ABA Membership

An article at law.com reports a decline of membership at the American Bar Association (ABA). http://www.law.com/jsp/law/LawArticleFriendly.jsp?id=1202432537479 According to ILW.com’s editorial comment, ABA already represents less than half of all the attorneys in the United States. http://www.ilw.com/immigdaily/digest/2009,0730.shtm#comment This drop in membership, if it is true, will further shrink the national organization and make it even less relevant.

The law.com article contributes the membership decline to the following factors: recession, ABA leadership posts being less prestigious now, ABA’s controversial positions in judicial reviews of federal judges, ABA’s failure to appeal to underrepresented groups, and the $399 annual membership dues for attorneys with 10 or more years of experience. These are all relevant factors. However, what the article at law.com did not point out is that there are now more and more specialized bar associations catered to the highly specialized areas of legal practice in the United States. These specialized bar associations are essential to attorneys that specialized in those areas and they, to some extent, compete for members against the ABA. For example, the American Immigration Lawyers Association (AILA) is a specialty bar association. Any attorney who wants to practice immigration and nationality law competently and professionally in the U.S. cannot afford not to be a member of this organization. Unfortunately, the same cannot be said of the ABA. An attorney of course can belong to more than one bar association and many do belong to several. But how many bar association membership can an attorney afford, especially when most bar association membership dues are about $390 per annum and there are, in addition, separate state bar license/registration fees required to be able to practice. AILA’s national annual membership fee is about $395 and then there is the local chapter membership fee. State bar license/registration fee is about the same amount. If you are admitted to several jurisdictions like me, all these registration fees, license fees bar membership fees can really add up. If I have to choose between AILA and ABA, ABA would have to be dropped.

I canceled my ABA membership two years after graduating from law school mainly because I did not see any real benefits of being a member, save for the monthly journal that they sent me. I cannot recall attending any ABA Continuing Legal Education seminars as I find those offered by the specialty and local bar associations more relevant to my practice and generally they are more advanced, better in quality and less expensive. So, unless attorneys begin to see some significant benefits to them as members, ABA will continue to be irrelevant to the majority of attorneys in the U.S. and their membership will continue to decline.

Head III

I have completed the chapter on Professional Conduct in the textbook. English rules seem to be more complicated because of the details and the many exceptions.

In England, a lawyer's (solicitor) professional conduct is basically governed by the Solicitors' Code of Conduct 2007 (Code). In the State of New York, an attorney's professional conduct is governed by the New York Rules of Professional Conduct (Effective April 1, 2009) (NY Rules).

Here is an unscientific comparsion. The Solicitors' Code of Conduct has about 25 rules. The Guidance Notes are not part of the Code. The whole thing, together with the Guidance note is about 256 pages. The NY Rules has about 8 rules, with each rule containing multiple sub-rules. The comments are not part of the NY Rules. An unabridged copy of the NY Rules (with comments) covers 190 pages.

Lets take a closer look. NY Rule 3.3, Conduct Before a Tribunal, subsection (a)(3):

A lawyer shall not knowingly offer or use evidence that the lawyer knows to be false. If a lawyer, the lawyer's client, or a witness called by the lawyer has offered material evidence and the lawyer comes to know of its falsity, the lawyer shall take reasonable remedial measures, including, if necessary, disclosure to the tribunal. A lawyer may refuse to offer evidence, other than testimony of a defendant in a criminal matter, that the lawyer reasonably believes is false.

Subsection (c) further states that the duty mentioned above applies even if compliance requires disclosure of information otherwise protected by Rule 1.6 [Confidentiality of Information].

Comment note 10 explains:

A lawyer who has offered or used material evidence in the belief that it was true may subsequently come to know that the evidence is false. Or, a lawyer may be surprised when the lawyer’s client or another witness called by the lawyer offers testimony the lawyer knows to be false, either during the lawyer’s direct examination or in response to cross-examination by the opposing lawyer. In such situations, or if the lawyer knows of the falsity of testimony elicited from the client during a deposition, the lawyer must take reasonable remedial measures. The advocate’s proper course is to remonstrate with the client confidentially, advise the client of the lawyer’s duty of candor to the tribunal, and seek the client’s cooperation with respect to the withdrawal or correction of the false statements or evidence. If that fails, the advocate must take further remedial action. If withdrawal from the representation is not permitted or will not undo the effect of the false evidence, the advocate must make such disclosure to the tribunal as is reasonably necessary to remedy the situation, even if doing so requires the lawyer to reveal confidential information that otherwise would be protected by Rule 1.6. It is for the tribunal then to determine what should be done, such as making a statement about the matter to the trier of fact, ordering a mistrial, taking other appropriate steps or doing nothing.

(Emphasis added).

Compare with the Solicitors' Code of Conduct, Rule 11.01(1): "[A solicitor] must never deceive or knowingly or recklessly mislead the court."

Guidance Note 12 states:
Rule 11.01 makes a distinction between deceiving the court, where knowledge is assumed, and misleading the court, which could happen inadvertently. You would not normally be guilty of misconduct if you inadvertently misled the court. However, if during the course of proceedings you become aware that you have inadvertently misled the court, you must, with your client's consent, immediately inform the court. If the client does not consent you must stop acting. Rule 11.01 includes attempting to deceive or mislead the court.

England's Code seems to allow a Solicitor to withdraw from representation and the duty ends there. However, under NY Rules, an attorney's duty to court does not end by the attorney's withdrawal, if it will not undo the effect of false evidence. The attorney in that situation is required to reveal the information to court even if it was obtained in confidence.

Total Solar Eclipse

India, China and Japan witnessed the longest solar eclipse of the century today. The U.S. won't see a total solar eclipse until August 21, 2017.

Photo from Xinhua News Agency in China

Napoleonic French Guard Grenadier Eagle Escort

I have started painting the Porte-Aigle, Premier, Deuxieme and Troxieme, from Strelets Set 013 Napoleon's General Staff and have been trying to find information on this subject. http://www.plasticsoldierreview.com/Review.aspx?id=765

Most of the information I can find describe the Port-Aigle Premier as a Sous-Lieutenant or ensign and the Porte-Aigle Deuxieme and Troxieme as Sergeants or Senior Sergeants who could not get further promoted because of illteracy, but received pay as a Staff Sergeants.

However, the Porte-Aigle Deuxieme and Troxieme figures in Strelets set have contra-epaulette and epaulette which indicate ranking as officers and not Senior Sergeants. As Sergents, they should have epaulettes and they should be a mix of red and gold in color.

The only picture reference I can locate on all three of the Eagle escort party is the illustration from a print by Job as published in Osprey Men-at-Arms Series 141 Napoleon's Line Infantry. The solution is to either paint them as officers which means historically inaccurate or convert the contra-epaulette to epaulette.

This is my Porte-Aigle Deuxieme painted up so far. Probably will have to change the contra-epaulette. For the letters on the pennant, I will need a gold color ink pen with a fine tip.

Celebrating the 40th Anniversary of Apollo 11's Lunar Landing

Today is the 40th anniversary of Apollo 11's Lunar Landing on July 20, 1969. I was three years old at that time.

I am re-creating the scene here on my bed with my training jacket as the lunar surface. The figure is from the company Can Do. Is this Neil Armstrong or Buzz Aldrin? Since Neil Armstrong was the one mainly with the camera and Buzz Aldrin was responsible for the experiments, this must be Buzz Aldrin collecting Lunar samples.

Head III

For Professional Conduct, I have read up to page 28 of the textbook and page 110 on the rules.

Moving On to Head III

I have finally finished my first read on Head II Civil Litigation and am moving on to Head III Professional Conduct and Account. I am going to skip the Account part and save it for later. I want to tackle the Professional Conduct first.

Independence Day

Yesterday, our office was closed, but I went back to work for a couple of hours. I like to work in the office alone, without telephone calls, emails and coworkers to distrub or distract me. I finished the EB-1 support letter with a total of 36 pages and over a hundred exhibits. The exhibit list alone is more than 4 pages long. Monday, I will delegate the photocopying to the staff.

My Head II Civil Litigation reading is proceeding rather slowly. I didn't crack the book open for almost a week. Today, I covered a few pages and am now up to page 207. I am not even asking myself how much I retained. I need to finish this first reading by the next few days and then move on to the next subject/Head.

I am considering drafting an outline, but it's a time consuming task and I would need to be away alone for a few days to do it. Should I do it? Or just rely on the study materials? Or should I order the textbook from Canada?

Sister and her family were here for July Fourth.

News Brief From New Jersey Law Journal

STUDY SHOWS SHARP DISPARITIES IN LAW ASSOCIATE PAY
The relatively recent movement to cut law firm associate salaries isn't likely to eliminate the dramatic compensation disparities between new attorneys, according to the National Association for Law Placement. A NALP survey of starting associate salaries for 2008 law graduates finds that the pay gap is wider than ever. A chart of the pay distribution shows a gradual bulge in the $40,000 to $65,000 range and a dramatic spike at $160,000, which was the starting pay at many large firms last year. Few attorneys fell into the pay ranges between those two peaks, however, and that valley has grown wider than ever as large firms continued to push up starting pay before the recession broke.

ENVIRONMENTALISTS ARE 0-FOR-5 AT SUPREME COURT THIS TERM
Environmentalists suffered a stunning 0-for-5 outcome in the U.S. Supreme Court this term, their "worst term ever," according to advocates and scholars. The defeats left the environmental community — and even its traditional antagonist in these cases, the business community — wondering where the Court is heading in this increasingly important area of the law. The defeats were particularly painful for environmentalists because they had prevailed in the courts below in all five cases. Although none of the five decisions is a landmark ruling, all raised bread-and-butter environmental issues, some with potentially huge implications for the ability of environmentalists and the government to enforce the nation's major environmental laws.

Evidence: Hearsay

Compare the definitions of hearsay in (U.S.) Federal Rules of Evidence (FRE) and England's Civil Evidence Act (CEA) 1995:

Rule 801(c): Hearsay is a statement, other than the one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.

CEA Sec. 1(2) defines hearsay evidence as a "statement made otherwise than by a person while giving oral evidence in the proceedings which is tendered as evidence of the matter stated."

Which one is easier to understand?