Tim Harris Wins Despite Sophistry by Opponents

Incumbent Tulsa County District Attorney Tim Harris handily won re-election last week despite a well-organized and frequently troubling campaign by challenger Brett Swab. Harris, an Oral Roberts University College of Law graduate, is well known for his Christian faith and conservative values. The race was decided in the Republican primary since no Democrat chose to run. This fact makes the details of the campaign even more troubling.

In the past, Democratic challengers described Harris as a wild-eyed religious zealot who could not be trusted to administer his office according to established legal precedent. The gist of the current campaign against Harris by a challenger from within his own party was that he was not tough enough on crime and followed precedent too carefully. One of the more scurrilous charges in this vein appeared on a local blog, blaming Harris for refusing to charge a pair of accused Sand Springs, Oklahoma child molesters found in possession of alleged child pornography in the form of nudist/naturist magazines portraying children.

The facts were that similar material had been reviewed by the Federal courts in the past and found to be legal. The decisions had been appealed all the way to the United States Supreme Court. The decisions were final and there was nothing Harris could do about it. The material was legal, though disgusting to many, and there were no legal grounds to file charges for possessing it. Harris did the only thing possible under the circumstances and took a lot of heat for it during the political campaign of his life.

Harris’ situation during the last campaign is a classic example of a troubling conflict that now faces many officers of the court. Local and state judges and District Attorneys are subject to a referendum measuring their perceived performance in relation to community values every election cycle. But, every day on the job, they are subject to another referendum by the appellate courts measuring their literal adherence to existing legal precedent.

The problem is that there is a huge gap between the moral and ethical values of the appellate courts and the values of the average community. The United States Supreme Court recently codified this gap in Lawrence v. Texas, declaring that traditional morality and community values as expressed through the political process were insufficient grounds to uphold a state statute proscribing certain sexual behavior. Adopting the language of Justice Stevens’ dissent in Bowers v. Hardwick, the Supreme Court declared that “the fact that the governing majority in a State has traditionally viewed a particular practice as immoral is not a sufficient reason for upholding a law prohibiting the practice.” In his stinging dissent, Justice Antonine Scalia declared that Lawrence, “effectively decrees the end of all morals legislation.”

Average citizens pay little attention to Appellate and Supreme Court jurisprudence. They don’t understand that the political process is in effect governed by these courts and that no amount of political action on their part at the local and state level is going to change their decisions. The frustration the average citizen feels with the legal system can be easily re-directed for political gain by unscrupulous politicians. In the situation described, no District Attorney in the United States could have done anything different but had the accusations gotten traction in the electorate, a good man, probably one of the best Christian public servants in the United States, could have lost his job over a cynically crafted political sophistry.

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Opala Loses His Battle Against Age Discrimination

Justice Marion Opala recently lost his battle to return to the office of Chief Justice of the Oklahoma Supreme Court. His Honor alleged that the other members of the Oklahoma Supreme Court modified the rules of the court to block his return to the top spot on the court and sued on them on the basis of age discrimination. Opala is known for his rich use of language and stinging dissents that frequently skewer the arguments of his fellow justices. The opinion can be found here: http://www.ck10.uscourts.gov/opinions/05/05-6261.pdf

Dealing With Destructive Personalities In Your Practice

One of Lord Byron’s many lovers, Lady Caroline Lamb, described the poet as “mad, bad and dangerous to know.” Byron was the epitome of a personality type I describe as “destructive.” Brilliant, talented and charming, Byron nevertheless destroyed many of the people around him, leaving hundreds of broken hearts and ruined reputations in his wake. Mary Shelley’s classic novel, Frankenstein, was in reality a remorseful reaction to her participation in Byron’s promiscuous lifestyle, the monster a metaphor for the many lovers she took while under Byron’s spell.

Byron is an extreme example of what I have come to describe as “Destructive Personalities.” The term “Destructive Personality” is a catch-all phrase I use to describe persons with everything from severe character failings to anti-social personality disorders whose behavior regularly and invariably leads to destructive consequences. As used, the phrase describes behavior and its effects, not causes.

Christian ministers, social workers, mental health professionals and attorneys spend an inordinate amount of their time dealing with Destructive Personalities. While the vast majority of modern Destructive Personalities are neither as flamboyant nor as talented as Byron, they nevertheless work their way through churches, Christian organizations and communities on a regular basis leaving a trail of personal disasters in their path. It is vitally important for the Christian Professional to identify a Destructive Personality early on in the relationship before they can do more damage to those around them or the professional themselves.

Identifying Characteristics of Destructive Personality:

Three of the key identifying characteristics of Destructive Personalities are isolation, havoc and polarization. Destructive Personalities work best in isolated small groups where emotional, familial and social pressure can be used to manipulate the groups’ perception of reality to fit their agenda.

A key identifying characteristic of a Destructive Personality is the havoc they wreak upon those around them. The Destructive Personality will seldom admit to the havoc they have caused and take little thought of it after the fact. Simple proximity to a Destructive Personality is often highly destructive, wreaking havoc upon comparatively innocent bystanders. Look for a trail of spoiled personal relationships, hostility or indifference toward conventional authority and in the worst cases ruined careers of former friends, helpers and business associates.

The third identifying characteristic, polarization, is a natural by-product of the first two. Anyone who challenges the Destructive Personality’s carefully nurtured view of reality must be dealt with harshly. The challenger must be not only removed from the support group but personally destroyed as well. The challenger will be characterized to the support group as dishonest, immoral, incompetent or even criminal. This final reaction by the Destructive Personality can be devastating, splitting churches, ruining businesses and careers.

Dealing With a Destructive Personality

If you suspect that you are dealing with a Destructive Personality you must concentrate on the facts and the facts alone. You cannot allow yourself to be pulled into their web. If you are going to effectively serve them as a Christian professional, you must remain grounded in reality and make the them deal with you in reality as well.

The Christian professional should not rely on the verbal representations of a suspected Destructive Personality. At one end of the scale, they can be master liars, convincing anyone they seek to influence of the truth of whatever proposition best serves their interest at the moment. These are classic sociopaths who tell destructive tales with no concern for their victims beforehand and no remorse afterward. For example, a few years ago, an attorney friend revealed that he had a client who, over a period of years, had passed himself off as airline pilot, a surgeon, an attorney and a college professor before finally being caught. When his false identity finally came apart, he was wanted for fraud, forgery and other crimes in 26 different countries.

At the other end of the scale are the delusional. Many of these personality types present in Christian circles. They are victims of a psychological phenomenon known as confabulation. Convinced of the rightness of their cause, they will tell and re-tell the facts of their situation to themselves and their associates, casting them in an ever more favorable light until they convince themselves and anyone else who will listen that the representation of the situation that best serves their interest is the gospel truth. Within hours or days, they can justify terrible wrongs with a clear conscience declaring in absolute sincerity that they are doing the will of God.

The difference between the two sub-types is that the first is indifferent to the truth of their statements or their effect on others while the second convinces themselves that they alone are telling the truth and are doing the best thing for all concerned. Sometimes, you will find both sub-types presenting in the same person and it is not unusual to find both operating in close proximity to each other. A sociopath frequently develops a support system of delusional, confabulating followers and enablers.

Ministers and attorneys are usually not equipped to deal with sociopathic personality disorders and it is my opinion that suspected Destructive Personalities of this type should be immediately referred to professional Christian Counselors or Mental Health Professionals. Christian attorneys probably should not represent them. When an attorney presents a pleading to the court the attorney as well the client swears that the information being presented is the truth. If the attorney develops serious doubts about the truth of his client’s representations to him the only ethical course is to terminate the relationship. Confabulators should be confronted with the truth in the hope that reality will pierce the veil of their self-delusion.

Warning Signs for the Christian Professional

A near certain identifying characteristic of a Destructive Personality is a case history of other professionals who have attempted to serve the client but are now described by that person as evil, dishonest, etc. If the prospective client describes their last attorney, pastor or counselor as incompetent, the one before that as immoral and the one before that as dishonest you are dealing with a Destructive Personality and will soon be described in the same manner if you attempt to make them face reality. If you probe, you will usually uncover a complex chain of rationalizations and confabulations involving conspiracies by authority figures, unscrupulous or incompetent behavior by their former professional helpers and, of course, absolutely blameless behavior by the DP. Unless you have some important reason to maintain this relationship, you should immediately terminate the interview and be thankful that you discovered the problem early on.

Christian professionals are not immune to the considerable persuasive powers of a typical Destructive Personality. If you find yourself burning through long established professional relationships to serve a difficult client, are repeatedly threatened with ethical complaints because of your services to a particular client or find yourself becoming increasingly isolated in your practice because of the problem client, you have probably been taken in by a DP and should terminate the relationship before you do serious damage to your career.

The Problem of Confrontation and Repentance

Christian professionals face an especially daunting task in dealing with a Destructive Personality. If a professional relationship has developed, the Christian professional has a duty to confront the client with the error of their ways and admonish them to repent, seek reconciliation with those they have wronged and make restitution if possible. This is a dangerous but necessary course of action that must be handled prayerfully and carefully. The professional should prepare for the worst actions the client can take before the confrontation.

Summary

If a professional relationship has developed, you must confront the Destructive Personality with the truth. When they attempt to “explain” or minimize their actions, you must force them to face reality. When they attempt to draw you into their confabulated world of rationalizations you must step back and analyze the situation rationally based upon the objective facts. Take a cue from the famous TV detective, Sgt. Joe Friday and if at all possible restrict your dialogue with suspected Destructive Personalities to “Just the facts, ma’am. Just the facts.” Destructive Personalities must have trust and dialogue to make their “explanation” of events acceptable. Without confabulation and rationalization by enablers the DP stands alone and the reality of his actions become apparent. If you will suspend trust and dialogue and check the facts you will not be fooled by a Destructive Personality.

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Postscript: There is an excellent discussion of this problem at the Crime and Federalism Blog, here: http://federalism.typepad.com/crime_federalism/sociopathy_project/index.html

and another at: http://www.practicepro.ca/practice/pdf/DealingDifficultClientCaroleCurtis.pdf

It Pays to Be Picky (When It Comes to Clients) Your success in the practice of law may depend upon the clients you decide not to represent as much as the clients that you do decide to represent. By Linda Oligschlaeger With all the competition out there for clients today, it is difficult to turn away paying clients, especially in slower economic times or when you are trying to establish a practice. However, your success in the practice of law may depend upon the clients you decide not to represent as much as the clients that you do decide to represent. In other words, you want to be picky about who you take for clients. You'll be investing a lot of time and energy in your clients' legal matter, and you'll want to be certain that it not only is financially rewarding, but that the work is also rewarding, which may depend on your clients' demeanor. A lawyer that I recently spoke with told me about a situation where he felt sorry for a totally emotionally distraught woman who came to him on Christmas Eve about a divorce. Her former lawyer had withdrawn from the case, and she was about to go over the edge because she was close to losing her home and her child. The lawyer found it hard to refuse this woman and took her as a client only to later have to defend himself when she filed a complaint about him because the case didn't turn out as she had hoped. The lawyer found out later that she was an impossible client who had gone through several other attorneys who simply couldn't get along with her. She truly was emotionally unstable, demanding, and didn't pay her bills. The warning signs were there, but because it was Christmas Eve and he felt sorry for the woman, the lawyer let his emotions overrule trusting his instincts only to find himself with an ungrateful client that stiffed him for his fee. The initial interview with the prospective client is the best time to weed out those clients who can cause you indigestion and heartburn. But, how do you identify troublesome clients? There are some warning signs, but your own inner voice or intuition may be your best tool. Sometimes this is more crudely referred to as those who don't pass the "sniff test" or simply trusting your "gut feeling". We all have those defensive instincts if we listen to them. Usually, when you ignore them or talk yourself out of listening to the warning signs, you live to regret it. In some respects the attorney-client relationship is like a marriage. In order for the relationship to work, you must trust each other; you must be able to work together for a mutual interest; your personalities should blend and not clash; you must be able to communicate well with each other; and you both must work at the relationship. Like a marriage, it's important to start out on good footing. Couples that start a marriage with financial problems, who are incompatible, or who cannot communicate with each other, may be headed for failure. The same is true in an attorney-client relationship. Here are a few of the warning signs about would-be clients that should alert you to use your instincts, and listen to that inner voice. I'm certain that lawyers who have been in practice for a number of years could certainly add to the list, but here are a few to start with. The Bargain Hunter Client. This client is trying to get something (your services) for nothing or nearly nothing. This client is more focused on getting you to negotiate your fee to an unreasonably low level than getting his/her legal needs met. This type of client has probably shopped other lawyers all over town. Because the client is more interested in getting something for nothing, he/she will probably not see the value in your services. No matter how low you reduce your fee, it will not be low enough even though you may obtain a very favorable result. The User Client. This is the client who goes from lawyer to lawyer. If you're the third or fourth lawyer who has represented this client on the same matter, a red flag should go up before your eyes. There is probably something wrong when a client can't seem to get along with many other lawyers. The client may have a legitimate reason to seek a second lawyer, but a third or fourth? If this client has been represented by another lawyer on this matter, you might want to check with the former lawyer to see if the reason the client left was because the bill arrived, or because the client was difficult to work with. The Emotionally Distraught Client. This is the client who likely needs the services of a mental health professional more than a lawyer. Many clients seek out a lawyer because they are facing an emotionally upsetting situation in their life, such as a divorce or failing business. That doesn't mean that you should turn away all clients who are facing difficult situations in their lives. If so, you might have very few clients. But, there are those clients who cause your internal warning device to sound an alarm. If you accept the case of an emotionally distraught client, it's important to refer the client to a mental health professional who can help this person work through any emotional problems while you work on the legal problems. The client is then more likely to accept your counseling. If, however, the client resists your advice to seek assistance, you may have trouble communicating, and your client may not be helpful to you in the pending litigation. Emotionally distraught clients also have trouble remembering important conversations and details. The Let's-End-It-Fast Client. This client wants to cave in to the other side to get the matter over, and when buyer's remorse sets in, it's the lawyer who becomes the target. This could be the divorce client who says, "Give her what she wants and get this over with". He later becomes angry about his diminished financial situation or having to share his future pension, and guess who might take the blame-his lawyer. The opposite can also be true. The passive client may have hopes of reconciliation and wants to agree to a lesser settlement only to become angry later when the ex spouse marries someone else. Why did my lawyer let that happen? The Know-It-All Client. This is the client who had a brother-in-law who had a sister who was a paralegal, or who read all about a similar legal situation on the Internet. This client may have a smattering of legal knowledge-just enough to be dangerous-and insists he/she knows exactly how to handle the case; this client just needs you to make the court appearances. This client can cause a sure case of heartburn by not listening or accepting your advice. The Looking-For-Blood Client. This client is consumed with anger that will certainly stand in the way of any rational or fair result. This type of client wants revenge and the other side to pay with blood and money. Your rational solution will fall on deaf ears. It's nearly impossible to work with someone whose judgment is so clouded with anger. This person's anger can very easily turn on you. If revenge can't be taken out on the other side, you will do. The Pie-In-The-Sky Client. This client has completely unrealistic expectations about possible outcomes of their case. This is the person who finds an ant in the soup at a local restaurant chain and expects to never work another day. When you aren't able to send this client to Lucky Town, dreams will be shattered, and blamed on you. The User Client. These clients are pros, (maybe cons is a better description). They are able to manipulate you by casting themselves in an honorable light and convince you that they terminated their previous lawyer or lawyers for reasons that appear totally valid. Beware! They are wolves in sheep's clothing looking for as much free legal advice and services as they can bleed out of you. The High Maintenance Client. This is the client who needs an excessive amount of handholding. This client will call you at the office nearly every day, or in the evening just when you are about to sit down to dinner with your family. Although you have an obligation to communicate with your clients, you should make it clear to high maintenance clients that you will keep them advised (and keep your word), and it will cost them to continuously call or stop by your office. The Empty Pockets Client. Unless you choose to take the case on a pro bono basis, you still need to meet your payroll and keep the heat on this winter. If you are a bankruptcy attorney, it may be a different situation, but generally clients who have trouble paying their bills will also have trouble paying yours. Of course, it's the lawyer's responsibility to charge a reasonable fee and to clearly communicate to clients, preferably in writing, how they will be charged. It's always important to get a picture of the clients' financial situation at the outset. If their financial situation looks grim, be sure to get your money up front, if you do decide to take their case. The High Roller Client. This is the client who lives on the edge and who engages in shady business practices. If the client exploits others, either for financial or social reasons, chances are you will also be expoited. The It's-Always-Someone-Else's Fault Client. This client blames others for everything, and avoids accepting responsibility for his/her woes. You can bet this person will eventually be blaming you. When you decline to represent various clients, it's very important to send them a non-engagement letter indicating that you will not be representing them on this matter. If appropriate, it may also be very important to remind them of any issues relating to time limitations. In reality, many clients may have some of these traits. If you turn them all away, your waiting room will be empty, and you'll be out of business. However, these are traits to be aware of when deciding which clients to invest your time and hard work in. In order to have a good return on your investment of time and energy, it pays to be selective when it comes to clients. It may be an economically sound decision to turn away a client, even if they have the means to pay your bill, when your instincts tell you to be wary. Simply because a client has the means to pay doesn't mean that your bill will get paid; money isn't the only issue. A client who pays your bill, but who makes your life miserable, may not be worth the pain and suffering. Only you can decide. Although you may be adept at listening to your instincts, there will be times when you aren't able to pick up on these traits in spite of your best efforts. However, it's much easier to turn away a potentially troublesome client at the outset rather than later when you have to withdraw only to find yourself defending a disciplinary complaint, fee dispute, or malpractice claim. It simply pays to be picky, when it comes to clients. Linda Oligschlaeger is the Membership Services Director of The Missouri Bar and oversees the Law Practice Management Information Center.

8:52 AM - add eprops - add comments - email it

Tuesday, May 30, 2006

KELO ADDRESSED BY OK SUPREME COURT In an opinion released for publication today, the Oklahoma Supreme Court held that citizens of Oklahoma are entitled to a higher level of protection against eminent domain proceedings for economic development alone than is provided under current Federal case law: ¶19 To the extent that our determination may be interpreted as inconsistent with the U.S. Supreme Court's holding in Kelo v. City of New London, today's pronouncement is reached on the basis of Oklahoma's own special constitutional eminent domain provisions, Art. 2, §§ 23 & 24 of the Oklahoma Constitution, which we conclude provide private property protection to Oklahoma citizens beyond that which is afforded them by the Fifth Amendment to the U.S. Constitution. In other words, we determine that our state constitutional eminent domain provisions place more stringent limitation on governmental eminent domain power than the limitations imposed by the Fifth Amendment of the U.S. Constitution.19 We join other jurisdictions including Arizona, Arkansas, Florida, Illinois, South Carolina, Michigan, and Maine, which have reached similar determinations on state constitutional grounds.20 Other states have similarly restricted the government's eminent domain power through state statute.21 ¶20 While the Takings Clause of the U.S. Constitution provides "nor shall private property be taken for public use without just compensation," the Oklahoma Constitution places further restrictions by expressly stating "[n]o private property shall be taken or damaged for private use, with or without compensation." OKLA. CONST. art. 2, § 23 (emphasis added). That constitutional provision additionally expressly lists the exceptions for common law easements by necessity and drains for agricultural, mining and sanitary purposes. The proposed purpose of economic development, with its incidental enhancement of tax and employment benefits to the surrounding community, clearly does not fall within any of these categories of express constitutional exceptions to the general rule against the taking of private property for private use. To permit the inclusion of economic development alone in the category of "public use" or "public purpose" would blur the line between "public" and "private" so as to render our constitutional limitations on the power of eminent domain a nullity. If property ownership in Oklahoma is to remain what the framers of our Constitution intended it to be, this we must not do. An interesting side note concerning attorneys fees and costs is found in Justice Taylor's concurrence. Taylor apparently objected to the Court's grant of appeal related attorney's fees to the Washington, D.C. public interest law firm Institute for Justice who handled the appeals pro-bono: ¶7 An award of attorney fees may be dictated under the rule of stare decisis. However, any award of attorney fees to the landowner should be granted ONLY if the landowners prove they were unequivocally and contractually obligated to pay attorney fees at the time the legal services were rendered and that the landowners have actually paid the fees. If the landowners have not incurred attorney fees or if the landowners were not contractually obligated to pay attorney fees, then they are not entitled to an award of attorney fees. If the landowner's fees and costs of defense were defrayed by a private organization, then the landowner is not entitled to any award of attorney fees and costs. This is a common attitude among many judges and juries. While they are grudgingly willing to grant attorneys fees when there is an actual obligation to pay them, they are much less likely to grant them when the services are performed pro-bono, their logic being that pro-bono attorneys are paid a salary by the organization employing them and have thus already been paid for their services. This places individual pro-bono attorneys who are not paid a salary in a very difficult position. Not only has the attorney performed valuable services for which he will not be paid by his client but the court is also loathe to even pay him statutory fees earned because his services had no monetary value to their recipient and produced no financial obligation upon him. And, since only direct expenses incurred in performing pro-bono work are deductible not the value of the work itself, the individual pro-bono attorney can't even write off the value of services rendered. Justices Edmondson and Winchester also noted concern about the attorneys fees award in their dissent. In summary, this is a good opinion that will last until some Oklahoma developer challenges it in Federal Court. Until then, Oklahoma citizens have a little less to worry about concerning their homes and property but pro-bono attorneys should be put on notice that their fees will face increased scrutiny by some members of the court. --30--

A Religious Test for Judges In Oklahoma?

From: http://www.mirrorofjustice.com/mirrorofjustice/ and The Daily Oklahoma May 21, 2006

A Religious Test for Judges in Oklahoma?
by Mike Scaparlanda, J.D.

By a 6-3 vote, the Oklahoma Supreme Court has established the dangerous precedent of disqualifying judges because of their religious affiliations. Last month, the Court told probate judge, Larry Jones, that he cannot hear the case of Oklahoma Baptist Homes for Children, et. al v. Donald Timberlake because the “circumstances and conditions surround[ing] the litigation” are such “that they might reasonably cast doubt and question” as to Jones’ ability to be impartial or at least they raise “the appearance of possible impropriety.”

What caused Oklahoma’s high court to question Judge Jones’ impartiality? After Timberlake lost his case and while it was on appeal, he discovered that Judge Jones had “received a Doctor of Divinity in 1993 and is a licensed Baptist minister.” Armed with this information, Timberlake asked Judge Jones to remove himself from the case. Jones declined in a five page written opinion pointing out that a) his doctorate was earned at “a non-Baptist affiliated, independent Bible college,” b) that he is licensed by “the Seventh Day Baptist Church of Texarkana, Ark.,” which “is independent and autonomous” and affiliated only with the Seventh Day Baptist General Conference, headquartered in Wisconsin,” c) that his church “has neither association with nor fellowship with the Southern Baptist Convention or those churches or members known as “Southern Baptists,” and d) he has never been “affiliated in any manner with Oklahoma Baptist Homes for Children Inc. or Trinity Baptist Church of Oklahoma, Inc.”

Despite the fact that Judge Jones has absolutely NO connection, however remote, to the parties in the case, the Oklahoma Supreme Court ordered him to step aside. As a matter of judicial ethics this is a poor decision because no reasonable person who was informed of these facts would have any basis for doubting the judge’s impartiality. The danger of this opinion, however, strikes much deeper than a run-of-the-mill poorly reasoned judicial ethics opinion.

At its heart, the Oklahoma Court seems to be saying that religious people cannot be trusted to hear and fairly decide cases involving religious entities. At a minimum, the Court seems to be suggesting that a devout Baptist of any stripe cannot sit as a judge where another entity calling itself Baptist is involved. If the United States Supreme Court applied this standard to itself, over half of those Justices would have to disqualify themselves in any case involving the Catholic Church, Catholic Charities, a Catholic Hospital, or a Catholic University.

If the Oklahoma Court fails to reverse course, zealous advocates across the state will begin to probe the religious beliefs, the religious conduct, and the religious affiliations of judges they perceive as unfriendly. Does the Oklahoma Supreme Court really want to open this Pandora’s Box? In the future, will we determine judicial qualifications to hear particular cases by the amount tithed by the judge or whether the judge taught Sunday school or served on a church council or belongs to a church that has certain moral teachings at odds with the litigant?

The Oklahoma Court’s excessively broad view of judicial disqualification in this case looks like an infringement on Judge Jones’ First Amendment right to freedom of religion. Unless the Court is willing to apply this broad standard consistently – disqualifying Rotarians if one of the parties to a case or their close family members are Rotarians, for example – then the Court appears to be imposing an unconstitutional religious test for judges. Hopefully, the Court will see the error of its ways, allowing religious and non-religious judges alike to do their jobs unless there is some reasonable basis for disqualification.

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Note: this decision was apparently either not published or was withdrawn from publication. I learned about it from a reliable source in the Christian legal community.