ODC and binding arbitration

No attorney likes to be involved in a complaint made to the Office of Disciplinary Counsel (ODC), as the potential sanctions can be quite harsh. One Honolulu attorney went to extremes on this. This attorney (and former Hawaii judge!) was sanctioned by the ODC because his fee agreements included a clause in his retainer agreement that required clients to pay him $2,000 if the ODC became involved in a fee dispute before an attempt was made to resolve the dispute through binding arbitration.

The ODC board found that this practice was designed to intimidate and penalize the clients if they contacted or filed an ethics complaint with the agency, with the result that it eliminated future ethics complaints against him. He was later disbarred by the Hawaii Supreme Court.

This attorney was considered the "poster child" for a rule passed by the Hawaii Supreme Court, over the objection of some attorneys, that made all ethics rulings public. For instance, until this rule passed, the attorney mentioned above appeared to have only one ethics violation. After the rule came out, a member of the public considering hiring him could find out that he violated ethics rules in seven more cases, ranging from charging unreasonable fees to engaging in conduct involving dishonesty, fraud, deceit or misrepresentation, and had three pending complaints before the ODC. This is a good thing for the public, as they do not have to wait until an attorney's conduct sinks to the lowest levels before finding out about his or her ethical conduct.

Here's a link about this rule:

http://starbulletin.com/2004/08/01/news/story3.html

Here's a link to an editorial that discussed these particular violations and more:

http://starbulletin.com/2005/10/07/editorial/editorials.html

Loving what you do

I really enjoyed seeing the three paralegals featured in this week's class in their live presentation, and I think their enthusiasm for the profession is clear in their videos. Note that they all are involved in an area of law, and a type of practice, that is a good fit for them. BJ is clearly a people-person who loves the client contact she gets in her family law firm, and is happy to forego the legal research that Elton clearly loves to do (next class, Elton will tell you how he was able to find out which way the wind was blowing in Kona ten years earlier!). Van loves being on the cutting edge of criminal law - one of the fastest-changing areas in the law.

This unit should open your eyes to the fact that people of all different job preferences can find a job that is a good fit for them in the legal area. Going to work at a job you love has a value that's much more than monetary.

What's in a name?

One of the minor but interesting issues about the paralegal profession is what to call those who practice in it. Apparently when the profession was first developing, the preferred name was "legal assistant," but the preference now is "paralegal." Does it make a difference to you? Does "legal assistant" sound less impressive than "paralegal," or it is just a difference without a distinction?

Along those lines, here's a humorous clip on the "paranormal paralegal" that may have an impact on what you think:

http://www.youtube.com/watch?v=WAUVsbqlSbY

Isn't this a separation of powers problem?

As reported in the Sunday Star Bulletin editorial section, the State Senate has passed a bill that would include the Judiciary in the process of reviewing applications for pardons. This bill will now be going before the House.

Is this appropriate? Where the Constitution gives this power to the executive branch, should - or, constitutionally, can - another branch get involved? I don't think so.


You can find the editorial at
http://starbulletin.com/2008/03/09/editorial/editorial02.html

First cross and the art of the gut and substitute

The first crossover deadline is this week, March 6. On this day, bills that have passed all three readings in each house will "cross over" to the other. Only those bills will be alive for the rest of the session, plus any carryover bills from last year that crossed-over last year. Remember, carryover bills are "sleeping," they can be revived at the same point in the process where they stopped moving the prior year.

It is not typical to move one of those carry-over bills; that will generally happen only when house B kills house A's crossed-over bill, and house A really wants that bill (I'll call it Bill 1). House A then can re-hear one of house B's bills from the last session that crossed over last year and then died in house A's committee (I'll call this Bill 2). In that hearing, house A will remove the original contents of the dead Bill 1 and put its language in the sleeping Bill 2. This procedure is known as "gut and substitute." If house A then passes the amended bill, it will cross over back to its original house, house B, as a Bill 2 shell with the Bill 1 contents.

Why bother? Won't house B just kill it again? Not necessarily. Bringing the bill back from the dead via gut and substitute is a serious sign from house A that it wants the bill. This is where votes get traded, and this is where you see why so many bills are given defective effective dates and blank appropriations. Now you have a sizeable pool of bills in conference. At this point, if one house wants to kill a bill, all it need to do is ... not appoint conferees. Or appoint conferees ... who then never set a time to meet. Now house A can say to house B, if you want your bill on X to get through conference, you need to pass Bill 2, the one we want.

This is where political leadership lies, and it happens in every state ... except Nebraska (and here's a thought question for you ... why not Nebraska?).

You can't get your law from "Lost"

As I watched this past week's episode of Lost, I saw something that reminded me that, which TV gets the law right some of the time, it will ruthlessly sacrifice accuracy in preference to drama (I understand this happens in the medical world, too - there's actually a website that critiques each episode of House on the way it handles the medical emergency of the week).

I experienced that in the courtroom drama on Lost [spoiler alert]. Apparently right after the opening (Kate's attorney murmured, "We got killed in the opening,") the defense puts on Jack as their character witness. !! I guess we're supposed to assume that they actually already submitted substantive evidence as to why Kate didn't commit the arson, murder, etc. But then, AFTER the defense witness, the prosecution goes into a tizzy when their "chief witness" can't testify.

Why can't she testify? Well, the prosecutor says it's because she's in the hospital, but the real reason should be because is that IT'S TOO LATE. The prosecution has to make their case in chief first. Their "chief witness" - the one who is testifying to Kate's confession - would have to come in the prosecution's main case, well before the defense calls Jack to the stand.

Yes, it's more dramatic this way, but it's wrong.

Did you go to the caucus?

I do not want to bring politics into our discussion of government, and I do not want to hear whether you are for McCain, Huckabee, Cliton, Obama, or Kucinich. That's not what this course is about. But the course is about governmental process, and in that spirit, I am curious: did any of you attend the caucuses this week, and if so, what was your experience? Hawaii's caucuses are run by the party - Democrat of Republican - while the similar primary elections done in other states are run through the government.
Would that work here in Hawaii? Should that work here in Hawaii? Was part of the excitement that cheerful chaos? Was it only happening because this was a tight race, and our votes mattered? Will such a turnout ever happen again?

Should there be a bill introduction limit?

Only about 10% of all bills introduced become law. There are perhaps 3000 bills introduced every year (more int he first year of a biennium, fewer in the second year). That figure is a little skewed because some bills are introduced as companion bills - the same bill in each house, so they count as two although only one can pass, and because some appropriation bills are folded into the budget, so their intent lives on even though the bill dies. But it is still fair to say that only a small fraction of all bills introduced make it through.

However, you never can tell, at the start of a session, what will pass through and what won't, because a large part of that examination process involves committee hearings where those ideas and their alternatives are tested.

Given these factors, should there be a bill introduction limit?

Second amendment at the state level

While we've studied the Second Amendment at the federal level, if the interpretation is that the right of individuals to bear arms is not granted at the federal level, then states can regulate it. House Bill no. 2999 (2008) proposes to do just that, by requiring, among other things, that all guns be sold with safety devices to prevent unintentional discharges by children and unauthorized users. It also prohibits sales of ammunition unless the purchaser shows proof of registration for the firearm for which the ammunition is to be purchased and photo ID.

One person disagrees with this so much he has posted an editorial to hawaiireporter.com:

http://www.hawaiireporter.com/story.aspx?3b082726-70c8-448d-9a75-62d2f35f166b

If you're looking for a bill to use for assignment 2, or for the extra credit, this might be a good one.

Should 16 year olds vote?

When I saw the title on a Honolulu Advertiser blog about this, I thought the writer had to have been kidding. Let 16 year olds vote? Why? We know why the US lowered the voting age to 18, but those reasons simply don't apply to 16 year olds. The original New York Times editorial that started this debate says that "Legal age requirements should never stand alone. They should be flexible and pragmatic and paired with educational and cognitive requirements for the exercise of legal maturity." I say bah. This is an opinion dressed up as a fact ("Legal age requirements should never stand alone") matched with feel-good words like "flexible," "pragmatic," and "legal maturity." Who wants to be counted as being against these terms? I'll take a shot.

The very example that the author picks - the fact that 16 year olds can drive - undercuts her point: which age group has the highest rate of accidents per mile driven? Teens. According to the Rocky Mountain Insurance Information Association, "The risk of crash per mile driven is thee times higher for 16-19 year olds than for drivers age 65-69." What are states increasingly trying to do (including Hawaii)? Institute graduated drivers licenses to restrict teens from driving by permitting them only to drive during the day, only with a relative in the car, etc. States are becoming more "pragmatic" about teen drivers by being less "flexible" about their options.

The NY Times allows people to comment of their op-ed pieces; those make more sense that the original article.

The Advertiser blog:

http://blogs.honoluluadvertiser.com/quarterlifecafe.php/2008/02/06/lowering_the_voting_age_to_16

The New York Times Op-Ed piece that started this debate:

http://www.nytimes.com/2008/02/06/opinion/06kamenetz.html?_r=2&th&emc=th&oref=slogin&oref=slogin

Ceded lands - is there a solution?

I added a reading on the Admission Act and ceded lands as, once again, they are a hot topic in the political arena. There are at least three main positions: (1) give some ceded lands to OHA to hold in trust for the Hawaiian government, assuming the Akaka Bill passes; (2) don't give ceded lands to OHA as it is not the right recipient, being a state agency; and (3) don't give ceded lands to OHA, they are to be kept in trust for all five purposes.

Richard Borreca, Star Bulletin political reporter, writes that "The proposed settlement announced Friday by OHA and Gov. Linda Lingle would resolve the OHA claims to the former Hawaiian monarchy lands used by the state by promising that the state would give OHA $15.1 million a year, plus nearly $200 million worth of state property including the resort property on Banyan Drive in Hilo and portions of Kakaako and Kalaeloa." SB, January 22, 2008 (full article at http://starbulletin.com/2008/01/22/news/story03.html)

Is this a good deal for the State? for Hawaiians? For non-Hawaiians? Should OHA hold out for a better deal? Is OHA the appropriate agency to be dealing with this issue? Is this the right time?

So many questions, so many truly controversial answers.

One school board? Seven? Four?

Our unit this week is the State Constitution, which sets forth our statewide board of education in Article X, section 3: "The board of education shall have the power, as provided by law, to formulate statewide educational policy and appoint the superintendent of education as the chief executive officer of the public school system." This is a unique system that no other state has. All the others have education run at the county, city, or municipal level. In 2004, the average size of a U.S. school district was 3,200 students. In 2004, Hawaii's had 182,000.

In 2004, Governor Lingle proposed amending the constitution to provide for seven local school boards. This would have broken one large district into smaller ones ranging from 10,000 to 37,000 students. Toward the end of the session, when it looked as though that proposed amendment would not pass, she suggested changing it into one local board for each county.

The measure was not passed by the Legislature (and thus did not make it to the ballot for you to vote on).

One position in the 2004 proposal:
http://starbulletin.com/2004/02/18/news/story1.html

Now the Governor again is proposing a constitutional amendment to allow each county council to establish a local school district, in House Bill 3118 and Senate Bill 3040.

What do you think? Is it time to amend the constitution to allow each county to decide to have a local school board?

Impeach the Vice President?

Aloha-- This week we explore the United States Constitution. I went looking for hot topics in this area, and found an online campaign by Congressman Robert Wexler to impeach Vice President Dick Cheney. Here a link to his website:
http://www.wexlerwantshearings.com
Here is the House Resolution, submitted by Congressman Dennis Kucinich, giving some grounds for an impeachment of Vice President Cheney:

http://thomas.loc.gov/cgi-bin/query/z?c110:H.RES.799:

The first video in our second unit gives the constitutional standard for impeachment. Do you agree with Congressmen Wexler and Kucinich? Should the vice president be impeached?

Junes Jones and Government's role

Aloha--

Junes Jones and the amazing 2007 Warriors raised a lot of pride in Hawaii, some of which turned into dismay and anger when Jones left the program to become the head coach at SMU. A lot of people have been dishing out a lot of blame - sometimes, it seems, to everyone they can think of. I can see the connection with people directly associated with UH - Herman Frasier, Virginia Henshaw, David McClaine (I'm not saying that I think they're at fault - just that I see their connection to the situation as they are all in the hierarchy at UH Manoa). But I've hears some grumbling about the Legislature and the Governor too.

What do you think is the appropriate role for the Leg/Gov in relation to what is essentially an internal UH matter? Should they be blamed? Should they be involved? Should they be looked to for leadership in this situation, or would that be inappropriate, or micromanagement?

I'm interested in your thoughts on this.

Lots of learning awaits!

Aloha--

By now you should have received my welcome letter and a copy of the syllabus. Please read both thoroughly. When you access the site next Monday, January 14, please click first on the "Welcome - read me first" icon. After that, open up Unit 1 and start by watching the Unit 1 video. Complete the unit by 9 am Monday, January 21.

As I say in my opening video to Unit 1, do not be dismayed by the number of icons in the unit. They have been designed as "learning objects" - small building blocks that combine for the overall educational goal of each unit. Each one will take you between 2 to 20 minutes. As we have no text for this course, these learning objects form the basis for your core knowledge, and the discussion boards form the class discussion and exchange of ideas.

--Prof. J

Getting ready for online

Aloha--

Sometimes students think that an online course is an easier version of the traditional face-to-face course. It is not; it's just offered in a different format. In general, a successful distance learner is someone who:

• wants or needs a flexible school schedule.
• knows how to study independently.
• is goal oriented and self directed.
• has college level reading and writing skills.
• establishes a regular viewing/log on schedule.
• sets aside a specific time on a routine basis for studying.
• contacts the professor promptly with questions about any aspect of the course.

I will do my best to provide a comprehensive and interesting course, but I cannot turn on the computer for you and make you sit down and access the course. That part is up to you. If you think that scheduling a regular time to visit our class website and do the assignments may be a problem for you, I suggest you make friends with one or more classmates in our "Class Cafe" discussion board to encourage each other to get online at the same time. You can even chat live in one of our class chat rooms.

Here's wishing you this best this semester!

--Prof. J

Test for narrated PowerPoint presentations

Aloha--

Another way I will present material is through narrated PowerPoint (PPT) presentations. I use a program called "Impatica" to make the file size small -so it loads easily - and can be played by anyone, even if you don't have Microsoft PowerPoint on your computer.

This file runs via a programming language called Java. Your browser may prompt you to update your java files - if so, this is the reason why. Some browsers seem to have java built right is - I can run this file fine on Internet Explorer on my PC, but not on Firefox, and I can see it on both Firefox and Safari on my Mac. Ah, technology!

Click here for a link to a short narrated PPT:

http://www.lava.net/~susanj/Narrated-PPT-Test.html

--Prof. J

Testing 1, 2, 3

Click the link to make sure you can view the videos on our class website. It is in QuickTime format (.mov). If you don't have QuickTime already installed, it's a free download, and works on both Macs and PCs. Find it at http://www.apple.com/quicktime

--Prof. J

Welcome to the Law 101 Blog!

I will post comments weekly on the blog during the semester. The blog will cover issues relevant to our course for the current week, and where appropriate, for prior units. Look for the first blog post by each Wednesday, starting with the week of January 14, 2008.