trial lawyer, and not to another “hack” that will pay the referral fee irrespective of the prohibition.

Bar Associations are not state agencies, they are private organizations operated by the lawyer-members. They have no police force to insure adherence to the rules, and are somewhat dependent on voluntary compliance. Perhaps, again, the bar associations could let it be known that notwithstanding the Supreme Court’s ruling that lawyers may advertise, the bar association discourages such ads, and that they will take action against the offending lawyer if they find the ads are misleading to the public.

I recommend we leave the advertising to the cereal companies, and lawyers revert to obtaining business by their knowledge and skill in the practice of law. They may not make as much money in the short run, but they will have more contented clients, and will be better off financially in the end.