Law

Letters Sent to My Congressional Representatives

The following represents the text of a letter I sent today to Senators Blumenthal and Murphy, as well as Representative Courtney. It remains to be seen if this idea gains any traction as a result of my contact, but if they do respond I will be sure to update.

Health care is a disaster, at least insurance is for my family. I have lost too much sleep over this crisis and there is too much wrong to fix in one letter. This is one small, but significant way to at least start and fix the mess the Affordable Care Act has made for my family.

Dear [Legislator]:

My name is Deborah Barbi. I live in your district with my husband, Massimiliano. I am twenty-six years old and work as an attorney, while my twenty-five year old husband works for a luthier. We have bought our health insurance through Access Health CT for several years, and have used advanced premium tax credits to help afford our high-deductible plans.

When I graduated from law school, I faced approximately $67,000.00 in government-subsidized student loans. My husband and I made a commitment to pay these back as quickly as possible, even though it would be a significant financial burden and would delay our being able to buy a house. We have made every payment, and then some, so far in our ten-year payback plan. We would have faced significant consequences if we did not make our payments, and we are glad we are aggressively repaying our debt.

Nevertheless, when I prepared to file our income taxes for 2016, we felt we were being punished by the tax code for paying our student loans while we save up for our home. We have been hit with a tax bill of over $3,000.00, nearly $2,000.00 of which is to repay advanced premium tax credits. The problem, for us, lies in the student loan interest deduction.

The student loan interest deduction is significantly different than the mortgage interest deduction in small but significant ways. And while I appreciate the tax code has recognized a benefit for those young working adults like me for paying off our debts, it would be much more impactful and more equitable if the deduction was treated just as the mortgage interest deduction.

There are two key differences between these deductions, which worked to create a monumental tax liability for my family this year. The student loan interest deduction is an above the line deduction, which tax payers can claim whether they itemize other deductions or not. While this sounds good in theory (especially compared to the mortgage interest deduction which must be itemized to be claimed) it does not compensate for the cap put on the benefit. While homeowners can claim every dollar they spent on their mortgage interest paid last year, students can only claim up to $2,500.00 in interest.

I paid nearly $7,000.00 in student loan interest last year. Again, that is money I was obligated to pay, and was willing to pay to get out of debt. It is money I no longer have, and yet the majority of it is still considered income I have lying around for health insurance premiums and taxes. For most young adults, the student loan payments function like a mortgage, and most of us have to choose between making those payments and buying a house. So why did I pay $4,500.00 in interest for which I received no tax benefit? The government gives great aid to both students and homeowners. The two debts – and consequently the two tax deductions – function almost the same in our society. If they are so similar, why have I been penalized for paying one, while I would be rewarded for paying the other?

The other way these two deductions should be identical but end up being drastically different is their role in calculating our family’s modified adjusted gross income. As you know, one’s MAGI determines whether one qualifies for Medicaid, and how much one may receive in tax credits to help pay for private insurance on the health care exchange. There are only a few deductions which help reduce one’s overall income to determine her MAGI; the mortgage interest deduction and student loan interest deduction are two such figures.

Once again, though, homeowners are at a significant advantage over students when it comes to affording health insurance. My MAGI would have been lowered by $4,500.00 last year if I was able to claim all of the student loan interest paid, rather than the arbitrary cap of $2,500.00. Significantly, I would be able to reduce my MAGI by every dollar I spent on mortgage interest, but not on my student loan interest. As a result, I have an artificially inflated MAGI, have had to pay back advanced premium tax credits, and may not qualify for HUSKY this year.

This year we are expecting our first child. Connecticut, thankfully, has a great Medicaid program for pregnant women. Unfortunately, I may not qualify for Husky A for pregnant woman because of just a few thousand dollars – a difference that would be eliminated if I were able to deduct all of the student loan interest I actually pay, rather than just the first third.

I know it is not a particularly glamorous of flashy issue; it is a minute, intellectual accounting difference that happens to have wide-spread and magnificent impacts on the life and health of my family.

If at all possible, please consider working to make the student loan interest deduction treated the same as the mortgage interest deduction. It would literally change our lives

Thank you for your time and I look forward to your efforts to help our family.

Sincerely,

Deborah L. Barbi, Esq.

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5 Reasons Young Attorneys Are Better

I get it, I am young. I have reached the end of many meetings and consultations to be asked on the way out, “So, how old are you?” And when the room is full of people bonding over the challenges of calculating Medicare benefits, they do not always find my presence as obviously ridiculous as I do. They usually get snarky about my age.

But it is not all bad. This kid, the fresh meat that is advising You: a business owner three times her age, on tax and liability matters may not be your favorite experience, or one you ever imagined as the ideal. But I believe there are several distinct advantages to having a young attorney that I urge you should consider. I have made it easy for you and listed them below.

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Stock photos are going to make this post funnier, I promise. He looks scared, but you should not be scared of young attorneys.

1. We start everything from scratch.

You may be confused as to why it is better to start something from scratch, when a well-seasoned counselor can re-use her prior work for your case. Yes, it will take them less time and they will be less stressed about it. But here is the advantage of staring over: things change, procedures get updated, laws are removed and re-written, and forms are created. When a new lawyer gets a problem they have never seen, they start from the beginning: we check the latest statutes and cases, and then find out what, if there is, a form we need to use. When we start over from the beginning, we create the most up-to-date product and arguments. It takes more time, but it feels good to know something the older attorneys don’t. And the Court’s don’t care how much experience you have; they want accuracy and they want things done their way. I have gotten complimented by the Chief Clerk of the Middletown Superior Court that he had never seen anyone put as much careful effort into drafting a judgement file as I had!

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Look how fun we are! We get along with everybody!

2. We don’t have bad blood with anyone.

Although the Connecticut Bar is a professional, courteous institution, there are occasional tiffs that arise between colleagues. It is not uncommon for a new attorney to take the place that would typically be occupied by her superior because the attorney on the other side does not get along with said superior. We are still meeting everyone, so we have no reputation to precede us. When we introduce ourselves to a judge or work with another lawyer, their opinions are blank slates. Most often, that works in our favor. And you never have to worry about someone taking out a past beef on you and your case.

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See how we can creepily stare you down? It is one of our gifts. We are trying to hypnotize you.

3. We are careful as ever.

This goes along with the “starting from scratch,” but also includes the fact that we are not prone to taking big risks because of over confidence. We are cautious, and careful. We try to be courteous and considerate. It usually makes people like us more, which helps us get away with things a jerk might not. Judges tend to like us because we treat every case with extreme importance because every one is our “first [situation]”, and are usually over-prepared. While other attorneys can do “small stuff” in their sleep, we lose sleep over the most inconsequential details. It helps us make fewer mistakes and makes us the most alert person in the courtroom.

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Staring into the future – our future.

4. We are up to date on the latest trends.

We are the most recent graduates from law school, where we learned the latest trends and developments in all areas of the law. While the more experience members of the Bar have the history and the, “When I was starting out, it was like this…” (which are great and interesting stories, don’t get me wrong!), but we have the now, which is what matters to you now. We know what has been happening and where it is headed. Law doesn’t change overnight, developments usually start on one of the coasts, jump to the other, and then start popping up in places like Ohio and Texas, before trickling down to others. We learned and continue to read up about what is coming around the corner, and may even be able to use changes in other jurisdictions to your advantage. We are still the babies of the field, so we work hard to keep up.

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Yes, Chris, the words you are writing here can be typed directly into your laptop. And then you can change them without white-out. Isn’t that amazing?

5. We just get technology.

Look, it is not a universal truth that older people and”varsity” attorneys are technologically challenged. All I am saying is that young people see technology as a tool that is makes things easier and can adapt to new technology faster. It is intuitive for us. We are less scared of it, and understand the options out there. We have grown up with the stuff, so if there is someone who needs to know how to open an email attachment or submit paperwork online, it is more likely to be the freshly-minted attorney. Why is this better for you? Technology makes things faster and makes us more responsive and approachable. Time saved equals money saved. We also understand the real risks out there – including the ever-growing threats of cyber crime against law firms and you. We tend to better understand the tools, so we understand the holes.

-D. E. Barbi Bee

August: Ask an Attorney #4

Hi! Welcome to the August: Ask an Attorney Series! Be sure to check out my other posts in the series by clicking here.

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QUESTION FOUR: Why isn’t marijuana legal everywhere, like in Colorado? They are raising a ton of money from marijuana sales, and seem to be doing fine.

The legal issues around marijuana – medical and recreational – in the United States are abundant and complex. It is truly one of my favorite debates, and an extremely relevant one, since the federal government is kinda, sorta [but not really committing to] reclassifying marijuana in federal law as a schedule two drug. “What the what?!?” you say, “Schedule what now?”

Let’s start with some background information, like the concept of dual sovereignty. The phrase itself is fairly simple: “dual” = two; “sovereignty” = supreme power or authority/governing state. Duhaime.com defines the doctrine by saying, “A maxim of law which allows the double prosecution of a person by more than one state for the same crime, where both states have jurisdiction for the prosecution, and notwithstanding the double jeopardy rule.”

In short, dual sovereignty means in the United States, you have two governments to report to: your state government, and the federal government. They have different laws, and you have to obey both, and if you do something that breaks bothboth of them can prosecute you.

Another concept you should learn here is regarding conflicts of laws. There is a distinct hierarchy of power among the sovereigns, and even within them. So let’s say the Oklahoma governor signs a bill into law saying everyone in the state has to wear blue shirts on Wednesdays. But the same day, the United States Congress passes a law saying everyone has to wear red on Wednesdays. These laws are in direct conflict with each other: no one can obey both of them. So who wins?

For the most part, federal law beats state law. [There are intricacies of this rule, but they don’t matter here.]

The point of teaching you about dual sovereignty and conflicts of laws is because of the part of the question where it was implied that marijuana is legal in Colorado. That’s not true, because there are two laws in effect in Colorado (federal and state), and because federal law says marijuana is still illegal (and federal law trumps state). Got it? Good.

[Side note: if marijuana is so illegal in Colorado, why is everyone acting like it’s legal? Excellent question. See, a long time ago the United States Supreme Court was like, “Hey, we have all these states. You know what would be fun? Let them experiment and try stuff we couldn’t at a national level, just to see how it works out?” Thus, the concept of states as “laboratories of democracy” was born. What this means for our discussion is that the federal government is literally sitting back, chilling, and is like, “Okay Colorado, we won’t stop you now, but if things get out of hand we will be right here watching.” But Colorado’s marijuana dealers aren’t taking any chances; there is even a booming security industry in Colorado to keep an eye on all the dealer’s cash. Because you know who doesn’t want to hold money that the federal government could come in and take as illegal drug money at literally any time? Banks.]

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No matter what shade of blue each state is, marijuana is still illegal there.

Okay, so now that we know that marijuana is illegal in every single one of the United States, what’s this “schedule” business?

Back in the day, Congress passed a law saying (basically), “We want a way to group drugs into different categories to make it easier to figure out how much to punish people for abusing these. Let’s figure out which drugs have the most medical uses and lowest risk of abuse, and then figure out which ones have the least medical uses and highest risk of abuse, and put it all in a chart called a ‘schedule.'”

Now we have five schedules, and you can read more about them and what drugs are where by clicking here. As you saw on the link you clicked (totally, right?), marijuana is a “Schedule One” drug. Pursuant to 21 U.S.C. Sec. 812, a Schedule One drug has three characteristics: “(A) The drug or other substance has a high potential for abuse. (B) The drug or other substance has no currently accepted medical use in treatment in the United States. (C) There is a lack of accepted safety for use of the drug or other substance under medical supervision.”

[P.S. Take note that in the list of which drugs are in which schedule, alcohol and tobacco are not on the list. More on that later.]

This year, the DEA and Mr. President have been teasing everyone, saying, “We might just look into these medical uses, and put marijuana in the schedule two category.” (As you learned on that link you clicked, Schedule Two drugs still have a high risk of abuse, but has some legitimate medical purposes.) Most importantly, this would free up funding for legitimate medical uses of marijuana (as a Schedule One drug, this is tres difficult).

Some people got really excited, and even lied in this article about it, saying, “Guys, it’s totally going to happen; we have the inside scoop.”

Then August 1, 2016 came around and Mr. President was like, “Nah.”

To recap: marijuana is still illegal in all fifty states, and the President decided that marijuana still has no legitimate medical purpose in the United States.

Now that we understand the current situation, let’s address some of the common reasons why marijuana is still illegal in these United States. I’m not a doctor, or a scientist, or medical researcher, so I’m no expert. But I will reference as many of them as I can in my brief responses to some of the most common reasons given to legalize marijuana.

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1. Alcohol is legal, and it’s way deadlier than marijuana.

The conclusion of this argument (which is rarely said out loud) is: …”so marijuana should be legal, because alcohol is worse.” This is like when you get caught hitting your little sister, and your mom yells at you, and you say, “But she called me…” and your mom doesn’t want to hear it, because her bad thing doesn’t take away your bad thing. The implied conclusion is rarely said out loud because the rebuttal is too easy: “Then we should just make alcohol illegal, too!” The legality of one harmful drug does not prove that another harmful drug should also be legal. The two may be logically inconsistent, but more on why they are treated so differently in a minute.

Dr. Elizabeth Hartney said it best, “Although alcohol and tobacco are currently legal for adults, they are both highly addictive drugs and long-term use is associated with life-threatening health effects. However, the fact that alcohol and tobacco are harmful does not in any way reduce the harms of marijuana smoking.”

Recall earlier when I told you to take note that alcohol and tobacco were not on the list of scheduled drugs? That’s because historically, alcohol and tobacco have been treated in very different ways from marijuana and other drugs. For example, Congress tried to make alcohol illegal, but it didn’t help our nation’s alcohol problem. So then they threw up their hands and said, “Fine, you states deal with this yourselves!” But don’t worry, Congress still had a way to regulate alcohol. Today, the national drinking age is twenty-one because Congress passed a law and said, “Hey, you can make your drinking age whatever you want, but if it is lower than twenty-one, we are not giving you as much money to keep your highways smooth and pretty.” Yeah, literally.

In short, yes, alcohol is deadlier than marijuana. There is no way to dispute that. But comparing this nation’s treatment of marijuana and alcohol as parallel in policy or history is way misleading. You might as well compare federal regulation of marijuana with federal regulation of raising chickens.

2. Legalizing marijuana will make this country so much money because we can tax it! 

Probs. It is difficult to find an accurate number, but, yes, Colorado has probably made hundreds of millions of dollars in tax and related revenue since legalizing recreational marijuana.

But that’s not the whole story. First, the market responds to higher and higher taxes. Initial estimates for tax revenue from legalizing marijuana way over-hyped the actual figures in the first year. And many legitimately argue that a crazy tax (like 25%: I’m looking at you, D.C.), will push many buyers to black market dealers, who won’t impose the taxes, and may be more prominent once the product is decriminalized.

Second, even if our government makes a decent revenue from regulating marijuana, experts agree that there will be corresponding increases in costs necessary to treat a growing population of marijuana users and abusers. See this graphic from the Drug Free America Foundation, which lays out details regarding the likelihood of increased use and abuse, and national costs associated with those changes.

3. Anti-legal marijuana advocates “feared that more high school aged kids would be smoking weed.… No.”

The video this quote came from didn’t give any reason why they don’t believe legal marijuana would increase use among teenagers. But since he’s in denial, I’ll lay it out here.

First, why are we so worried about teens using marijuana? Because it’s super bad and does mega damage to a teenager’s developing brain. Marijuana can negatively effect everyone’s physical and mental health, but for teenagers the consequences are magnified and multiplied. Marijuana use among teenagers increases the risk he or she will become addicted to the drug, increases the risk he or she will “suffer from depression, anxiety, psychosis, or other mental illness,” can cause permanent loss of IQ points, and can decrease a student’s performance in school and work.

In one study, “‘We found that people who began using marijuana in their teenage years and then continued to use marijuana for many years lost about eight IQ points from childhood to adulthood,’ says study author Madeline Meier, now a professor at Arizona State University, ‘whereas those who never used marijuana did not lose any IQ points.'”

Second, legalizing marijuana can lead to increased use. As Time reported, “Pot advocates try to dismiss all that [negative health risks] by pointing out that marijuana is being legalized only for adults. But as with alcohol, wider availability filters down to kids. And with pot legal for adults, the black market will likely redirect its efforts to teens, where, as cited, the damage of marijuana use is greater and more irreversible.”

I’ll admit, the studies coming out of the laboratory called Colorado have shown that marijuana use among teenagers since legalization has not increased in that state, and have followed the national trend. “A large study found that rates of cannabis use among teenagers in states that legalized medical marijuana did not increase. And since Colorado fully legalized cannabis in 2013, the early reports show that rates of cannabis consumption among teens have continued to decline, which is part of a nation-wide trend,” writes Dr. J. Wesley Boyd in Physcology Today. Those two years of data coming out of one state, however, have not convinced me.

Furthermore, “States with medical and recreational marijuana laws do see higher rates of teen consumption – they’re 27 percent more like to regularly use cannabis than minors in no-access states.” Which begs the question: are states that legalize marijuana already so approving of the drug, that the legalization would not affect overall use?

A 2004 report by the National Institute on Drug Abuse identified risk factors associated with drug use among children and adolescents, writing, “Other factors—such as drug availability, drug trafficking patterns, and beliefs that drug abuse is generally tolerated—are also risks that can influence young people to start to abuse drugs.”

The bottom line is this: if drugs are available, perceived as acceptable, and part of the social norm, teenagers are more likely to use. Given how harmful marijuana can be to teenagers, I am strongly in favor of trying to cut those risk factors by keeping marijuana illegal. And that, by the way, is the federal government’s interest as well.

Many people, including attorneys I have spoken to on this issue, believe it is none of the government’s business and people should be able to do what they want. I disagree. One of the main functions of government is to protect the public health, and this is a serious public health concern; one in which only the government can take the action necessary to protect its citizens.

-D. B. Barbi Bee

 

August: Ask an Attorney #3

If you are new to the Ask an Attorney Series – welcome! Check out what this is, as well as the answer to my first question by clicking here. Check out my answer to the second question by clicking here. Don’t forget to leave your questions in the comment box; they may be featured in my next post!

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This is my face just minutes after finding out I passed the Bar Exam! Look at that smile: I had not idea….

THIRD QUESTION: Why are attorneys so doom and gloom? They are always looking at the worst in a situation.

Oh, boy! If only I could turn off the “risk-o-meter” constantly spinning in my head. This weekend, I was walking into a local grocery store to pick up items for my mother’s birthday. Just before entering, my husband pointed out to me a small vegetable patch just outside the door: a few tomato plants and what could be zucchini or pumpkin greens. My immediate thought was, “How cute. I wonder if they sell those to the public?” One split-second later, my thought was, “Oh no, do they have a license to sell those?? What about the liability!?”

Like insurance agents, attorneys are trained in the depressing art of risk management. They make no guarantees or promises, and in many cases, you never even know if what they do for you was necessary. Attorneys work to prevent and reduce harm to your interests. Their success depends on you following instructions, others doing their part, and a little bit of luck.

Take, for example, the fairly uncomplicated act of writing a will. If you are married in Connecticut, your spouse is not the sole heir of your estate. That means that if you are married and die without a will, your spouse doesn’t automatically get everything. In case it wasn’t obvious, writing a will can be a justifiably gloomy exercise. You have to walk through tons of scenarios that all involve you dying, and some involve just about everyone in your family dying, too. (“Okay, so in case you and your husband die, your sister is dead, and your children are still under the age of 25, who would you like to file the paperwork with the court? And what about if your brother and sister-in-law get divorced?” Yeah, it’s rough.)

But, as noted above, if your don’t have a will, your family could be in a far more complicated circumstance than the awkwardness of determining inheritance if your family endures the worst bus accident in human history. The lesson? When you leave your attorney’s office feeling very depressed, lighten your load by knowing that what you just did was well worth the effort.

Or was it?

See, the truth is, most people don’t die with their spouse. And most people don’t die young. And most people don’t lose two or three of their closest relatives at the same time as their own life is lost. When writing your will, your attorney is trying to protect you and your family against the 0.0000003%* chance that everything in the world goes horribly wrong at once. You will probably never need that kind of protection. But you just might.

In this way, some of what attorneys do is provide insurance. And like insurance, it may not ever be required. But you don’t buy homeowner’s insurance because you think your house will catch on fire. You buy it to protect your interests just in case. A lot of what attorneys do can be characterized the same way, just in case.

Insurance-type work is the bulk of what transactional attorneys to. These are the ones who write and negotiate contracts, agreements, and that pile of paperwork. These are the ones responsible for all that fine print that comes in the box with the electric drill you bought. These are the ones that “drag everything out just to make more money,” and “haggle over ridiculous wording. Who cares?!” (Might have heard these sometime… difficult to recall….)

The truth is, we wish we didn’t have to care. The truth is, we don’t like having to explain why the last draft actually isn’t the final draft – yet again – and why – yet again – the transaction is being delayed and we have to go back to the table. What we are doing is trying to get the deal closed and get you the best possible insurance for the future. And even if none of the scenarios we are imagining ever come to be true, we have to make sure you are protected just in case. [Believe me, we don’t like this dragging out any more than you do.]

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I’ll close with these final thoughts. While much of what attorneys do is try to protect your interests just in case, we can never, ever protect you against everything (especially from yourself). My two least favorite questions to be asked by a client are:

  1. Do I have to do that?
  2. Can they sue me if I do this?

The answers are very simple. 1. You don’t have to do anything, but there will be consequences if you do or do not do something. 2. Nothing we do can ever protect you from being sued. Anyone can sue anyone. Whether or not they win (or even how far they get) is another question.

Attorneys tend to see the world like a chess game, or a flow chart: the outcomes depend on how parties respond to many factors (most outside of our control), as well as the insurance we provided for you up front. Our risk-o-meters are only part of the equation, but an extremely critical one at that.

So instead of bad-mouthing all those long-winded attorneys who “drag things out” and are so pessimistic, recall that we are involved for one purpose and one purpose only: to protect your interests now and down the road from things you can’t even imagine. We ponder the depressing stuff so you don’t have to. You’re welcome.

*not an actual number. Just an illustration.

-D. E. Barbi Bee

Do you have any questions for this attorney? Leave a question in the comment box!

 

August: Ask an Attorney #2

If you are new to the Ask an Attorney Series – welcome! Check out why the heck this is happening, as well as the answer to my first question by clicking here. Don’t forget to leave your questions in the comment box; they may be featured in my next post!

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SECOND QUESTION: Can we please just repeal Citizens United already? What a disaster!!

One comment last week suggested I write about my favorite landmark decisions. Which got me thinking about the number of Supreme Court cases that the vast majority of people – no matter how intelligent or educated – straight-up don’t understand.

The biggest case getting thrown around alongside all kinds of misinformation these days is called CITIZENS UNITED v . FEDERAL ELECTION COMMISSION. You have probably heard about it from Bernie Sanders or some of his ardent supporters. His website even lays out his misunderstanding of the case, where he says, “The Citizens United decision hinges on the absurd notion that money is speech, corporations are people, and giving huge piles of undisclosed cash to politicians in exchange for access and influence does not constitute corruption.” Later, on the same page, he promises that as President, he would nominate judges who would overturn Citizens United. (Ironically, the case was brought by a corporation that wanted to advertise and air an anti-Hillary Clinton film during primary season.)

Senator Sanders does an excellent job here of summarizing the public’s misunderstanding of this case. So we’ll break down what he says to cover our bases. Claim #1: It is an absurd notion that money is speech. Talking is speech. Writing is speech. Photos are speech. Paintings are speech. Movies are speech. Commercials are speech. Money is speech.

It costs money to get your speech to the listeners. Printing newspapers, publishing ads in magazines, supporting your website, manufacturing signs and t-shirts: it all costs money. The right to free speech cannot be exercised without the companion right to fund said speech. 

If you would like a concrete example of how we know money is speech, consider the amount of money candidates – including Senator Sanders – must and do raise to fund their campaigns. To make a speech in a high school auditorium is one thing, but to pay cameramen and interns to film it and publish it on Facebook is far more effective – and costs money.

In conclusion: yes, money is speech. Or more accurately, money makes speech possible. It would be hypocritical of anyone concerned with the amount of money corporations spend on political speech to suggest otherwise.

Claim #2: It is an absurd notion that corporations are people. Some vocabulary: People vs. Person. You thought they were the same? They are not. 

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Both of these signs are correct, and neither one is inconsistent with Citizens United.

Let’s go back to that Bill of Rights we discussed last week. If you take a chance to read through the first ten amendments, you will notice a few things: (1) If you wrote them in tenth grade, your English teacher would have gone full red-pen on you. They were not written in a clear way. (2) Sometimes the Bill of Rights reserves right to people, sometimes persons, and sometimes it is not clear at all.

People: are human beings, and sometimes more specifically citizens (either of the United States or individual states therein).

Persons: are sometimes people, and sometimes corporations, partnerships, or other entities.

“So far as legal theory is concerned, a person is any being whom the law regards as capable of rights and duties. Any being that is so capable is a person, whether a human being or not, and no being that is not so capable is a person, even though he be a man. Persons are the substances of which rights and duties are the attributes.” John Salmond, Jurisprudence 318.

*Important side note: what I love about what John Salmond is saying here is that those who receive the rights of persons also have the duties of persons (like being held accountable for damages they cause; i.e. being sued). There is a trade-off. Not everyone sees it this way, but I see it as a significant benefit that when one is harmed by the actions of a corporation, he or she can pursue all the assets (and insurance policies) of the entire corporation, not just the suits behind the veil.*

Now zoom in on the first amendment, which is one of those ambiguous ones. It states: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.”

Did you notice that the only time one of our key words was mentioned was in stating that Congress shall make no law abridging “the right of the people to peaceably assemble.” The remaining protected rights in the first amendment – like freedom of speech – are not so clear. Do they belong to people? Persons? Who knows? That is one thing the Citizens United Court had to figure out.

David Silver, Esq., stated it so well in this comment feed, I’ll just repeat it here: “Corporations Are People:  The Court never makes this claim.  Corporations are legal persons, and have been in the law for some time (Dartmouth College v. Woodward, 1819).  Justice Scalia added in his concurrence: ‘The Amendment is written in terms of “speech,” not speakers…We are therefore simply left with the question whether the speech at issue in this case is “speech” covered by the First Amendment . No one says otherwise. A documentary film critical of a potential Presidential candidate is core political speech, and its nature as such does not change simply because it was funded by a corporation. Nor does the character of that funding produce any reduction whatever in the “inherent worth of the speech.”‘”

To conclude: you are correct, Senator Sanders, corporations are not people. But the point you are trying to make (that, unlike people, corporations do not have Constitutional rights) is incorrect. As persons, corporations can sue and be sued, enter into contracts, and have the right to due process of law and to free speech (and to fund said speech).

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Now you can see all the inaccuracies in this poster, can’t you?

Claim #3: It is absurd that giving huge piles of undisclosed cash to politicians in exchange for access and influence does not constitute corruption. There are some big inaccuracies in this statement, but I understand the sentiment. One falsehood is the claim that corporations can now give huge piles of cash to politicians. Citizens United did not change the federal ban on direct corporate contributions to political campaigns. Let’s not forget that this whole case was about airing an anti-Hillary Clinton film. The other falsehood is this whole “undisclosed” business. Did you ever notice those disclaimers at the end of a political commercial that says, “Paid for by…..” Those are not included voluntarily.

But if you look closely at the Senator’s words, he doesn’t even claim that corporations give huge piles of undisclosed cash; he is complaining about any donation of “huge piles of cash.” Senator Sanders, are you even concerned with individuals donating money to campaigns? Surely, Americans can donate money to your campaign as much as they want, right? If Senator Sander would rather muzzle all political speech except from a single, tax-payer funded treasury, then no person would have the freedom of speech – corporations of otherwise.

I do not claim our system is perfect by any means, but the underlying value is for democracy: that all persons should have the freedom to voice their political opinions. And, true, some persons have greater ability to exercise said speech; but the Constitution does not promise that all have the same influence.

I greatly appreciated the Los Angeles Times editorial by John O. McGinniss, where he made this distinction so clear, “But the 1st Amendment guarantees freedom, not equality. Rights are exercised to radically unequal degrees, and the right to speech is no exception. Some people are wealthy and can push their views with their money. Others work for the media or academia and can advance their opinions disproportionately in those settings. Still others command extra attention through celebrity. Most citizens have none of these advantages, but sometimes they join together to amplify their influence. In a free society, what law could succeed in purging elections of the unequal influences of the celebrated, the well-connected or the wealthy? Restricting one group would just magnify the influence of others.”

In conclusion: what you call, in your opinion, corruption, the United States Constitution calls freedom. And since we have already established that money is speech and corporations are persons, any attempt to limit the free speech of corporations – to pass Constitutional muster – would also have to limit the free speech of other persons, like your own campaign contributors.

 

Do you have questions you always wanted to ask an attorney? Leave them in the comments below and you might just get an answer!

-D. E. Barbi Bee

 

 

 

 

August: Ask an Attorney #1

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This September, I will have been at my job for almost a full year! This year has been a rocket ship ride full of challenges/learning experiences, excitement, and many conversations that started with, “So how do you like being a lawyer?”

Answer: I love it. It’s the most difficult, frustrating, stressful job but I truly absolutely love it. I feel like I was designed for this. [Even though I often wish it was more like these jokes.] I can’t imagine myself doing anything else and as small as I sometimes feel, every day I am becoming a better and better attorney and I’m obsessed.

To celebrate my upcoming anniversary, every Monday of August I will sharing my answers to some of the most common questions posed about my job.

FIRST UP: How can you defend someone you know is guilty?

First of all, this question is based on the assumption that a lawyer’s job is to help the accused walk away. *Buzzer sound* Wrong. On a practical level – walking away is not always the goal, and it’s rarely even possible. On a theoretical level – a lawyer’s role in the system as a whole is not letting criminals walk free – it’s about balance.

The American judicial system is built on a few fundamentals, which we happen to love: the presumption of innocence, the power of people against their government, and rights of the accused. You’ve heard of the presumption of innocence: it means that (generally speaking) when the government accuses you of breaking the law, they have to prove it to an impartial third party (judge or jury). Lawyers have to defend the innocent along with the guilty because otherwise this presumption would not exist.

The power of the people is fundamental because our entire government (and, as a function of government, the judicial system) is designed to attempt to combat the basic presumption that everyone in society is hungry for power, and if not properly checked, they will steal too much power and take over. The three branches of government are intended to check each other’s power grabs, the state and federal governments check each other’s power grabs, and the people and government as a whole check each other, too.

When the government (through a police officer and then prosecutor [i.e. government’s attorney]) accuses a person of a crime, the person needs a lawyer on his side to keep the government’s power in check. If the government is not challenged in every case, even when the accused is truly guilty, their power will be unstoppable.

(Side note: I know to some, the system already looks pretty rigged and justice is not being done. All these justifications are in an ideal world, and if our system works perfectly. And even the failure of our system does not mean that attorneys should not represent the guilty – it means more needs to be done, not less.)

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Finally, you know about the Constitution, right? That’s the document that the old guys back in the day wrote to set up the federal government. When they were done, some of those guys were like, “Um, what about the people, though? What do they get?” Good point, Ben, let’s make sure it’s super clear what rights the people have: enter, the Bill of Rights. (Super solid, cool stuff is in there, like not having to testify against yourself, and keeping the cops from snooping around in your house outwith a warrant.) These rights apply to everyone (even “bad guys”), and you should be really pumped about that because if the government can arbitrarily take rights away from someone because they are like 99%  sure they did a bad thing, then they can do it to anyone – even you!

So defense lawyers make sure that the government is on its best behavior all the time, so whether they are dealing with a bad guy or not, so everyone’s rights are preserved. This, by the way, is why people get away sometimes because of “technicalities”: the police didn’t follow this rule or that rule, so the evidence is hidden from the jury, and the defendant walks free. Does it stink sometimes? Yup. But, again, in an ideal world, the police would follow all the rules, and then good guys will walk free and bad guys go to jail.

All this may sound totally absurd, but it’s super, majorly important. Someone asked me once if a lawyer who knew their client was guilty could just do a bad job, and make sure the person went to jail. NO! Big time no! Why? One of those important rights we discussed is that everyone has a right to a competent attorney – if you do a bad job, and the bad guy goes to jail, he can appeal by saying he had a bad attorney, and he can end up walking free!

The entire American system is designed so that if everyone does their job perfectly, and everyone follows the rules, justice will be done. Obviously, Making a Murderer fans and Black Lives Matter alike will shake their heads at that theory – but that’s the plan. As lawyers, we have a very important role to play in this system. Even when it fails, I can say that my role in the system – despite its flaws – was honored.

Thanks for joining me for week one of Ask an Attorney! Come back next Monday for the next answer. Do you have a question you always wanted to ask? Here’s your chance!

Lawyers’ 8 Commandments

It may not be the “Perfect 10,” but these are some standards a lawyer should live by.

1. Thou shalt not speak in absolutes. There are no absolutes in law.

“Is this legal?”

“It depends.”

2. Thou shalt make no promises as to outcomes.

“Do I have a good case?”

“Maybe.”

3. Thou shalt do as the client says, even if you disagree. Make it clear that you disagree, but do it anyway.

“This is not necessary to get what you want, it will complicate things, cost you money, and probably won’t work, but if you insist, I will do it.”

4. Thou shalt listen to and believe the client, but make sure their story checks out.

Self-explanatory. It’s not fair and nearly everyone doesn’t realize it, but there are two sides to every story, and we tend to filter out (even without realizing it sometimes) some information not favorable to our perspective. Clients don’t always know what is relevant, but details could make all the difference and you must check them out.

5. Thou shalt make every attempt to explain the law to the client, even though he or she can never understand it fully.

“You should not accept a Quit Claim Deed for this.”

“Why, what is a Quit Claim Deed?”

“A Quit-Claim Deed is a deed that transfers whatever interest the grantor has, but makes no guarantees as to whether or how much interest the grantor owns. Also, the grantor makes no promise to help you get the interest you think you are getting if someone comes along and wants to fight with you about a boundary or title issue. Those kinds of promises only come from a Warranty Deed. Someone can quit-claim you the Brooklyn Bridge, but it’s not worth the paper its printed on.”

6. Thou shalt remember that what goes around comes around. You can dish it out, but be prepared to take it.

Not responding to phone calls, filing an aggressive motion, asking a certain question on direct: they have consequences.

7. Thou shalt put the clients’ interests always above and before your own.

Most people think that lawyers try to drag on cases to make more money. Don’t be that guy. The client wants something, that’s why he or she came to do. Try to do that thing, or, if it’s not possible, do the next best thing.

8. Thou shalt live in the land of “what ifs.” The client is not welcome in the land of “what ifs,” but you may introduce them to some of its main attractions to explain why something is necessary.

Most people can’t fill their heads with the dozens of standard hypos you learned in law school, not to mention the hundreds of unusual circumstances that you deal with all the time in your cases. The client doesn’t need to know that someone got sued for not disclosing that the house they were selling was haunted, unless they ask, “What’s with this clause in the purchase and sale agreement?” Then you can say, “Well that’s in case you forgot to tell them that the house was haunted, and they sue you for it.”

Accept Refugees? Not a Yes or No Question

As soon as I calmed down from the initial shock of Friday’s Paris attacks, I knew right away that this would significantly alter our response to the Syrian refugee crisis.

Now, in the wake of these terror attacks that were just too close to home, and just as the Presidential campaigns are really heating up, the debate over whether or not to accept Syrian Refugees has taken a much more serious tone.

“Have compassion!” cries one side. “Safety first!” cries the other. The debate makes it sound as though there are only two choices: accept them, or don’t.

But I believe it’s much more complicated than that; and it is not at all just about how much of a humanitarian you are. After all, there are refugees fleeing many countries and conflicts around the world, and yet the Syrians are the only ones in our discourse right now.

Should we take in refugees? How many? When? Which ones? Where will they go? What will we provide for them? Is there a better way to help? How can we protect our interests? There are so many factors to consider.

On the one hand, there are millions of vulnerable, needy people out there. We see their pictures, hear their voices, and many people – including many Americans – have an ache in their heart. It just feels wrong to let so many people suffer, as a humanitarian.

Furthermore, we have an obligation to help our allies when they ask. From a foreign policy perspective, we have more interest in helping Europe deal with the refugee crisis than any other region dealing with refugee populations.

Also, we should consider that vulnerable people can be easily influenced by whomever will lend aide. If we don’t step in and do something, they could be exploited and radicalized, or simply turn to crime or violence to care for their families. What would you do if your family was freezing and starving? From a security standpoint, we can’t be naive enough to think that letting millions of homeless, traumatized people fend for themselves does not pose a security threat.

However on the other hand, there are so many real, practical questions when it comes to bringing foreign refugees to our country. First, there is the screening question. Of course, keeping refugees out of our country is not the most effective way of preventing terrorism on our soil. But, at least one of the actors in the Paris attacks was posing as a refugee, and depending on which numbers you believe, there may be an alarming number of young, single men in the wave of refugees. I don’t think it’s illegitimate to desire a thorough screening process for refugees coming to America – any of them. And given the fact that our President is looking to significantly increase the number of refugees allowing into our country, it is totally legitimate to wonder how our old process will work on this massive scale.

Further, we have the privilege of an ocean between the refugees and ourselves. I believe we have a duty to take advantage of that privilege, and use it to carefully protect ourselves and the refugees we take in. If we can thoughtfully and cautiously take in the refugees that pass our security standards, only then we can effectively provide them with the resources to keep them safe, establish a life, and recover from the trauma of war. Unless we brought them in in droves, refugees in this country will never have to sleep in make-shift tents in a freezing forest. We can do better, which will be better for the refugees and the communities that take them in.

We can’t forget about the money. It seems cold to talk about financial resources at a time like this, but I think we do need to consider the practical side of this issue. There is a legitimate concern in this country that we still have orphans of our own to care for, homeless to provide for, and veterans without benefits. Will their programs be affected by taking in refugees?

When refugees come to this country, there are many programs set up to provide them with housing, food, jobs, and resources to get their lives back on track. I know some of the awesome people that pour their lives into helping refugees recover and become helpful members of society. But we have to ask: how many people can we responsibly take in? If we stretch ourselves too thin, then the refugees would be no better off here than they would in the streets of Serbia.

While my heart goes out to the people who have been affected by the Syrian civil war and the rise of ISIS, I think the issue is so much more complicated than just saying “Yes” or “No” to refugees. Sadly, our current political climate does not provide a lot of space for nuanced, thoughtful dialogue. But among ourselves, I hope we can be more careful about the black and white lines we like to draw. 

-debarbibee

 

Bar Prep for Dummies (No Offense)

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If it’s 9:45 on a Thursday, and you are making property law flashcards, you might be studying for the bar.

I wouldn’t know about this stuff either unless I was doing it. In fact, no one should know about it because it should be banned, because it’s evil and stupid and we all hate it.

Anyway, for those of you that don’t know I’m in the middle of bar prep – aka all finals and tests and stresses you’ve ever gone through in your life jammed up into two months of studying. It’s been a blast.

For you lucky suckers that aren’t involved in the bar, I thought I would take a few minutes to complain inform you on this magical horrible process.

1. What is this test?

Passing the Connecticut Bar exam is one step to becoming a lawyer in my home state. The other steps include earning a law degree at an approved school, passing an ethics test or ethics course, and passing the bar committee’s extensive standards regarding my background (everything from criminal history, to mental health background, to employment records, to credit checks).

Every single state is annoyingly different (from a legal perspective) in these beautiful country, which means almost every state has a different bar exam. In Connecticut, it looks like this:

Day 1 (July 28) – 2 MPT essay questions in the morning (requiring us to read facts, review documentary evidence, read case law and statutes, and assemble them into some organized presentation), and 6 essay questions in the afternoon, in 7 hours, including lunch.

Day 2 (July 29) – 100 multiple-choice questions in the morning, 100 multiple-choice questions in the afternoon. This is again 7 hours, including lunch.

Day 3 (July 30) – sleep and/or celebrate and try to forget about this whole thing.

We get our results in October, and we will (hopefully) get sworn in by the Connecticut Supreme Court in November. But we’re getting ahead of ourselves…

2. What are you tested on? (a.k.a. Why is this exam so stupid?)

Good question! The exam is stupid because it tests you mostly on national common law, which is also known as law that judges make, and is usually modified by statutes in each state. And, even though it’s a test for Connecticut, and I’ll be practicing Connecticut law, I’m not tested a whole lot on Connecticut law, common or statutory.

The subjects in this test are really freaking broad, too, which is ridiculous because no one practices every area of the law – there’s too much! They even test you on federal civil procedure, which is totally unnecessary unless you are going to practice in federal courts. The test covers: Constitutional law, contracts, criminal law and procedure, evidence, federal civil procedure, real property, torts, administrative law, agency and partnership law, conflicts of laws, family law, trusts, commercial paper and bank deposits, secured transactions, and wills.

Some of the most important papers of my life are found in these quasi-juvenile binders.

Some of the most important papers of my life are found in these quasi-juvenile binders.

3. Why is studying so time-consuming? Didn’t you already learn this stuff in law school?

Yes and no. Most of these subjects I did study in law school, but some classes don’t cover every aspect of that subject. For example, in my Constitutional Law course, we ran out of time and had to only briefly glance at First Amendment issues, so studying that now is practically brand-new to me!

Also, most of these subjects (all the Day 2 subjects) we studied in the first year of law school, which was three years ago for me, but is even longer for some students. In other words, I’m trying to remember things I shoved into my brain to pass my first year, when law school was more about surviving that locking away the nuances of the rule against perpetuities for, well, perpetuity.

4. How do you study for this thing?

Most students take a class, either in the classroom or online. We have to pay for these classes, too, which are not at all cheap. My course is online, and usually consists of one lesson per day, Monday through Friday. The lessons are usually a review of a certain subject, where the professor attempts to squeeze one semester or one year of a course into a 4-12 hour lecture. You take notes, answer questions, and take a number of quizzes after each lesson. There are also skills lessons, to help you master strategies for handling different parts of the exam. Then in your “free time”, you write out rules, make note cards, write essays, and take more quizzes.

I’m also working while doing this, which is definitely not ideal. (Repeat: for anyone in law school now or planning on it, try to design your life around not working May through July of your bar summer.) I’m trying to cut back how much I work, but money doesn’t grow on trees, you know?

So between working, studying, church, family, and attempting to remember to take a shower every once in a while, my brain is practically mush. If you know someone who’s suddenly disappeared from the world, but when they do appear they laugh at things that aren’t’ funny, and get annoyed at things that aren’t annoying, they are probably studying for the bar exam. And you should roll with it.

Bar preppers are simple people - they don't require a lot to get excited. Just a stroll down the street for some jelly beans will do the trick.

Bar preppers are simple people – they don’t require a lot to get excited. Just a stroll down the street for some jelly beans will do the trick.

5. Well that sounds tough. How do you pass this exam?

It sounds ridiculous but, in my state, I only need 264 points out of a possible 400 to pass (that’s only about 66%). Half of that score comes from the multiple choice questions, half from the essays. Although that sounds like a D+ to most of you, it’s actually relatively difficult. Only 77% of the testers last July passed the Connecticut Bar exam, but 88% of the testers from my alma mater passed. I’m hopeful (and just about anyone who passes says this) that if I put the time in, I will be in that 88% percent. I’m tentatively certain I will never do this again.

So there you have it – more than you ever wanted or needed to know about bar exam prep. And for me fellow “preppers” (no, not this kind) out there – we will get through this! And hopefully, like they say about the pains of childbirth, it will all be worth it someday.

debarbibee

How To Be a Good Client To Your Attorney

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My sister, Judith, and I celebrating my new hood.

In this window between the already an not yet (having graduated law school, though not yet holding my law license), I find myself in the unique position of being trained enough to offer advise on this subject, though not yet responsible for my own clients, so as to not be accused of talking smack about anyone (a practice frowned upon by the classiest lawyers).

Those outside the profession are often surprised to hear that most lawyers agree that all their best cases are ruined by the clients – whether it’s being unreasonable, hiding information, or never getting off our case. But you, wise reader, do not have to fall into this stereotype. As a team, a good lawyer and great client can really get the job done. And if everyone practiced these few, simple habits in litigation, I promise that the judicial system would turn upside-down in the best way possible.

1. Get an attorney.

This might sound like a no-brainer, but an increasing number of people think they can do this law thing on their own these days. I, along with anyone else who has spent three years studying the subject, will tell you that the law is complicated. Not just a little bit –  a lot a bit. We are the professionals, we know what we’re doing. When people go pro se (represent themselves), it throws a wrench in the whole process, slowing it down, limiting options, and putting the judge in the ethically dicey situation of having to offer advise to a litigant while trying to maintain their duty of impartiality. If money is the problem, look for a local legal aid office or legal clinic. But please, for both your sake and the sake of the integrity of the justice system, hire an attorney you trust.

2. Shop around for that attorney.

You shop around for your doctor, your educators, and your financial advisers, so why not shop around for an attorney? Whether through personal recommendations, knowledge, or internet research, you should find out who has experience in your type of case, and who has a style you are comfortable with. A lot of people don’t consult with multiple attorneys before hiring one and this could lead to a big mistake because an attorney-client relationship is usually a long-term relationship.

3. Listen to your attorney.

Your attorney has a duty to act in your best interest. A lot of people think that attorneys are just greedy scam artists, but most of us honestly are in it just to help people – and when you hire that attorney, he or she is there to help YOU. For this reason, no matter what you’ve done in the past, going forward listen to your attorney and do what he or she advises you to do. Listening and following his or her instructions will probably help you get more of what you want out of the case, and perhaps even save you money. On top of this, if your lawyer says that the law doesn’t allow you to get what you want, or that a certain fact is irrelevant (for example, an event that can’t be brought up because of the rules of evidence), then trust her. She knows that it stinks and that it seems unfair, but a lot of times that’s just the way it is and it’s not her fault.

4. Tell your attorney everything she needs to know.

Communication is a two-way street. Your attorney needs to hear from you, too: we need to know anything that could come up later. No matter what, it is so better to hear it from you, now, than hear it from the other side later. Lawyers really don’t like surprises. Make sure you keep telling your lawyer new things that come up. Law is a living, changing thing, so it’s important to keep your lawyer informed so he or she can best help you.

P.S. A lot of lawyers can tell when you are lying. So don’t do it.

5. Pay your attorney.

A law firm is not a bank. Lawyers are professionals, trained in their field, and carry a significant responsibility in this society. A lot of solo practitioners and small firms are not necessarily “rolling” in it, either. For the same reasons that you should pay builders, chefs, graphic designers, and doctors, you should always, please, pay your lawyer.

-debarbibee

Have you ever been a client? What did you think worked well or didn’t go so well in that relationship? Are you a lawyer? What items would you add/change from this list?