What an embarrassment to have the comments of the writer connected to Marquette University Law School.Tell me about it. I'm thinking the Dean should be open to affixing an asterisk to all pre-Esenberg juris doctors, denoting them as such.
Energetic Mike Gableman apologist Rick Esenberg completely avoids the dispositive question, in that if Gableman gave "valuable consideration," then what was its value? Gableman is prohibited from accepting favors without his valuable consideration in return. All Esenberg needs to do is answer this simple question. But he can't because whatever consideration there was is not able to be valued.
Elsewhere Esenberg asserts, "Gableman did not have the money" to hire counsel whose competence was commensurate with the public importance of his case. Gableman, a lifelong bachelor who has been collecting nearly $150,000 per year in Supreme Court salary* since September, 2008, has no money. The least Prof. Esenberg of MULS could do is place a value on the Florida swampland he's offering.
Then the wholly speculative peppercorn is all his.
Try telling regular folks making considerably less than $150K who do have to pay their lawyer what a sad state of penury Gableman is in.
And beginning this month the Milwaukee Journal-Sentinel expects people to pay money to read this evasive nonsense? Not bloody likely.
* Approaching half a million dollars worth of public funds gained through an unethical political campaign. How's yer Tea Party now?
Gabelman could also have paid via a payment plan, like us normal people would have had to do. Nothing says you have to pay the full amount at the bill, I am sure Michael Best would have worked something out.
ReplyDeleteAbsolutely. Then there is Jim Bopp of Indiana, who refuses to confirm the terms of his representation of Gableman. The Dems should introduce legislation authorizing some exceptions to the attorney-client privilege in order to address the disclosure of fee arrangements where judges are facing ethics charges.
ReplyDeleteWhat is it with all these lifelong bachelors in the Republican Party?And they are all anti-gay to boot. I know plenty of bachelors who aren't concerned at all about Gays. But Republican bachelors seem to get themselves worked up into quite a lather on the topic. Odd, I think.
ReplyDeleteJust like Fox News, I only ask the question, you decide.
Of course, I can answer the question. The value would be the amount of the fee that might be awarded discounted by the probablility that they might not be recovered. Putting aside any considertation of civic and professional obligation, that is the potential economic gain for the firm.
ReplyDeleteI don't say that he is in a state of penury. But, no, you can't afford MBF in this type of litigation on that salary as nice it might be. I used to be a partner in a firm like that. I know what they cost. You have no idea. In fact, I make more than a Supreme Court justice and I'm pretty sure that I couldn't afford them.
It is highly unlikely that McLeod would have done this on an installment plan - at least I wouldn't have - because of the risk that Gableman wouldn't sit on any of his clients cases until the payments were all made. That would have seriously harmed his ability to attract other clients.
As far as MBF giving him a discount, even assuming that they would discount their fees to a point that would have been affordable, I am sure that the same people would have been just as upset.
Of course, I can answer the question. The value would be the amount of the fee that might be awarded discounted by the probability that they might not be recovered.
ReplyDeleteWell, what is it?
As you know, Gableman, had he prevailed on his motion for summary judgment -- which he didn't -- "may" have been reimbursed for his expenses. Thus the likelihood that he would have been reimbursed anything at all vs. the likelihood that he would not have been reimbursed is equal: even if he had won his motion -- which he didn't.
A mathematician might disagree, but "zero" is no value at all.
Moreover yours and Mr. Dinh's comparisons to contingent fee arrangements fail for the simple reason that prospective personal injury plaintiffs are not bound by the Wisconsin Code of Judicial Ethics. So Gableman is going to have to do better than draw substantively inapt metaphors.
You have no idea.
Oh please. I didn't just roll off the turnip wagon. I have estimated multi-trade construction jobs. I have managed projects worth millions of dollars. I've cut purchase orders for hundreds of thousands of dollars. The last job I was on, for which I handled the time and material progress billing, was worth more than 25 million dollars. I know what things cost and I'll put my real world experience up against yours any day of the week.
By the way, Prof. Esenberg, every time you remind us how expensive MB&F's representation is, you're bolstering the case against Gableman, who is prohibited from accepting gifts or favors without valuable consideration. The more valuable you make MB&F's offer, the less valuable is Gableman's wholly speculative peppercorn, which was not even Gableman's peppercorn to give, but rather an imaginary requisition of public funds.
ReplyDeleteI'll try one more time with you.
ReplyDeleteAs you know, Gableman, had he prevailed on his motion for summary judgment -- which he didn't -- "may" have been reimbursed for his expenses. Thus the likelihood that he would have been reimbursed anything at all vs. the likelihood that he would not have been reimbursed is equal: even if he had won his motion -- which he didn't.
A mathematician might disagree, but "zero" is no value at all.
Well, I think a mathematician - or anyone who has understands the english language and simple proability calculations - would have to disagree. If he had "prevailed" then he would have had the ability to ask for fees.
The state, by statute, "may" award them. "May" is the same language used in sec. 1988 and is not, under most understandings of the english language, the equivalent of "may not."
You want to assume that the state just wouldn't pay fees but there is no basis for doing so. As long as there was some nontrivial prospect that it would, then there was consideration for the arrangement and it wasn't a gift.
Even conceding that it would he harder to get an award then in a garden variety civil rights case, the probability was not zero.
So the likelihood of getting obtaining fees had the client "prevailed" would not be zero (and certainly would not be the same as if he did not prevail).
"Well, what is it?"
If you want a number, I'd have to know what they had on the books. But given the fact that six of the nine judges who ruled on the case voted to dismiss the complaint, I think they would have been justified in assuming a strong probability of success.
Oh please. I didn't just roll off the turnip wagon.
If you think someone could afford MBF in a case like that on a justice's salary then, I'm sorry, you have no idea what the costs might have been.
Of course the value of the services was high but that doesn't distinguish other forms of contingency arrangements. Lots of very expensive lawyers enter into these. In a recent fee application filed by my organization, we requested $ 400/hr for my time which is certainly at market. What do you think Bill Cannon could command on an hourly basis?
prospective personal injury plaintiffs are not bound by the Wisconsin Code of Judicial Ethics.
Well, they are if they are judges. Is it your view that a judge who is injured in a car wreck or has a civil rights claim can't hire counsel on a contingency fee basis without getting a gift?
If so, then there are other judges who should lawyer up.
In any event, your remark begs the question of whether a lawyer who enters into some form of contingency arrangement has received consideration for his commitment to provide services. Were you to argue on a contracts exam that he has not, you would get no points.
Again, recusal is another matter and I didn't have space to fully address that. My comments are revised and extended on my blog.
With his meager salary, why didn't Gobbleman plead poverty and receive court-appointed representation?
ReplyDeleteEven conceding that it would be harder to get an award then in a garden variety civil rights case, the probability was not zero.
ReplyDeleteThat isn't what I said. I said the probabilities of obtaining zero and obtaining non-zero were equal. If the responsible officials only "may" reimburse costs, then it stands to reason that they may not reimburse costs.
I don't understand why you put "prevailed" in scare quotes. The burden was Gableman's because the panel convened on Gableman's motion. While it's true that the panel voted to dismiss the complaint, all three found Gableman had violated the Code of Judicial Conduct.
Albeit, a majority of the panel found Gableman had violated a provision for which he could not be disciplined. However the reimbursement provision doesn't distinguish between expenses incurred defending against disciplinable and non-disciplinable violations.
Thus if you want to provide as part of your calculus the cumulative findings of all nine judges who heard the case, then you must also acknowledge that six of the nine determined that Gableman violated the Code. And only four of the nine found that Gableman's notorious statements were protected by the First Amendment.
So the findings of a majority of the judges were hardly a mitigating factor in terms of any determination that Gableman "may" have been reimbursed for his expenses. Not only did Gableman not win his motion, but five of the nine found Gableman in violation of the Code.
That's enough to deny Gableman his purported "valuable consideration" right there. I know it would have been more than enough for me to deny it.
"[F]ive of the nine found Gableman in violation of the Code."
ReplyDeleteSix, that is (I'm clearly no mathematician either).
This is what I said at Shark/Shepherd in a related post in response to this statement--“State law permits the payment of fees to judges who prevail in ethics cases.”
ReplyDeleteJust because the law provides this opportunity, a judge is obligated to carefully weigh the inherent problems associated with making contingency fee arrangements with lawyers with whom they have close ties philosophically and politically. Yes, a judge certainly desires a law firm with a strong reputation to defend them on ethics charges, but that is why he/she, in their position, take extra precautions to prevent any hints of impropriety. Having another law firm--one that is not explicitly tied to the ongoing narrative--handle his business would have been done wonders.
This situation is EXACTLY why the common folks do not trust our legal system regarding the controversy whether or not Gableman benefitted in some way from this situation, and I would say the same thing if the tables were reversed and a liberal justice was in his shoes.
You mean like the First Amendment purportedly permits an unethical judge to lie about and defame an honorable justice in spite of the codes of professional and judicial conduct, yeah.
ReplyDelete