Chapter 79 – Do we just have too many lawyers?

As I contemplate the rash of utterly stupid behavior on the part of arbitrator Crow and his band of conspirators, it has dawned on on more than one occasion that this is all a desperate attempt to keep lawyers busy and to target business as their pseudo employers. Corporate America is not a willing employer, but as a group we are targeted.

The sting if you will is about taking a lawsuit that should not survive long and allowing it to move slowly and unsuccessfully through the dismissal stage. Ulitmately the contingent liability section of the trial lawyers association only survives, if not thrives, requires a target at the end of the process that can be stripped of enough of its assets so that the lawyers along the way all get paid. It breaks down otherwise.

While a free market economy is efficient over time, it is a slow and painful process. And when a region of the country is grwong faster than the economy overall, lawyers can go hungry. This may also apply to arbitrators, who have to be paid as well.

And so I’ve concluded that the reason laawyers are more aggressive at targeting business and the courts are more supportive of lawyers raping those businesses is that there are just too many lawyers, making too little, but with infrastructure support for taking it from people they deem to have more.

A former friend and still lawyer in the not too distant past noted that the reason I am losing these slap dunk lawsuits is because I have more than many lawyers. Judges don’t like that. Lawyers don’t like that.

Half of our top 10 public companies are leaving the Portland area. Soon we will not have enough corn fields to feed the lawyers. And we know they dont prepare, till, plant and harvest the field. They only take what has already been harvested. Read on.

REPRINTED FROM THE NEW YORK TIMES.

WILMETTE, Ill. — Ten months after graduation, only 60 percent of the law school class of 2014 had found full-time long-term jobs that required them to pass the bar exam.

Even that improvement over the class of 2013 (a 57 percent employment rate) came with three asterisks: Last year, the American Bar Association changed the job-reporting rules to give law schools an extra month for the class of 2014 to find jobs; graduates employed in law-school-funded positions count in the employment rate; and the number of jobs that require bar passage fell from 2013 to 2014.

Amazingly (and perversely), law schools have been able to continue to raise tuition while producing nearly twice as many graduates as the job market has been able to absorb. How is this possible? Why hasn’t the market corrected itself? The answer is that, for a given school, the availability of federal loans for law students has no connection to their poor post-graduation employment outcomes.

Students now amass law school loans averaging $127,000 for private schools and $88,000 for public ones. Since 2006 alone, law student debt has surged at inflation-adjusted rates of 25 percent for private schools and 34 percent for public schools.

In May 2014, the A.B.A. created a task force to tackle this problem. According to its recent report, 25 percent of law schools obtain at least 88 percent of their total revenues from tuition. The average for all law schools is 69 percent. So law schools have a powerful incentive to maintain or increase enrollment, even if the employment outcomes are dismal for their graduates, especially at marginal schools.

The underlying difficulty is that once students pay their tuition bills, law schools have no responsibility for the debt their students have taken on. In other words, law schools whose graduates have the greatest difficulty finding jobs that require bar passage are operating without financial accountability and free of the constraints that characterize a functioning market. The current subsidy system is keeping some schools in business. But the long-term price for students and taxpayers is steep and increasing.

Paradoxically, the task force chairman was Dennis W. Archer, the former mayor of Detroit, who is also head of the national policy board of Infilaw, a private equity-owned consortium of three for-profit law schools — Arizona Summit, Charlotte and Florida Coastal. These schools are examples of the larger problem. Most Infilaw 2014 graduates didn’t find jobs that required their expensive degrees. Excluding positions funded by the law school, only 39.9 percent of Arizona Summit graduates found full-time jobs lasting at least a year and requiring bar passage. Florida Coastal’s rate was 34.5 percent. At Charlotte, it was 34.1 percent.

Yet as the demand for new lawyers continued to languish from 2011 to 2014, the size of Infilaw’s graduating classes almost doubled, to 1,223. These schools are also among the leaders in creating law student debt. Arizona Summit’s 2014 graduates had average law school debt of $187,792. At Florida Coastal, the average was $162,785. Charlotte’s average was $140,528.

The task force report said that some witnesses proposed “capping law student loans, requiring law schools to have ‘skin in the game’ by being responsible for loan repayment in certain situations, and even scrapping the current federal student loan program altogether.” It characterized proponents of such measures as hoping “that a kind of fiscal tough love will force schools to become more financially responsible and reduce cost.”

Chapter 78 – Does the Oregon State BAR PLF Support Perjury by its Clients?

Advocacy and Lying are not the same. An attorney has a duty to not lie to the tribunal.

An attorney has a duty to inform the court even when it is adverse to the client’s interest. I’ve never witnessed that.

Very recently, I caught the PLF and its client (defendants in a case where I’m the plaintiff) engaging in perjury. The perjury was an omission of what was actually published to a law clerk and Judge’s chamber alleging that I was engaged in fraud and 15 years ago arrested for stalking my ex-wife. All false. All outrageous. The evidence was acquired via subpoena to the US Marshals Service.

Now at some point in time counsel for the defendant in my defamation lawsuit knew that the representations made by the defendants withheld information critical to the court, aided and abetted with perjury. It may have been perjury by omission, but it was and is perjury. I guess lawyers are just like most when being attacked.

Rule 3.3 Candor Toward The Tribunal

(a) A lawyer shall not knowingly:

(1) make a false statement of fact or law to a tribunal or fail to correct a false statement of material fact or law previously made to the tribunal by the lawyer;

(2) fail to disclose to the tribunal legal authority in the controlling jurisdiction known to the lawyer to be directly adverse to the position of the client and not disclosed by opposing counsel; or

(3) offer 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 the testimony of a defendant in a criminal matter, that the lawyer reasonably believes is false.

(b) A lawyer who represents a client in an adjudicative proceeding and who knows that a person intends to engage, is engaging or has engaged in criminal or fraudulent conduct related to the proceeding shall take reasonable remedial measures, including, if necessary, disclosure to the tribunal.

(c) The duties stated in paragraphs (a) and (b) continue to the conclusion of the proceeding, and apply even if compliance requires disclosure of information otherwise protected by Rule 1.6.

(d) In an ex parte proceeding, a lawyer shall inform the tribunal of all material facts known to the lawyer that will enable the tribunal to make an informed decision, whether or not the facts are adverse.

But in the event that an attorney fails to disclose, how can this rule be enforced? Some circumstances permit courts to infer an attorney’s knowledge of perjury. But the reality is, that only under the most extreme circumstances does the cover up of false testimony ever effect the attorneys opportunity to do the same time and time again. It’s a dirty business, apparently comprised of dirty litigators.

Obviously the Oregon State Bar does not prescribe to the American Bar Associations Model Rules of Conduct, even though the Oregon State Bar’s Rules of Professional Conduct.orpc

I have consistently tried to encourage the PLF with a call to do better, to require of the attorneys hired by the PLF to representing members of the OS Bar to engage in ethical behavior and in particular to not lie to a tribunal about the facts or about the law. Their response is nothing. They wont meet. They wont intervene. They wont monitor. They don’t want to know. They just want to win.

Isn’t it a shame? But isn’t it common.

The Rule 3.3 (d) language is a bit surprising. “(d) In an ex parte proceeding, a lawyer shall inform the tribunal of all material facts known to the lawyer that will enable the tribunal to make an informed decision, whether or not the facts are adverse.” Note that it mandates an ex parte proceeding. 

Ex parte means without the participation of the other or opposing party. But what does this mean as to the client. Is it possible that not even the client is aware of the ex parte, private and likely confidential communication with the court? Maybe. That would explain a lot.

Until next time.

 

Chapter 77 – Yes, You Can Be Held Personally Liable for Your Company’s Data Breach – Here’s Why

Max Z, you should remember than when you destroy company property or open a computer (with privacy information stored on it) to hackers because you had to upload and download movie files, that you can be personally liable for the breach.

Business Cyber Risk Blog

jeffmullinswebsizeda“Can I be held personally liable for my company’s data breach?”

That is one of the questions I am asked most frequently.  The answer is “YES!” though the usual reasons provided are not nearly as straightforward as the one discussed in the video below.

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Chapter 76 – My Malpractice Claim

Sometimes attorneys make a mistake. In Oregon and Denver, given my experience with legal counsel, mistakes are common and have often have a measurable impact on my litigation, even early in the process. Because of the frequency of mistakes I file when they become measurable because failing at least to bring this to the attention of counsel runs the risk of a waiver.

I can tell you that the BAR almost universally denies coverage, even when presented with blatant malpractice. Recently, our friend Joel Christiansen filed a new lawsuit, some 10 months ago. We failed to timely file an anti-slapp motion to dismiss the complaint. More importantly we failed to file a motion to strike for lack of subject jurisdiction. Both mistakes were made by an attorney I’ve known for years and likely resulted from the speed with which he had to enter the litigation.

I asked the BAR to pay a part of his fees to repair the damage for the motion to strike miss and they denied the claim. My reason for asking for this coverage was that for a small price I would be shielded from having to replace counsel while accomplishing the dismissal. Made perfect sense. Naturally I asked the attorney to first repair himself and choose to bring it to the BAR. He refused. I can tell you from experience the attorney almost always refuses to repair his own damage. Perhaps this is a policy position by the BAR AKA Professional Liability Fund. Perhaps not.

The PLF’s denial for coverage is appended here plf-refusal-to-cover. Read on.

The PLF Annual Report can be found here. 2015-annual-report.

Chapter 75 – Video: Cybersecurity Legal Issues – What you really need to know (Shawn Tuma)

Business Cyber Risk Blog

Shawn Tuma delivered the presentation Cybersecurity Legal Issues: What you really need to know at a Cybersecurity Summit sponsored by the Tarleton State University School of Criminology, Criminal Justice, and Strategic Studies’ Institute for Homeland Security, Cybercrime and International Criminal Justice. The presentation was on September 13, 2016 at the George Bush Institue. The following are the video and slides from Tuma’s presentation.

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Shawn Tuma (@shawnetuma) is a business lawyer with an internationally recognized reputation in cybersecurity, computer fraud, and data privacy law. He is a Cybersecurity & Data Privacy Partner at Scheef & Stone, LLP, a full-service commercial law firm in Texas that represents businesses of all sizes throughout the United States and, through its Mackrell International network, around the world.

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Chapter 74 – THE Oregon State Bar PLF Does Not Pay Claims

THE OSB PLF does not pay claims in any measurable amount. The average amount is tiny. What happens if you have a $5 million claim? You are out of luck. Your attorney is only covered up to $300,000. Hmm. There must be supplemental coverage somewhere right? Where? Larger law firms probably yes. Small firms, no.

If an insurance carrier refuses to pay a claim under an auto or home policy, you have recourse. You can file a complaint to the Insurance Commissioner or hire a lawyer and file a lawsuit. Imagine a circumstance where Allstate only paid on 10% of the insured amount of every car its customers destroyed by way of an auto accident. Imagine that you got into an accident on your brand new $60,000 car and Allstate paid $6,000, in every case.

That’s what the BAR does. They pay $6,000. First they hire a lawyer to represent then and on average pays them $30,000. Then they pay you $6k. The Oregon State BAR PLF has amassed a war chest of money, some $50,000,000 in cash. And it needs to be turned over to the state with the admission and disbarment responsibilities. This war chest represents the savings on more than $30 million a year in revenue.

Don’t misunderstand me. The OSB PLF runs a protection racket. This is a more sophiticated version of the Godfather series on porn, gambling and drugs. The Corleone family bribed judges, police, whoever they had to. The BAR may be doing the same thing.

I have called on the Oregon Department Of Justice to investigate the PLF’S off book payments, to audit the financial statements to determine where the money is going and measure whether the claims are being accurately recorded and paid. Instead of charging attorneys $3,500 per year for coverage, perhaps increasing that to $10,000. Right now claims aren’t being paid, Oregon citizens are being hurt and attorneys are bringing the hurt.

Chapter 73 – The Whistler

John Grisham’s new book is about judicial corruption. This topic is getting a lot of attention. Before long our judiciaries integrity index will be that of lawyers. ANd folks thats a tragedy. Read more about John Grisham’s new book, “The Whistler”.

” We expect our judges to be honest and wise. Their integrity and impartiality are the bedrock of the entire judicial system. We trust them to ensure fair trials, to protect the rights of all litigants, to punish those who do wrong, and to oversee the orderly and efficient flow of justice.

But what happens when a judge bends the law or takes a bribe? It’s rare, but it happens.

Lacy Stoltz is an investigator for the Florida Board on Judicial Conduct. She is a lawyer, not a cop, and it is her job to respond to complaints dealing with judicial misconduct. After nine years with the Board, she knows that most problems are caused by incompetence, not corruption.

But a corruption case eventually crosses her desk. A previously disbarred lawyer is back in business with a new identity. He now goes by the name Greg Myers, and he claims to know of a Florida judge who has stolen more money than all other crooked judges combined. And not just crooked judges in Florida. All judges, from all states, and throughout U.S. history.
What’s the source of the ill-gotten gains? It seems the judge was secretly involved with the construction of a large casino on Native American land. The Coast Mafia financed the casino and is now helping itself to a sizable skim of each month’s cash. The judge is getting a cut and looking the other way. It’s a sweet deal: Everyone is making money.
But now Greg wants to put a stop to it. His only client is a person who knows the truth and wants to blow the whistle and collect millions under Florida law. Greg files a complaint with the Board on Judicial Conduct, and the case is assigned to Lacy Stoltz, who immediately suspects that this one could be dangerous.

Dangerous is one thing. Deadly is something else.”

Sound familiar!

Chapter 72 – Counterclaim for Defamation Dismissed

In the latest case involving former employee M, Marshall and Christiansen claim, I filed a counterclaim for defamation based on a belief that Marshall and Christiansen represented the contents of one of my blog posts as a veiled threat to Judge Jones. Nothing could be further from the truth but as a reult of their intentional acts, I am now on the watch list. My efforts to have the U.S. Marshals Service tell me why I’m on the watch list have been met with great resistance. Its the kind of silent, lets not talk about it behavior, you’d expect of child molestors. Not the US Marshals. Not the Department of Justice. The U.S. Marshals service has not for example responded to my subpoena for documents.

When evaluating the efficay of actors like Marshall and Christiansen and whether they indeed felt that there was a real threat to Judge Jones, it is imperative that a judge consider the motivations of those two knuckleheads. Joel provided a limited declaration and admission of what contact Joel and Linda had with the judges clerk (WHO THEY HAVE NOT IDENTIFIED). But we do know this. Ethical complaints were filed against them before they took this action. Like child molestors that rely on secrets to keep their victims from notifying law enforcement, L and J are desparate to keep me from revealing the facts of the arbitration and are seeking backroom judicial intervention to help.

The Honorable Marco Hernandez has dimissed my counterclaim for defamation and IIED and not as yet permitted me to file a motion for summary judgment on this case, but has allowed me the opportunity to amend. I disagree with his conclusions but like his body of work and understand his reasoning. By and large he wants to protect anyone who raises any issue or concern about a threat to a judge. I understand his thinking, to stand on the side of safety. But on the other hand, its not what the law requires.

We have to evaluate whether the J&L interaction with Judge Jones was simply advancing the interests of this group of abusive attorneys in a conversation they intended to remain private and strategic, in contrast to a serious concern about Judge Jones’ welfare. What did J, L and Judge Jones really talk about I wonder? Did they simply use the blog post, the one liner, to try to turn the attention back to me as a threat. I represent a threat of exposing their surreptious behavior. That’s all. It’s kind of Clintonesque. And its beyond Linda and Joel’s intellectual reasoning. Judge Jones, I have to admit this is a bit of enlightened litigation politics. Lets see what the subpoena produces.

Judge Hernandez opinion is attached here as doc-68. The Judge went well beyond what Joel called on him to do, but I do advocate that. I strongly support a judge going to distance to the right decision, not simply responding to poorly prepared briefs. He did that. we had a chance to brief it.

At a very minimum it means that this case filed against me must be dismissed under the same theory. It is interesting that we find ourselves in a case where my counterclaims have been dismissed on the same theory that Joel’s complaint would be dismissed (for First Amendment speech), and yet the Judge has not yet allowed me to file that motion. Why is that I wonder?

I have asked more than 20 people if they believe that a paragraph in my blog posts represents any possible interpretation of a threat and no one does. And my statement was “Perhaps more often than not our legacies are not what we inteded them to be.” Do you consider that threatening? 

Chapter 71 – My Motion For Sanctions Against Marshall

I am often appalled by the craziness and complete inapplicability of a legal complaint to the actual facts. In my case involving my former employee, it is clear that they are seeking damages they have no right to seek by contract or law.

Frivolous litigation may be based on absurd legal theories, may involve a superabundance or repetition of motions or additional suits, may be uncivil or harassing to the court, or may claim extreme remedies. A claim or defense may be frivolous because it had no underlying justification in fact, or because it was not presented with an argument for a reasonable extension or reinterpretation of thelaw. A claim may be deemed frivolous because existing laws unequivocally prohibit such a claim, such as a so-called Good Samaritan law.

In the United States, Rule 11 of the Federal Rules of Civil Procedure and similar state rules require that an attorney perform a due diligence investigation concerning the factual basis for any claim or defense. Jurisdictions differ on whether a claim or defense can be frivolous if the attorney acted in good faith. Because such a defense or claim wastes the court’s and the other parties’ time, resources and legal fees, sanctions may be imposed by a court upon the party or the lawyer who presents the frivolous defense or claim. The law firm may also be sanctioned, or even held in contempt.

See my motion for sanctions as follows. doc-152.

Soon I’ll be filing a motion for sanctions against Joel Christiansen for the new lawsuit filed on Christmas Eve 2015. I wonder if the filing of the lawsuit means Joel is an Atheist. I know my former employee and his attorney financee are atheist. I suppose that makes the immoral decisions they frequestly make so much easier.

And as you my readers know, I have filed numerous ethics complaints against Joel and Linda. The BAR does not care.

Chapter 70 – THE BAR’S MOTIONS TO DISMISS…THE LIES

The Oregon State Bar Professional Liability Fund hired a firm called Hart Wagner to try to dismiss the complaint I filed against the defamers Linda Marshall and Joel Christiansen. One of the points I made to the Bar early on was that I really would like to focus on the merits of the case instead of casting aspersions. WIth Matt Kalmanson at the helm for the Bar, that commitment of keeping things clean did not last long.

My complaint about the PLF’s behavior in this litigation is that they aren’t any cleaner than Marshall and Christiansen. The truth is they are all pretty dirty players.

The issue with Christiansen and Marshall is that they have taken action to try to enlist a Fedral Judge to influence litigation being considered by one of his colleagues. And they are using fabricated and false information to cast me in a false light. Specifically they are alleging that one of my blog posts (Chapter 19) was a veiled threat that I intended to attend Judge Jones lifetime achievement award dinner and cause him some harm. By making this claim they are conveying in no uncertain terms that I am about to engage in a crime. Nothing could be further from the truth.

First and certainly foremost, this is not new. Marshall asked arbitrator Crow to set aside the facts of the arbitration and find in her clients favor because Judge Jones through me out of his chambers and specifically went on record that he had “utter contempt for me.” Judge Jones went on record in his chambers with an audience to say that after I asked him to step away from a case after the trial. I did so in writing. I did so because I had been contacted by someone not a fan of the Judge telling me that the plaintiff in the very case Judge Jones adjudicated was a family member. Same last name. Judge Jones did a very good job during the trial, but the trial was over. Now he was trying to help that family member collect the judgment. Today, if Judge Jones wanted me to come to his chamber to yell at me I would go. I have no disdain for him, nor was I under the impression that he had any remnants of disdain for me.

But then, we started to hear a few things about a more active interest. When the Marshall’s of the BAR reach out to ask a Federal Judge to intervene surreptitiously and leaves a trail of contact, I can only imagine the judge would be upset and for many reasons. First, its an attack on the judges character. Second, its an attack on his legacy. Third, it may be criminal.

So when Marshall instigates and draws someone like Christiansen in, it is because she has convinced him that it worked at least once in the past. Remember the ex parte contact and submitting off the record and behind close doors a transcript of my time in Judge Jones’ chamber. Now in many respects this is intended to tell me that the fix is in, that Judge Jones already intervened. Perhaps he was instrumental in convincing Marshall to take the case of my former employee. I have to treat as credible the actions Marshall and Christiansen take. so when they contact Judge Jones about a very self reflecting comment I make in a blog, you have to measure not just the stupidity of the act but the fact that Marshall was comfortable contacting Judge Jones chamber with something as silly as this. That suggest familiarity.

The first of the Bar’s motions attacks my character on numerous fronts. The purpose of those attacks is to justify Marshal’s contact with Judge Jones. One of the attacks claims that my brother contacted my former employee in 2006 and conveyed I had talked to him about flying to New Jersey to scare him. I am publishing this now because the BAR intentionally published this commentary knowing that it is now public, for all to read. My brother and I have reconciled now, but back then I had to sue him to collect $50,000 and he let his drunken state to get the best of him and he lashed out. My former employee did not take it seriously then, but now, when they can use it, they are. And by the way the BAR published that attack knowing it was false, as I had already provided to them a retraction. By the way, although I won a judgment against my brother, I have made no effort to collect it and allowed him to offset it for money spent on my nephews and niece for college, sports, music and other extra curricular activities as well as braces, etc. I never intended to see a penny of this. And further, that same brother got me into a real estate deal wherein I lost $500,000. The best way for me to let the BAR know that I am not embarrassed by these false allegations is simply to revel them to you. SO bring it on BAR. Attack me, my family, accuse me of all imaginable things, etc., because Marshall and Christiansen still accused me of a crime and I want a piece of them until they stop it. See the Anti-Slapp Motion here.defs-anti-slapp-motion.

The second piece of work was a reply to my comments on their motion, but in that reply they at least spent alot more of their effort not attacking me as much, although it appears the message to me is that I should not write letters to judges. Why not? We should all write letters if we dont like something. Its the least intrusive way to share how silly some of this tremendous waste of money is. For example, the case against my former employee was based on a complaint that the former employee made to the ODJ claiming in essence that one of my employees was going 55.25 miles per hour in a 55 mph zone and his complaint to me was the reason he was fired. Well that’s just silly, but an attorney looks at that and say hey I can make $150,000 on that stupid claim if I get in front of a judge whose a friend or an arbitrator that’s an idiot. My position is that few judges are stupid but a lot of arbitrators are. You can find the second response from the bar here. def-reply-iso-anti-slapp-motion.

The fundamental point to the lawsuit is that Marshall and Christiansen do not want me to publish to you the facts of the arbitration. The arbitrator compromises, corruption, stupidity, whatever it all is, including perhaps judicial intervention, once exposed represents a risk. After all Marshall put on false evidence. She should have been disbarred. The BAR does not do that. They might have an awards ceremony. And like child molesters, they can only get away with it when its not exposed, when its in the dark,  when few know.

But now the BAR has shown us that they are wanting to keep it in the dark as well, promoting all of the bad behavior that they are suppose to discipline and remove.

Until next time.