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Archive for April, 2011

A CLE conference moves me to juvenile laughter

HB Litigation Conferences is hosting a “Fracking Litigation Conference” in Philadelphia in September:

HB’s Fracking Litigation Conference is set for September 9, 2011 in Philadelphia. The increased use of hydraulic fracturing, or fracking, to extract natural gas from underground rock formations has raised environmental and legal challenges and will be the topic of discussion by attorneys, professors and scientists at this program.

Fans of Battlestar Galactica will know why I find this geekily funny.

Hey, a lawyer is entitled to geek out now and then.

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Support funding for spay/neuter programs in Texas

In my role as chair of the Austin Bar Association‘s Animal Welfare Committee, I have issued the following resolution regarding allocation of funds in the Senate budget bill.  It is an important issue, not just because supporting spay and neuter programs is important, but because people need to know that, when they voluntarily contribute money for a specific cause, the money really will go to that cause.  Talk to your Senator today.

Resolution Against Reducing Allocation for SN Services (Senate)

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Why Do I Love Pit Bulls?

I found this blog post from Lucky Dog Rescue via Lydia at Love-A-Bull, and it is worth quoting at length:

Why do I love Pit Bulls? Maybe it’s that big, beautiful head, just begging to be rubbed. Maybe it’s those soulful eyes, leading me straight into a wounded heart. Maybe it’s that childlike spirit… full of innocence and hope… despite the harsh realities of the world. Maybe it’s that joyful smile, saying to the critics: “I know you think I’m mean. I know you don’t trust me. But even though you hate me… I still love you.”
Maybe it’s the loyalty… the unwavering devotion in the face of cruelty, neglect, and abuse. Maybe it’s the fact that this very loyalty… this precious gift of allegiance… is exploited every day by evil humans with sadistic motivations.
Maybe it’s the undying will to please their master, the drive for praise at any cost, or the endless desire for compassion of any kind. Maybe that’s what makes them so special…

Maybe it’s the love… the love that waits… often for an entire lifetime… to be given. The love that dies… in the dogfighting ring… on the end of a chain… or at the pound. The love wasted, the lives forsaken, the beauty forgotten… Maybe that’s what I see in them…
Maybe it’s because the media has inaccurately and wrongfully demonized one of the most loving, loyal, and incredible breeds on Earth—the Pit Bull. Maybe it’s because the public believes these mistruths and joins in the bashing. Maybe it’s because Breed Specific Legislation (BSL) has enacted laws banning these amazing creatures… laws that seek to destroy every last living, breathing Pit Bull in America. Maybe it’s because, for the lucky few Pit Bulls in loving homes, BSL rips them away from their families and sentences them to death. Maybe it’s because these precious souls can’t understand why this is happening to them… as they cry out for their families, just before they are killed… Maybe that’s why I fight for them… (read the full post here)

Some of the most amazing dogs I’ve ever encountered have been pit bulls.  I just want to take a moment to appreciate how awesome they are.

Coco, by the way, still needs a home!

Coco, by the way, still needs a forever home!

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Should it be legal for anyone to kill a dog in Texas? (Hint: no)

I can’t say it any better than the folks at Love-A-Bull, so here’s their latest legislative alert from their Meetup mailing list:

H.B. 1919 WOULD MAKE it a defense to prosecution in a case of animal cruelty if the person claimed ‘reasonable fear of serious bodily injury’  to himself or another by a dog.

This means that anyone can kill any dog and claim a ‘fear of serious bodily injury’.

This bill is unnecessary.  Texas Penal Code Section 9.22 already provides a defense for any
“act of necessity”.   It states that a person is justified in taking any action if that person is acting to avoid imminent harm to himself or another.

Language in this bill is so subjective and vague that it could result in absurd situations.  For example:
A person would be allowed to kill a dog on another person’s private property
A burglar in the act of burglarizing a home or business could kill a guard dog
The bill makes no exception for provocation.  A person could torture a dog to the point of aggression and then kill it with impunity.

This bill will be voted on by the Criminal Jurisprudence Committee
Tuesday,  April 19th -10:30 AM or upon final adjourn./recess
Please make your calls immediately.

Please contact the following members of this committee and urge them to

OPPOSE H.B. 1919.

Chair:
Pete Gallego
T. (512) 463-0566
F. (512) 236-9408
pete.gallego@house.state.tx.us

Cindy Burkett
T. (512) 463-0464
F. (512) 463-9295
cindy.burkett@house.state.tx.us

Stefani Carter
T. (512) 463-0454
F. (512) 463-1121
stefani.carter@house.state.tx.us

Eddie Rodriguez
T. (512) 463-0674
F. (512) 463-0314
eddie.rodriguez@house.state.tx.us

As always, be polite and courteous when corresponding with Representatives and their staff.

Please don't hurt this little guy eitherFor now, the bill (PDF)is still pending in the House Criminal Jurisprudence Committee.  The bill seeks to amend Texas Penal Code Section 42.092, entitled “Cruelty to Nonlivestock Animals.”  Subsection (d)(1) provides that “[i]t is a defense to prosecution under this section that…the actor had a reasonable fear of bodily injury to the actor or to another person by a dangerous wild animal as defined by Section 822.101, Health and Safety Code” (emphasis added).

HB 1919 changes “dangerous wild animal” to “dog.”  “Dog” is defined as “a domesticated animal that is a member of the canine family.”  The definition of a “dangerous wild animal” is a bit broader and does not include dogs (but does include orangutans).  While it would seem troubling that Texas law allows the killing of orangutans, they tend to be rare in these parts–at worst it would be a rare occurrence of self-defense near a poorly-secured zoo.  To expand the law to encompass all dogs in the state is a recipe for disaster.  Also, it’s completely unnecessary.

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An obligatory meta-post on not blogging

Austin Entrepreneur Network » Attacking your sucky excuses for not blogging.

I think the above title says it better than I ever could.  There’s an enormous conversation going on out here in (do people still say cyberspace? Or is it all “the cloud” now??)  Whether you’re a lawyer or you just play one online, join in.

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It’s not easy being a new lawyer, but it’s important

I may a little late to the party commenting on Joseph Rakofsky, since it’s been two weeks since the story first broke in legal circles.  The story is worth noting, though, since I suspect it is something many lawyers who started out solo can understand–even if personal experience has not been as bitter.  To bring you up to speed, Mr. Rakofsky is a New Jersey attorney who had a murder trial in D.C. result in a mistrial for some unconventional reasons:

A Washington, D.C., judge declared a mistrial in a murder case Friday, saying he was “astonished” at the performance of the defense lawyer who confessed to jurors he’d never tried a case before.

Judge William Jackson said lawyer Joseph Rakofsky did not have a good grasp of legal procedures, citing as an example the attorney’s rambling opening statement in which he told of his inexperience, the Washington Post reports. Rakofsky graduated from Touro law school in 2009 and obtained a law license in New Jersey less than a year ago, the story says.

Rakofsky had repeated disagreements with his local D.C. counsel, causing his client, Dontrell Deaner, to become “visibly frustrated,” the Post says. On Friday, Deaner told the judge he wanted a new lawyer.

The judge declared a mistrial after reviewing a court filing in which an investigator had claimed Rakofsky fired him for refusing to carry out the lawyer’s emailed suggestion to “trick” a witness, the story says. Rakofsky’s suggestion allegedly read: “Thank you for your help. Please trick the old lady to say that she did not see the shooting or provide information to the lawyers about the shooting.”

Based on the news coverage, it does not sound like there is very much this lawyer did right:

News of the mistrial spread throughout the courthouse as observers raced into Jackson’s third-floor courtroom Friday to watch the proceedings. The judge, now obviously angry and frustrated, told Rakofsky that his performance in the trial was “below what any reasonable person would expect in a murder trial.”

“There was not a good grasp of legal procedures of what was, and was not, allowed to be admitted in trial, to the detriment of Mr. Deaner,” Jackson told Rakofsky.

Jackson said the most evident sign of Rakofsky’s inexperience came during his rambling opening statements before the jury Wednesday, which lasted more than an hour, more than 30 minutes longer than most attorneys’ openings. During his opening statements, Rakofsky repeatedly made reference to children playing “in the projects of Southeast D.C., where there was always gambling, guns and drugs.”

“There are drugs in the projects of Southeast D.C. There are guns all the time and drugs,” Rakofsky told the jury.

The prosecutor repeatedly objected over the relevance of Rakofsky’s statements. Rakofsky said the “children” were a symbol of what his client had endured growing up in that neighborhood. Jackson told Rakofsky to focus on the case, especially because none of the “children” he referred to was scheduled to testify.

Later during his statement, Rakofsky informed the jury that the case was his first trial. The revelation shocked Jackson, the judge revealed at Friday’s hearing. “I was astonished someone would represent someone in a murder case who has never tried a case before,” the judge said.

Rakofsky did not speak during Friday’s hearing.

There are quite a few issues to unpack there. First off all, it is never okay for a lawyer to try to trick someone into making an untrue statement. It’s just a bad idea.

It also doesn’t help that, after a ruling that’s sure to be a PR disaster, the lawyer went online and bragged about it.  Probably not the best idea.  It’s also possible that he was his own sockpuppet on articles and blog posts talking about his case.

Others have already chronicled and cataloged many, many examples of this guy’s unusual public persona.  Military Underdog offers a good overview.

As more details about the story came out, it became clear that this was not just a story of a young lawyer who got in over his head.  This is also a story of a lawyer who blatantly broke ethical rules and promised more than he could deliver:

Henrietta Watson stood inside the downtown Manhattan courthouse waiting for one of her grandsons to be released from jail. A young lawyer approached and asked if he could help.

Watson and her husband declined. But the couple told the lawyer about another grandson in Washington, who was charged in the fatal shooting of a Virginia man. That case interested the lawyer, who gave Watson his card and introduced himself as Joseph Rakofsky, Watson said.

Watson, 71, said she told Rakofsky that she wasn’t interested in hiring him even for the murder case because the family couldn’t afford the $25,000 to $30,000 normally charged in such cases.

But Rakofsky, 33, called her, Watson said. And again. She said he told her that he had worked on criminal cases before. And he told her that he would charge $10,000. Watson decided to “give him a chance,” she said, impressed with his tenacity and his willingness to work on her grandson’s case, especially for such a low fee. The Watsons took out a loan, paid him $7,700 and agreed to pay the rest when the trial was over.

So here we have Joseph Rakofsky, the 33 year-old lawyer with barely two years experience from a not-terribly-highly-ranked law school, making a promise that was too good to be true to someone in a vulnerable position, getting himself into deep legal waters, winding up an industry punchline, and bragging about it all.  To which I say: it could have been any one of us (lawyers, I mean).

This is my blog.  I don’t really want to talk about Joseph Rakofsky; I want to talk about me.  Mr. Rakofsky’s case got me thinking about how I got started in law.  I started out part of a three-man shop, mostly practicing criminal defense, and I can definitely say that there are some very fine ethical lines out there.  I don’t defend any of the actions described in the coverage of Mr. Rakofsky, but I can’t quite bring myself to completely condemn the guy, maybe just because I’ve seen some similar stuff.

This case brings to mind several issues that troubled me in the early days of lawyering:

  1. Practicing outside of your primary geographic area;
  2. Handling a case that requires a large amount of time and attention; and
  3. Your very first big trial.

Hopefully I’ll make this into a series: Thoughts on Solo Lawyering.

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