On Meritorious Claims and the PLRA

Last week, the 7th Circuit U.S. Court of Appeals (Easterbrook, Cannes, Sykes)denied relief to a federal inmate suing for $10 million in damages under the Federal Torts Claims Act under a theory that the government was somehow negligent in enabling the breakout. Jose Banks v. U.S., Docket No. 14-2516 (decided September 25, 2015).

In 2012, Mr. Banks and his cellmate chiseled a hole, rappelled 17 stories down on a rope fashioned from bed sheets and dental floss, and hailed a cab to make their escape from the Metropolitan Correctional Center in Chicago, IL. Both men were later caught. Mr. Banks complained that he suffered damage from the escape, "included the trauma of dangling on the makeshift rope, in fear of his life." He further argued that prison guards should have noticed that he was digging an escape hole and stopped him. He also alleged that he now has to endure tighter restrictions than fellow inmates at his current prison because of the prior escape.

The panel of appellate judges rejected the State's procedural argument that the suit was untimely. However, they found no merit to Mr. Banks' underlying claims and consequently affirmed the district court's decision that the matter was frivolous. The appellate court's order can be found here.

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"Frivolous litigation" is the start or continuation of a lawsuit that has slim to no chance of being won for lack of merit. (However, the fact that a suit or claim is lost does not mean that it was "frivolous": in most cases, it merely means the plaintiff/petitioner/complainant failed to meet his legal burden to show that he is entitled to the requested relief.) Prisoners in particular are known to bring forth baseless lawsuits, both because of their limited knowledge of the law and because many will do or say just about anything to regain their freedom.

The Prison Litigation Reform Act of 1995 ("PRLA") was designed to decrease the incidence of litigation within the court system and limits the ability of prisoners to bring certain types of actions against the government while the inmate is still in prison. Courts disagree about whether the PLRA allows an inmate to sue for money damages for a constitutional violation that results in mental or emotional injury, but not physical injury. Under the PLRA, if a prisoner has had three prior lawsuits dismissed as “frivolous, malicious, or failing to state a claim for relief,” he may not have his filing fees waived and will have to pay them up front. The 7th Circuit found both the Banks suit and its appeal to be two strikes against Mr. Banks under this "three strikes and you're out" rule.

On Accountability

The ABA Journal recently shared the story of a Maine practitioner who appeared to give every excuse under the book except "The Dog Ate My Brief" for the inferior quality of his filings. The attorney blamed "destroyed computer files" for errors in a first brief against a self-represented litigant, including inaccurate and misleading citations to the record. He was given two weeks to file an amended brief. After doing so, the court felt that the amended brief still contained numerous errors and rejected it. The attorney sought reconsideration, blaming "the pressures of solo practice" for errors in the second brief and noted that the nub of the appeal presented itself “like a ray of sun light” that “perhaps blinded counsel temporarily to other shortcomings in his work product.” Not surprisingly, the Maine Supreme Judicial Court was not persuaded or amused.

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While many people use the terms "responsibility" and "accountability" interchangeably, the words can sometimes mean different things. Responsibility has two main components: functional and moral. Generally, the functional aspect of responsibility comprises those functional duties and obligations associated with one's job, like taking a deposition or drafting a memo. The moral aspect of responsibility is comprised of duties and responsibilities like "don't lie to the court" and "don't steal your client's money."

Accountability, on the other hand, is the requirement to step up to the plate and be held, well, "accountable" to a relevant person for your judgments, intention, acts and omissions. Someone can, under many circumstances, be held accountable for an action if he/she is functionally and/or morally responsible for an action and some consequence resulted from that action. Of course, the law is filled with exceptions to this general premise, such as Good Samaritans laws or Whistleblowers Acts designed to encourage people to do the right thing without fearing the consequences of their actions. Over the past few months, the Internet has exploded over stories of people who the general public apparently felt failed to be "properly" accountable for their actions, including a lion-killing dentist and a Kentucky marriage license clerk. However, what the majority of online commenters failed to recognize is that the dentist and clerk have no duty to them and are therefore not accountable to them.

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New Hampshire, like other states, has Rules of Professional Responsibility which delineate an attorney's duties and responsibilities and hold an attorney accountable for any violations. While it may seem to non-attorneys that the Rules are just secular versions of the Ten Commandments, the Bar's Rules also address other issues such as how to handle conflicts of interest, advertising, and changing firms. While violation of the Rules isn't necessarily a mortal sin, it can still have serious consequences. New Hampshire's Professional Conduct Committee looks into allegations of attorney misconduct. If an attorney is found to have violated the Rules, consequences can be as serious as such as suspension or disbarment. (Depending on the nature of the offense, a lawyer could also be jailed or sent to prison.)

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In law school, my classmates and I were trained about both professional responsibility/accountability and personal accountability. We were encouraged to develop and follow our own moral compasses, even when it was difficult. We were given hypothetical examples in which the requirements of law didn't exactly mesh with our personal believe systems. We were challenged to consider under which circumstances what we might be willing to go to jail or lose a career to do what we thought was the "right" thing. As we all came from different walks of life, it was interesting to hear the responses (and the justifications for particular courses of action). I was also very lucky that the first firm I worked at following law school was made up of lawyers and staff who held themselves to superior moral standards, so a high level of accountability was ingrained in me from the very start of my legal career. For that, I remain grateful.

While I may be surprised and disappointed that the Maine attorney's lack of accountability for his actions made lawyers -- solo practitioners in particular -- look bad, he has no duty or responsibility to me in particular for his actions, statements, or the quality of his pleadings. When I try to comport myself in a manner befitting a Daniel Webster Scholar or NHBar Leadership Academy graduate, I do so because it's important to me not to let my mentors down, not because some external force is making me do so.

If You Thought Wal-Mart Was a Scary Place Before....

Last week, the Utah Supreme Court ruled that certain Wal-Mart employees who were fired for violating the company's "non-resistance" policy had grounds for a wrongful termination suit so as to preclude summary judgment in favor of the big-box retailer. Both the ABA Journal and the Wall St. Journal reported that the Utah court found that the employees had a right to self-defense under the both the state constitution and Utah's “Stand Your Ground” law. While the court acknowledged the importance of Wal-Mart‘s interest in regulating its workforce, it concluded that there was "a clear and substantial public policy in Utah favoring the right of self-defense” under certain circumstances, namely, when the employee is facing serious, imminent bodily harm by violent customers. The ruling sends the case back to federal court.

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Generally, in deciding the merits of a motion for summary judgment, a court decides only whether an entry of judgment is warranted based on the undisputed, material facts before the court at that time. A denial only allow a contested issue to be resolved at trial. While a Utah decision is not binding on New Hampshire courts, it's possible that Wal-Mart may change its non-resistance policy across all its stores, including those in the Granite State.

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The concept of stand-your-ground drew renewed national attention a few years ago when Florida teenager Trayvon Martin was shot and killed by George Zimmerman, who claimed self-defense and said he was being beaten by Martin. Variants of stand-your-ground now exist in around half of U.S. states. In 2006, the New Hampshire legislature voted to approve a stand-your-ground law, but then-governor John Lynch vetoed the bill. In 2011, New Hampshire enacted its current stand-your-ground law: RSA 627:4. As before, it became a "loaded issue." HB 135, a 2013 bill to repeal the act, was vigorously opposed: certain Tea party Republicans even wanted to press criminal charges against 189 state legislators who voted in favor of repeal. The attempted repeal ultimately failed.

Given that the Wal-Mart non-resistance policy required employees to withdraw from situations where a suspected shoplifter or a customer pulls a weapon, it will be interesting to see which self-defense tactics are permissible in a megastore already settling guns (at least up here in the Granite State). Significantly, New Hampshire's stand-your-ground law also grants immunity to anyone who injures bystanders while they're using deadly force as permitted by the law.

When a Lender May Not Be Able to Take Your Home

Depending on how your real estate loan documents are drafted and executed, a lender may not be able to foreclose on your home. However, the circumstances where this might occur are unlikely, typically occurring during an oversight or mixup in the closing process. In most cases, the lender can properly foreclose on your property, even if you never agreed to make loan payments.

To better understand how this could happen, you need to have a working understanding of the three main documents pertaining home financing and ownership. Your property deed (title) is the document which transfers legal ownership of your home from its previous owner to you and which determines your ownership of your home. If you are lucky enough to not requiring financing, the other two documents (note and mortgage) will not come into play. However, most homeowners requiring financing, either when they initially buy a home or when they improve/expand later on.

The note is your written promise to the lender to repay your home loan. However, without some mechanism through which the lender can enforce this promise, it would simply be too risky for lenders to provide borrowers with loans. This is where mortgages come in.

A mortgage is the document in which you essentially pledge your house as collateral in the event of loan default. A mortgage is what allows the lender to foreclose on your home if its loan is not repaid. Lenders typically require that all parties wanting to be on the deed also sign any corresponding mortgage, even if everyone on the deed has not signed the note. This is because they understand that someone is on the deed but has not signed the mortgage, then that person could make a legal case that the lender does not have a legal right to take his/her ownership interest in the property away from him/her. If your name is on the title but not the note, your signing the mortgage means that the bank may still have claim to the house if there is a problem with payments.

Why would a homeowner not on the note agree to sign a mortgage, when he/she could lose a home through no fault of his/her own? Without such signatures, the lender could refuse to lend the money. Also, if the loan is paid in a timely manner, there is no risk to the homeowner not on the note.

Could someone get around this requirement by simply adding someone else to the deed after closing? Most, if not all lenders, have already taken measures to make sure this does not happen by adding an alienation clause to their loan documents. This clause requires that a note be paid off in its entirety prior to any transfer of title. If you own a house with a mortgage and note on it and then add someone to your title, then you may have broken the terms of your agreement and given your lender the right to demand payment in full. If you are unable to pay the outstanding loan balance in full (including inability to obtain another loan), the lender may have the right to foreclose on your home. Note that the U.S. government has provided exemptions to these types of alienation/due-on-sale provisions under certain circumstances, such as some transfers to a relative resulting from the death of a borrower and some transfers where the spouse or children of the borrower become an owner of the property.)

If a lender is threatening to foreclose your home -- regardless of whether you signed the note and/or mortgage -- a local attorney experienced in real estate law can explain and help you understand your options.

On the Disturbing Trend of "Mommy-Shaming"

The Huffington Post recently ran an opinion piece entitled "The Illusory Quest for Balance". The author, the managing partner of a large law firm, appears to shame the sizable percentage of women who "interrupt" their career for family. For example, she flippantly remarks, "My own experience as a trial lawyer, wife and mother, has led me to believe balance doesn't exist except on Olympic beams, kitchen scales, and in certain yoga poses." While validly arguing that being a great mom and a great attorney are not mutually exclusive, she also seems to belittle women who don't find it easy to be both. She snarks, "Women who leave the workforce to have families may achieve a rewarding family life, but the one thing they certainly will not achieve is balance. Those who define work-life balance as 50/50 on a daily basis are setting themselves up for disappointment." The only sage, non-defensive advice she offers is to "pursue meaningful work and "surround yourself with people who share your values."

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"The Illusory Quest for Balance" would not have disturbed me so much if were an anomaly. Unfortunately, it is not. Over the past 18 months or so, I've read a number of similarly-themed articles. Each seems to be a backlash at how vocal women are becoming about having their needs met in the workplace. I see this vocality as a good thing (when it is reasonable). After all, it is one of the hoped-for results of the women's movement. Such strength should be encouraged, not disparaged.

How one chooses to spend one's career is a personal choice. Not everyone elects to go for broke to make partner or get the corner office, at what he or she believes to be the cost of his or her family. Law practice is an extremely demanding profession, regardless of how much support one gets from loved ones and hired help. Female lawyers should be supporting each other no matter what their work situation, not making each other feel inferior or "unbalanced" for taking a different career path.

Is New Orleans Really Running A "Debtor's Prison"?

Findlaw and the AP report on a lawsuit filed today concerning an alleged "debtor's prison" in the city of New Orleans. The news sources state that "hundreds of people have been locked up" in The Big Easy for failure to pay court fines, without first having a hearing on whether they are able to pay. The lawsuit alleges that the result is unconstitutional because the U.S. Supreme Court has previously ruled that "a person cannot be imprisoned solely for the inability to pay a fine or restitution."

At first blush, the cited examples are shocking. For instance,

• One man was allegedly returned to jail because of prior unpaid debts, where he stayed for weeks until his family could scrape together... a $100 payment.
• Another man was alleged taken from his home during a night raid by armed police who pointed guns at him and his family. The (only) reason: he had accumulated more than $1,600 in court costs and fees.

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I have not yet read the suit as filed, but its apparent emphasis on lack of hearings to determine ability to pay raises an important consideration: willfulness of action. While some attorneys banter about the phrase "debtor's prison" any time someone is jailed after failing to pay a fee, there are some circumstances where a criminal defendant or civil respondent fails to show at hearings as ordered by a judge. In those instances, the crime for which the person is jailed is not indigence. Instead, he or she is locked up for disobeying the judge's order to appear before the court.

UPDATE: According to NHPR, the ACLU recently issued a report stating that NH judges are also engaged in the practice of jailing for unpaid fines.

A Interesting Way to Get Votes (Maybe)

According to the New York Times, the government announced today a new nationwide campaign to make it easier for legal immigrants to become American citizens..... "which could add millions of voters to the electorate in time for the presidential election next year." The NYT also noted that "federal figures show... that about 60 percent of immigrants eligible to naturalize are Latino and about 20 percent are Asian, both groups that voted overwhelmingly for President Obama." However, the article failed to predict how many "new citizens" might actually register and show up at the polls on Election Day.

A Friendly Warning

Spotted today at our new friend Barre Pinske's workshop in Chester, VT:

Barre, who specializes in wood carving and wood/resin projects, is very generous with his time and knowledge. His workshop and adjoining gallery are celebrations of ingenuity and talent. It's well worth your time to stop there the next time you're heading out to Okemo Mountain.

A Pot of Trouble

Marijuana law fascinates me because it's like the Wild, Wild West. I've taken continuing education classes on the topic and enjoy the interplay between state and federal law. I try hard to keep abreast of related legislation, which is an increasingly daunting task. The more liberal media would have you believe there is a rapidly growing groundswell of support for marijuana legalization/decriminalization. But while some surveys show that there is indeed is growing support, opposition from a variety of fronts is still strong. For this reason, cannabis-related businesses will face a plethora of legal and practical obstacles for years to come. The upside is that times are changing rapidly and the law will have to keep up with it.

On July 23, 2013, New Hampshire Governor Maggie Hassan signed HB573, a bill allowing certainly seriously-ill New Hampshire residents to use marijuana for therapeutic purposes. Some saw this as a sign of social progress. Others saw HB573, enacted into law as NH RSA 126-X, as a sign of the Apocalypse, ranking right alongside plagues of locusts and oceans turning to blood.

More than two years later, on June 9, 2015, the New Hampshire Department of Health and Human Services (DHHS) announced that three applicants had received approval to operate a total of four cannabis dispensaries in the state. These dispensaries -- also known as alternative treatment centers or "ATCs" -- are intended to each serve one of four geographic areas. None of these dispensaries are yet open. Plans for January 2016 openings seem increasingly less likely, for several reasons.

First, ATC operators face numerous land use challenges. For instance, under RSA 126-X:8, II , a dispensary cannot be located "in a residential district or within 1,000 feet of the property line of a pre-existing public or private elementary or secondary school or designated drug free school zones." Also, several Granite State municipalities have enacted zoning ordinances further limiting those areas of town where ATCs can set up shop. Dispensary operators must also bring their plans before local land use boards for approval. Public meetings to discuss those plans often ignite heated debate.

Operators face obstacles on other fronts, too. Marijuana-related businesses, where permitted under state law, have been frustrated in their efforts to open bank or credit union accounts. Most lenders don't want to be shut down by federal authorities for being involved with a business selling a Schedule I controlled substance which remains illegal under federal law. Consequently, the cannabis business remains, for the most part, a cash-only enterprise. This brings with it a slew of issues and problems, including the logistics of paying vendors and employees, performing accounting activities, and tax-paying. Proprietors also have to worry about keeping their prime-target properties and employees safe from robbers.

Even obtaining competent legal advice can be daunting. Attorneys interested in assisting dispensary operators face challenges under the New Hampshire Rules of Professional Conduct. The Rules provide that a "lawyer shall not counsel a client to engage, or assist a client, in conduct that the lawyer knows is criminal or fraudulent, but a lawyer may discuss the legal consequences of any proposed course of conduct with a client and may counsel or assist a client to make a good faith effort to determine the validity, scope, meaning or application of the law." This begs the question: so how can a New Hampshire attorney ethically advise their clients regarding medical marijuana sales, distribution, and use, even if it is legal under state law, when such use is still criminal under federal law?

There have been no New Hampshire Ethics Opinions or Ethics Corners articles issued yet on the topic. (Although there have been several requests, including one by me, for one.) When the Ethics Committee looks at the issue, I predict they'll consider how other state bars have answered this question:

• Some states (such as Connecticut and Maine) urge attorneys to know where the line is drawn between consultation/explanation and participating in criminal enterprises. If New Hampshire were to adopt this approach, lawyers could explain the requirements of RSA 126-X to a client, but might not be able to assist an operator in negotiating a contract to facilitate the purchase or sale of marijuana.
• Other states (like Arizona) feel that representation would not be prohibited because it is important for clients to have the assistance of counsel in complying with state law. If New Hampshire were to adopt this approach, then representation could be broader. However, even then, certain activities might still be prohibited.
• Yet other states, while not changing their own versions of Rule 1.2(d), are adding corresponding comments for guidance.

(To learn more about the ethical components of marijuana law -- including personal use by attorneys -- click here.)

We've Come a Long Way, Baby

The Above the Law weblog recently published an entry mocking a major law firm's hiring policies for "the fairer sex" in the decade predating Title VII. The "offending" firm is frank and unapologetic about its preference for male candidates, explaining:

If the paper records are the same, the man is given preference, barring some personality defect, on the grounds that being a man, he has probably had extra-curricular experience in the business world which will be of greater use to the firm than the experience open to most girls.

Read the 1950s memo snippet here.

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As a tail-end baby boomer, I have not had to face the same struggles as did women who are more than ten years my senior. For that, I am continually grateful. It's easy to look back some 50-60 years and smirk about how "unenlightened" firms used to be. But perhaps we all should be more appreciative that those rules -- which were possibly progressive in their time -- allowed talented, capable women into the profession and paved the way for more "lady lawyers."

Memos like the one cited by Above the Law remind me not to minimize as mere GenY whining such challenges as crippling law school debt, gender equality, and achieving work-life balance. By focusing on the future of the profession, it may be possible to get to a point where practitioners are not defined first and foremost as "female attorneys" or "male attorneys," but simply as "attorneys".

Woman "Kidnaps" Herself to Avoid Work

One of my guilty pleasures is regularly reading Findlaw's "Legally Weird" column. It lets me wrap my mind about areas of law that I don't practice (like, as here, criminal law.) The following is a summary of a recent "Legally Weird" article. (I haven't figured out yet whether Westlaw has a bureau in the Sunshine State or its residents just are better candidates for Darwin Awards.)

When a Florida woman failed to return to her shift following her break, a concerned coworker called the woman's cell phone. The woman answered and told the caller that she had been kidnapped by her boyfriend. ***Six*** different law enforcement agencies responded. After several hours, the woman and her boyfriend were found sitting in a car... four miles from the work site. The woman admitted that she was not being held against her will. Instead, she simply did not want to return to work.

You may be wondering what the consequences are for leading Florida law enforcement officials on a wild goose chase for hours. According to "Legally Weird," police arrested both the woman and her beau for "false reporting of a commission of a crime." The pair are each facing up to a year in jail and $1,000 in fines. (I'm presuming that the concerned co-worker was not charged because someone determined that she wasn't part of the half-baked plan: that she merely called the police in good-faith reliance of what the woman wanting to avoid work told her.)

I'm curious about what level of checking, if any, law enforcement authorities do before engaging in a manhunt. For instance, would it have made a difference if the "concerned co-worker" was really the office busybody and the employee playing hookey for the rest of her shift just concocted a story that she thought no reasonable person would ever believe? Or what if "everyone" at work knew that the missing woman had a history of being less than truthful or had mental health issues? Also, would authorities have responded differently if the woman and/or her boyfriend had a lengthy police record? While I see the value of prompt response, is it generally a matter of "seek now, ask questions later"? Hopefully, a criminal law practitioner -- especially one from Florida -- can chime in and add some insight.

Read the entire "Legally Weird" article here.

Are We All Really So Miserable?

I spent a good amount of time over the past weekend researching the effective use of social media for professionals in general. This involved reviewing other people's weblog postings, scanning Twitter posts, following links on Facebook ads, studying Instagram marketing programs, and reading LinkedIn Pulse articles. (A marketer-turned-attorney never stops thinking of ways Former Profession can help Current Profession, even on Labor Day.)

I'm particularly drawn to concise, plainly-written articles that are easy to understand without being overly-simplistic. One such article is "Why We're So Unhappy With Work - and How to Fix It", by Professor Barry Schwartz of Swarthmore College. Professor Schwartz recently published a book entitled Why We Work and the article needs to be read with that fact in mind. The statistics in this article are attention-getting and sobering, as befits a marketing piece presenting itself as a news article.

For example, Professor Schwartz cites a 2013 Gallup poll which found that almost ***90%*** of workers were either unengaged or actively disengaged with their jobs. (I'd love to learn more about the methodology behind that poll, because I find it hard to believe that people are that disheartened or jaded with their jobs and/or with life in general.) Accurate or not, Professor Schwartz uses this result and other observations to reach a conclusion with which I 100% agree: that an efficiency and wage-driven approach (without more) is out-of-touch and ineffective in modern times. People want work that is meaningful, challenging, and engaging, even if it means bringing home less money.

While these ideas are hardly new, some feel that employers still haven't sufficiently embraced them. The article doesn't address why that might be (although perhaps the book might.) I'd like to suggest one reason why employers still focus on the nut-and-bolts of business operations: because it isn't my employer's job to make me happy and fulfilled. That's up to me. It's also not my employer's job to make sure my job is well-aligned with my personal beliefs and life goals. Again, that's my personal responsibility. (Yes, I'm preaching to you, Kentucky Clerk.)

This doesn't mean that smart employers shouldn't be thinking of ways to attract and retain the best employees or that smart employees shouldn't figure out ways of making themselves more valuable to their employers. However, at the end of the day, employers are primarily concerned with keeping their businesses operating profitably and employees are focused on financially supporting themselves and their families. While reasonable accommodation makes good business sense, neither employers nor employees should have to sacrifice their ultimate interests and goals for the other. Businesses are not charities and workers are not volunteers. Rather than taking on the yoke of ensuring worker happiness, perhaps employers should offer programs to help employees take on greater personal responsibility for their own actions and happiness.

You can read Professor Schwartz's LinkedIn article here.

Do You Need a Building Permit for Your Home Improvement Project?

Are you planning a home improvement project this fall? Do you know which projects you can do without a building permit and which projects require town oversight?

While many people renovate their homes without the proper approval, this can cause problems down the line. A review by a trained professional can identify faulty work before it becomes a problem later on. Unauthorized work can come back to haunt a property owner when a home is reassessed or when it otherwise comes to the Town’s knowledge that work has been performed behind its back. Further, if you put your house on the market, your real estate agent is probably going to want to check that all necessary permits were pulled.

However, not every project requires local approval. Because each town has its own requirements, you’ll want to check with your Town’s Building Inspector before breaking out the hammer and saw.

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Permit typically not required:

Generally, town permission is not required for ordinary repairs or replacements. “Ordinary repairs or replacements” means work which is typically associated with the normal maintenance of a property and which affects only its surface or finish characteristic. (If something is a “repair” or a “replacement”, then the item being repaired or replaced must already exist.) Here are some examples of work which may not need a permit:

• Certain types of retaining walls and walkways
• Painting and wallpapering
• Tiling
• Carpeting
• Hardwood floor installation
• Repairing or replacing cabinets and/or countertops
• Repairing or replacing windows and/or doors
• Exterior siding
• Reroofing
• Certain types of minor electrical work
• Certain types of minor plumbing work
• Insulating

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Permit typically required:

New construction and general renovation work usually require a building permit. “General renovation work” is work which changes the overall size of a building (or portions of one). It can also involve creating rooms or spaces which did not previously exist. Further, an expansion of existing electrical, plumbing, mechanical or fire protection systems is considered general renovation. Here are some examples of work which will likely require a building permit:

• Kitchen renovations
• Bathroom renovations
• Additions of any size
• Enlarging existing structures, rooms, or spaces
• Creating new rooms or spaces within an existing structure
• Structural changes or repairs
• Demolition
• New structures, including sheds, pools, decks, garages, tree houses, and carports

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These lists are not meant to be exhaustive. Again, be sure to check with your local authorities before beginning any work.

While the cost and effort required to pull a building permit may seem more punitive than helpful, the purpose of permitting is to ensure your safety and the safety of the public.

An Unpopular View on Law School Debt

As a later-in-life attorney, this is my second time paying down my own student loan debt. I graduated law school in 2010 with about $91,500 in debt (before interest). I heard rumors that some of my younger classmates -- who had gone to law school immediately after undergrad -- were burdened with total loan obligations exceeding $200,000. (Where I live, $200,000 can buy someone a modest starter home.) Unlike other types of debt, student loan debt is not dischargeable in bankruptcy. Also, some hiring firms look at how responsibly their potential hires manage their own financial obligations (particularly in situations where the lawyer's duties would involve handling other people's money.)

There is an issue...

My law school colleagues and I share some opinions on the subject of student loan debt. For instance, we concur that level of debt influences the type of job someone accepts, where he lives, the type of car he drives, and the clothes he wears. Loan debt also affects the types of vacations someone takes and whether he can save for the future. Repayment obligations also impact at what point (and whether) someone has children of and to what schools he can afford to send those children. Student loan debt also influences how quickly -- and to what degree -- someone responds to medical situations, home improvement and repair needs, and car repair.

but it's largely self-made.

However, some of my classmates and I differ sharply on the level of personal responsibility a lawyer should take for his debts. Frankly, my opinions on the matter could be seen as curmudgeonly by some. In exchange for my education, I agreed to pay the school a certain amount of money. Because I did not have enough cash on hand to pay that sum, I financed my degree by taking out a number of student loans. I agreed to the terms of those loans. Those terms included the amount of principal, the amount of interest, and the payback period. I was told what my monthly repayment obligations would be. As a person of my word, I'm going to honor that agreement.

I am sensitive to the fact that life can throw unexpected curve balls that necessitate loan deferral or repayment over an extended period. However, I do not think that anyone is entitled to avoid repayment or have loans forgiven just because he or she claims to have not "fully realized" the impact of those future obligations.

I make loan repayment a priority. My husband and I have decided to pay down my student loans as quickly as we can. We make lifestyle ***choices*** (not "sacrifices") based on this decision. With very few exceptions, we don't buy something unless we have cash in hand. We pay off our credit cards each month. We don't take on additional debt unless it is absolutely necessary. We understand and accept that this is just the way we'll have to live until the 10-year repayment period ends. Most importantly, we don't feel "burdened." Instead, we feel grateful that a loan provider helped me finance an education I couldn't pay out-of-pocket for at the time.

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A modest proposal...

Further, I believe that law school loans should be made more difficult to obtain, especially if one exits undergrad with significant debt. While an undergrad degree is seen by many as necessary to get a good job, a graduate degree is arguably still a privilege. It is simply shortsighted and wrong for someone to take on hundreds of thousands of dollars in debt, based on an expectancy for a job that may never materialize. There is no guarantee of a high-paying job as an attorney after graduation. In New Hampshire, many attorneys just starting their careers (especially those in the public sector) make about the same as an entry-level college graduate.

There has been some talk about better informing students about their repayment obligations ***before*** they obtain their first loans. This is not an adequate solution, because some loan recipients are so intent on becoming a lawyer that they'll sign just about anything put in front of them. (Not an auspicious start for a transactional attorney.) A better solution would be mandatory financial management training throughout law school, while students are still making decisions about the size of the loans they'll take out during their 2L and 3L years. However, I have serious reservations about how well this idea would be received, especially in the Live Free or Die state.

What are your thoughts on the issue of law school debt?

Home Rule 1, NIMBY 0

Last week, the Massachusetts Supreme Court ruled that its cities cannot pass zoning ordinances restricting where sex offenders may live. The ruling resulted from a challenge to a Lynn, MA ordinance which had created a zoning district in which certain level sex offenders were prohibited from residing. The ordinance was challenged on several constitutional grounds: violation of the State's Home Rule Act, violation of the clauses prohibiting ex post facto (retroactive) laws; violation of the right to substantive due process; violation of the right to familial association; violation of the right to be protected from cruel and unusual punishment under the U.S. and state Constitutions; and violation of the right to travel. The Court declined to address broader Constitutional questions, because it found that a Home Rule Act violation occurred. (Under Massachusetts' Home Rule laws, noted the Court, a local ordinance is invalid if it is inconsistent with the Constitution and/or laws of Massachusetts.)

The Court looked at the impact of the Lynn ordinance, noting that at least 212 registered level two and level three sex offenders were residing in the city. It pointed out that a sex offender required by the ordinance to move from his or her residence could encounter similar restrictions elsewhere, because at least 40 other Massachusetts municipalities had also adopted sex offender residency restrictions. Violators of the Lynn ordinance were subject to a $300/day penalty.

The Court ultimately ruled that while the state of Massachusetts could create laws governing where sex offenders may live within a municipality, cities themselves lack the power to do so. Looking at the "totality of the circumstances," the Court found "an express legislative intent to forbid local activity in the area of the civil regulation and management of the post-incarceration lives of convicted sex offenders." Because the Massachusetts legislature never intended its cities and towns to address where sex offenders could or could not lawfully reside, concluded the Court, Lynn exceeded its powers by doing so.

A copy of the Court's order can be found here.

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How might this case have been decided in New Hampshire? Like many questions you ask an attorney, the answer is, "It depends...." The concept of "Home Rule" pertains to a city or town's ability to govern itself. But even this ability, as the Massachusetts case shows, has its limits. Despite being the Live Free or Die state, New Hampshire is not a Home Rule state. Here, municipalities only have those powers granted to them by the state. This means that towns and cities can only do those things that the legislature expressly tells them they can do, those things that are implied by a grant of power, and those things which are essential and indispensable to a city or town's existence and functioning. While a Home Rule challenge is impossible in a non- Home Rule state, a New Hamphire local ordinance limiting sex offenders to only certain sections of town could be challenged on some of the other Constitutional grounds raised in the Massachusetts cases (and possibly on additional grounds as well, depending on the specific circumstances). While there are New Hampshire cases upholding zoning restrictions on the location of certain types of undesirable businesses, somewhat different interests come into play when a town restricts where a person can live. Also, these types of cases are extremely fact-specific.

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TAKE-AWAY POINT: Via this opinion, the Court is reminding Towns thay they need to be aware of the limits of their powers and act accordingly. When they do not acknowledge and respect those limits, their decisions are susceptible to challenge. (Whether the person bringing forth a challenge to an exclusionary zoning ordinance is within the class of people entitled to bring forth such a challenge, however, will be the topic of a later post.)

Florida Bar OKs Text Messages to Potential Clients

According to an article on the American Bar Association (ABA) Journal web site, the Florida Bar's Board of Governors recently decided that it is permissible for Florida attorneys to text prospective clients. While one-off texting with existing clients is nothing new, the Florida decision essentially allows bulk advertising messages to be sent out by text for the purpose of attracting new clients. The ABA article states that Florida is only the second state so far to allow this.

While some attorneys shrug and see this decision as nothing more than a sign of changing times, others feel that texting prospective clients is inappropriate, impermissible under the Rules of Professional Conduct, and/or just out-and-out tacky. I personally feel that text messages are even more intrusive than impermissible telephone calls, since there's an entire generation out there which leaps like Pavlov's dogs every time a text message arrives. The article doesn't state whether the Florida Board discussed factors such as maximum file size, length, content, or frequency of messaging. While recipients can opt out of future texts, they never should have been put in a position where doing so was required.

Also, what hasn't been discussed much yet is the fact that the Florida decision is an acknowledgment that the pool of prospective clients is changing. While older clients may use the Yellow Pages and the recommendations of people they trust to find attorneys, younger clients are more likely to use their smartphones and social media requests to locate legal counsel. Law firms will have to adjust their marketing efforts to reach a generation raised from birth with mobile technology, just as they built their first-generation web sites in the early to mid-1990s to attract the users of the "Information Superhighway".

While New Hampshire hasn't adopted a similar rule on texting yet, the Florida decision should nevertheless be a wake-up call for change.

NHSC Issues "Dumpster Depot" Opinion

In Accurate Transport, Inc. v. Town of Derry, 2014-512 (decision issued August 11, 2015), the New Hampshire Supreme Court reversed a decision of the trial court concerning the timeliness of a motion for rehearing to the ZBA about a proposed Dumpster Depot operation. The Court made several key rulings of interest to land use practitioners:

• An opinion by a reviewing code enforcement officer that the use of a property is permitted is not an appealable "decision" to the ZBA. It is ultimately up to the Planning Board, in considering the merits of the site plan, to decide whether the proposed use is permissible.
• While there is no statutory provision that expressly allows a ZBA to "convert" an appeal containing both untimely and timely elements for the purpose of removing the untimely arguments, there is no statute that prohibits the Board from doing so.
• Accepting jurisdiction over a site plan is only a procedural prerequisite to the Planning Board's consideration of the merits of the plan. (In other words, a Planning Board cannot consider whether to approve an application before it accepts the application as complete.)
• The period for appealing a zoning-related decision of a Planning Board begins to run on the date of conditional approval.

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TAKE-AWAY POINT:

The Court has provided guidance that Municipalities should look carefully at a request for rehearing to see exactly what decisions are being challenged and not just rely on the stated purpose and caption of the request. When an untimely request for rehearing also discusses the merits of a later decision that can still be reheard, a ZBA to may "convert" the request to address the timely concerns raised.

California to Limit Solitary Confinement to Actual Offenders

According to a recent article in the Wall St. Journal Law Blog, California prisoners would no longer be put into solitary confinement indefinitely just for being affiliated with a gang, if a proposed settlement goes through. Instead, reports the WSJ, "isolation would be used for set amounts of time as punishment for offenses such as assault or other rules violations."

As a former prison volunteer and someone who believes strongly in prison reform, this is great news. I have toured the New Hampshire State Prison (NHSP) on multiple occasions and stepped into a cell at the Special Housing Unit (SHU). I have talked to prisoners who were sent to SHU and heard their stories about what the solitary confinement experience is like. I am not aware of anyone who has been sent to the NHSP SHU simply by virtue of gang association.

While I understand the need to ensure the safety of other prisoners and prison staff, solitary confinement should be reserved for actual offenders and not those whom prison administration feel poses a greater risk of potential offense, without more.