Saturday, March 10, 2007

The draft LEO that would allow the law firms of legislators to lobby

Here is the proposed LEO 1829, which strikes me as an abomination. If that's what the Rules allow, then the Rules should be changed.

There's something going on that I don't quite understand. In an era when judges and lawyers are viewed with less respect and more contempt, the Model Code for lawyers (adopted in Virginia not that long ago) and proposals this year and a couple of years ago for the Model Code for judges (as described here) eliminate the avoidance of "the appearance of impropriety" as an ethical requirement. In practice, that language however ambiguous it may sound made it easy for lawyers and judges to do the right thing - when in doubt, get out. The Conference of Chief Justices opposed the ABA proposal to take this provision out of the Model Code for judges.

The New York Times had this to say last month:

"At a moment when judicial independence is under heightened political attack, the nation’s legal establishment should be doing everything it can to shore up public trust. Instead, the special commission charged with recommending revisions to the Model Code of Judicial Conduct of the American Bar Association has been flip-flopping around on some of the most important aspects of the code, which the states use to set standards for their courts.

For decades, the code's overarching charge to judges has been to avoid not only actual impropriety, but also the appearance of impropriety. Recently, however, quietly adopted changes to the commission's 'final' report demoted this gold standard of judicial conduct from an enforceable rule to a mere aspirational guideline.

When the misguided switch came to light, the panel reversed field again yesterday and went back to the previous formulation. But that does not excuse the fact that the panel was following internal politics, not sound legal principle. The change might have eluded public attention if Robert Tembeckjian, the administrator of the New York State Commission on Judicial Conduct, had not protested and Adam Liptak had not reported on the matter in The Times this week."

Saturday night stuff

The Roanoke paper had this account of the life and times of Thomas Mason, who as a lawyer served as U.S. Attorney for the Western District of Virginia and nearly became a federal judge, and who as an actor had a part in "Gods and Generals" but specialized in playing the role of Elwood Dowd in "Harvey." The article quotes former Del. Chip Woodrum as saying: "He was Elwood P. Dowd." The article also notes that Mason served in the Navy with John F. Kennedy. I read recently that at the end of the Johnson administration, the White House did not fill a vacancy on the Western District of Virginia when the Commonwealth's U.S. Senators could not agree as between a Virginia Supreme Court justice and Mason as the best choice for the job - and so President Nixon got to fill the position, with Emory Widener, in 1969.

Regarding infallible technology, these items: first, the Richmond paper has this article questioning whose DNA should be in the state's DNA database. Yours? Mine? Second, the Richmond paper reported here that someone spoofed an e-mail to make it look as though it came from the head of the Virginia Information Technologies Agency. Finally, it appears that Virginia's new utility law could bring new nuclear power plants to Virginia, according to this report in the Daily Press.

Finally, I started reading this piece in the Bluefield paper because it includes a segment on the need for an additional judge in Mercer County, which is just over the line, but the part that intrigued me even more was this:

" At least 10,000 years ago, a bison-sized, giant ground sloth with large banana-shaped claws inhabited the West Virginia mountains, according to a report from Delegate Mike Burdiss, D-Wyoming (District 22 including a portion of Mercer). Because of the history connected to the sloth and its claws, the lawmaker has sponsored House Concurrent Resolution 2, which would establish the Megalonyx Jeffersonii as West Virginia’s state fossil.

Burdiss said he has taken this action to bring about a better understanding of American History and encourage the study of fossils, which provide a tangible connection to our past.

Burdiss has this historical story to tell: In the 1790s, President Thomas Jefferson, knowing much of the world was yet to be discovered, commissioned a group of explorers to look for the animal during an expedition as he believed that the sloths were not extinct.

The first trace of the massive creature was found in Organ Cave in modern-day Monroe County that same decade. When President Jefferson saw the fossil bones, which were recovered from the cave, he proclaimed the claws were so large that it must have belonged to a great cat or lion.

Thus, the historic fossils received its name, Megalonyx Jeffersonii, meaning Jefferson’s Giant Claw."

Lawyer fined $2,500 for calling witnesses liars in violation of trial judge's order

Chief Judge Jones of the W.D. Va. in In re Katz found a criminal defense lawyer guilty of criminal contempt and imposed a fine of $2,500, where he concluded that the lawyer had willfully violated the order by Judge Moon during a trial in Charlottesville that he stop calling the government's witnesses "liars."

The violation came at the end of a segment in the lawyer's argument when he compared himself to Toto in the Wizard of Oz, exposing "that lying piece of crap behind the curtain," then concluded his argument by shouting "no good liars." Previously, Judge Moon had instructed the lawyer not to call the witnesses liars.

Among other things, Chief Judge Jones noted the following:

The issue in this case is not whether it is proper for an attorney to describe a witness as a being a liar. Court opinions are not uniform on this question; it is more likely to be held improper when the context shows that it is used as an expression of personal opinion by the attorney as to a witnesses' credibility. See Moore v. United States, 934 F. Supp. 724, 728-29 (E.D. Va. 1996); Craig Lee Montz, Why Lawyers Continue to Cross the Line in Closing Argument: An Examination of Federal and State Cases, 28 Ohio N.U.L. Rev. 67, 116-20 (2001). Even when not coupled with counsel's personal belief, however, the word has "potentially emotive effects" and "if used excessively and intemperately, [may] amount to improper argument." Moore, 934 F. Supp. at 728, 729. Under the facts here, Judge Moon was clearly justified in directing Katz to stop using the word in his description of the government's witnesses.

In a footnote, the Court added:

It is a long-standing rule of professional ethics that an attorney must not state a personal opinion on the credibility of any witness. See, e.g., Am. Bar Ass'n, Standards for Criminal Justice, Prosecution Function and Defense Function Standard 4-7.7(b) (3d ed. 1993) ("Defense counsel should not express a personal belief or opinion in his or her client's innocence or personal belief or opinion in the truth or falsity of any testimony or evidence."); Va. Code of Professional Responsibility, DR 7-105C(4) ("In appearing in his professional capacity before a tribunal, a lawyer shall not [a]ssert his personal opinion as to the justness of a cause, as to the credibility of a witness, . . . or as to the guilt or innocence of an accused."); Md. Lawyer's Rules of Professional Conduct, Rule 3.4(e) ("A lawyer shall not, in trial, . . . assert personal knowledge or facts in issue except when testifying as a witness, or state a personal opinion as to the . . . credibility of a witness . . . or the guilt or innocence of an accused.").

Thursday, March 08, 2007

The swearings-in of Judges Dotson and Carico

In this week's mail came the notice for the investiture of new Judges Joe Carico and Chad Dotson, to be held at the Slemp Student Center on the grounds of the University of Virginia, College at Wise, on Thursday, March 15, at 4:00.

Come one, come all.

On judgeships

I see that Senator Webb has written to the bar associations for input on the positions of Judge Widener and former Judge Luttig on the Fourth Circuit.

Also, I've heard more about how Del. Crockett-Stark would not go along with Senate Wampler's candidate for the 29th Circuit judgeship. I guess so long as she gets a say, and the only slice of the circuit that she represents is in Tazewell County, she will look to name Republican lawyers from Tazewell County as judges. I don't know who those are, other than Judge Hurley, and that fellow who ran for delegate against Bowling.

Any how, since the scheduled effective date for Judge Williams is December 31, 2007, that's too close to the next session of the General Assembly to allow the Governor to make an interim appointment.

Sunday, March 04, 2007

Interesting interview with Justice Thomas about his college experience at Holy Cross

Businessweek has this interesting story with this very provocative interview with Associate Justice Clarence Thomas, about what it was like for him and others to attend the College of the Holy Cross.

Worth reading.

Boucher's national gun rights reciprocity bill

This post at the Huffington Blog describes the "National Right-to-Carry Reciprocity Act of 2007, would basically let people who can carry a concealed weapon in one state, carry that same weapon in any other state, unless it's specifically banned," sponsored by Rick Boucher and Cliff Stearns.

The post describes a Richmond Sunlight-like site for looking at the United States Congress, called

The Huffington post claims that the NRA is Congressman Boucher's No. 8 largest donor. Even so, I'm willing to wager that you'll never see a news story about Boucher shooting a lawyer while duck hunting.