A Paucity of Prospects

May 20, 2018

A Paucity of Prospects

prospects

Mark Rubin

The Problem

Steve Brill—who created The American Lawyer and Court TV—wrote a fine piece for Time, published a few days ago, titled How Baby Boomers Broke America. (He adapted the article from Tailspin, which is available on May 29.) Mr. Brill aptly describes how my generation—Boomers, but he’s older and richer than I am, and the Boomer period encompassed Americans born between 1946 and 1964—has done well and pulled up the ladders as we wrap it all up. We got ours, and to hell with anyone else.

Matthew Stewart, a philosopher, has written a fabulous piece which you can read on line. (It will appear in The Atlantic’s June

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Real Attorneys, Working

May 5, 2018

Real Attorneys, Working

Rudy

Rudy Giuliani

From time to time I write about subjects, even though I lack a deep, personal knowledge base. G-d bless the Internet, which provides ready access to reliable sources. (Yes, I believe the MSM. Working journalists—people, mostly underpaid relative to societal value, who seek truth—get the story right, mostly.) With a functioning brain which can string together sentences and organize them into paragraphs, I write posts people read. And I sleep well, comfortable that I am not offering Fake News.

Then there are those moments when I write with first-hand knowledge. Like, about real attorneys, working.

So, what do we—working attorneys—do all day? Lots. My days include telephone conferences with clients and other, along

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Textualism and the Courts

April 26, 2018

Textualism and the Courts (A Wee Bit Wonky)*

textualism

Justice Antonin Scalia, Textualist

The Book

I finished The Justice of Contradictions: Antonin Scalia and the Politics of Disruption by Richard Hasen recently. Dealing with complex matters, Mr. Hasen offers lucid analysis and a fine read!

Straightaway, Mr. Hasen tells readers he has not written a Scalia biography, or a “comprehensive examination of all of [Justice] Scalia’s opinions and ideas.” Instead, he promises “an examination of [Justice Scalia’s] jurisprudential theories of textualism and originalism, his inimitable and caustic tone in dealing with his adversaries on and off the Court, and his key areas of modern American law.” And he delivers, in plain English!

I’m focused here on textualism, the legal

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Attorneys Addicted to Attention

April 25, 2018

Attorneys Addicted to Attention

attorneys

Mark Rubin

Attorneys—some, anyway—live in heady times. I follow some blogs and nearly every story touches matters legal. Unfortunately, in too many instances I find myself embarrassed and ashamed of too many fellow attorneys.

Before I go forth, let me clarify what I mean by attention. I’m not focused on attorneys doing good deeds. Writing principled, illuminating articles. Representing their clients well. The attention which bothers me involves television interviews. Press releases. And, yes, sometimes even statements made during book tours.

I’ve written lately—and often—about client confidentiality. Fundamentally, confidentiality and attention—as I have defined it—mesh poorly. We’re supposed to do our jobs quietly and, when we speak, we should be trying to illuminate, and we ought

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Confidentiality and Hannity the Client

April 17, 2018

Confidentiality and Hannity the Client

New York’s version of ER 1.6 of the Rules of Professional Conduct got shredded yesterday. Oh well … but for the fact that confidentiality represents a core aspect of the attorney-client relationship.

Some background might be helpful. Search warrants, executed last Monday, generated a bunch of material from Michael Cohen. He’s an attorney who works for President Donald J. Trump. And Everett Broidy. And one more client, Sean Hannity.

The government and Judge Kimba Wood needed to know who Mr. Cohen represented. Why? To determine the scope of the claimed attorney-client privilege. The privilege only applies to communications between Mr. Cohen and his clients; whither, the need to know the identity of

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Search Warrants, Confidentiality, and More

April 15, 2018

Search Warrants, Confidentiality, and More

That Client

That Client

In Donald J. Trump, Goner I promised some “basic facts about attorney-client privilege and attorney confidentiality issues.”* The promise grew out of the extraordinary search warrants directed to premises controlled by Michael Cohen, an attorney who does work for President Donald J. Trump.

Extraordinary search warrants? Yes. Mr. Cohen does have a license to practice law, and the warrants relate broadly to that client of his I mentioned previously.

Judges issue search warrants. Routinely.** Judges reject warrant requests rarely and, only slightly more often, they will modify them. So, the fact that warrants issued does not, alone, make them extraordinary.

So, why extraordinary? Mr. Cohen’s law license, and that client I mentioned.

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Donald J. Trump, Goner

April 13, 2018

Donald J. Trump, Goner

donald j. trump, goner

I have a PredictIt account. PredictIt offers legalized betting on political events. Fun it is, and it’s legal because smart people study the predictive power of crowds.

Whether “Donald Trump shall be president of the United States at 11:59:59 p.m. (ET) on December 31, 2018” is the bet, and I have the No position. (The rules are very precise.) If I cashed out now my profit pays for most of a night on the town with LB, which includes drinks, shared fish and chips, tax and the large tip at our neighborhood bar. And If I hang on and he’s gone by the time the ball drops next in Times Square I’ll be the smiling guy,

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Action by Anecdote

April 2, 2018

Action by Anecdote

anecdote action

Our Fearless Leader tweets … still! For a few days last week we enjoyed quietude, or what passes for calmness in Epochus Trumpus. (Dramatic? For sure, but we’re 437 days into the Trump Administration, and if you’re not feeling like it’s been an Age you’re not paying attention!)

Immigration

The Twitter blasts returned on Easter morning, with sound and fury signifying nothing. The subject? Immigration. DACA. Dumb immigration laws. Blah, Blah, blah! The prompt? Huge Immigrant Swarm Prompts Trump Tweets on DACA.*

OMG, a huge swarm. Traveling through Mexico as a caravan. How many people? 1000. Wait. What? More than 1000 people? OK. Whatever will we do about the swarm of more than 1000 people?

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Renewal: Spring, Passover, Easter, and News

March 29, 2018

Renewal: Spring, Passover, Easter, and News

renewal

Mark Rubin

My favorite weekend of the year is upon us. Passover and Easter are joined at the hip, along with Spring. I’m amazed—and I digress, briefly—that some of my nominally Christian friends don’t link the Seder and the Last Supper. Forgive me, but do people think Mary and Joe’s boy—well maybe not Joe’s boy completely, but that biology is way above my pay grade—was passing on the Seder? Alas, there’s actually a debate … because, in these times, we can always debate everything.*

Renewal? Sure. The Passover story focuses completely on the opportunity to leave slavery in Egypt, for the promised land in Israel. And Easter? Duh! And, candidly, I think

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Confidentiality, Attorneys and Prospective Clients           

March 27, 2018

Confidentiality, Attorneys and Prospective Clients

confidentiality

Mark Rubin

On August 17, 2014 I posted Professional Responsibility; Confidentiality. Confidentiality represents a core part of the attorney-client relationship. Too often, unfortunately, we—yes, attorneys—ignore it or don’t understand it.

Plainly and simply: matters belong to clients, and not to their attorneys.* I work for you. The Rules of Professional Conduct and other sources set standards for me. And one of those standards—set forth in E(thical) R(ule) 1.6—tells me I can’t reveal “information relating to the representation of a client” without your consent. (There are several exceptions. They’re discussed in the 2014 piece, and not relevant here.)

“Information relating to the representation of the client” includes the very fact that an attorney-client relationship

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