Wednesday, May 14, 2008

SY AND WHEAT

(Scott Saul posted a legal question so interesting that we are posting it below this post. Scroll down, and read Scott's question, and confine your comments under that post to possible answers.)

We received this email:

Rumpole, I do not know if you were at ceremony for the dedication of Sy's memorial. Stan Blake was his usual ebullient self. He pulled out a bag containing dozens of black books from all his years in private practice, saying he learned to keep track of his cases from Sy just the way Sy did.

Barry Wax, representing FACDL Miami mentioned you; apparently you have been on his case to get the memorial done. Barry was also the driving force behind getting the picture framed along with Sy's famous Black Book and some nice words by Milt Hersch.

Sy's son spoke, and so did David Markus, who noted he shared and office with Sy for more than 20 years, and that was longer than many marriages these days. Also in attendance was Sy's long time secretary Ibis (spelling?). Both David and Ibis seemed near tears.

As I mentioned, there are some wonderful words by Milt Hirsch, memorializing Sy, hands outstretched, pleading his defense on behalf of his client. Milt's written words and David's small speech both refer to the fact that Sy was the lawyer of the people. He gave people pride in the fact that they hired someone who would be going to court fighting just for them.

Sy worked in our building for over 45 years. He started his criminal defense practice sometime around 1962!! When you think of all the giants who have worked in our building: From Judges like Ed Cowart to lawyers like Ed Carhart, the fact that Sy and only Sy has earned a special memorial and a place in our hearts and memories is something special.

I'm glad the memorial of Sy is up, and I know, as Stan and Barry mentioned, that when I'm having a tough day, I can always walk by and take a look at Sy's picture, and smile, and that will help get me through the day.

Rumpole says: Well said.

WHEAT:

There has been some discussion on the order signed by the Judge, linked in yesterday's post, ordering an attorney to take a case he did not want to handle.

We have many thoughts on the subject, but for now we will say this:
There is nothing surprising in the Judge's order. It is just the chickens coming home to roost. We live in a society whose laws are built around altruistic collectivist ethics. You are not entitled to the fruit of your labours when measured against the need of the collective good. Don't believe us? We leave you with these two items:

1) The Florida Bar Oath, states in part:

"I will never reject, from any consideration personal to myself, the cause of the defenseless or oppressed, or delay anyone's cause for lucre or malice. So help me God."


2) The decision in Wickard v. Filburn 317 U.S. 111 (1942);
The Wikipedia explanation is
HERE

What the case holds is that Congress, through the Commerce Clause has the power to stop a farmer from eating the wheat he had grown. And if the Government can do that, what makes us think the Judicial Branch of Government doesn't have the power to force a lawyer to take a case?

From the Supreme Court decision:
Appellee says that this is a regulation of production and consumption of wheat. Such activities are, he urges, beyond the reach of Congressional power under the Commerce Clause, since they are local in character, and their effects upon interstate commerce are at most "indirect." ...

The maintenance by government regulation of a price for wheat undoubtedly can be accomplished as effectively by sustaining or increasing the demand as by limiting the supply. The effect of the statute before us is to restrict the amount which may be produced for market and the extent as well to which one may forestall resort to the market by producing to meet his own needs. That appellee's own contribution to the demand for wheat may be trivial by itself is not enough to remove him from the scope of federal regulation where, as here, his contribution,taken together with that of many others similarly situated, is far from trivial...
It is said, however, that this Act, forcing some farmers into the market to buy what they could provide for themselves, is an unfair promotion of the markets and prices of specializing wheat growers. It is of the essence of regulation that it lays a restraining hand on the self-interest of the regulated and that advantages from the regulation commonly fall to others. The conflicts of economic interest between the regulated and those who advantage by it are wisely left under our system to resolution by the Congress under its more flexible and responsible legislative process.

Rumpole explains the philosophy behind the last paragraph that is highlighted:

Some people produce things that other people need. The needs of those that need it outweigh the rights of those that produce it. Need is the standard. Congress has the power to decide who needs what. And when Congress decides someone needs something, the person who produces it must give it to the person who needs it.

In Florida, a Judge has decided someone needs representation. That person's needs outweigh the rights of the Lawyer to his or her own work. The Lawyer must subject their own personal welfare to the needs of the collective. To the greater good. The lawyer must take the case. This is called altruist collectivist ethics. And as a side note, we mention that just about every proclamation in Nazi Germany was justified on need, and for the public good.

When you see someone championing the rights of the needy, and demanding the sacrifice of someone's skill, talent, or money, you can be sure of two things: 1) The person making the demand is not the person with the skill or talent; 2) The person making the demand usually has their own self interest in obtaining power (elected office) or expanding their power. More people need than produce, so the people expand the power of those that give them what the producers
make. Vox Populi.

See You In Court with our well worn copy of

AtlasShrugged

16 comments:

Anonymous said...

Great piece and commentary on Sy.

Bit disappointed in the commentary on Haworth's order in the 12th Circuit.

If you read the full opinion, the lawyer in question sought to withdraw from the case NOT because he did not want to handle the case, but because he would not suffer involuntary servitude at the hands of the JAC and their $2500 flat fee payment at the end of a case with 315 state witnesses.

The judge stated that the conflict counsel/JAC law as applied in the case was unconstitutional and violated the right to counsel, and ORDERED JAC to pay the attorney a reasonable fee on a "pay as you go" system at $110 an hour. The attorney stated that it would take approximately 500 hours to prepare the case for trial and another 500 to try the case.

The Court also ORDERED JAC to pay the costs of litigation (copies, postage, etc.) on a "pay as you go basis".

The end result of all of this?

Who knows.....but if I were a degenerate gambler (lol, "if" -- my bookie is pissing himself), my bet will be that JAC drags its feet, appeals, etc., and in the face of what will be massive delays in this HUGE case as a result of JAC, the Statewide Prosecutor finds a way to get this 16-year old "co-conspirator" out of the case, thereby alleviating the need for an attorney being paid $110 an hour on the State's nickel.

Yes, I can understand the uproar over an attorney being FORCED to take a case (at $110 an hour -- 6 figures + based on the esimaes for this case), but in the end, the juvenile defendant has a right to conflict free counsel, and if that means someone gets "drafted" at a fair wage ($100k+ for a single case), so be it. If someone has a better answer, I'd love to hear it.

Faux Fakey Fakerstein, Esq.

Anonymous said...

Closer to home, here is another example of altruistic/collectivist enforcement action:

Miami-Dade Police is cracking down on South Dade (Perrine, Goulds and Krome Avenue) vendors and writing them A-forms charging them with a misdemeanor county ordinance that requires vendors to constantly move. While acknowledging that burglaries "are still a huge problem" in the area, MDPD is concentrating on the mobile vendors who are honestly making a living because of "citizen complaints" that "force" police to "act on them" after a mobile fruit vendor was killed by a robber. So, instead of protecting the vendors by cracking down on robbers, police are cracking down on the vendors themselves, and seemingly showing a preference for businesses of the owners of fixed-location stores.
http://www.miamiherald.com/news/miami_dade/neighbors/story/532243.html

Anonymous said...

This is an outrageous abuse by the county against a senior citizen:

http://www.miamiherald.com/460/story/533733.html

Rosco O'Neal, 78, went to Winn Dixie to buy steak and ended up entrapped by the county's Consumer Services Division as if he was a "gypsy-cab" driver.

From the Herald article:

---As O'Neal walked toward the store, a woman at the entrance asked if he ``knew anyone who provided transportation.''

''If you're still here when I get out, I'll take you,'' he told her.

''How much are you going to charge me?'' she asked.

''Whatever you want to give me,'' O'Neal said, and went to do his shopping.

She was Betty Rivera, a data entry clerk for the Miami-Dade County Consumer Services Department, working undercover this day.

She was there when he came out. So were three CSD enforcement agents, watching from a distance. A Miami-Dade police officer was nearby.

According to O'Neal, Rivera approached him and spoke first: ''Hey, did you forget me?'' she asked. ''Yes, I sure did,'' he said.

According to Rivera and the CSD officers, he approached her: ''Are you ready?'' he asked. ''Yes,'' she said.

Both agree she then asked how much he was going to charge her. ''Six dollars,'' he said at last.

There was no conversation during the ride, and she got out very quickly.

''I turned right around, back on 27th,'' he said. ``I got as far as -- I can't think of the name half the time -- McDonald's. Then I saw the lights blinking and pulled over.''

O'Neal had gone down.---

The result: A fine of $1,010.00 and $419.00 in towing and storage charges. His pro-bono lawyer will have to contest the fine downtown in the code enforcement division.

Who knows how many more people have been ripped off by the county in this fashion under the altruistic-collectivistic pretense of "protecting the public" via excessive fines.

Anonymous said...

That's kinda the issue FFF. What should a judge do? Wait 180 days and discharge the defendant because in his town only 15 lawyers take court appointments? Judges absolutely have the right to involuntarily appoint lawyers. People may not like that, but itws not illegal.

Haworth, the CHIEF judge of the 12th, trashed JAC and the whole system. He should be lauded, only of course by those who understand the law.

Anonymous said...

1. Rumpole didn't read order.
2. Adam Smith said it better.

Anonymous said...

Kudos to Judge Peter Lopez and Phil Riezenstein for their extremely generous and thoughtful contributions to Friends of Drug Court. Thank you!!

Richard Baron

South Florida Lawyers said...

Rumpy may be glossing over the unique demands of a profession -- like doctors and lawyers -- and how those unique demands differ from general business ethics.

Those of us in a profession have obligations to each other, to the Court, and to the system we practice in that demands that we give back and act in a manner different than in other business endeavors. Doctors are under similar professional obligations. Pro bono emerged as a obligation in our field specifically because we are different than other businesses.

As for that randy old coot who wrote that dreadfully stilted and awkward dialogue, she had many valid points but never stopped fighting and refighting the cold war. Meanwhile, big business and the world economy swept "village capitalism" and other quaint concepts aside long ago.

Anonymous said...

It is agreed Sy deserved recognition for his service to the community and the judicial system.But many others,fine lawyers helped shape our community and legal system:Paul Pollack(more attorneys after leaving S.A.office joined his firm then any other i.e.Tunkey,Robbins,Weiner:max Engel;Max Kogen and the list can go on).Once again as was suggested with Manny Crespo,why not dedicate a location to honor these lawyers in a special location or special room such as an attorneys room.

Anonymous said...

Rumpole, what if the judge ordered the case against the defendant dismissed due to lack of due process for the defendant? (No atty to represent him) Might that have been the best way to really force the state govt to change the system?

CAPTAIN said...

THE CAPTAIN REPORTS:

Big week for the criminal defense bar ...

Wednesday - FACDL dedicates Sy Gehr Memorial

Thursday - DCBA Criminal Courts Happy Hour/s at Tobacco Road

Saturday - It's Bowties for Ben as the FACDL celebrates 45 years with their Annual Banquet. Don't forget to wear your bowtie.

Great week!!!

CAPTAIN OUT .....

Anonymous said...

The Captain is none other than David Markus our federal blogger.

It took some digging.

Anonymous said...

David Markus is posting here as the captain about state election and bar issues?

ha ha ha ha ha

Anonymous said...

You are so mistaken - David doesn't give a rats ass about local political elections - the Capitan is Catalano - Airplane pilot (e.g. "Captain") and keenly involved in the local politics.

Anonymous said...

Not David Markus. The Captain has long ago revealed himself. After being revealed Rumpole himself said that he would delete all reference to him and how he was discovered.

Anonymous said...

Move over, Capitan:

Breaking Blog News....Rodney Smith has just been appointed as a County Court judge. Good luck to everyone.

Anonymous said...

The captain, himself, said he had the highest rating in some fledging website called avvo.com and the only miami lawyer with the highest rating was Bobby Reiff.