Friday, April 18, 2014

Limits on criminal background checks in employment applications

On Wednesday, Nebraska Governor Dave Heineman (R) signed a bill that bars employers from asking prospective employees if they have a criminal record. The prohibition is a provision in a law designed to reduce prison overcrowding. Nebraska is the 11th state to pass such a law.

Last month, in March, 2014,the City of Louisville passed a similar city ordinance limiting the the use of a prior criminal conviction as a screening question for many city jobs, and for venders doing business with the city.

Louisville Metro Ordinance No. 46-2014, approved 3-25-2014, Metro Code § 112.30(B), provides in part:
(1) Except as otherwise provided by state and federal law, the City shall not inquire about an applicant's conviction history until after it has been determined that the applicant is otherwise qualified for the position. City job applications shall not contain a "box" or inquiry regarding an applicant's prior convictions and applicants shall not be required to check or otherwise fill in a "box" or inquiry regarding an applicant's prior criminal conviction(s).
(2) If an applicant reaches the final stages of consideration for hire, the City shall notify the applicant that a criminal background check will may be conducted, at which time the applicant will be given an opportunity to inform Louisville Metro of any criminal background history that the applicant may have.
(3) In making a determination concerning a previous criminal conviction, the City shall consider the following factors:

(a) The nature of the crime and its relationship to the job for which the person has applied;
(b) The information pertaining to the degree of rehabilitation of the convicted person;
(c) The time elapsed since the conviction or release;
(d) Any information produced by the person, or produced on their behalf, in regard to their rehabilitation and good conduct;
(e) The age of the person at the time of occurrence of the criminal offense or offenses;
(f) The gravity of the offense(s);
(g) The probation or parole status of the applicant; and
(h) The public policy of the City, as expressed in this section, to encourage the employment of persons previously convicted of one or more criminal offenses.
Code § 112.30(D)(1) applies to venders doing business with the city:
Vendors who apply for business with the City must follow the practice that initial vendor employment applications not contain a "box" or a question of inquiry on the initial application regarding an applicant's prior criminal history and applicants shall not be required to check or otherwise fill in a "box" or respond to an inquiry regarding an applicant's prior criminal history on the vendor's initial employment application, unless as otherwise provided by or required by state and federal law.
EEOC has previously (4/25/2012 )issued Enforcement Guidance on the consideration of arrest and conviction records in employment decisions under Title VII of the Civil Rights Act of 1964.

In the early 2000s, grassroots organizers in San Francisco and Boston began urging local governments to remove questions about convictions from job applications so that people can be judged first on their qualifications.

The National Employment Law Project (NELP) is a champion of this "ban the box" campaign. The "box" refers to a check box on any initial employment application that asks about the applicant's criminal convictions. It is also a project of Legal Services for Prisoners with Children (LSPC), "All of Us or None."

The NELP website states, "Conservative estimates indicate that roughly 70 million people in the United States have some sort of criminal record, and nearly 700,000 people return to our communities from incarceration each year. Supporting the employment opportunities of people with records creates safe communities, reduces childhood poverty, and strengthens families."

Tuesday, April 15, 2014

Bargain basement self-help law books

A used book is always less expensive than the same book bought new, but when you buy online, there is the additional cost of shipping that must be added in to the total cost. Since used book sellers on are allowed a flat $3.99 shipping per book, and the mailing cost of many books is less than that, booksellers sometimes sell their used books for as little as $0.01.

I was surprised to see a book for a single penny the first time, but when I thought about it, it made sense. The bookseller still makes about $2 per book. Even including the shipping cost, a hard-to-find used book for $4, delivered to you door, is a very good deal.

This is the way I buy books, when I can, and I recommend it.

The following is, as of this morning, available used for $0.01 plus $3.99 S&H.

These deals come and go.

Fed Up with the Legal System?: What's Wrong and How to Fix It
(Nolo Press Self-Help Law)

Most people today consider out legal system to be riddled with problems, from courts that don't provide access to the citizenry to lawyers who protect their legal cartel while price-gouging consumers. Can the system be changed? Here are more than 40 suggestions for making our legal system fairer, faster, cheaper, and more accessible.

Where did the official civil forms go?

Where did the official civil forms go? It's a rhetorical question, because I know the answer. They were deleted by the Kentucky Supreme Court last year, effective January 1, 2013.

Before that, Civil Rule 84 (DELETED) provided:

The forms contained in the Appendix of Forms are sufficient under the rules and are intended to indicate the simplicity and brevity of statement which the rules contemplate.

Adopted effective 7-1-53; deleted effective 1-1-2013
Previously, the Appendix of Forms (DELETED)with the Kentucky Rules of Civil Procedure had offered twenty-five official forms ranging from a Summons (Form 1)and a Complaint on a Promissory Note (Form 2) to the Cover of Brief to be Filed in the Supreme Court of Kentucky (Form 25). These now deleted forms dated from 1953, when the Civil Rules were first adopted. The stated purpose for these forms was:
The following forms are, under Rule 84, sufficient to withstand attack under the rules, and the practitioner using them may rely on them to that extent. In addition, they serve as examples of the simplicity and brevity of pleading required by the rules.
I don't miss these forms. I don't regret their passing into oblivion. As far as legal forms go, they were not that great to begin with. Some of the forms were misleading. Official Form 18, Motion to Intervene as a Defendant Under Rule 24, was for Rule 24.02(b) only. It would not have worked well for a motion to intervene under Rule 24.01.  

I think it is better that these forms are gone. However, they are not forgotten.

Monday, April 14, 2014

Bespoke legal advice

'Bespoke' is one of those words that will haunt your dreams until you look it up in a dictionary. I'll save you the trouble. It's an adjective meaning, "made to fit a particular person." Typically, it is used to describe tailor-made clothes that are uniquely fitted a particular person.

One end of the legal service spectrum is the one-to-one personal relationship between an attorney and a client that depends upon a high level of mutual confidence and trust. A significant part of legal professionalism focuses upon protecting the integrity and confidentiality of the attorney-client relationship through rules of ethics and disciplinary enforcement. The communications between lawyers and their clients enjoy the protection of an evidentiary privilege that generally is not available to other types of relationships.

The other end of the legal service spectrum is the anonymous and impersonal marketplace of cavaet emptor. Mostly unregulated and unsupervised, the marketplace is full of uncertainty and peril. Anyone can visit a law library or search online and access the very same source materials and model forms that lawyers use. The challenge for the non-lawyer is to find the one suit out of thousands that fits. A custom made suit fits much better than one bought off the rack, but it is also much more expensive. So it is with bespoke legal advice.

Ignorance of the law is no excuse, they say, but ignorance of the law is rampant. Lawyers have a professional duty to educate the general public on legal rights and obligations, but that is no simple matter and doing it isn't easy.

If you read a dozen opinions on the topic of the unauthorized practice of law you will be impressed by the nobility of intention expressed for protecting the public from legal incompetence. You may also notice that the opinions never, ever, discuss the quality of legal service offered by the individual charged with improper encroachment upon the lawyers' domain. You might also notice that the complaints usually originate from lawyers and not from disgruntled customers.

These turf wars present an interesting puzzle.

The Kentucky Supreme Court Rule 3.020 defines the practice of law this way:
"The practice of law is any service rendered involving legal knowledge or legal advice, whether of representation, counsel or advocacy in or out of court, rendered in respect to the rights, duties, obligations, liabilities, or business relations of one requiring the services. But nothing herein shall prevent any natural person not holding himself out as a practicing attorney from drawing any instrument to which he is a party without consideration unto himself therefor. An appearance in the small claims division of the district court by a person who is an officer of or who is regularly employed in a managerial capacity by a corporation or partnership which is a party to the litigation in which the appearance is made shall not be considered as unauthorized practice of law."

The question is, what is the meaning of "any service rendered . . . [to]one requiring the services"? A non-lawyer might think it has something to do with "services".

Sunday, April 13, 2014

Unauthorized practice of self-help law

It's been nearly fifty years since the New York bar association sought to stop Norman Dacey from distributing his legal self-help book How To Avoid Probate. Dacey was generally contemptuous of lawyers and the legal system and he particularly disdained the probate system. Dacey's advice was to avoid the probate system at all costs, inter vivos trusts were an effective method for that purpose and his book was a detailed form book with instructions on setting up an inter vivos trust without the assistance of a lawyer.

Norman Dacey was not a trained lawyer, he was not admitted to practice law in the State of New York and he sold a lot of books there. When the New York bar sought to stop Dacey on the ground that his book amounted to legal advice from a non-lawyer, and it was therefore the unauthorized practice of law and illegal, the New York bar at first succeeded. New York County Lawyers' Association v. Dacey, 54 Misc. 2d 564, 282 NYS 2d 985, NY: Supreme Court (1967). It seems that Dacey's business went beyond the mere publication and sale of a legal self-help book. "Dacey operated in such manner that: 'as a direct consequence of his preparation of the Dacey trust arrangement, Dacey virtually assured himself of what amounted to a 6 percent sales commission on almost the entire assets of each estate . . . . ' ".

Upon appeal, the New York bar again prevailed . . . initially. In the Matter of New York County Lawyers' Association v. Dacey, 28 AD 2d 161, 283 NYS 2d 984 - NY: Appellate Div., 1st Dept., 1967, in a four-to-one decision, with Justice Stevens dissenting. Within two months the court simply reversed itself without elaboration and Justice Stevens' dissenting opinion became the majority opinion. In the Matter of New York County Lawyers' Association v. Dacey, 21 N.Y.2d 694, 287 N.Y.S.2d 422, 234 N.E.2d 459 (1967). The court held that Dacey's legal self-help book How To Avoid Probate was not legal advice and its publication was not subject to judicial control as the practice of law. Dacey's publishing activity was protected Free Speech.

The Dacey decision has since become the leading case on the subject of legal self-help publishing and the unauthorized practice of law, and it has been followed in many other jurisdictions.Dacey's book is still in print and it is still available for purchase in bookstores and online across the country, even in Kentucky. The Dacey decision has helped spawn an entire industry of legal self-help publications.

Kentucky courts have not addressed this legal self-help issue directly. The Kentucky Court of Appeals has quoted form the Dacey decision, with seeming approval, in a slightly different context. Edwards v. Land, Ky. App., 851 SW 2d 484 (1992)
'Without the establishment of an attorney-client relationship, an attorney cannot be said to render legal advice by simply providing a party with a statutorily required statement of the law. In such a situation there would not exist "that relation of confidence and trust so necessary to the status of attorney and client. This is the essential of legal practice — the representation and the advising of a particular person in a particular situation." ' [emphasis added]

Tuesday, April 8, 2014

Are lawyers idiots?

When an outsider considers the price lawyers pay WestLaw to access freely available public domain documents like appellate court opinions, statutes, rules of court and administrative regulations, one has to ask the question, "Are lawyers idiots for paying that price?". There is a certain convenience factor having all that stuff in one place, I guess. Hunting down statutes, rules of court and administrative regulations leads in 51 different directions and takes effort, but finding appellate court opinions is easy

An introduction to Google Scholar case law search

1. Google Scholar stores and indexes appellate court opinions.
2. Google Scholar offers advanced Google search options.
3. Google Scholar will send you email alerts when new opinions matching your search criteria are added.

4. Google Scholar  knows that I am located in Kentucky. You may not be so lucky.
5. You can select any state or federal court in any jurisdiction.

Google Scholar menus are flexible. The advanced search option can appear in at least two different places on the main page.

The Google Scholar advanced search option is the standard Google  advanced search option . . . very powerful.

As far as I can tell, all of Kentucky's appellate court opinions through the end of March, 2014 are indexed and available. The decisions rendered by the Court of Appeals on April 4, 2014 are not yet available.


Monday, April 7, 2014

Keeping up with the Kentucky Supreme Court: Best Practice

The various Kentucky rules of practice and procedure are subject to change at any time. If a particular rule is of critical importance to a case, it is of critical importance that the current effective amended version of the rule be known.

The Kentucky Supreme Court amends the individual rules of practice and procedure from time to time, but the Kentucky Supreme Court does not maintain compilations of all the rules. Currently, that job is performed by West Publishing Company. West's collection of compiled Kentucky court rules can be found online here.  Not long ago, the Kentucky Bar Association and the Louisville Bar Association maintained online compilations of the Kentucky court rules, but not any more.

Naturally, there is a short time lag between when the Kentucky Supreme Court issues an amendment to the rules and when the amendment is incorporated into the compiled version of the rules. There is usually/sometimes/frequently a gap between the issuance of an amendment to the court rules and the effective date of the amendment, so relying upon the online compilation of the rules is usually/sometimes/frequently a safe thing to do. Emergency Orders take effect when entered. The West online compilation indicates how current the online version is.

Great. The online version is current through March 1 and today is April 7. What has the Kentucky Supreme Court been up to since March 1? It's no big secret. It is all online at the Kentucky Court of Justice website here and this is what it looks like:

. The amendments are numbered consecutively by year and here is a clear indication of the rule being amended. The amendments are available as PDF files. What is lacking on this page is the date the amendment was issued and the date the amendment takes effect. For that information, it is necessary to look to the amendment itself and open the PDF file. The effective date of the amendment is indicated on the first page, at least it is on this example. I'm guessing the Kentucky Supreme Court formats these amendments the same way every time.

  To find the entry date of the amendment, it is necessary to go to the last page.

Boring indeed, but important.