TOP 2 PROBLEMS ENTREPRENEURS FACE

By Raees Mohamed, Esq.

"I am always doing that which I cannot do, in order that I may learn how to do it." Picasso's words reflect the risks of artists who endeavor to accomplish known ends, but without knowledge of the process to reach those ends. Picasso often did not know what his works would look like, until his final brush strokes dried. The average entrepreneur's endeavors mirror this motif. But, already laden with many steep learning curves and unknown risks, an entrepreneur cannot afford to follow an unknown road-map in hopes of relying on after-acquired foundational know-how. Therefore, the goal is to minimize risks and resolve common issues before commencing your own portrait. So your canvass is dry and your paint is fresh, now, what do you need to know? Let's start with two common brush strokes that always result in unnecessary risks and problems.

I.   Failing To Accomplish The Formalities.
If you have ever painted a picture or even done a basic sketch, there are basics you cannot ignore. Make sure your brush is moist or pencil is sharp, your paper is clean and mounted, all your mediums are in front of you, and object is in view. Entrepreneurs rarely follow such formalities. Business formalities can be expansive, but the most common are easy to identify.


A. The Art of the Agreement.
Gone are the days where stellar plans were done on the back of San Jose coffee shop napkins. Draw it up! Entrepreneurs frequently dislike writing down understandings between partners or third-parties. But well drafted agreements are foundational, and there are many. Agreements will clarify common issues such as: "Where does my liability start and end"; "Who owns the results of this work?"; "Is this confidential?"; "Can I leave this failing start-up and start a competing concept?"; and "What are the responsibilities of everyone I involve?". This is true even if you are venturing solo, because 99% of solos engage others to assist them in their endeavors.


The bottom line -- put it in writing and cover yourself. Agreements add clarity. No professional should be offended if you offer them something in writing.


B. Legal Structure.
What kind of legal entity is most appropriate for you? You cannot afford not to make this consideration. Ask yourself the following-- "Am I ok with losing everything I put into my venture and all my personal belongings, too?"; "What happens if I wanna bail?"; "Is this dude a partner?"; and "Is this dude entitled to profits or just a wage?"; and "Um, shouldn't you be paying for this too?". There are at least 10 other questions I ask my clients to consider when developing a legal structure. But the critical point is to ASK these questions and form the appropriate structure. You are risking more than you think by not.


Most entrepreneurs are all too familiar with the alphabet soup of legal entities out there, SP, LLC, C and S, 501(c)(3), P, GP, LP, LLP, and T (the basics of each legal entity would be an entire article itself). The application of each entity depends on the facts and circumstances of your situation. Sometimes, it's ok to be be a SP (sole proprietor). But the moment you engage in joint efforts with others, there's a presumption (albeit, a rebuttable one) that you are partners. Fun, right? Like Batman and Robin? You might as well call it quits now. Although certain unwritten, common law protections will exist, you don't want this to happen. The most important goal for an entrepreneur is to mitigate risks. Unsorted partnerships exponentially increase many risks. For example: unclear ownership of and access to intellectual property; no limits on entitlement to decision making and profits; unclear duties; and my personal favorite---joint and several liability---also known as "I am sued, so I am suing all of you, and we're all going down together." However, in certain circumstances a partnership structure is desirable, particularly when in combination with other entities. Thus, an entrepreneur must include legal entity deliberations as early as possible.

II. A Clear Plan Of Action.
Remember when your art teacher would ask you to "do your doodle in pencil first!" There's sound wisdom behind creating a "rough draft". The entrepreneurial process tends to turns these elementary skills off. You know you've made this mistake when your thoughts are "I'll deal with X when it happens", or "it's way too early to think about X issue." But hindsight is always 20/20, and certain mistakes cannot be undone or will cost exponentially more to fix later. A business plan is not enough. You need to think through legal solutions. For example, what kinds of issues will you have if you leave your present X job and start your own XYZ firm? Are you breaching non-compete obligations? Are you using/taking trade secrets? Are you infringing intellectual property rights? Are you tortiously diverting business? Are you breaching fiduciary duties? If your finger is on one of these issues, you likely have your hand on all!


A clear plan of action includes a thorough examination of ALL the issues, business and legal alike. Imagine the horror of presenting a business plan to an investor to only later realize that the premise of your idea is illegal! I've even seen "original" concepts that were clearly infringing another's intellectual property. Legal planning is clearly important. Sometimes the only way to undue a bad plan or no plan at all is a settlement agreement (FYI---you have been sued or the threat of a lawsuit is imminent.)


In conclusion, these issues are just an introduction to the atmospheres of risks and considerations an entrepreneur must make. Remember, Picasso was better situated than an entrepreneur to take a learn-while-you-go approach. And although business is truly an art and not a science, Picasso's artistic value never had to be "sold" like an entrepreneur.  Plus...he always had an eraser. 
 

Pfizer's RICO (not to be confused with "Rico Suave")

There's now a pill that makes your headaches go away, allergies disappear, mid-section tiny, mind sharper than ever, breasts larger, triglycerides lower, joints uber-lubricated, erection harder, menstrual cycles halt, and may even make your failed marriage work or build your credit back to 720...with no side effects, at all. What prescription medication can accomplish this, you ask? Just get any prescription medication you want and I can assure you some unapproved benefit, perhaps one of the above, will avail you. That's the secret art of big-pharma. Prescriptions don't get approved to provide such results, but they are promoted and marketed to represent that they can.

Italian Judge Nails Google, Threatens Publishers. Motives?

A Prosecutor in Milan, Italy indicted 4 Google Executives: David Drummond (senior VP and chief legal officer), Arvind Desikan (London-based marketing manager), Peter Fleischer(global privacy counsel), and George Reyes (ex-CFO)--- all on charges of criminal defamation and violation of Italian privacy laws. All but Arvind were convicted.

The case arises from an incident in 2006 where Italian high school students from Turin, Italy taunted and bullied an autistic classmate, and then uploaded the video to "Google Videos".

Is this ridiculous or is it just me? Google did not create this content. Nor do they edit, recreate, or modify the user's content. They are simply a publisher. To create criminal liability for a company that publishers over 20 hours of videos a minute just doesn't make sense. Does Italy expect publishers to edit this content? To hold these guys liable even for defamation is outlandish, never mind criminal defamation.

In the United States this case would likely never have made it anywhere thanks to certain immunities granted by Congress through the Communications Decency Act, Section 230. Under the Act, immunity is granted to providers of "interactive computer services" -- defined as "any information service, system, or access software provider that provides or enables computer access by multiple users to a computer server". Courts have interpreted this to include blogs, forums, hosting services, listservs, and related web based publishers. In short, the Act distinguishes internet publishers from print and traditional media publishers. Distributors bear to responsibility to edit content compared to traditional publishers, and thus traditionally, "publishing" behavior creates liability because of the power to control the (wrongful or illegal) content displayed. In its absence, online information providers would face increased risks of liability for trying to edit and remove defamatory third-party content than if they sat silent.

Many argue that Italy's policy's should reflect those of the United States and European Union laws regarding a provider's liability for third-party content. Defamation claims against providers under Section 230 are generally barred. Immunity also generally extends to claims for invasion of privacy, misappropriation and even negligent age verification procedures (Doe v. MySpace, 474 F.Supp.2d 843 (W.D. Tex. 2007).

However, even U.S. law may not provide sufficient protection for the specific allegations made against the Google Execs. Noteworthy, Section 230 immunizes web publishers engaged in traditional editorial functions, but expressly excludes criminal claims, communications privacy, and intellectual property claims. Thus, under U.S. laws, the criminal defamation claim would likely survive the Act. Believe it or not, criminal defamation is still on the books in many states, and is a statutory crime. However, criminal defamation requires actual malice, an element that would likely remain unmet against Google.

What's peculiar about the Italian Judge and the lead Prosecutor's decision, is that Google pulled the video within hours and also helped to nab the 4 students from video. Moreover, this decision comes down just as Italy issued a decree to make ALL video content on the web subject to Government control. And to add just a little more spice to this recipe for disaster: Italy's Prime Minister Silvio Berlusconi is the owner of the largest private TV conglomerate in all of Italy; the PM's company is also seeking around $800 million from Google for copyright infringement.

Hmmm...this is all starting to make a lot more sense. The issue is not based in Italian principles of human rights or respect. It's about money. If your private media conglomerate is threatened by free web-based media content, that means your ad receipts are going to drop. Do you want to be the one to compete with Google? Or would you rather use your PM power to channel media business down your pipe?

Noteworthy, the charges were sought by an advocacy group for people with Down Syndrome but the boy does not have the Down Syndrome.

Matt Sucherman - VP and Deputy General Counsel of Google - personal blog: http://googleblog.blogspot.com/2010/02/serious-threat-to-web-in-italy.html

The Art of the Smoke Screen

The Securities and Exchange Commission along with frustrated and defrauded shareholders of Bank Of America (past and present) await a Federal Court's ruling on a $150 million consent judgment stemming from an investigation of B of A's multi-billion dollar losses and bonuses cover-up. The single issue being litigated: concealment. That's right. Despite heavy handed SEC regulations and the plethora of alleged "safeguards" in place, the B of A's of the financial world somehow forget to disclose material information to shareholders. What's material? How about $15 billion in losses. Marginal. Right?

But you see, one must understand the sophisticated circuitry of a publicly traded company's financial smokescreen (e.g. magic - now you see it, now you don't).
If B of A didn't:
1. hide $15 billion in losses,
2. fire their former general counsel Timothy Mayopoulos for advising against the Merrill merger,
3. hide 7-figure bonus checks, and
4. ask, beg, and steal for $20 billion palm-grease in bailout funds in January 2009 to mitigate losses from the Merrill transaction...
...how could they have possibly successfully dooped shareholders into voting for the merger??

You see, the smokescreen was all necessary, because $50 billion is a lot of money to pay for a failing publicly traded investment bank, never mind paying $50 Bils for the additional 1 -4 above. After all, that's $50 Billion in OUR money that subsidized a FAILED merger. :)

So what's the remedy? Independent disclosure counsel? Independent compensation counsel? I thought Sarbanes Oxley took care of that? I thought it already costs $3-5 million to setup compliance measures, and several million a year after that to maintain safeguards.

But I suppose justice will be served --B of A may actually have to pay [drum roll] $150 million to shareholders and the big bad SEC. This is a beautiful microcosm of a much larger grand deception. Now, who's in for some insider trading? Anybody?

SEC Complaint filed against Bank of America Corp.: http://www.nylj.com/nylawyer/adgifs/decisions/011310sec_complaint2.pdf

NY Attorney General Andrew Cuomo's Complaint filed against Bank of America for Concealment: http://www.nylj.com/nylawyer/adgifs/decisions/020510complaint.pdf

Cold-Blooded Killer Defends a Fetus?

Scott Roeder from Wichita, Kansas, walks into a church and shoots an abortion doctor, Dr. George Tiller, in the head, killing him. His defense: protecting the unborn; or as he proffers, "Defense of Others". Defense of Others is a principle within criminal statutes that allows a person to justifiably use force upon an unreasonable but honest belief that circumstances existed that justify deadly force.

Defense of Others generally allows one to use that amount of force which one sincerely and reasonably believes is necessary to help another in danger. However, Kansas's Defense of Others Statute parallels Self-Defense principles. This means that under Kansas law, even if you acted wrongfully in defending the other, your belief that force was required must have been reasonable. Reasonbleness is determined by the facts surrounding the situation.

Ex: If Bob pulled the trigger on Barney the purple dinosaur and raised the defense of another flag, Bob better have reasonably believed that Barney had his finger on the trigger of a loaded glock with the safety off, pointed directly at the head of his dancing child co-star. Death of another was imminent, therefore, using deadly force to defend another was justifiable. But in reality, Bob had no idea that on this episode of Barney and Friends, Barney was taking his clan to Scottsdale Gun Club for practice shooting, and was actually just demonstrating proper shooting form. But as long as Bob can convince the jury that his belief of imminent death upon the child co-star seemed reasonable, Bob may be able to dodge a 1st Degree Murder conviction and receive Voluntary Manslaughter(this is significantly simplified).

Scott Roeder killed Dr. George Tiller and is on trial on charges of 1st Degree Murder. Looking at Mr. Abortion Doctor Killer's (a.k.a. Scott Roeder's) defense, one would posit, that an abortion doctor in church is not a serious imminent threat justifying a shot in the head. But I don't know...maybe after the sermon this church had some interesting worship rituals, who knows. But on the facts, no serious imminent threat was present. However, Sedgwick County District Judge Warren Wilbert is going to allow the defense to present evidence of Defense of Others, i.e., that Scott had the unreasonable but honest belief that circumstances existed justifying deadly force against Dr. Tiller because Dr. Tiller imminently going to kill another. In quite technical terms, that's wack! There are serious issues there.

In Scott's trial, this creates an opportunity for jurors to find him guilty of voluntary manslaughter instead of 1st Degree Murder. This could be the difference between 5 years in prison and a mandatory life sentence. That's huge. Not to mention the high profile abortion issue.

Under Kansas law, and in many states, 1st Degree Murder is the intentional and premeditated killing of another human being (yes dogs are excluded). Whereas, voluntary manslaughter is the intentional killing without premeditation, under circumstances of adequate provocation or other circumstances justifying deadly force. For example, a circumstance where a husband walks in on his wife "co-mingling" with the UPS man, upon which husband smashes a ceramic bedroom lamp on UPS man's head killing him instantly.

So was Scott Roeder's killing intentional and premeditated, or was it reasonably justified by provocation or some other justification?

Scott Roeder vigorously opposed Dr. Tiller's abortions for quite some time. Perhaps his subscription to "Prayer and Action News" magazine which advocates
"justifiable homicide" may say otherwise(?) Or better yet, Scott's participation in the Operation Rescue website, featuring "Tiller Watch". Hmmmm, clearly he never premeditated this one, right?

Would a reasonable person believe this was a premeditated abortion-doctor killing, or that Dr. Tiller was about to kill an innocent fetus and Scott had no choice but to take him out because he was an imminent threat to "another". Maybe there's some case law out there saying that a fetus qualifies as "another", and that attending church is an imminent threat justifying death.

The irony in all of this: Scott's get-away car was sporting a "Jesus fish".
Let's hope Kansas's judicial system comes out with the right result.

[THIS IS NOT A PERSPECTIVE ON ABORTION, BUT RATHER, A PERSPECTIVE ON THE KANSAS CRIMINAL COURTS AND THE TRIAL OF SCOTT ROEDER.]

http://online.wsj.com/article/SB126299947435522493.html?mod=WSJ_WSJ_US_News_5#articleTabs%3Darticle

http://www.time.com/time/nation/article/0,8599,1899143,00.html

http://www.kansascity.com/105/story/1673642.html

Cultural Insensitivity At Its Finest

A person that comprehends and respects another's culture, is a person that will gain the respect and understanding from the other. It's that simple. But this discussion warrants additional context. Showing such respect is particularly important when you are the leader of a country, namely, the President of the U.S.A. Additionally, cultural awareness is particularly important when you are the President of a country that is internationally notorious for being uncultured. How about this war we are in? And not to belabor the point, but we are also under a new era of presidency; a presidency that is charged with undoing many international blunders of a forsaken previous hegemony; a country that is viewed internationally as hypocritical for its treatment of detainees, ego-centric, and quickly losing ground as a super-power.

Given the context, it is not only reasonable, but applaudable for our President to show respect and understanding to another global leader. Cultural affinity and sophistication are two good reasons why President Barak Obama chose to bow to the Japanese Emperor Akihito. Yet, to the world's dismay and unsurprisingly so, certain neo-conservtatives could not stomach such tolerance to an important American ally. So they had to ruin it by vomiting their vile political pus all over it.

Let's take, for example, comments from an obviously intelligent neo-con, Mr. William Kristol, a leader and founder of many neo-con think-tanks. As a frequent commentator on radioactive Fox News, he stated on air: "I don't know why President Obama thought that was appropriate. Maybe he thought it would play well in Japan. But it's not appropriate for an American president to bow to a foreign one."

There you have it--Plain and simple. Obama didn't bow in prostration or put brown, er, more brown on his nose. He bowed out of respect and affinity. A gesture so common and expected in most Asian cultures that even martial arts opponents bow to each other just prior to beating the other into submission. And who else to speak such ignorance than Mr. Kristol, a leader of the neo-con political movement.

Let's review some of his more intelligent and memorable epitaphs:
1. "There is no health care crisis."
2. A war in Iraq "could have terrifically good effects throughout the Middle East."
3. Saddam was "past the finish line" in developing nuclear weapons. "He's got weapons of mass destruction." [anecdote - there were no WMD].

Think-tank? I can't square this dichotomy...it requires thinking, doesn't it?? I suppose in their minds, our President shouldn't be bowing. He should be turned around and bending over.

Here are 2 Yahoo articles on this discussion:

http://news.yahoo.com/s/afp/20091116/pl_afp/japanusdiplomacyasiaobama

http://news.yahoo.com/s/afp/20091120/pl_afp/usjapandiplomacyroyalscustoms_20091120005649

Objective Reporting via Editorials, the New Source of News

The recent tragedy that has befallen on Ft. Hood soldiers and America is unfortunate and shocking. But it does provide a unique opportunity for Americans to think critically of media "news reporting". Are news reports supposed to be informative, or instead be spoon-feeding readers digested and regurgitated vomit? We rely on reporting as the primary means of informing ourselves, yet we read blindly. Please think for yourself, and don't allow others to think for you. Compare reports on this event from major national and local news bureaus and note the bias and subtleties within.

Here's is a sample I pulled, and as Levar Burton would say “but you don’t have to take my word for it…” [-ta dan tun-] The objective reports will be obvious, compared to the articles laden with obvious political, religious, and social distortions. Keep in mind the primary goal for news reporting (should be) is to inform, not to convince. BTW, this only takes a few minutes, yet drives home an important principle: the need for objective reporting. TIP: depending on your browser, you may be able to right click each link and select "open in new tab". This will make panning between articles for comparison much easier.

Sample reports:

1. http://www.examiner.com/x-21184-Homeland-Security-Examiner~y2009m11d6-Army-Islamic-radical-kills-13-and-wounds-30

2. http://www.guardian.co.uk/world/2009/nov/06/nidal-malik-hasan-fort-hood-shooting1

3. http://www.washingtonpost.com/wp-dyn/content/article/2009/11/06/AR2009110601978.html

4. http://online.wsj.com/article/SB125755853525335343.html?mod=WSJ_hpp_MIDDLETopStories#articleTabs%3Darticle%26mg%3Dcom-wsj

5. http://www.star-telegram.com/texas/story/1743689.html

6. http://news.bbc.co.uk/2/hi/americas/8347501.stm

Legal Secretary Req's: "...required to perform sexually for us."

As the market for legal jobs (other than bankruptcy of course) continues to gloom, lawyers are busy contemplating creative solutions to increase their practice's profitability. Many firms are restructuring their compensation schedules for associate's pay and partner distributions. Some are trying to figure out if they still want those entry-level associates that were deferred and are receiving a stipend.

But some despondent lawyers are simply trying to take advantage of the increasing supply of legal "talent". Tightening legal job market = sweeping layoffs = large demand for legal employment + large supply of candidates = cheap fun for some leveraged lawyers. In particular, an Illinois immigration attorney in need an extra hand and perhaps other body parts, placed a classy advertisement on Craigslist to find exactly what he was looking for. He was quite candid about his desires. Most legal job seekers would not be searching for a job in the "Adult Gigs" section of Craigslist, but that's precisely where this lawyer placed the ad. Most legal job seekers also would stop in their tracks after reading peculiar language in an ad such as this: (But then again, it was the adult gig section, so maybe most job seekers browsing this section would apply-- like this candidate did).

"Loop law firm looking to hire am [sic] energetic woman for their open secretary/legal assistant position. Duties will include general secretarial work, some paralegal work and additional duties for two lawyers in the firm. No experience required, training will be provided. Generous annual salary and benefits will be provided, including medical, dental, life, disability, 401(k) etc. If interested, please send current resume and a few pictures along with a description of your physical features, including measurements. We look forward to meeting you." [emphasis added]

I struggle to understand the logic-- adult gig as a legal sec or legal sec looking for adult gig?

I suppose there's nothing wrong with this advertisement. Attractive lawyers and secretaries can be found (and are often desired) in the most prominent law firms throughout the country. That is certainly not an astounding revelation. But asking for a description of your physical features and measurements---really? This is where I ask: "Are you kidding me?"

But why should he stop there? After all, this lawyer was looking for real talent, and talented legal secretaries must be comfortable handling various positions. Thus, he did what any talent recruiter would do, and followed up with an email to the responding candidate. In addition to the photo and measurements requirements, his job description email to the candidate required the candidate to perform sexually for the attorney. Because as he put it, prior secs were "unable to handle the sexual aspects of the job". What aspects? How about this rather concise checklist: "required to have sexual interaction with me and my partner, sometimes together sometimes separate". We all know he meant recording the partner meeting minutes with a smile.

The lawyer initially denied his involvement with the ad, stating that someone maliciously placed the ad. He later admitted to the ad and the email followup--both of which were traced back to his pc at his office. The job candidate complained, which resulted in a smack in face for "Conduct prejudicial to the Administration of Justice and Misrepresentation to the ARDC
in the Course of a Disciplinary Investigation". Nice.

Not exactly the kind of genius recruiting strategy you would want to explain to the disciplinary committee. At least he'll be able to find himself a strong defense within the Professional Code: candor to the tribunal.

Read the complaint filed with the Illinois Disciplinary Commission; Count III.
The https://www.iardc.org/09CH0053CM.html

As an aside, apparently some legal secretaries are also unemployed Adult Giggers.

Texas traffice violation: $204 for not speaking English!

Leaving a car door open too long (Oregon), leaving a sheep in the cab of your truck without a chaperone (Montana), shooting live game from a moving automobile (Tennessee), failure to stop on a dime, failure to tap the breaks at least 5 times consecutively prior to making a right turn, ah what the heck, you Hispanic people don't speak English so here's one for that too. Seriously, a $204 civil traffic citation for not speaking English. Its happened in Dallas, TX to at least 39 drivers. This may come as a surprise to you, but not speaking English while driving is actually not an offense in Dallas. But nevertheless, some officers handed out the citation despite the presence of their more experience supervisors. This was only uncovered after a formal complaint and investigation took place. Needless to say, the complainant is retaining counsel--small lady.

A police chief in Dallas when questioned about the incident responded: "I was surprised and stunned that that would happen, particularly in the city of Dallas,"
Oh really? Why? Because TX is not red-neck enough or because it's only about 19 miles from the Mexico border? (ok, more like 22 miles).

What's next, driving-while-brown? Wait we have that now, thanks to the Federal Statute under U.S. Immigration Custom Enforcement's (I.C.E.) section 287(g) that allows civil traffic stops to turn traffic stops into visa interviews. Awesome!

Read the story: http://www.dallasnews.com/sharedcontent/dws/dn/latestnews/stories/DN-citations_23met.ART.State.Edition2.4bac015.html?nTar=OPUR

Scalia thinks lawyers aren't a productive part of society.

"Why isn’t she out inventing the automobile or, you know, doing something productive for this society?...I mean lawyers, after all, don’t produce anything."

What do you expect from a judge that is a literalist? Think of the most traditional lawyering job you can think of, may I suggest a prosecutor. What does a prosecutor do? Bring charges on behalf of the people (the feds, a state, city, county, or other municipality), and facilitate the application of a penal code against the alleged wrong doer. In a nutshell, prosecutors stand in the shoes of the people they represent, and facilitate the adversarial process to reach a just conclusion (obviously this is an ideal, often tainted by political pressures inherent in our public adjudicatory process). Is this not productive for society? Even the most primitive and ancient societies had some concept of a penal system through which charges were brought against the accused, a fact finding process would take place, and ultimately the guilty would pay the price. Perhaps not in the Salem witch trial. But you see my point. Even in this iconic traditional lawyering job, a prosecutor is arguably doing something quite productive for society.

How about lawyers in other areas of legal practice: accident injury, and medical malpractice ; real estate; securities; mergers and acquisitions; civil rights; trust and estate planning; patent, copyright, trademark, trade secrets; etc. What do these guys do? Of course each area of legal practice may be bifurcated into two discrete categories of practice, transactional and litigation, which can generally cross all areas of law. Transactional and litigation practices can be found within all areas of legal practice. Here, Scalia points directly to litigation and states that it offers no semblance of productivity to society. So let's address that directly. We can easily supplant the example of the prosecutor from above with any of the listed practice areas with litigation components, again, that includes almost all areas of practice. At the most rudimentary level, the job of a prosecutor and most litigators is essentially the same. So if you can buy into the view that prosecutors facilitate critical elements of society (e.g. the penal system), then similarly, all litigators facilitate the adjudication and settlement of some essential component of society found in each area of legal practice--- the injured receive compensation; buyers can buy in full confidence; businesses can raise capital and investors can mitigate risk; etc.

Examining the productivity of transactional lawyers is even easier. Transactional lawyers simply facilitate the exchange of bargains and mitigate risks in each area of legal practice. Let's just keep it that simple. Assuming this is true, the wheels of a productive society would slow if not completely halt if people could neither make proper bargains nor live free from risks. Take for example, primacy of contract.

Scalia's remark is quite awkward and damaging to our profession, and even himself (hello--he is a judge!) The only difference between building a car and being a lawyer is that our airbags are built to resist financial impact.

Article: http://blogs.wsj.com/law/2009/10/01/scalia-we-are-devoting-too-many-of-our-best-minds-to-lawyering/

ABA's Answer to Shoddy Legal Job Market: "Architecture"

As a national association representing the legal profession, the ABA should provide objective views and rationale answers to obvious and known contemporaneous issues in the profession--namely, the job slump. That's really not a hard premise to swallow. Having accepted that statement, I find it deceptive and even unethical for the ABA to assert that "As Traditional Legal Jobs Dry Up, Students Can Mold Unique Careers" (BTW that is actually the name of the article...no I am not joking). Knowing that reporters and writers for journals often desire a certain mood in their writing, I expected this to be sarcasm. But after re-reading the title and completing the 12 line article, I could not have been more wrong, the ABA was SERIOUS.

Read this excerpt from the article --"Meg Reuter, assistant dean for career planning at New York Law School, is among those who see the bright side. 'American law schools now produce more graduates than there are traditional lawyering positions,' Reuter told the National Law Journal. 'There is more opportunity to secure an alternative legal job, which often can be better renumerated.'"--
I wonder if Meg knows that "renumeration" is defined as "compensation for services rendered", and if so, does she know that "alternative legal job" hardly EVER means better pay. Like most recent law grads, whenever I hear the words "alternative" and "job", I see an image of a flame-thrower and my law school diploma. Also, choosing "opportunities" for alternative legal jobs is a decision that many make before coming to law school. Often the decision to take on an alternative legal job in a downward sloping job market is not an opportunity at all, but instead a cost.

As an aside, I noticed that NYLS is not exactly a highly acclaimed law school (T4?), and considering that they exist in perhaps the most highly competitive legal environments in the US (Manhattan, NY) Meg's career planning office must be entirely about alternative legal jobs. Just a thought.

Perhaps the cherry of the entire article is Meg's insightful and highly analytical framework for recent law grads in the job market, QUOTE: --"Said Reuter, 'When you decide what type of lawyer you want to be, you will be more attractive to the employers at the kind of jobs you want.'"-- Type of lawyer? How about an employed lawyer?

Article: http://www.abajournal.com/news/a_traditional_legal_jobs_dry_up_students_can_mold_unique_careers

Create Your Own Intelligence: Bush-era Techniques Were Super Good.

So apparently the CIA's much criticized interrogation techniques do in fact yield really good information. Of course they do---they produce the intelligence required for Bush's henchmen to walk the beaten path of governance by self-interest and subterfuge (i.e. WD-40, I mean, WMD?).

You see, hindsight is 20-20, and formerly classified CIA reports are golden for this reason. We can get a glimpse of the raw, mostly unedited, pathetic and hypocritical governance that we sometimes call a democratic republic. Absolute control over the dissemination of information (information is really a good euphemism here for intelligence) becomes a ruling party's most powerful weapon against its own people. How else can the public's perspective and the political thought-process be manipulated to conform with self-interested rulers? After all, information brought us the War in Iraq.

Enough sentiments, here's an interesting thought: What IF a thorough psychoanalysis of detainees revealed that our CIA's interrogation techniques are actually counterproductive? A scientific paper published in Trends in Cognitive Sciences details the enhanced techniques our agents use in producing...creating...extrapolating information from detainees.

The conclusion is simple: CIA techniques are damaging to the truth. But who's looking for the truth? It's information we are after, and if we can essentially plant the information we want--it doesn't get much better than that.

Yahoo Article: http://news.yahoo.com/s/ap/20090921/ap_on_go_ca_st_pe/us_cia_interrogation_study

Gilbert, AZ Parents "Fear" Exposure to Obama's Message!!!

Parents of Gilbert, AZ public high schoolers fear exposure to Obama's education address will corrupt their children. I couldn't help this blog...I think you know what's coming.
Are you kidding me? The main concern seems to be fear of exposure to partisan politics, because the speech might be perceived as political speech, and it may "coach" students into favoring a particular political flavor.

Let's address the issue directly, and just assume Obama's education reform speech WILL be 100% political. And the problem is...? Exposure to politics and the political process is precisely what the young adult demographic needs. Unfortunately, teens are not exposed to the political process early enough to gain an interest or relate the PROCESS to their lives. As a result, this demographic is slow in developing a taste for politics, and is silent on many issues that directly affect them or will affect them.

Parents that fear their children may form a biased political opinion need to understand what their children in public schools are already being exposed to. Perhaps they would then realize that political speech should be the least of their concern. High school is a social institution, where students develop a taste for an array of social influences. Does politics exist in a vacuum independent of this social institution? Besides, most high schoolers are capable of developing their own interests and opinions on political issues, regardless of the slant being portrayed. But the initial spark must occur during formal education for young adults to comprehend and appreciate the political process. It's a this point in their education that they should gain an appreciation for how this country functions.

Besides, Obama's address is about EDUCATION, maybe that's why it seems so out of place in Arizona (we are one of the lowest ranked states in education). I think parents are afraid kids may learn something from Obama. Just imagine if they heard such a speech one year ago, they would have learned that "nuclear" is pronounced "new-cle-er" and not "nuke-Q-ler" [just listen to this http://www.youtube.com/watch?v=hORaebYWDwk]

So when precisely should young-adults be exposed to politics?? Wait, wait... I know...when they impregnate or become pregnant from their first sexual experience they can wait a few years until they are old enough to vote on abortion issues. At least then political issues will become relevant.

Here's the article. http://www.azcentral.com/community/gilbert/articles/2009/09/03/20090903gr-obama0905.html

Here's a sample of what Obama is most likely to say: http://www.whitehouse.gov/blog/09/03/10/Taking-on-Education/

Advising Start-Ups, and Creating Opportunities

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The link is also a shameless plug about my experiences and accomplishments with the TVSG. Yes, that's my pic in the link. Just read it.

http://www.law.asu.edu/?id=1938

The "Clear and Convincing" Fraud by Lawyers

High-dollar law suits magnetize the devil in some lawyers. I suppose the $39 billion plaintiffs sought from Dole was no exception. US lawyers, mostly from Texas and California flocked to Nicaragua to recruit injured plaintiffs, associate with local lawyers, and setup in-house sperm labs. Seriously, in-house sperm labs.

The claims centered around Dole's use of the pesticide DBCP and the sterility it may have caused to thousands of banana crop workers. Although many, of the claims were legitimate, outright fraud undermined many of the plaintiff's claims. What kind of fraud? Well, ask Juan J. Dominguez, a personal-injury lawyer from now under criminal investigation for his actions. He paid "captains" to find plaintiffs, setup a sterility lab in his law office, and was even awarded damages for people that were later determined to have never been employed at the plantation. A recent Superior Court of California case dismissed a series of DBCP claims based on clear and convincing evidence of fraud by plaintiffs and their lawyers.

Because lawyers jeopardized the integrity of so many claims, many legitimate claims were dismissed. Sterile workers could have had some recovery but for greedy lawyers. What happened to the Professional Code of Conduct that these lawyers swear to? Lawyers are constantly confronted with ethical dilemmas, which is why the bar in each state has a separate set of rules regulating the practice of law. Prohibitions on soliciting clients, collecting fees for referrals, frivolous law suits, tampering with evidence, etc. etc. are all specifically addressed.
But the professional code is nothing for some lawyers who will do anything to collect a hefty fee. Unfortunately, such events taint the integrity of our profession. The impact such impropriety has on the public's perspective of our profession is devastating. Would all lawyers behave in this manner if given the chance? Is fraud in litigation the way cases of this magnitude are won? Do lawyers represent causes, or their own financial interests? The Dole DBCP fraud cases make these questions hard to answer.

To the legal professional, these conflicts are an inherent part of providing legal services--similar to those conflicts that arise in other professions. To the lay person, this IS the profession.

Read the article in WSJ: http://online.wsj.com/article/SB125061508138340501.html

Case opinion: http://online.wsj.com/public/resources/documents/WSJ-Dole_Chaney_ruling.pdf

So Sue Me for Blogging (?)

It's nothing new: what you say can hurt you. But it seems that the prevalence of social media is sparking more litigation now than ever. According to a recent WSJ article, there were 106 civil lawsuits against blog-type users, resulting in $17.5 M in damages against them. Social media makes being sued almost too easy. Think about the most obvious legal feet you can trip over: copyright infringement, trademark infringement, defamation, and libel. Posting someone else's videos on YouTube, uploading copied pics on Facebook, making rash comments on Twitter, these online activities have become ubiquitous.

What most social media participants tend to neglect are the very thin protections (if any) they have. If you post a video or image that's infringing, at least you may be afforded an opportunity to take it down before a suit or injunction occurs. But, making comments that you would only otherwise make on a bathroom stall which can now be made on a public forum reaching thousands in an instance can be dangerous stuff. It's pretty hard to unring a bell, don't you think?

ASU's OBAMA Commencement

Here's a highlight of our commencement with the President Obama:

Commencement 2009 from ASUF Admin on Vimeo.

You can read a transcript of his quite captivating commencement speech here:
http://www.asuchallenges.com/commencement2009/obama.asp

Who Regulates the Regulators?

"The mission of the U.S. Securities and Exchange Commission is to protect investors, maintain fair, orderly, and efficient markets, and facilitate capital formation."

That's a direct quote from the SEC's "How the SEC protects Investors" webpage. Arguably, the single most important element for sustaining this mission is fairness. How does the SEC sustain fairness? By maintaining market efficiency and transparency through public-disclosure. The dissemination of market information is critical to fair dealing and fraud protection in any market. But it's of particular importance in the securities market because this information is often the sole factor for the public to rely upon. For example, I can't exactly call up management at Google, AIG, Citibank, or GM and say "hey guys, so tell me, is there anything that could go wrong this quarter or any long-term debt obligations you guys wanna tell me about? I got about a mil riding on you?" The SEC mandated Form 10-K easily disposes of such matters, allowing investors a fair chance to invest w/o blind reliance. Undisclosed risks would pollute the essential risk-return relationship trading markets are known for.

Ask yourself, if there are measures in place to check disclosure, protect investors, maintain fairness, and efficiency, why does the public get dooped so frequently??? Is it the analysts? Let's not forget, Enron was mysteriously rated as a top pick by analysts across the board only weeks prior to their earnings recalculation announcement, when their shares fell from $90 to .50 cents. When do the turds actually start hitting the fan?

Let me sprinkle some more pepper on this well done issue: Today's WSJ reports "Insider Trading Probe at SEC". Ok so a few guys that were supposed to be our watchdogs ate the steak. What's that got to do with you and me. How about regulators using information for personal profit, not public protection. Even worse, how about the public relying on a false sense of protection? Partial protection is like having breaks that work once in while-- would you feel comfortable doing 65 mph knowing you could "sometimes" rely on your breaks?

Quote from WSJ: The SEC has "'essentially no compliance system' to detect potential insider trading. It said the agency didn't conduct spot checks on trading and the various offices that received trading reports didn't share information."

Additionally: "Any trades employees make have to be reported to the agency's director of personnel within five business days. The report said the SEC doesn't have someone in that position but that there is an associate executive director in Human Resources. It said several SEC employees were unfamiliar with the rules or misunderstood them."

My point is this: How can we rely on financial policing by persons who act in self-interest and don't even have the means to protect us? That's not to say the SEC is to blame for every financial fallout, but then again...

http://online.wsj.com/article/SB124241028545124563.html#mod=testMod

3L Tells Dean to Back-Down the Shananigans, and Refund his Tuition

The job market, yeah it's pretty bad out there. And if you are a graduating 3L, who are you kidding, there are plenty of jobs out there: Radio Shack, McDonald's, Taco Bell. Heck, there is a Wal-Mart not too far from my house. I am sure you can make partnership there.

My sentiments are shared far and wide. In all honestly though, we are not entitled to special treatment. These are tough times, and resilience will be rewarded. But some 3Ls have gone a little too far. Below are a few snippets from an actual letter a Loyola University Chicago School of Law wrote to his Dean:

"After yesterday's disaster of a panel discussion on the financial crisis of the nation, I am so angry, I can't even sleep.

I am officially giving notice that I will refuse to answer any exam question that goes beyond the bounds of the course description and I fully expect to graduate 5 days later. I will be encouraging my fellow 3L's to do the same. Should this letter or my course of action be answered by any negative action that would affect my graduating law school, I will send an open letter the the entire Chicago legal community explaining to the potential employers of future Loyola Law grads that professors at Loyola School of Law are given free reign to teach whatever they want despite the school's official course catalog and descriptions."

Now I know I am not the only one. But this is really going out on a limb. There's more:

"Please read the following:

282 - Accounting for Lawyers (3). This course is intended to provide an understanding of basic accounting principles and their practical application in connection with the practice of law. There are no prerequisites and no requirement of a business background. Topics covered include fundamental principles of accounting for business enterprises; how to analyze and understand an income statement, balance sheet, and statement of cash flow; basic concepts of revenue recognition; conventions for capitalization versus expenses; and how to recognize possible manipulation of financial and accounting statements. Recent high profile accounting scandals such as Enron and WorldCom will also be explored.

I chose my classes very carefully this semester such that nearly every class I am taking was directly, and practically, applicable to my job after graduation, including Accounting for Lawyers. Because I don't have a degree in business, economics, or accounting, and because I have never taken an accounting class, I, like many of my fellow classmates, took this class for its practical nature. In light most favorable to Prof. [REDACTED], we spent perhaps two class periods discussing the above basics. He actually pointed us to some website and basically told us to teach ourselves basic accounting. If that what we wanted to do, we wouldn't have signed up for this class."

Now here's his pitch, get ready for this:

"I feel that Loyola and Professor [REDACTED] completely defrauded the students in this class and misrepresented this class by offering the above course description and as a result, I have wasted the proportionate amount of my tuition dollars (approx $3000) taking this class. Prof. [REDACTED] has repeatedly, and I do mean repeatedly, announced to our class his extreme displeasure in the Federal Government's propping up the recently filed financial institutions, at a great cost and little benefit to the average American citizen. It his strong opinion that CEO's who promise shareholders one thing but do another to line their own pockets should not be so greatly compensated.

I challenge Prof. [REDACTED] to live up to his own words. Because he completely failed to meet the objectives of this course as described and sold to us, that Loyola refund each student in this class the proportionate amount of tuition paid. As compensation for the complete waste of our time in taking a class we did not want when instead we could have enrolled in another more practical class, I urge Loyola to make sure that everyone in this class gets FULL CREDIT for the course, and a grade that reflects the student's understanding of topics that are limited to those described in the course description. And considering what little was taught to us, it should be a short exam."

I share his sentiments about some professors creating class substance while using the bathroom right before class. But this is really out there.

Cheers to an awesome profession.

Indian-Democratic Response to Bad Politics!