February 20, 2009
Greets and Huggers. Posted the evening of February 20, 2009. It dawned on me this week, I am 61 years old. I no longer have any mountains to climb. I am at the highest point of any mountain, given what I have to hope for, or work for, strive for … I CAN climb. I am where I am. Hopefully, I have fought the good fight on behalf of my clients. After watching “To Kill a Mockingbird”, I wanted to be just like Atticus Finch: a small town lawyer, representing real people. I am. I also know, I am a dying breed … how many “puppy sharks”, after graduating with a 100 or 200K student loan debt, can move to a small community and hang out a shingle? Our profession is under attack from without and within. Our Missouri Courts Administrator at the behest of our Supreme Court, provides among other things, dissolution forms on it’s Website. Forms that pro se litigants can use to harm themselves and from the reports I am getting, some do. At the same time, we have non-lawyers providing legal services, practicing law. On Tuesday a person posted on the SFIG: “Does anyone else besides me see something wrong with this service? www.myaffordabledivorce.com“ Yes, in my opinion they are practicing law without a license because of the personal nature of the service involved, (they are not just providing forms but helping fill them out). [Note: after being contacted by a couple of SFIG members, the site was taken down. Other sites remain: “We The People” for one, promising to “We help consumers represent themselves (pro se litigation) in uncontested legal matters by preparing/typing the necessary legal documents to court standards.” ] – For us as a profession, this poses an interesting predicament. Our legislature in R.S.Mo 484.010 defined the practice of law as:
“The “practice of the law” is hereby defined to be and is the appearance as an advocate in a representative capacity or the drawing of papers, pleadings or documents or the performance of any act in such capacity in connection with proceedings pending or prospective before any court of record, commissioner, referee or any body, board, committee or commission constituted by law or having authority to settle controversies.”Further, in R.S.Mo 484.020(2) our legislature set a remedy:Further, in R.S.Mo 484.020(2) our legislature set a remedy:“Any person, association, partnership, limited liability company or corporation who shall violate the foregoing prohibition of this section shall be guilty of a misdemeanor and upon conviction therefor shall be punished by a fine not exceeding one hundred dollars and costs of prosecution and shall be subject to be sued for treble the amount which shall have been paid him or it for any service rendered …” … and … “(3). It is hereby made the duty of the attorney general of the state of Missouri or the prosecuting attorney of any county or city in which service of process may be had upon the person, firm, association, partnership, limited liability company or corporation liable hereunder, to institute all suits necessary for the recovery by the state of Missouri of such amounts in the name and on behalf of the state.”
But in Eisel v. Midwest BankCentre, 230 S.W.3d 335 (Mo. 2007), our Supreme Court declared:
Further, in R.S.Mo 484.020(2) our legislature set a remedy:… and … But in , 230 S.W.3d 335 (Mo. 2007), our Supreme Court declared:�The judiciary is necessarily the sole arbiter of what constitutes the practice of law. Statutes may aid by providing machinery and criminal penalties but may not extend the privilege of practicing law to persons not admitted to practice by the judiciary. Such statutes are merely in aid of, and do not supersede or detract from, the power of the judiciary to define and control the practice of law.� and in Hoffmeister v. Tod , 349 S.W.2d 5, 11(2) (Mo. banc 1961), “Although the legislature may assist the court by providing penalties for the unauthorized practice of law and thus may define that term, the legislature may in no way hinder, interfere, or frustrate the court’s inherent power to regulate the practice of law.” In both instances relying on In re Richards, 333 Mo. 907, 63 S.W.2d 672 (banc 1933). “The judicial branch of government has the power to regulate the practice of law.” Relying on Missouri Constitution Article VI, Sections 2 & 3, which no longer exist. Today the Supreme Courts power is granted by Article V, Section 5.
No doubt our Supreme Court can and should control WHO practices law: that they are duly qualified and remain so. No doubt our Supreme Court should have and has the power to punish any lawyer who violates the ethical rules of conduct … and no doubt our Supreme Court has been granted the power to establish and enforce the rules that apply in legal and/or administrative proceedings. But share with me … what enforcement power does the Supreme Court have to control the practice of law? Disbar the non-lawyers who engage in the unauthorized practice of law? The fact of the matter is, the Supreme Court has NO POWER over what non-lawyers do. It’s enforcement power is derived from the statutes enacted by our legislature. As pitiful a sanction as it is … share with me … absent R.S.Mo 484.020(2) … just how would the Supreme Court, the Judicial Branch, block the unauthorized practice of law? It can’t.
And you wonder why the general public thinks there is a problem with our legal system? NEW YORK (CNN) – Drunk man run over by train awarded $2.3 million. “A Manhattan jury awarded $2.33 million to a man who lost his leg after drunkenly stumbling onto the path of an oncoming subway train. Dustin Dibble, 25, landed in the subway tracks after a late night watching a hockey game at a bar with friends April 23, 2006. A downtown N train ran over him, severing his right leg. According to Dibble’s lawyer, Andrew Smiley, NYC Transit rather than Dibble bore primary responsibility for the accident because the subway driver had time to stop the train but did not. Smiley added that Dibble’s drunkenness did not excuse the driver, who said in a court deposition that he mistook Dibble for an inert object. “They don’t get a free pass as to why the person was on the tracks. They are trained to be able to look out for people on the tracks … and people are known to be intoxicated by night,” the lawyer said. Dibble’s blood-alcohol level at the time of the accident was .18, according to his lawyer, more than twice the legal limit had he been behind the wheel of a car. The jury ruled Tuesday that Dibble was 35 percent responsible for the accident, so his monetary compensation was also reduced by 35 percent — from $3,594,943 to $2,336,713.” Makes me wonder too … a guy gets fried, (BAC of .18) and falls or passes out on the subway track and he is found 35% responsible for his injury? I believe we have the best, most just legal system in the world, but I wonder about our societies sense of priorities and what constitutes justice. My Dear Lady Friend Adrian W wrote: “He was leaving a bar and taking public transportation to get home. I agree he should have been more careful, and in a perfect world, probably should not have been drinking to excess. The jury also thought he was at fault - just over 1/3 of the fault was attributed to the injured man. There was a statement in this brief excerpt that Transit operators are trained to be aware of objects and people on the tracks, that they are made aware of the possibility that individuals can and do become drunk at night (and may stumble onto tracks), and that the operator was capable of stopping the train in time to avoid the injury … Actually, I think I am outraged that someone would object to this individual recovering any compensation for the very severe injuries he received that were (at least partially) caused by the actions/omissions of another.” Be outraged … I feel bad the guy had the misfortune of stumbling or passing out on the subway tracks but I prefer to be outraged by the sum awarded. May I put it in context? In Missouri, suppose a father of 5 is the victim of an industrial accident … NO fault of his own — he was in the wrong place, at the wrong time … and sadly, he loses a leg. An unfortunate accident caused by his boss removing a safety device. The MOST he can hope to recover is $500,000.00. If he was drunk? He gets NOTHING. A member of our Missouri National Guard, who never signed on for multiple overseas, extended tours of duty in some foreign sh*thole country fighting, what the President, (not our Congress), declared a war … his National Guard service necessary because the President before the one who declared war, balanced the budget, cut costs, by gutting out our intelligence service and our standing military … and if I may add, relishes and boasts about having a budget surplus, (and some believe him!) … and at the same time refused or was unwilling to use the force necessary to snuff pending obvious threats on his watch … which forced the use of reservists and national guard troops now … and that reservist or national guard trooper loses a leg in combat. He gets what? A medical discharge and a lifetime fighting the VA for a new prosthesis, when the one, (he fought to get), wears out? $2,300,000.00 tax free dollars? The guy driving the subway is 65% responsible for not stopping the train that this guy, in a drunken stupor stumbled in front of? Share with me … where do you think the money for this judgement will come from?
And in our new “science has the answer for everything” world: WASHINGTON (CNN) – Crime labs need major overhaul, study finds. “Those slick, intricate tests used by forensic investigators on shows like “CSI” look infallible, but that is the stuff of television. In the real world, forensic tests are much more ambiguous and rarely demonstrate a definite tie between an individual and a crime. That’s what the National Academy of Sciences found when it studied the nation’s forensic crime labs for two years. What the academy discovered was a “badly fragmented” system that produces inconsistent results and needs a major overhaul. In its report published Wednesday, the academy showed there is a serious lack of uniform standards, training and oversight. And, with the exception of DNA technology, the report concludes experts often overstate how much can be determined by forensic techniques running the gamut from fingerprinting to bite mark and hair analysis.” Given a jury awarded the above referenced guy 2.3 M, care to guess how many innocent people are sitting in jail? Keep in mind, 232 jury convicted folks SITTING ON DEATH ROW, have been exonerated.
And in news that makes my heart smile: CNN – Tech gurus use power of Web to help veterans. “The soldier was having financial problems last fall and needed $1,000 for one month’s mortgage on her house in San Antonio, Texas, where she is being treated for her injuries. Her husband, who is also in the Army, is still deployed in Iraq. Hutchinson, 32, is among dozens of active-duty U.S. troops and veterans who have asked for help through USAtogether.org, which listed their stories and specific needs online.” … and they got the help they needed. Interesting Website to visit. Susan and I focus on the 4 legged needy: times are tough, money is short and we can’t offer much … but I signed up.
BBC NEWS – Women’s traits ‘written on face’. “A woman’s personality traits may be “written all over her face”, research has suggested. The Glasgow University and New Scientist study examined whether self-assessed personality characteristics could be identified from appearance. It claimed that women’s faces were easier to read than men’s faces, with greater success in matching traits.” No doubt some things on a woman’s face/head can be indicative of her character traits … like a tattoo on her neck which reads, “Property Of Hells Angles” … I suppose, so would having a Charley Mason swastika. Being a male lesbian, I find women attractive … especially my Susan, (and she must be tolerant of gay’s … after all, she married one). Begs the question about gay marriage, doesn’t it? Is a marriage between a woman and a male lesbian recognized by the State of Missouri? I suppose so. It’s all about the plumbing, isn’t it … not love.
BBC NEWS – Hackers target Xbox Live players. “Xbox Live is being targeted by malicious hackers selling services that kick players off the network. The booting services are proving popular with players who want a way to get revenge on those who beat them in an Xbox Live game. The attackers are employing data flooding tools that have been used against websites for many years.” DDos, (distributed denial-of-service), attacks have been around for years but have generally been against servers. Since Xbox Live is a distributed network, if you find the IP address of an opposing player, you can hire one of these hackers to knock your opponent off-line. Some folks take their “gaming” way too seriously!! (Like Susan paying for the NFL package on DirecTV!!)
Sitting here watching the evening news and editing these Ramblings, (the “Editorial Staff” asleep in the other chair). Just checked the SFIG Facebook page and 46 folks have sign on. Nice way to keep in touch. Facebook can be a great marketing tool – I have an appointment with a new client tomorrow who found me on Facebook. Bid on and won a 25′ Acoustic Research Pro Series DVI cable on Ebay last week for $8.00 — and hooked my graphic workstation, (HP XW 9400 – maxed out with Dual Opterons, 4 gig on the motherboard, 160 gig Raptor as my “C” drive, an NVIDIA Quadro FX 3500 video card and 2 terrabytes of hard drive space), to the 50″ Samsung projection TV. Way cool, (the picture quality is much, much, much better than using the output from my networked DirecTV DVR!!) Watching a YouTube video is awesome! Swedish prosecutors have dropped half the charges against the folks that run the Pirate Bay file sharing site … the site is like a card catalog in your local library. It catalogs the books, (torrents), you download the card from the site, then open it in your torrent client and download movies, E-books, software, pictures – some things copyrighted and some not. But like anything else on the Internet … you have to have your antivirus, antispyware and sandbox up to date. Using “Hide My Ip” is not a bad idea either!! Of course, you already have combofix installed in the root directory of your hard drive, just in case … right?
Time to post these Ramblings, work a Photoshop Tutorial then hit the sack … say a prayer of thanks for Susan, a prayer of healing for Bob Sig, (I think I’ll light a candle for him at Mass tomorrow … maybe a Hanukkah candle – if lighting a candle is a way of speaking to God in prayer … it may as well be in God’s native tongue!) … and a prayer for the safe and soon return of our men and women in uniform, (care to join me?) Be and sleep well, there are some out there tonight walking the walk – so you can. If my post offends, I apologize – that is not my intent. As always …
A Warm Brotherly Hug
Karl (the dumb old country lawyer from Holden, Missouri … and the Editorial Staff, Willie, Karly, my ‘Lil Buddy … and Dinker the copy boy!)