The Making of a Lawyer: Legal marketing gone wild!

Legal marketing is a relatively new concept by comparison to other industries. Because it was believed to be (and still is in many circles) beneath the profession, lawyer commercials were prohibited in the United States until the late 1970’s. It wasn’t until the Supreme Court of the United States ruled in Bates v. Arizona,[1] affirming that advertising by attorneys is protected speech under the First Amendment, that legal marketing became permitted. However, legal marketing is still strictly regulated by state bar associations.

Since Bates became the law of the land in 1977, legal marketing has made incredible advancements! You cannot travel on the interstate system without being confronted by a billboard containing a picture of an attorney telling you to call them for legal advice! Mid-day television programs are now filled with wall-to-wall attorney commercials, offering to win you huge settlements for anything from car and big truck accidents, to the latest bad drug on the market.

I do not necessarily have a problem with attorneys marketing their services. Perhaps one day I’ll find the need to market my services on television. (I really don’t see that happening) I do, however find some of the marketing tactics of attorneys to be downright dishonorable to the profession that I will be entering in to!

Baton Rouge attorney, E. Eric Guirard became one of the highest profile personal injury attorneys in Louisiana. His shtick, “Get the ‘E’ Guaranty!” is likely known by every household in the state of Louisiana. Guirard mastered the legal marketing game with the best of the best! His advertisements were entertaining at best, brazen at worst! (I am certain that they were within the guidelines of the Louisiana Bar Association.)

In 2009, E. Eric Guirard and one of his partners were disbarred from the practice of law by the Louisiana Supreme Court for infractions that were unrelated to his marketing practices.[2] He was reinstated by the Louisiana Supreme Court in 2016.

Since his reinstatement, Guirard has returned to his larger-than-life advertising practices. In an article published by the Baton Rouge newspaper, The Advocate, the author detailed a lawsuit filed against Guirard by Gordon McKernan, another high-profile attorney in Baton Rouge for a commercial released mocking his popular commercial.[3] Guirard’s commercial depicts an attorney intended to look like McKernan falling from the top of a tractor trailer and injuring himself. At the end of the commercial, Guirard says, “Don’t fall for a Copy Cat! Get an original!” Additionally, the commercial has a disclaimer stating, “No real lawyers were hurt while filming this commercial.”

Although these antics are slightly humorous, it is arguably distasteful and dishonorable for an attorney to market in this manner. When attorneys begin bashing other attorneys in the market square, and lawsuits begin flying into the courts, the legal profession suffers the embarrassment of looking like a “Gone Wild” parody of itself!

[1] Bates v. State Bar of Arizona, 433 U.S. 350, 97 S.Ct. 2691, 53 L.Ed.2d 810 (1977)

[2] In re Guirard, 2008-2621 (La. 5/5/09), 11 So.3d 1017, reinstatement granted, 2016-0397 (La. 4/22/16), 192 So.3d 723

[3] Gyan, J. (2017, July 5). Spat between lawyers Gordon McKernan, E. Eric Guirard over mocking ad lands in federal court. The Advocate. Retrieved from http://www.theadvocate.com

 

 

 

Carrot & Stick: How the U.S. Congress should handle the issue of Sanctuary Cities and States

The 2016 Presidential Election season has been one of the most contentious in modern history. There have been many hot button issues that will continue long into the Presidency of Donald J. Trump, and perhaps beyond. There is, however a specific issue that can and must be quickly put to rest. That is the issue of Sanctuary Cities and States!

There are many problems wrapped in this issue, one of which is the Constitutionality of state or local government interference with federal government jurisdiction over immigration. State and local leaders who argue that their cities will serve as sanctuaries know that they are in violation of Article VI, Clause 2 of the United States Constitution which provides:

This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding. [1]

Known as the Supremacy Clause, this language means that a law of any state or local municipality that is contradictory to federal law is not valid. State and local elected officials know this to be true. Standing on ceremony while claiming a municipality to be a Sanctuary City or State, is an effort to garner favor with a segment of society for political purposes.

So, how does the U.S. Congress enforce the Law of the Land when states and municipalities resist? The Constitution also provides in Article I, Section 8, Clause 1 of the Constitution:

The Congress shall have the Power to lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defense and Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States.[2]

The Spending Clause gives Congress the power to appropriate funds to the states to provide services for the people. In appropriating these funds, Congress has the power to attach certain conditions to the provisions. This practice is quite common and is used as a carrot to entice states to doing what the Congress wants them to do, or as a stick prodding local and state leaders into compliance with federal laws without involving the judicial branch. One such instance is the landmark U.S. Supreme Court case of South Dakota v. Dole. Congress passes legislation giving the Secretary of Treasury the power to withhold 5% of federal highway funds from those states that did not make the legal drinking age 21 years. South Dakota argued that this rule was unconstitutional use of the Congressional spending power. Chief Justice Rehnquist delivered the opinion of the Court as follows:

Congress may achieve its objectives by conditioning the receipt of federal funds upon compliance by the recipient with federal statutory directives under its spending power. The spending power has three general restrictions. First, the exercise must be in pursuit of the general welfare. Courts should defer to the Congress’s judgment about this requirement. Second, conditions on the receipt of funds must be unambiguous, so states can exercise their choice knowingly and be aware of any consequences. Finally, the conditions on grants must relate to the federal interest in particular nationwide projects or programs. Here, all three conditions are met. First, the legislation is for the general welfare. Second, it is set in unambiguous terms. Third, it is directly related to safe interstate travel, one of the main purposes for which highway funds are expended.The financial inducement here is not large enough to be considered coercive, as only a small percentage of highway funds are involved.[3]

The rule of law from Dole is that the Spending Power of Congress has three general restrictions: (1) the spending power must be used for the general welfare; (2) the conditions must be unambiguous, allowing the states to make a knowing choice and be aware of the consequences of the choice; and (3) the conditions must be related to a federal interest in nationwide programs or projects.

In a nutshell, Congress has the power to begin cutting funds from states and municipalities that continue to serve as Sanctuaries to those in the United States illegally. So long as the funds being cut are not already budgeted as part of other legislation or service packages, Congress can use a “carrot and stick” approach. States and municipalities that choose to go down the road of defiance to further a political goal run the risk of hurting their own constituency. If that is the path they choose to walk, then they have no one to blame but themselves when the people vote them out of office!

[1] U.S. Const. art. VI, cl. 2

[2] U.S. Const. art. I, § 8, cl. 1

[3] S. Dakota v. Dole, 483 U.S. 203 (1987)

The Establishment Clause: The Myth of Separation of Church and State

I have found myself in debate with many of my more liberal friends regarding the contents of The United States Constitution. It is truly astonishing how many of my friends have no idea of what is actually in the document! In truth, until law school, I was among those with little understanding of the constitution! It is so important that all Americans understand the rights that our founding documents provide for us! Otherwise, we will be led like sheep to the slaughter of a tyrannical, over-reaching government.

Let’s take a look at one of the most misunderstood clauses of the First Amendment. I’m certain that everyone has heard it said, “there shall be a separation of church and State!” In fact, many of my liberal friends believe this is constitutional language. Nothing could be further from the truth! I have dedicated many hours to the study of the Constitution, and to where this myth actually originated. To truly realize where this misunderstanding comes from, we must first analyze where the language itself actually came from.

Keeping in mind that America declared independence on July 4, 1776, many of our founders were either born in England, or were direct descendants of citizens of 17^th and 18^th Century England. In the “Old World” of Europe and Asia, monarchs conquered other nations based upon religious ideology. Mary Stuart, Queen of Scots put many to death for refusing to convert to Catholicism. This earned her the moniker, “Bloody Mary.” The memory of the of religious zealots and ideologues who ruled in tyranny certainly influenced the language used in drafting the founding documents.

So, where did the “separation of church and state” language actually come from? In 1802, the Danbury Baptist Association wrote to Thomas Jefferson asking why he would not declare a national day of fasting and thanksgiving. In his is letter responding to their question, Thomas Jefferson informed the Danbury Baptist Association that he believed that there must be a “wall of separation between church and state.”

(Note: Thomas Jefferson, being a shrewd politician and statesman, consulted many of his contemporaries to tailor his letter so as not to offend the religious.)

Now that we have analyzed the origin of the “separation” language, we can now look at the actual language found in the Constitution. The clause that many of my liberal friends misconstrue with the aforementioned Jeffersonian doctrine is known as the Establishment Clause of the First Amendment. Let’s first look at the First Amendment in its entirety:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances. (U.S. Const. amend. I)

The opening ten words of the First Amendment make up the Establishment Clause. What this means is that the Congress shall not declare that the United States of America has any nationalized, mandated religion; whereas other nations establish and declare themselves to be of a particular religion. There is nothing in the language of the Establishment Clause that says anything about a “wall of separation!” If we go to the next clause, the Free Exercise clause, we see that the founders provided that no American citizen shall be prohibited from the “free exercise” of religion!

Now that we have cleared up the confusion of Jeffersonian “separation doctrine” and the Establishment Clause, please take time to read the entire document! You will find that many of the things you hear from those in academia and the media to be grossly misleading! Information is the power to defeat dangerous ideologues and would be tyrants!

Replica of the Constitution of the United States as Signed by Our Founding Fathers Copyright: Photopa1, Licensed to Patrick Jester by http://www.istockphoto.com

The Making of a Lawyer: In Defense of the Defense Attorney

 

 

[1]Television programs love to portray criminal defense attorneys as ruthless thugs that will lie, cheat and steel to help their client beat the crimes they commit. On the other hand, television has a tendency to hold prosecuting attorneys out as moral and ethical giants that are beyond reproach! It is so cliché, yet it has become standard for the general public to believe any person accused of a crime must be guilty by default. And their lawyer must also be a scumbag for defending them! So, what ever happened to the standard of presumed innocence until proven guilty? A pop cultural example of the portrayal of a criminal defense attorney as morally bankrupt is the character Mickey Haller from the book, which became a hit movie, The Lincoln Lawyer.[2] In the book Haller’s ex-wife, an assistant district attorney chastises him for representing alleged criminals and asks him, “[w]hy does it have to be you?” That is a question that I am sure attorneys are asked on a daily basis. The answer isn’t always easy because, quite frankly the job of an attorney is not that easy! Sure, many lawyers can hand pick their clients, but that doesn’t necessarily mean they are going to be a “good client” to represent.

I will admit that I used to believe these myths myself! But, the truth is that a criminal defense attorney is bound by the canons of ethics to represent their client by providing legal counsel and a vigorous defense against charges brought against them. There is no requirement that the attorney share their client’s beliefs, ideals or opinions. Criminal defense attorneys have a very tough task. They represent clients that are accused of all manner of evil. Then they are faced with job of defending their client against the world, because let’s face it, that is who they are being accused by! The first question everyone wants an answer to is are they guilty? Well, that is what the justice system is designed to do, determine guilt and innocence. The justice system only works when every member of the system is doing their job. That includes the defense attorney!

In 2014 Jacob Hirsch Witz was accused of meeting a woman thru the social media application, Tinder[3], and raping the woman in her home. Witz was charged with Forcible Rape.[4] On February 1, 2016 Witz was found not guilty by a jury of his peers. The defense attorney for Witz, Robby Gill[5] was quoted by The Advocate, a Baton Rouge, Louisiana paper as saying, “Jake’s happy. Thrilled with the verdict. He wants to go back to school and graduate and be a productive member!”[6] However, on the same day a Facebook post was made, seemingly mocking Mr. Gill saying, “On the lighter side, the attorney said Jake wants to be a productive member. Didn’t he try that already?”[7]

Cases such as Witz are extremely unpopular because the crimes that are being alleged are offensive to society at large. In such cases it is common for the general public to look upon the defense attorney as being “the bad guy” right along side the accused. The fact is, Mr. Gill is a really great attorney and a fine human being. (I know this because I’ve met him and know his family well!) I’m not going to give a sweeping generalization by saying that all defense attorneys are fine human beings, but many of them are!

In the end, the criminal justice system is made up of the prosecution, the defense, the judge, and the jury. The prosecution has the burden of proving it’s case against the defense. The defendant doesn’t even half to testify! If the prosecution cannot prove it’s case beyond a reasonable doubt to the judge or jury, then the defendant goes free. It’s really that simple! Like it or not, defense attorneys have a tough job to do! Let them do their job. We never know if the day is coming when any one of us will need a defense attorney. At that moment, a great defense attorney will become a best friend!

[1] Photo by suphakit73. Published on 26 January 2014. Retrieved from http://www.freedigitalphotos.net/images/agree-terms.php?id=100230451

[2] Connelly, M. (2005). The Lincoln Lawyer. New York City, NY: Grand Central Publishing

[3] Tinder©2016

[4] LSA-R.S. 14:42.1 (2016). Second Degree Rape

[5] William Robert “Robby” Gill, Attorney at Law, Manasseh, Gill, Knipe & Belanger, PLC. http://www.manassehandgill.com

[6] Gyan, J. Jr. (February 1, 2016). Ex-LSU student accused of raping woman he met through Tinder acquitted Monday. The Advocate. Retrieved from http://theadvocate.com/news/14745275-84/texas-man-accused-of-raping-woman-he-met-through-tinder-was-acquitted-of-the-charge-monday

[7] Andy Ringswald, (2016, February, 1) On the lighter side, the attorney said Jake wants to be a productive member. Didn’t he try that already? Retrieved from http://facebook.com

The Making of a Lawyer: Growing beyond preconceived notions of Family Law

It is amazing how law school changes the way the mind works. Students enter into the hallowed halls with grand notions of how the world works. It does not matter how old the student is, or how much life experience he or she has. Every law student begins the journey with the same “skull full of mush!”[1] But, if we are lucky we will leave thinking like lawyers! Now in my second year of law school, I find myself questioning everything that I have ever believed about the judicial system. This, I have been assured by my professors is the normal process.

As I began law school, I believed that I would never be able to represent anyone in a divorce proceeding due to my faith and family values. Although I have gone through a divorce myself, the very thought of being part of breaking up the marriage of another bothers me. One of the most important statements made by the officiant of a marriage ceremony comes from the Bible, “[w]hat therefore God has joined together, let no man separate.” (Mark 10:9 New International Version) I will always hold this to be a sacred command. However, now that I am taking the law school course of Family Law, I question whether all couples are truly joined together by God. Free will is something that God has given to all of humanity. God may not be surprised by the decisions we make, but he does not make those decisions for us. If he did, no decision could possibly be a bad one!

Divorce has become so common place that no one is ever really shocked when a marriage ends. I have experienced divorce, both as a child and as a party to the divorce. No matter which side one is on, the result is equally tragic. Unfortunately, as tragic as the destruction of marriage is, the result of remaining in a toxic marriage can be equally, if not more destructive. In divorce, I do not believe there are winners, as everyone suffers a measure of loss. Sure, the lawyers benefit by getting paid. But if they are honest about it, they feel the loss at some level as well.

In Louisiana we have what is called Covenant marriage. Covenant marriage is designed to protect the Holy bond of matrimony. This is accomplished by requiring spouses to commit to working out difficulties arising in marriage through cooperation and counseling. Before entering into a Covenant marriage the couple is required to read the Louisiana State Pamphlet on Covenant Marriage and sign a declaration of agreement. Then the couple must go through premarital counseling with either clergy, or other qualified counselor. Although there are grounds for which divorce may be granted under Covenant marriage, the rules by which it is governed are very strict. My marriage to my wife is a Covenant marriage, and it is wonderful!

Once I am admitted to practice law in Louisiana I will have to decide whether I am willing to represent clients in divorce proceedings. At this time I am still uncertain, but contemplating the possibility. There are circumstances where I believe divorce is the right course of action. However, all efforts should be made to reconcile and save marriage under the principals of Covenant marriage. Even if a couple has contracted marriage under the standard marriage laws, the principals of Covenant marriage, in my opinion could save many marriages from destruction.

[1] Bridges, J., Thompson, R. C., Paul, R., Willis, G., Jenkins, G., Thompson, W., Williams, J., … Twentieth Century Fox Home Entertainment, Inc. (2003). The paper chase. Beverly Hills, Calif: 20th Century Fox Home Entertainment.

“Divorce Signpost Means Custody Split Assets And Lawyers” Photo by Stuart Miles. Published on 18 March 2014, downloaded from http://www.freedigitalphotos.net

“Ring Stock” Photo by Salvatore Vuono. Published on 26 November 2009, down loaded from http://www.freedigitalphotos.net