September 2007

We’ve seen a lot of controversy lately about the on again – off again commencement of the FMCSA program to allow Mexican trucking companies to operate nationwide in the U.S. under the terms of the NAFTA treaty.  Now,  according to a recent Federal Motor Carrier Safety Administration enforcement memo, the FMCSA may actually start to enforce the rule that requires truck drivers to be able to function in English.

FMCSR Section 391.11(b)(2) says that all drivers must "read and speak the English language sufficiently to converse with the general public, to understand highway traffic signs and signals in the English language, to respond to official inquiries, and to make entries on reports and records." In the past, each employer and law enforcement personnel interpreted the rule subjectively and, therefore, differently. Even though the rule has been in effect since 1970, no one had been placed out-of-service because it.

In 2004, Commercial Vehicle Safety Alliance revised its Out of Service Criteria to reflect a need to communicate sufficiently in the language of the country in which the driver is operating so he or she can understand and respond to officials. This could affect drivers in French-speaking Quebec who speak English, and English-speaking drivers entering Spanish-speaking Mexico. Similarly, drivers entering the United States would have to speak English fluently enough to perform their tasks as drivers and communicate with inspectors and other law enforcement officials. Even though the OOS Criteria included the new language proficiency requirement, citations were mostly the extent of the violations until this enforcement memo.

Now, the memo instructs inspectors to converse in English with drivers, at minimum, about their origin and destination; record of duty status, on-duty time, and driving time; driver’s license; and vehicle components and systems regulated by FMCSA. Mexico-domiciled carriers that operate exclusively in border commercial zones are exempt from the OOS order. The driver would be cited only, and not put out of service. Inspectors are told that they must conduct a portion of the road inspection in English, specifically the driver interview. Drivers must respond appropriately in English to demonstrate proficiency. Failure to respond appropriately to basic questions will result in an OOS violation. Inspectors are instructed to speak slowly, but naturally. They are not to rush through questions and may paraphrase in English the sample driver interview questions included in the enforcement memo.

Recently I wrote about the crisis in judicial salaries.  Today I got some private feedback from an old friend who went from a very successful private practice to a judgeship several years ago. I’m not even going to hint at who, where, or what level of court.  This judge said that, other than retirement accounts, he is down to his last $20,000 of savings.  Fortunately, he does not have kids in college at this point. This reconfirms only poorly paid government lawyers, the truly wealthy, and those who have a very highly compensated spouse can afford to take a judgeship.  The longer the judiciary goes without a very signfiicant raise, the more these types of stories spread among folks who would be good judges, and the more the system loses the experience of seasoned lawyers from the private sector. That’s not good.

The latest twist in the controversy over opening US highways to Mexican trucking companies is that Qualcomm has contracted with the FMCSA to provide participating companies free access to its satellite tracking system for one year under NAFTA. The systems will be installed at no cost to the trucking companies and will be used to enforce safety requirements, including hours of service and direct shipping standards.  The system will relay the location, speed, trip details, mileage and other data of the vehicles back to an operations center. The trucks will be tracked by vehicle number and company, and no driver information will be collected. The fly in the ointment is that Congress has cut off funding for the pilot project. 

After hearing U.S. truck drivers’ tales about how confused they were trying to follow French language road signs in Quebec, I will be interested to see how Mexican truck drivers handle English road signs, maps and directions once this project cranks up.

When you find a lawyer on the Internet, there may be an inclination to think of him or her as some sort of free floating, rootless organism, taking all nutrition from cyberspace. This week, however, I have had several reminders of how intertwined professional relationships can be.

First came an inquiry about a potential trucking wrongful death case from a lawyer in my hometown who I have known since we entered ninth grade together in 1965, and for whom I have the greatest personal and professional esteem. 

The next day came a call from a lawyer in Louisiana, who got my name from a prominent New Orleans attorney, originally from a tiny town in south Georgia, who I met at Georgia’s Governor’s Honors Program in Macon in 1968. In conversation about the caller’s largely Cajun hometown, it turns out we had both gone out some with the same girl from that town, who was in his high school class, when we were teenagers.  

The same day came a call from a lawyer in a small town near the Florida line, whose law partner was in the office next to me at an Atlanta law firm starting in 1981, to talk about a potential case.

Then I went downtown to a meeting of the State Bar Disciplinary Rules and Procedures Committee. Looking around the table, I realized that I had known each participant in a wide variety of contexts for periods ranging from ten to twenty-five years.

These days, about half of my legal work comes from new contacts who find me through the Internet and the "newcomer" referral sources that are common in modern metro Atlanta, and about half come through a traditional network of relationships spanning decades and even generations that weave through Georgia and across the South.  It’s a fascinating mixture to which only a talented novelist could do justice.

Well, I’ve begun what some say is a "life sentence" on the Disciplinary Rules and Procedures Committee of the State Bar of Georgia, working on updating our Rules of Professional Conduct.  We meet every month or two in the former Federal Reserve Bank vault in the Bar Center (where cell phones don’t work due  to the thick steel walls), deliberating on line-by-line comparisons of the current Georgia Rules (and Comments on the Rules) with the most recent edition of the American Bar Association Model Rules, cross references between the Rules, and variations adopted in other states.  It’s actually more interesting than it sounds, as everyone else in the room probably a lot smarter than me.

Some people jokingly refer to "legal ethics" as an oxymoron.  It should not be.  At attorneys we work constantly with conflict — either current or potential — and conflict involves friction and a wide range of emotions.  With conflicts come ethical challenges, whether you are in law, business, politics, the military, or big time sports.  As an organized Bar, we have to set and enforce behavioral boundaries, thus the title "Rules of Professional Conduct." 

However, outwardly enforced rules of conduct cannot fully substitute for a virtuous character. None of us are perfect.  In the daily press of our work, all of us fall short of the ideal.  However, it is worthwhile for us to occasionally recall St. Augustine’s list of the four Cardinal Virtues: justice, fortitude, prudence and temperance, as well as the three theological virtues, faith, hope and charity (or love). 

I’ll undoubtedly write on these virtues in relation to the legal professional on another day.

My law school classmate and long-time friend, Fulton County Superior Court Judge Stephanie Manis, has announced that she will be taking senior status on October 31st. 

In law school, Judge Manis was a young mom going back to law school after working several years as a social worker. With a spouse and three young children, she had a more mature perspective than those of us who were straight out of college, single, naive, and unburdened by adult responsibilities. After graduation she clerked for a Georgia Supreme Court Justice, then moved on to the Georgia Attorney General’s office.  She was appointed to Superior Court in 1995, and has been a bright, engaged, stalwart judge for twelve years.  I doubt that there is a judge on the bench for whom I have any higher personal and professional regard.

For years, I aspired to become a judge. In 2002 I made the "short list" for a judicial appointment.  At the interview, the Governor at that time asked, "what would possess you to give up your law practice to go on the bench?"   I explored the possibility of running for an open seat in ’04 but realized I would have to raise and spend nearly half a million dollars to be competitive in an election campaign for a job that would involve a substantial pay cut.  Judge Manis and I had a long talk over lunch about the pros and cons of seeking a judgeship at that time.  While I decided not to run, I considered the possibility that whenever she took senior status I might seek the appointment. 

Those of us who closely observe the judicial system see that, at least in Fulton County, there is a tendency for judicial positions to attract people who come from government careers, e.g., Assistant Attorney General, Assistant District Attorney, County Attorney, etc., rather than lawyers who come from private practice.  Government lawyers have time invested in retirement systems that are typically very compatible with the judicial retirement system, and the judicial salary is at least a small step up from most other government attorney positions.  It is less common, especially in metro counties, for lawyers in a successful private practice to become judges.  Many — though not all — of those who do appear to have substantial assets, a spouse in a highly compensated field, or both.  That is the economic reality in light of the crisis in judicial compensation, whereby both state and federal judges are paid on par with a first or second year associate in a large law firm.

While many of these public servants make excellent judges, what the judicial system loses is the perspective of lawyers who have spent decades practicing law and litigating cases in the private sector. It is important to pay judges enough that private practice lawyers in their prime years can afford to go on the bench and still send their kids to college. While judicial salaries are attractive to government lawyers and less successful private practitioners with political connections, and do not deter those who are independently wealthy, reasonably successful middle class lawyers in private practice, and with families to support, simply cannot afford the pay cut. With the crisis in judicial compensation, it is amazing that we have as many good judges as we do.

Even  when a seasoned private practice lawyer with an excellent professional reputation does go through the nomination process, the tendency of Governors of both parties has been to pick government lawyers and political figures over seasoned private practice litigators, so the reaction of many who could afford the pay cut is, "why bother?" In the last couple of rounds of Fulton County judicial appointments, I have seen friends who would have been stellar judges passed over in favor of young government lawyers who are fine, but have negligible private practice experience.

I have two kids in college, my practice is going well, we have a single income household, and I have no political chips to cash in.  So, to answer my friends who have asked, I will not seek appointment to the open position on Fulton Superior Court.

 As a member of the State Bar Executive Committee and Board of Governors, I will continue to support a significant and long overdue increase in pay for all our trial and appellate judges, hoping it will benefit the system by attracting  lawyers slightly younger than me from private practice to the bench in the future.

My good friend Jay Cook from Athens, a former president of the State Bar of Georgia, wrote a stellar guest editorial that appeared on the op/ed page of the AJC this morning.  Acknowledging that plagiarism is the sincerest form of flattery, I’m reproducing the whole thing here:

First it was Vioxx. Then it was poisonous pet food. Now it’s toxic toys and chemically enhanced popcorn. Last year alone, unsafe products killed more than 8,000 Americans and sent millions more to emergency rooms. But let’s not lay the blame on the crippled regulatory agencies or the Chinese.

For once, let’s lay the blame where it really belongs: on the doorstep of those megacorporations that cut corners and break rules to gain unfair advantage over American businesses, big and small, that don’t.

Recently, The Wall Street Journal reported that Mattel, which has recalled more than 20 million dangerous toys this summer alone, has delayed reporting product defects because it finds the reporting rules "unreasonable." According to The New York Times, the Consumer Product Safety Commission has fined Mattel twice for such delays since 2001.

The commission collects millions of dollars in penalties every year from U.S. companies that import or sell products that violate mandatory safety standards, fail to report potential hazards and fail to report lawsuits and settlements for product-related injuries.

And those are just the ones that get caught.

Clearly, dangerous goods are slipping past the safety standards set by the many regulatory government agencies that are supposed to be protecting us, including the Food and Drug Administration and the Environmental Protection Agency.

Last year, Dr. David Graham, the senior FDA drug safety researcher who blew the whistle on dangers of the pain-killer Vioxx, told the Senate Finance Committee that "the FDA is incapable of protecting America from unsafe drugs or from another Vioxx."

Now we’re learning that the EPA has been suppressing a report on the possible dangers of a chemical used in microwave popcorn. Copies of the report were provided to popcorn producers last July, but kept secret from the public.

But even with potent regulatory enforcement, Americans injured by defective products have only one place to turn for a remedy: our court system. But that, too, is being neutered by the same forces that are muzzling our watchdogs. A multimillion-dollar propaganda machine has convinced many of us (and our elected officials) that tethering our tort system will improve the economy.

It may be just the opposite. A briefing paper published last year by the Economic Policy Institute concluded: "The costs of the tort system have been grossly exaggerated, and its supposed impact on job creation, research and development, productivity, and profits has been exaggerated or simply invented. With respect to job creation in particular, significant tort law change would be more likely to slow employment growth than to promote it."

But the so-called "tort reform" movement marches on in perfect step with government deregulation. We’ve watched state after state weaken the ability of citizens to seek redress in the courts.

Access to justice for "the little guy" is the real target of these "reforms"— not the "problems" they’ve trumped up to trick us into giving them what they really want: damage controls that take the teeth out of our juries and the bite out of compensating the victims of their corner-cutting.

Tort law is a small but important facet of our civil justice system. We call it a tort when somebody acts unreasonably and harms another person’s body, property, legal rights or reputation. You can’t call the police when somebody commits a tort, but you can file a suit in the civil courts to seek an appropriate legal remedy.

The rules of our tort system are roughly the same common-sense principles we all learned as kids: Everybody should play fair. The one who broke the rules of fair play should pay for the damage they caused.

Our Founding Fathers understood that we needed these systems in place to make us safe and regulate the practices of fair play.

Let’s cut to the chase: There’s nothing wrong with making an honest buck. America was built on hard work and free enterprise. There’s nothing wrong with wanting higher profits. The American Dream still lives or dies in the profit margin.

But there is something wrong when profit-making turns into corner-cutting that puts public safety in peril. And there is definitely something wrong when some conscienceless megacorporations engage in "remedy rigging": gaming the system so that even when they cheat and get caught, they get no more than a gentle slap on the hand.