Friday, April 28, 2006


Here, with due respect, is a suggestion to crime page editors.

When a person is formally accused of a crime, certainly if the accusation is in the form of a criminal complaint or indictment, the reporter should try to interview the accused, to get his side of the story. Do not interview the lawyer who has been hired by the accused, unless an effort has been made, and thwarted, to interview the accused.

Then the story should recite that the accused, who, for example, was implicated in criminal activity by the sworn public testimony of a witness, not only "denied wrongdoing," but answered specific allegations. The questions and answers should be in such form that they could be repeated in any Court proceedings that might follow.

If the accused declined to answer questions, the story should say so; and then the attorney may be quoted. However, when the attorney states words to the effect that his client is innocent, or has done nothing wrong, the reporter should ask follow-up questions such as "How is this known?" or "How do you know?" or "Do you speak from personal knowledge, and if not, from whom did you get your information, etc.?" The answers should be in the story.

The result would be that one formally accused would not be able to simply remain quiet and avoid an adverse inference of guilt (which the public may reasonably and fairly draw from the silence). Further, mouthpiece lawyers would be deterred. Our definition of mouthpiece lawyers is those lawyers who publicly mouth that their clients are innocent, when the lawyers have no personal knowledge that such is so, and the lawyers also know they do not intend to allow their clients to answer legitimate questions. You want examples? F. Lee Bailey and Alan Dershowitz both made public statements that their client, O. J. Simpson, was innocent of the butchering of Simpson's ex-wife. How did those lawyers know? Were they placing their own reputations and character in the balance, to affect public opinion? That is not permissible in the practice of criminal law.

Here in Albuquerque in recent days, a convicted former State Treasurer swore under oath that he had received $100,000 or more from a prominent stockbroker, in return for giving business to the broker. This testimony was reported, and it was reported immediately following, that an attorney for the broker has denied that testimony. No mention in the story that anyone asked the broker about the allegation.

We have no business trying to tell the news media how to do the job. However, we respectfully suggest that the procedure outlined here would be fair, legitimate, and would benefit the public and improve the image of lawyers (we are especially sensitive here).

Sunday, April 23, 2006


In 1950, at UNM School of Law, they had a Professor who taught two required courses: constitutional law, and legal writing. If you could not pass those courses, it was the highway. The students had a nickname for the Prof. It was “The Hatchet.”
The Professor announced one day in class that it was his job to prevent the incompetent from getting out of law school and taking a shot at the bar exam.
Neither of his courses was necessary for a student to become a competent lawyer, not even for the niche of constitutional law, nor legal writing.

Prior to 1934, a person could become a lawyer in New Mexico by studying for the bar, through apprenticeship or “reading” law, then passing the bar exam required by the Supreme Court of New Mexico. In 1934, the legislature enacted a law that required a person to graduate from a law school before that person could take the bar exam, and further required that the law school must be one approved by the American Bar Association. New Mexico was the first state in the nation to pass such a law. This gave the ABA the power to limit the practice of law in New Mexico. At that time, New Mexico had no law school at all; and it did not get one until 1947.

In 1956, the New Mexico Supreme Court ruled, in Henington v. Bar Commissioners, that the requirement enacted by the legislature in 1934, was constitutional. The challenge, among others, was that the statute unlawfully delegated legislative authority of the State to a private group of individuals (a national bar association). The Court did not discuss this one, the most important challenge, but nevertheless upheld the statute.

We were aware at that time that three of the five justices sitting on the Supreme Court had not graduated from an ABA approved law school; and two of the five had never graduated from any law school. They were competent; just as many of the Founders, and many in Lincoln’s time (including himself), without having gone to law school.

What is our point? It is this. The only legitimate reason for requiring competence in lawyers, is to protect the public. Apprenticeship is the best preparation for the practice of law. Apprenticeship should be allowed.

That is not the major point, however. The practice should be broken down into parts, so that one who is competent to practice one part, may do so, without also having to be skilled in other parts. The podiatrist is qualified (and permitted by law) to cut the carbuncle off the foot. The septic tank installer is qualified (and permitted by law) to install a septic tank (even though not legally qualified to practice all “plumbing”).

One who is qualified to practice in magistrate court, or other Courts of limited jurisdiction, should be allowed to do so even though she is not qualified to practice in a Court of general jurisdiction (such as District Court), or the appellate Court. If this were permitted, the public could be protected from the incompetent, and at a lower charge for the services. That is the case, unless, as is implicit in our present scheme of things, no one can be qualified to handle small Court matters unless qualified to handle the more complex matters (as in the higher Courts). Do you have to be a brain surgeon, in order to be qualified to lance a boil?

Thus, we say that we have too few lawyers.