Fun With the Kids

Well, Mike and I woke up early today and headed for the courthouse bright and early - and we were excited about it. Luckily, we weren't facing traffic tickets, jury duty or an impending lawsuit like most trips to court. Rather, we were headed to court this morning to help videotape an event for the North County Bar Association here in San Diego - and it wasn't your typical CLE presentation.

On My Honor was the name of the event and it gave over 1,000 kids a taste of the legal system - from inside the courtroom. We had an entire 8th grade class take part in a court room simulation, complete with a district judge, bailiff, and court reporter. Needless to say, I am sure it was an experience most of the kids will never forget and I saw quite a few trembling hands during opening statements and witness examination. But some of the kids were thoroughly prepared and did an excellent job.

I thought it was a great idea and a great example of a bar association serving their local community, and I only wish I had such a resource at my disposal as a youth. In life it's not always easiest to give your time to others (it's hard enough getting time for yourself sometimes), especially with our daily schedules and everyday demands. But the event was something that I will never forget and it makes me only want to get involved more.

And who knows ? Maybe there was a future Ninth Circuit judge in court today.

People’s Republic of Hackers

Well, our Blade Runner future is finally here.

For those of you not paying attention, cybercrime has become a major epidemic in this country and around the globe – just look at the sentences that Albert Gonzalez and “Max Vision” got. Unfortunately, it takes a massive company like Google to get hit for anybody to actually pay attention.

I took a little sabbatical in between graduating from law school & passing the California bar exam and becoming the Director of Legal Education at Attorney Credits. And in between that period I didn’t pay much attention to the law and trends in this country. When I came back to the law, the two biggest things that caught my attention was how far behind the technology ball attorneys were, and how nobody seemed to be paying any attention to cybercrime. While the “war on drugs” may get all the attention and resources in this country, cybercrime costs our country much, much more – and there is relatively little that is being done to stop it. State and local law enforcement simply do not have the resources to fight this new type of crime, and at the national level not very much is being done about the problem.

So let’s check your cybercrime aptitude. Don’t worry, there is but one quick question to consider in this exam. When you think of the work ‘hacker’ what comes to mind? If you answered ‘pimple faced 16-year old kid breaking into government servers on a Friday night from his parents basement’ you answered very wrong! Cybercrime and hacking have evolved from single pranks committed by bored geeky teenagers to sophisticated crime rings run by Eastern European and Asian criminal syndicates. Symantec reported that 75% of all companies experience a cyber attack in 2009!

And now China is beginning to gain the capabilities to threaten our national security with their (alleged) state-sponsored hacking. People fail to realize that China has clandestinely been engaged in hacking for years in the financial sector trying to subvert and destroy Western economies, and it’s only a matter of time before they turn their recourses on our electronic infrastructure – a major threat to our national security. Indeed, many commentators feel that China is gearing up for war in the 21st century – CyberWar.

It’s only with huge companies like Google getting hit with a massive cyber attack in January from inside China that cybercrime gets any attention. And I still wonder if anybody really cares? The attacks against Google came from an elite Chinese university and a vocational school. Evidence acquired by a United States military contractor involved in the same attacks as Google has even led investigators to suspect a link to one single specific computer science class, taught by a Ukrainian professor. According to a New York Times article, the Chinese schools involved are Shanghai Jiaotong University and the Lanxiang Vocational School.

Not surprisingly, Jiaotong has one of the top computer science programs in China and its students are fresh off beating Stanford and other top-flight international universities in the “Battle of the Brains” – an international computer programming competition organized by I.B.M. Located in east China’s Shandong Province, Lanxiang is a massive vocational school. Again, not surprisingly, the school was established with military support and it trains computer scientists for the Chinese military. Further, the school’s computer network is operated by a company with close ties to Baidu, the dominant search engine in China and a competitor of Google.

Experts have differing opinions over how to interpret the finding that the intrusions appear to come from schools – as opposed to Chinese military installations or government agencies. While the Chinese government maintains the position that it does not sponsor hackers, in American government circles some have privately circulated a document asserting that the vocational school is being used as camouflage for government operations. Computer industry executives and former government officials feel that its possible that the schools were cover for a “false flag” intelligence operation being run by a third country. And yet others speculate that there is no cyberwar component at all and the cyber attacks against Google and others were for financial motive. In this form, the hacking would be a giant example of criminal industrial espionage, geared towards stealing intellectual property from American technology firms.

According to a New York Times article, independent researchers who monitor Chinese information warfare caution that the Chinese have adopted a highly distributed approach to online espionage. This makes it almost impossible to prove where a cyber attack originated. “We have to understand that they have a different model for computer network exploit operations,” said James C. Mulvenon, a Chinese military specialist and a director at the Center for Intelligence Research and Analysis in Washington. Instead of the United States model that uses “tightly compartmentalized” online espionage within its government agencies, the Chinese government often employs volunteer “patriotic hackers” to support its policies.

More proof of China’s new online war comes from a report on Chinese online warfare from Northrop Grumman entitled, “Capability of People’s Republic of China to Conduct Cyber Warfare and Computer Network Exploitation.” The American aerospace and defense technology company prepared the report for the U.S.-China Economic Security Review Commission in October 2009. In the report the American defense contractor identifies six regions in China with military efforts to engage in such attacks. Jinan, site of the vocational school, was one of the regions listed in the report.

In the Google attack (Intel, Symantec, and more than 20 other companies were also targeted), new forensic analysis is beginning to illuminate new details of how the cyber criminals gained access to internal company corporate servers. The perpetrators targeted specific employees within the companies they attacked and worked feverishly to hide their tracks. They did this by using a man-in-the-mailbox scam — a clever technique that exploits the natural trust shared by co-workers. After infecting and controlling one computer inside the companies, intruders then circulated an e-mail with an attachment that contained malware that was highly likely to be opened by the second victim. This malware contained in the attachment made it possible for the intruders to take over more target computer.

Of course, the Chinese government denies all ties to the hacking. You can read more here.

You can read about more about the tales of Chinese Hacker Li Jun here. Li Jun is the author of the Panda Burns Incense computer worm, "the first case of organized cybercrime in China, using a computer virus," according to U.S. technology security firm Symantec Corp.

You can read more about cybercime and the cost to global business here.

And you can read about an L.A. law firm who was the victim of a Chinese cyberattack here.

35 Revisions to the Rules of Professional Conduct

For almost a decade, the Rules Revision Commission of the State Bar Board of Governors has been busy working the California Rules of Professional.[1] In November 2009, The California State Bar's Board of Governors approved nearly three dozen new or amended professional conduct rules. These thirty-five rule revisions deal with issues ranging from attorney’s fees to lawyers serving as third-party neutrals.[2] Many view this as a key step on the road toward updating the state's standards governing attorney conduct.

“This approval is a first step towards finalizing a much needed process,” states Alan M. Insul, “The result of the Rules Revision Commission’s work is something every California lawyer will need to review and address in their practice.”[3] Although the Board of Governors approved the rule revisions in November 2009, they won’t take affect for quite a while.[4] At the present time, these rules are under public comment until March 12.

The proposed rules and accompanying comments were part of the first group of recommendations presented to the board of governors for its consideration. None of the rules will go into effect, however, until after the public comment period – and unless and until they are approved by the California Supreme Court. In fact, the public is invited to speak at a March 11 public hearing in Los Angeles on proposed changes to the California Rules of Professional Conduct, which govern all lawyers in the state.

One major reason for the changes – the revisions are an attempt harmonize our ethical rules with the ABA’s Model Rules. California is the only state in the country that does not follow the American Bar Association’s Model Rules of Professional Conduct in some form or another. These Model Rules form the bases of many states professional rules of conduct.

Indeed, the new California rules will even follow the numbering of the ABA ‘s Model Rules – this may take some time for California lawyers to adjust to.[5] For example, Rule 3-110 used to detail Failing to Act Competently. Just like the ABA numbering system, the rule on competence will now be California Rule of Professional Conduct 1.1.

Some of the Important Rule Revisions:

• Require an attorney serving as a third-party neutral to explain the difference between an advocate and third-party neutral to someone unlikely to be aware of the distinction[6]
• Retain California’s current standard prohibiting, for disciplinary purposes, an “unconscionable fee.” The commission had been considering adopting the ABA’s standard that prohibits an “unreasonable fee.”[7]
• Follow the ABA Model Rule that expands ex parte communication to include all represented “persons.” The current rule applies only to a represented “party.”[8]
• State that a lawyer shall not intentionally, recklessly, or repeatedly; fail to perform legal services with competence[9]

After the public comment deadline terminates on March 12, the 35 rule revisions will then be voted on by the State Supreme Court. The Supreme Court has the ultimate authority to then amend or drop the rule revisions. So stay tuned California attorneys, you are about to practice under an entirely new ethical regime. According to State Bar President Howard Miller, “The work is now moving along … and the timetable on the rules revision calls for completion of the redrafting and renumbering during the summer of 2010 and then submitting the rules to the California Supreme Court, which has final authority for their adoption."

For more information from the State Bar of California on the 35 rule revisions click here.

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[1] The Rules of Professional Conduct of the State Bar of California are attorney conduct rules

the violation of which will subject an attorney to discipline. Pursuant to statute, rule amendment proposals

may be formulated by the State Bar for submission to the Supreme Court of California for approval. The State Bar has assigned a special commission to conduct a thorough study of the rules and to recommend

comprehensive amendments.

[2] For a complete discussion of the history of the amendments, please see The Discussion Draft to the Proposed Rules of Professional Conduct of the State Bar of California

http://calbar.ca.gov/calbar/pdfs/public-comment/2009/Revision-Rules-Professional-Conduct-12-Rules_01-11-10.pdf

[3] According to Free Press Release Alan M. Insul is a Los Angeles-area lawyer who limits his practice to the areas of corporate, business, and real estate.

http://www.free-press-release.com/news-thirty-five-changes-to-rules-of-professional-conduct-approved-1263463964.html

[4] http://www.abanet.org/cpr/cali.pdf

[5] However, the specific conflicts rules included together in Model Rule 1.8 are assigned separate numbers in the proposed California rules.

[6] See proposed Rule 2.4.

[7] See proposed Rule 1.5. 


[8] See proposed Rule 4.2.

[9] The rule defines “competence” in any legal service as applying the diligence, learning, skill, and mental, emotional, and physical ability reasonably necessary for the performance of such service. See proposed Rule 1.1. 



Literature and the Law

The great beauty of CLE is that whatever state you may practice in, there are only a few classes that you are required to take. California is one of the most burdensome, with six required units of legal ethics, substance abuse, and elimination of bias.

However, once you complete these required courses, there a number of other course that you are free to choose from to fulfill your minimum continuing education (MCLE) requirement. And as Director of Legal Education, I have noticed that there are quite a few attorneys that enjoy taking courses in their selected field to enhance their professional competence. However, there is also a large segment of attorneys out there who also enjoy taking a number of courses from outside their direct discipline. Indeed, the freedom of choice is an awfully powerful weapon in your hands.

And at Attorney Credits, we implore you to scour our course list in search of new and enjoyable courses that you might want to take – not just because you have to, but because you actually want to learn about a new subject or a new field of study. And one of the most popular courses on our website can teach you something new if you are looking for a little diversion, but it can also be very useful in a number of ways for many different types of attorneys.

For attorneys who rely on a pen or word processor, Literature and the Law is a very entertaining course and very useful at the same time. Taught by author Ona Russel, the course examines the connections and intersections between the two disciplines of Literature and Law. While you may think that these two fields of study are vastly unrelated, after spending an hour with Ona you may feel differently.

By examining rhetorical rigor, creative arguing, and reasoned empathy from works by Faulkner, Melville, and Dickinson, Dr. Russell details how literature can add practical value to the legal process – in the courtroom, at the bargaining table, and in the office. Attorneys who understand and harness the power of words and language will craft better arguments, write more persuasive briefs, and become better counselors – in addition to being entertained by Dr. Russell and her excellent analysis of the issues.

After all, attorneys are “wordsmiths.” Why not learn from some of the masters?

Employees or Independent Contractors: Traps and Pitfalls to Avoid

The economic downturn has not just hurt individuals, it has also left the Federal government and state governments with huge tax shortfalls.

As a means of closing this tax gap, the IRS is beginning to seriously scrutinizing working relationships — especially the employee/independent contractor designation. Facing record budget deficits, many federal and state officials are starting to aggressively pursue companies that misclassify employees as independent contractors.

The cornerstone of this new effort is President Obama’s 2010 budget which calculates that the federal crackdown will yield at least $7 billion in lost revenue over 10 years. The Obama administration plans to hire 100 more enforcement personnel and the I.R.S. has already begun auditing 6,000 companies to see whether they are in compliance with the law. Many states across the country have also have started to step up enforcement efforts, often in the form of stricter penalties for misclassifying workers.

The problem – in order to cut costs a numerous companies have chosen to wrongly classify regular employees as independent contractors. Companies that intentionally misclassify employees as independent contractors avoid paying Social Security, Medicare, and unemployment insurance taxes for those workers. And in this tough job market, workers are slow to rock the boat and challenge the misclassification.

This is not a small or random problem – many companies are intentionally passing employees off as independent contractors. The Department of Labor estimates that up to 30% of companies misclassify employees. And according to a New York Times article Ohio’s attorney general estimates that his state has 92,500 misclassified workers, potentially costing the state $35 million a year in unemployment insurance taxes, $103 million in workers’ compensation premiums and $223 million in income tax revenue. And last April, California Attorney General Jerry Brown won a $13 million judgment against companies that had misclassified 300 janitors, cheating the state out of payroll taxes.

At a time when companies are struggling, many in the business community are a little baffled by the increased federal and state scrutiny. In the aforementioned New York Times article, Randel K. Johnson questions whether the goal of raising a legitimate rationale for reclassifying workers. Johnson is the Senior Vice President with the United States Chamber of Commerce.

As Johnson also aptly points out, the laws are unclear in this area, and many employers are simply confused by the gray area that the law presents. And I would have to agree. Just listen to a tax attorney run through all the different factors and guidelines (that come from numerous sources) used to distinguish between an employee and independent contractor – your head starts to spin after a while.

Very generally stated – workers are generally considered employees when someone else controls how and when they perform their work. In contrast, independent contractors are generally in business for themselves, obtain customers on their own and control how they perform services. Among some of the most often misclassified workers are high-tech engineers, truck drivers, home health aides, and construction workers.

Companies are also able to circumvent many laws – minimum wage, overtime and antidiscrimination – by passing off regular workers as contractors allows. For example, independent contractors do not receive unemployment insurance if they are laid off or workers’ compensation if they get injured. And independent contractors rarely receive health insurance or other fringe benefits regular employees such as retirement benefits.

If you are an employment attorney or represent business, please join tax attorneys Stuart Hurwitz and Michael Sanders for Employees or Independent Contractors: Traps and Pitfalls to Avoid as they discuss the traps and pitfalls that your clients must avoid when making this difficult decision, and the consequences they face if they make the wrong choice. The course covers the IRS three point test, provides case examples, analyzes case law and details the consequences of misclassification.

CLE For the 21st Century

"What sculpture is to a block of marble, education is to the soul."

— Joseph Addison

When we are younger I think we develop a misconception that as we go through life there is a day when we acquire all the answers and that our education is somehow complete. However, as I have progressed I realize just the opposite is true – the older I get the less I really know. And in order to constantly improve you must continue to educate yourself in this constantly changing world. It seems that every day brings a new advance in science, a major development in business — or at least a new App for the iPhone.

While there are some techniques and practices that don’t go out of style, as society changes and the world around us seemingly becomes more complex, laws reflect that change and so does the practice of law. Whether it‘s new rules for the handling of electronically stored information or bettering your courtroom presence, we all have areas where we can grow, learn and improve to improve our skills as attorneys. And continuing legal education is one excellent avenue to brush up on statutory changes, polish an existing skill, or add a new tool to the arsenal.

As the Director of Legal Education, that is why I am so pleased of the selection of CLE courses that we feature on our website. We offer informative, yet relevant and entertaining courses and seminars that seek to increase the level of skill, knowledge, and professionalism of the twenty-first century legal practitioner. And with our one-click state bundles you can get all the units you need with a few clicks of your mouse.

According to the ABA, “as the bar becomes more technologically sophisticated, CLE must also branch out to meet the varied learning styles of the 21st century lawyer. So, too, must CLE, in order to be both valuable and relevant, take full advantage of the benefits offered by technology.” With years of technical development we have sought to leverage the power of technology to make fulfilling your CLE requirements easy and enjoyable so you don’t have to wait until the day before the MCLE deadline to get your classes done. Because we know that there is barely enough time in your schedule for a cup of coffee, we offer CLE on your own schedule all in one convenient, easy to use online format. And we will soon be offering CDs and DVDs for those attorneys who feel more comfortable working offline.

Because education is critical to continued professional development we hope that our Attorney Credits can serve as a valuable resource in your quest to enhance your knowledge and sharpen your skills as a legal practitioner.

Trick or Tweet? How About a Mistrial?

Thank you jurors, please leave your blackberries and iPhones outside the courtroom doors!

I have wanted to do a course on the electronic courtroom now for about six months – but of course, something always seems to come up and I haven’t been able to start writing the course. And I have seen no less than three articles in the last week commenting on the topic (thanks to the Judicial Conference and Time Magazine article). So I guess for now, the topic will remain blog fodder for you to chew on.

The reason the topic interests me so much is because the sanctity of the jury system and the right to a fair trial is again under assault by our new digital technologies and activities. Facebook, Twitter, Wikipedia – social networking, microblogging and easily accessible online resources have slowly crept into the courtroom and may force fundamental changes to our legal system.

In our new Information Age, how can we expect to sequester off juries from the outside world in order to uphold the fairness of our legal system? Everyday seems to bring a new trial that is tainted by Twittering jurors – and now even defendants are getting into the act. What’s next? Judges getting in trouble for “friending” defense attorneys? Oh wait …. that already happened in Florida.

This latest push to preserve our legal system comes from the Judicial Conference who just released model jury instructions in January that specify new protocol for juror conduct in our:

"You may not communicate with anyone about the case on your cellphone, through e-mail, Blackberry, iPhone, text messaging, or on Twitter, through any blog or website, through any internet chat room, or by way of any other social networking websites, including Facebook, MySpace, LinkedIn and YouTube."

Bottom line: Drop that blackberry Juror #21!

In a January memo, U.S. District Judge Julie Robinson of Kansas, the chair of the Judicial Conference Committee on Court Administration and Case Management, told the informed the nation’s judges that the new jury instructions “address the increasing incidence of juror use, of such devices as cellular telephones or computers, to conduct research on the internet or communicate with others about cases.”

In the memo, Robinson told fellow judges that “more explicit mention in jury instructions of the various methods and modes of electronic communication and research would help jurors better understand and adhere to the scope of the prohibition against the use of these devices.”

But will jury instructions really be enough? Do jurors even listen to them in the first place, let alone heed putting down that iPhone in their right hand that they are just dying to jump online and share crucial legal details on their Facebook page?

Last year a federal drug trial in Florida ended in a mistrial when eight jurors admitted to doing research on the case they were hearing. In March 2009, there was also a call for a mistrial in the prosecution of Vincent Fumo — although unheeded — when a juror was discovered tweeting and publishing trial updates on Facebook when the former Pennsylvania state senator was convicted of a graft. Even the litigants have been caught tweeting red handed, as separate stories in the Detroit News and Pittsburgh Tribune-Review identify defendants who opted to microblog mid-trial. And in another case, a juror sent a Facebook friend request to a witness.

Further complicating the issues, there are no uniform instructions for state courts because each state is free to adopt its own set of jury instructions. For instance, Florida is recommending that judges instruct jurors “that they cannot perform outside research using the internet, or use electronic devices to communicate about the case,” multiple times throughout the proceeding

Wait until video clips from a trial shows up on YouTube because one of the jurors shot secret video from their iPhone!